SYY 8-K
Sysco Corp (SYY)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
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(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 (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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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 Act:
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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. ☐
SECTION 1 – registrant’s business and operations
| Item 1.01 | Entry into a Material Definitive Agreement. |
On February 11, 2020, with respect to the offering and sale of $500,000,000 aggregate principal amount of its 2.400% Senior Notes due 2030 (the “2030 Notes”) and $500,000,000 aggregate principal amount of its 3.300% Senior Notes due 2050 (the “2050 Notes” and, together with the 2030 Notes, the “Notes”), Sysco Corporation (“Sysco”) entered into an Underwriting Agreement (the “Underwriting Agreement”), with BofA Securities, Inc., Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC, TD Securities (USA) LLC and Wells Fargo Securities, LLC as representatives of the several underwriters listed in Schedule II thereto (the “Underwriters”).
Sysco intends to allocate the net proceeds of the sale of the 2030 Notes to one or more financings or refinancings in whole or in part of new or existing Eligible Projects (as defined below), with refinancings limited to investments made in the three years prior to the issuance of the 2030 Notes. Pending the allocation of the net proceeds from the sale of the 2030 Notes to Eligible Projects, Sysco intends to temporarily invest such amounts in accordance with its cash management policies or use such amounts to repay certain of its indebtedness, or both.
“Eligible Projects” are investments and expenditures made by Sysco or any of its subsidiaries in new projects, and projects that have received funding in the three years prior to the issuance of the notes, which projects meet one or more of the following categories of eligible criteria:
| • | Renewable Energy: Expenditures related to the development, construction, and acquisition of renewable energy projects as well as sourcing electricity for our operations with renewable energy, such as solar and wind energy. Sourcing expenditures must be pursuant to long-term power purchase agreements which were entered into prior to commercial operation of the related facility. |
| • | Energy Efficiency: Expenditures related to the development of energy efficiency projects in new or existing corporate and supply chain facilities. Includes installing technologies such as LED lighting and increasing refrigeration efficiency systems. |
| • | Clean Transportation: Expenditures related to reducing emissions in our truck fleet. Includes pursuing electrification of our truck fleet, installation of electric charging infrastructure within our facilities, and using new technology to identify the most economically and environmentally efficient route to transport shipments, and developing and testing new technologies such as zero-emissions trailer technologies. |
| • | Waste Reduction: Expenditures related to reducing/preventing waste. Includes reducing waste to landfill, and capital expenditures related to expanding recycling programs. |
| • | Sustainable Water and Wastewater Management: Expenditures related to water-saving opportunities. Includes recycling water from our vehicle washing stations, using rainwater for landscaping, and installing technology that can capture and recycle condensation from cooling processes in refrigeration. |
| • | Environmentally Sustainable Management of Living Natural Resources and Land Use/Food Security: Expenditures related to implementing practices to protect sensitive areas, improve air, water, soil and wildlife resources, and conserve nonrenewable mineral resources. Includes procurement of products which are certified organic or through the Sysco Integrated Pest Management program. |
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| • | Aquatic Biodiversity Conservation/Food Security: Expenditures related to supporting transformational change in the management of global fisheries and promoting responsible aquaculture. Includes procuring seafood products from fisheries certified by the Marine Stewardship Council (“MSC”), farms certified by the Aquaculture Stewardship Council (“ASC”), and/or certified against a minimum two-star rating on the Best Aquaculture Practices standards as defined by the Global Aquaculture Alliance, enhancing capabilities to trace seafood products, working with fisheries to improve their environmental performance and achieve MSC or ASC certification, implementation and support of Fishery Improvement Projects. |
| • | Socioeconomic Advancement and Empowerment: Expenditures related to increasing spending with qualified minority- and women-owned business suppliers in line with certain eligibility criteria. Includes spending to support eligible businesses to meet our supplier requirements and monitoring performance of suppliers to ensure fair treatment of workers who grow, harvest and process products in our global supply chain. |
Sysco intends to use the net proceeds from the offering of the 2050 Notes to repay outstanding borrowings under its commercial paper program and for general corporate purposes.
The Notes are being offered and sold under a Registration Statement on Form S-3 (Registration No. 333-227056) and are described in a Prospectus Supplement dated February 11, 2020. The Notes initially are fully and unconditionally guaranteed by Sysco’s direct and indirect wholly-owned subsidiaries that guarantee Sysco’s other senior notes issued under the indenture governing the Notes or any of Sysco’s other indebtedness. Interest on the 2030 Notes will be paid semi-annually on February 15 and August 15, beginning August 15, 2020. Interest on the 2050 Notes will be paid semi-annually on February 15 and August 15, beginning August 15, 2020. The terms of the 2030 Notes are more fully described in the Thirty-Fourth Supplemental Indenture, and the terms of the 2050 Notes are more fully described in the Thirty-Fifth Supplemental Indenture, each dated as of February 13, 2020 (collectively, the “Supplemental Indentures”), among Sysco, as Issuer, the Guarantors named therein and U.S. Bank National Association (the “Trustee”), as trustee solely with respect to the Notes and any other series of Securities (as defined in the Base Indenture (as defined below)) issued thereunder, for which the Trustee may be designated from time to time as trustee, in lieu of The Bank of New York Mellon Trust Company, N.A. (“Bank of New York Mellon”). The Supplemental Indentures were entered into in accordance with the provisions of the Indenture, dated as of June 15, 1995 (the “Base Indenture”), between Sysco and Bank of New York Mellon, as amended and supplemented by the Thirteenth Supplemental Indenture, dated as of February 17, 2012, among Sysco, the Guarantors named therein and Bank of New York Mellon.
At Sysco’s option, any or all of the Notes may be redeemed, in whole or in part, at any time prior to maturity. If Sysco elects to redeem the Notes before the date that is three months prior to the maturity date, Sysco will pay an amount equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed or (ii) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed that would be due if the Notes matured on the date described above. If Sysco elects to redeem a series of Notes on or after the applicable date described in the preceding sentence, Sysco will pay an amount equal to 100% of the principal amount of the Notes to be redeemed. In both cases, Sysco will pay accrued and unpaid interest on the Notes redeemed to the redemption date.
The Underwriting Agreement contains customary representations, warranties and agreements of Sysco, and customary conditions to closing, indemnification rights and termination provision.
The foregoing descriptions of the Underwriting Agreement, the Supplemental Indentures and the terms of the Notes do not purport to be complete and are qualified in their entirety by reference to the full text of the Underwriting Agreement, the Supplemental Indentures and the forms of the Notes, which are filed as exhibits to this Current Report on Form 8-K.
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The Underwriters and their respective affiliates are full service financial institutions engaged in various activities, which may include sales and trading, commercial and investment banking, advisory and investment management, investment research, principal investment, hedging, market making, brokerage and other financial and non-financial activities and services. Affiliates of certain of the Underwriters are lenders under Sysco’s credit facility. In addition, affiliates of certain of the Underwriters are dealers under Sysco’s commercial paper program and may hold commercial paper notes thereunder. The Underwriters and their respective affiliates have provided, and may in the future provide, a variety of these services to Sysco and its affiliates, for which they received or will receive customary fees and expenses. Additionally, U.S. Bank National Association, an affiliate of one of the underwriters, is trustee for the Notes.
SECTION 2 – FINANCIAL INFORMATION
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information included in Item 1.01 of this report is incorporated herein by reference.
SECTION 8 – OTHER EVENTS
| Item 8.01 | Other Events. |
A copy of the press release issued by Sysco on February 13, 2020, is attached as Exhibit 99.1 hereto.
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Section 9 – FINANCIAL STATEMENTS AND EXHIBITS
| Item 9.01 | Financial Statements and Exhibits. |
(a) Financial Statements of Businesses Acquired.
Not applicable.
(b) Pro Forma Financial Information.
Not applicable.
(c) Shell Company Transactions.
Not applicable.
(d) Exhibits.
| Exhibit |
Description | |||
| 1.1 |
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| 4.1 |
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| 4.2 |
Form of 2.400% Senior Note due 2030 (included as Annex A to Exhibit 4.1 above). | |||
| 4.3 |
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Form of 3.300% Senior Note due 2050 (included as Annex A to Exhibit 4.3 above). | |||
| 5.1 |
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| 23.1 |
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| 99.1 |
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| 104 |
Cover Page Interactive Data File (embedded within the Inline XBRL document). | |||
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, Sysco Corporation has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Sysco Corporation | ||||||
| Date: February 13, 2020 |
By: |
/s/ Eve M. McFadden | ||||
| Eve M. McFadden | ||||||
| Vice President, Legal, General Counsel and Corporate Secretary | ||||||
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Exhibit 1.1
Execution Version
Sysco Corporation
and
The Guarantors Listed on Schedule I
Debt Securities
Underwriting Agreement
February 11, 2020
BofA Securities, Inc.
Goldman Sachs & Co. LLC
J.P. Morgan Securities LLC
TD Securities (USA) LLC
Wells Fargo Securities, LLC
As representatives of the several Underwriters
named in Schedule II hereto,
c/o BofA Securities, Inc.
One Bryant Park
New York, New York 10036
c/o Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282-2198
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o TD Securities (USA) LLC
31 West 52nd Street, 2nd Floor
New York, New York 10019
c/o Wells Fargo Securities, LLC
550 South Tryon Street 5th Floor
Charlotte, North Carolina 28202
Ladies and Gentlemen:
Sysco Corporation, a Delaware corporation (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule II(a) hereto (the “Syndicate A Underwriters”) an aggregate of $500,000,000 principal amount of the 2.400% Senior Notes of the Company due 2030 (the “2030 Notes”).
The Company proposes, subject to the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule II(b) hereto (the “Syndicate B Underwriters” and, together with the Syndicate A Underwriters, the “Underwriters”) an aggregate of $500,000,000 principal amount of the 3.300% Senior Notes of the Company due 2050 (the “2050 Notes” and, together with the 2030 Notes, the “Notes”).
Each series of the Notes will be fully and unconditionally guaranteed as to payment of principal of, premium, if any, and interest on and all other amounts payable under the Notes (the “Guarantees” and together with the Notes, the “Securities”) by certain subsidiaries of the Company listed in Schedule I hereto (the “Guarantors”).
1. Each of the Company and the Guarantors represents and warrants to, and agrees with, each of the Underwriters that:
(a) An “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Act”), on Form S-3 (File No. 333-227056) in respect of the Securities has been filed by the Company with the Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the date hereof; such registration statement, and any post-effective amendment thereto, became effective on filing; and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated or threatened by the Commission, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company or any Guarantor (the base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the “Basic Prospectus”; any preliminary prospectus (including any preliminary prospectus supplement) relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act is hereinafter called a “Preliminary Prospectus”; the various parts of such registration statement, including all exhibits thereto but excluding Form T-1 and including any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B under the Act to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the “Registration Statement”; the Basic Prospectus, as amended and supplemented immediately prior to the Applicable Time (as defined in Section 1(c) hereof), is hereinafter called the “Pricing Prospectus”; the form of the final prospectus relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof is hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such prospectus; any reference to any amendment or supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement, any prospectus supplement relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act and any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated therein, in each case after the
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date of the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Securities is hereinafter called an “Issuer Free Writing Prospectus”);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through BofA Securities, Inc., Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC, TD Securities (USA) LLC and Wells Fargo Securities, LLC (together, the “Representatives”) expressly for use therein;
(c) For the purposes of this Agreement, the “Applicable Time” is 3:15 p.m. (Eastern time) on the date of this Agreement; the Pricing Prospectus as supplemented by the final term sheet prepared and filed pursuant to Section 5(a) hereof, taken together (collectively, the “Pricing Disclosure Package”) as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule III(a) hereto (a “Non-Prospectus Roadshow”) does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each Non-Prospectus Roadshow, as supplemented by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements or omissions made in an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein;
(d) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents
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become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein; and no such documents were filed with the Commission since the Commission’s close of business on the business day immediately prior to the date of this Agreement and prior to the execution of this Agreement, except as set forth on Schedule III(b) hereto;
(e) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein;
(f) None of the Company, the Guarantors or any of their subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or has entered into any transaction or agreement that is material to the Company and its subsidiaries, taken as a whole, or incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Pricing Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there has not been any change in excess of 5% in the capital stock or long term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus;
(g) The Company and its subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except (i) such as are described in the Pricing Prospectus or (ii) such as do not and will not, individually or in the aggregate, have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries and do not interfere with the use made and proposed to be made of such
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property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as do not and will not, individually or in the aggregate, have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries and do not and will not interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries;
(h) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Pricing Prospectus and to execute and deliver this Agreement and perform its obligations hereunder, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified or in good standing in any such jurisdiction would not, individually or in the aggregate, have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries;
(i) Each subsidiary of the Company, including each Guarantor, has been duly organized and is validly existing as a corporation, unlimited limited liability company, limited liability company or limited partnership in good standing under the laws of its jurisdiction of formation and has been duly qualified as a foreign corporation, unlimited limited liability company, limited liability company or limited partnership for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified or in good standing in any such jurisdiction would not, individually or in the aggregate, have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries;
(j) The Company has an authorized capitalization as set forth in the Pricing Prospectus and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; and all of the issued shares of capital stock or other equity interests of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(k) The Notes have been duly authorized and, when issued and delivered pursuant to this Agreement, will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture dated as of June 15, 1995 (the “Original Indenture”) between the Company and First Union National Bank as trustee, with The Bank of New York Mellon Trust Company, N.A. as successor trustee, as supplemented by the thirteenth supplemental indenture thereto dated as of February 17, 2012 (the “Thirteenth Supplemental Indenture”) among the Company, the guarantors named therein
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and The Bank of New York Mellon Trust Company, N.A., the Thirty-Fourth Supplemental Indenture thereto to be dated February 13, 2020 (the “Thirty-Fourth Supplemental Indenture”), and the Thirty-Fifth Supplemental Indenture thereto to be dated February 13, 2020 (the “Thirty-Fifth Supplemental Indenture” and, together with the Original Indenture, the Thirteenth Supplemental Indenture and the Thirty-Fourth Supplemental Indenture, the “Indenture”) among the Company, the Guarantors and U.S. Bank National Association, as trustee solely with respect to the Notes and any other series of Securities (as defined in the Original Indenture) issued thereunder for which U.S. Bank National Association may be designated from time to time as trustee, in lieu of The Bank of New York Mellon Trust Company, N.A. (the “Trustee”), under which the Securities are to be issued, each of which are or will be, as applicable, substantially in the form filed as an exhibit to the Registration Statement; the Guarantees have been duly authorized and, when the Notes have been issued and delivered pursuant to this Agreement, will constitute valid and legally binding obligations of each Guarantor entitled to the benefits provided by the Indenture, under which the Guarantees are to be issued; the Indenture has been duly authorized and duly qualified under the Trust Indenture Act and, at the Time of Delivery, will constitute a valid and legally binding instrument, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and the Securities and the Indenture will conform to the descriptions thereof in the Pricing Disclosure Package and the Prospectus;
(l) None of the Company’s or any Guarantor’s transactions contemplated by this Agreement (including, without limitation, the use of the proceeds from the sale of the Securities) will violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve System;
(m) Prior to the date hereof, neither the Company nor any of its affiliates has taken any action which is designed to or which has constituted or which might have been expected to cause or result in stabilization or manipulation of the price of any security of the Company in connection with the offering of the Securities;
(n) The issue and sale of the Securities and the compliance by the Company and the Guarantors with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws or similar governing documents of the Company or any of its subsidiaries or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their respective properties; and no
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consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Notes, the making of the Guarantees or the consummation by the Company and the Guarantors of the transactions contemplated by this Agreement or the Indenture except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters;
(o) The statements set forth in the Pricing Prospectus under (i) the captions “Description of Debt Securities and Guarantees” and “Description of Notes,” insofar as they purport to constitute a summary of the terms of the Securities and (ii) under the captions “Plan of Distribution” and “Underwriting,” insofar as they purport to describe or summarize proceedings or the provisions of the laws and documents referred to therein, are accurate, complete and fair;
(p) Neither the Company nor any of its subsidiaries is (i) in violation of its Certificate of Incorporation, By-laws or similar governing documents, (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the performance or observance of any obligation, agreement, term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such defaults or violations that would not, individually or in the aggregate, have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries;
(q) Other than as set forth in the Pricing Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which are reasonably likely to individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries; and, to the best of the Company’s and the Guarantors’ knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(r) Neither the Company nor any of its subsidiaries is, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Pricing Prospectus, none of them will be, an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(s) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time the Company, any Guarantor or any person acting on their behalf
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(within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Act, the Company was a “well-known seasoned issuer” as defined in Rule 405 under the Act; and (B) at the earliest time after the filing of the Registration Statement that the Company, any Guarantor or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities, neither the Company nor any of the Guarantors was an “ineligible issuer” as defined in Rule 405 under the Act;
(t) Ernst & Young LLP, who have certified certain financial statements of the Company and its subsidiaries, and have audited the Company’s internal control over financial reporting, are independent registered public accountants as required by the Act and the rules and regulations of the Commission thereunder;
(u) The historical financial statements included or incorporated by reference in the Prospectus present fairly, in all material respects, the financial position of the Company and its subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods covered thereby, except as indicated in the notes thereto; and the other financial information included or incorporated by reference in the Prospectus has been derived from the accounting records of the Company and its subsidiaries and presents fairly, in all material respects, the information shown thereby;
(v) The Company maintains a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the Exchange Act and has been designed by the Company’s principal executive officer and principal financial officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(w) Based on the evaluation of management conducted as of June 29, 2019, the Company’s internal control over financial reporting is effective, and the Company has disclosed, based on its most recent evaluation of internal control over financial reporting, to the Underwriters all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information, if any, and any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting;
(x) Since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus, there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting;
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(y) The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to provide reasonable assurance that material information relating to the Company and its subsidiaries is made known to the Company’s principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective;
(z) The Company and its subsidiaries possess all licenses, franchises, certificates, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory agencies or bodies (“Permits”) that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Pricing Prospectus, except where the failure to possess or make the same would not, individually or in the aggregate, have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries. Except as described in the Pricing Prospectus, the Company and its subsidiaries have fulfilled and performed all their obligations with respect to such Permits, and no event has occurred that allows, or after notice or lapse of time, or both, would allow, revocation or termination thereof or result in any other impairment of the rights of the holder of any such Permit, except for any such failures to fulfill and perform or such revocations, terminations or impairments that would not, individually or in the aggregate, have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries. Except as described in the Pricing Prospectus, neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any such Permit or has any reason to believe that any such Permit will not be renewed in the ordinary course, except for any such revocations, modifications or nonrenewals as would not, individually or in the aggregate, have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries;
(aa) No labor disturbance by or dispute with employees of the Company or any of its subsidiaries exists or, to the best knowledge of the Company and the Guarantors, is contemplated or threatened, except for any such disturbances or disputes as would not, individually or in the aggregate, have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries;
(bb) Each of the Company and its subsidiaries has filed all federal, state, local and foreign tax returns required to be filed through the date hereof or has obtained extensions thereof, and has paid all taxes shown on such returns and all assessments received by it to the extent that the same have become due or is contesting such taxes in good faith by appropriate proceedings;
(cc) The Company and its subsidiaries are in compliance in all material respects with all presently applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations
9
thereunder (“ERISA”). To the extent applicable, no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the Company or any of its subsidiaries would have any liability. Neither the Company nor any of its subsidiaries has incurred or expects to incur any material liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended, including the regulations and published interpretations thereunder (collectively, the “Code”); and each “pension plan” for which the Company or any of its subsidiaries would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification;
(dd) There has been no storage, disposal, generation, manufacture, refinement, transportation, handling or treatment of solid wastes, hazardous wastes or hazardous substances by the Company or any of its subsidiaries (or, to the knowledge of any of them, any of their predecessors in interest) at, upon or from any of the property now or previously owned or leased by any of them in violation of any applicable law, ordinance, rule, regulation, order, judgment, decree or permit or which would require remedial actions under any applicable law, ordinance, rule, regulation, order, judgment, decree or permit, except for any such violations or remedial actions as would not, individually or in the aggregate, have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries; there has been no spill, discharge, leak, emission, injection, escape, dumping or release of any kind onto any such property or into the environment surrounding any such property of any solid wastes, hazardous wastes or hazardous substances due to or caused by the Company or any of its subsidiaries or with respect to which any of them has knowledge, except for any such spills, discharges, leakages, emissions, injections, escapes, dumpings or releases as would not, individually or in the aggregate, have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries; as used in this Section 1(dd), the terms “solid wastes,” “hazardous wastes” and “hazardous substances” shall have the meanings specified in any applicable local, state, federal and foreign laws or regulations with respect to human health and safety, pollution or environmental protection;
(ee) The Company and its subsidiaries own or possess adequate rights to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) that are material to the Company and its subsidiaries taken as a whole necessary for the conduct of their respective businesses; and the conduct of their respective businesses will not conflict in any material respect with any such rights of others, and the Company and its subsidiaries have not received any notice of any claim of infringement of or conflict with any such rights of others, except for any such claims as would not, individually or in the aggregate, have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries;
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(ff) The Company and its subsidiaries have insurance covering their respective properties, operations, personnel and businesses, including business interruption, which insurance is in amounts and insures against such losses and risks as are adequate to protect the Company and its subsidiaries and their respective businesses; and neither the Company nor any of its subsidiaries has (i) received notice from any insurer or agent of such insurer that capital improvements are required or necessary to be made in order to continue such insurance or (ii) any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage at reasonable cost from similar insurers as may be necessary to continue its business as currently conducted;
(gg) None of the Company, any of its subsidiaries nor, to the knowledge of the Company or its subsidiaries, any director, officer, agent, employee, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; (iv) violated or is in violation of any provision of the Bribery Act 2010 of the United Kingdom; (v) violated or is in violation of any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions; or (vi) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; and the Company and its subsidiaries have instituted policies and procedures designed to ensure compliance with applicable anti-bribery and anti-corruption laws;
(hh) The operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970 and applicable money laundering statutes (collectively, the “Money Laundering Laws”) and no action, suit or proceeding involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or threatened;
(ii) None of the Company, any of its subsidiaries or, to the knowledge of the Company or its subsidiaries, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is currently the subject or the target of any sanctions administered or enforced by the U.S. Government, including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury, or by the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority with jurisdiction over the Company or its subsidiaries (collectively, “Sanctions”), and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund any activities of or business with any person that, at the time of such funding, is the subject of Sanctions, or in any country or territory that, at the time of such funding, is subject to a general export, import, financial or investment embargo under Sanctions, or (ii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of
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Sanctions. This Section 1(ii) applies only if and to the extent that it does not result in a violation of Council Regulation (EC) No. 2271/96 of 22 November 1996 or any other applicable anti-boycott or similar laws or regulations; and
(jj) The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are reasonably believed by the Company to be adequate for, and operate and perform as required in connection with, the operation of the business of the Company and its subsidiaries as currently conducted. The Company and its subsidiaries have implemented, and continue to monitor and develop, controls, policies, procedures, and safeguards that are reasonably believed by the Company to be adequate to prevent, detect, and address the risk of unauthorized use, misuse, intrusion and similar events involving the IT Systems. To the knowledge of the Company, there have been no breaches or unauthorized uses of or accesses to the IT Systems, and no such incidents are under internal investigation that, individually or in the aggregate, have, or would be reasonably likely to have, a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries.
2.
(a) Subject to the terms and conditions herein set forth, the Company agrees to issue and sell to each of the Syndicate A Underwriters, and each of the Syndicate A Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price of 99.197% of the principal amount thereof, plus accrued interest, if any, from February 13, 2020 to the Time of Delivery (as defined below) hereunder, the principal amount of 2030 Notes set forth opposite the name of such Underwriter in Schedule II(a) hereto.
(b) Subject to the terms and conditions herein set forth, the Company agrees to issue and sell to each of the Syndicate B Underwriters, and each of the Syndicate B Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price of 99.061% of the principal amount thereof, plus accrued interest, if any, from February 13, 2020 to the Time of Delivery hereunder, the principal amount of 2050 Notes set forth opposite the name of such Underwriter in Schedule II(b) hereto.
3. Upon the authorization by the Representatives of the release of the Securities, the several Underwriters propose to offer the Securities for sale upon the terms and conditions set forth in the Pricing Disclosure Package and the Prospectus.
4.
(a) The Notes to be purchased by each Underwriter hereunder will be represented by one or more definitive global securities (which will include the related Guarantees) in book-entry form which will be deposited by or on behalf of the Company with The Depository Trust Company (“DTC”) or its designated custodian. The Company will deliver the 2030 Notes and related Guarantees to BofA Securities, Inc., for the account of each Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the account specified by the Company to BofA Securities, Inc. at least forty-eight
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hours in advance of the Time of Delivery (as defined below), by causing DTC to credit the 2030 Notes and related Guarantees to the account of BofA Securities, Inc. at DTC. The Company will cause the certificates representing the 2030 Notes and related Guarantees to be made available to BofA Securities, Inc. for checking at least twenty-four hours prior to the Time of Delivery (as defined below) at the office of DTC or its designated custodian (the “Designated Office”). The Company will deliver the 2050 Notes and related Guarantees to Goldman Sachs & Co. LLC, for the account of each Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the account specified by the Company to Goldman Sachs & Co. LLC at least forty-eight hours in advance of the Time of Delivery (as defined below), by causing DTC to credit the 2050 Notes and related Guarantees to the account of Goldman Sachs & Co. LLC at DTC. The Company will cause the certificates representing the 2050 Notes and related Guarantees to be made available to Goldman Sachs & Co. LLC for checking at least twenty-four hours prior to the Time of Delivery (as defined below) at DTC’s Designated Office. The time and date of such deliveries and payments shall be 9:30 a.m., New York City time, on February 13, 2020 or such other time and date as the Representatives and the Company may agree upon in writing. Such time and date are herein called the “Time of Delivery”.
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any additional documents reasonably requested by the Underwriters pursuant to Section 8(i) hereof, will be delivered at the offices of Baker Botts L.L.P., 910 Louisiana Street, Houston, Texas 77002 (the “Closing Location”), and the Securities will be delivered at the Designated Office, all at the Time of Delivery. A meeting will be held at the Closing Location at 4:00 p.m., Houston time, on the New York Business Day next preceding the Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the purposes of this Section 4, “New York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York City are generally authorized or obligated by law or executive order to close.
5. The Company and the Guarantors agree with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the date of this Agreement; to make no further amendment or any supplement to the Registration Statement, the Basic Prospectus or the Prospectus prior to the Time of Delivery which shall be disapproved by the Representatives promptly after reasonable notice thereof; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish the Representatives with copies thereof; to prepare a final term sheet, containing solely a description of the Securities, in a form approved by the Representatives and to file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule; to file promptly all other material required to be filed by the Company or any of the Guarantors with the Commission pursuant to Rule 433(d) under the Act; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company or any of the Guarantors with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
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Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or sale of the Securities; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of the Securities, of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order; and in the event of any such issuance of a notice of objection, promptly to take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be necessary to permit offers and sales of the Securities by the Underwriters (references herein to the Registration Statement shall include any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by the Representatives and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement to such form of prospectus which shall be disapproved by the Representatives promptly after reasonable notice thereof;
(c) If by the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Securities remain unsold by the Underwriters, the Company and the Guarantors will, upon reasonable written request from the Underwriters, promptly file, if they have not already done so and are eligible to do so, a new automatic shelf registration statement relating to the Securities, in a form satisfactory to the Representatives. If at the Renewal Deadline the Company and the Guarantors are no longer eligible to file an automatic shelf registration statement, the Company and the Guarantors will, upon reasonable written request from the Underwriters, promptly file, if they have not already done so, a new shelf registration statement relating to the Securities, in a form satisfactory to the Representatives and will use their best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company and the Guarantors will take all other action necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated in the expired registration statement relating to the Securities. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be;
(d) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Securities, provided that in connection therewith none of the Company or the Guarantors shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
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(e) Prior to 10:00 a.m., New York City time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Prospectus in New York City in such quantities as the Representatives may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Securities and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act or the Trust Indenture Act, to notify the Representatives and upon its request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the Representatives may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance; and in case any Underwriter is required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the Securities at any time nine months or more after the time of issue of the Prospectus, upon the request of the Representatives but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as the Representatives may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(f) To furnish to counsel for the Underwriters, without charge, a signed copy of the Registration Statement and six conformed copies (including exhibits thereto) and, for delivery to each other Underwriter, a conformed copy of the Registration Statement (without exhibits thereto), in each case prior to the Time of Delivery under the Agreement;
(g) To make generally available to its securityholders as soon as practicable, but in any event not later than sixteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earning statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(h) During the period beginning from the date hereof and continuing to and including the later of the Time of Delivery and such earlier time as the Representatives may notify the Company, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any debt securities issued or guaranteed by the Company or any Guarantor which mature more than one year after the Time of Delivery and that are substantially similar to the Notes or the Guarantees, without the prior written consent of the Representatives;
(i) To pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act; and
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(j) To use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Pricing Disclosure Package and the Prospectus under the caption “Use of Proceeds.”
6.
(a) (i) The Company and the Guarantors represent and agree that, other than the final term sheet prepared and filed pursuant to Section 5(a) hereof and the Non-Prospectus Roadshow, without the prior consent of the Representatives, they have not made and will not make any offer relating to the Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Act;
(ii) each Underwriter represents and agrees that, without the prior consent of the Company and the Representatives, other than the final term sheet prepared and filed pursuant to Section 5(a) hereof, it has not made and will not make any offer relating to the Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Act that is required to be filed by the Company with the Commission under Rule 433; and
(iii) the final term sheet prepared and filed pursuant to Section 5(a) hereof and the Non-Prospectus Road Show are the only Issuer Free Writing Prospectuses the use of which have been consented to by the Company and the Representatives;
(b) The Company and the Guarantors have complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending; and
(c) The Company and the Guarantors agree that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will give prompt notice thereof to the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s and the Guarantors’ counsel and accountants in connection with the registration of the Securities under the Act and all other expenses in connection with the preparation, printing, reproduction and filing of the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this Agreement, the Indenture, any Blue Sky Memorandum, closing documents (including any
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compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section 5(d) hereof, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey; (iv) any fees charged by securities rating services for rating the Securities; (v) any filing fees incident to, and the fees and disbursements of counsel for the Underwriters in connection with, any required review by the Financial Industry Regulatory Authority of the terms of the sale of the Securities; (vi) the cost of preparing the Securities; (vii) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities; and (viii) all other costs and expenses incident to the performance of the Company’s and the Guarantors’ respective obligations hereunder which are not otherwise specifically provided for in this Section. It is understood, however, that, except as provided in this Section, and Sections 9 and 12 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make.
8. The obligations of the Underwriters hereunder shall be subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Company and the Guarantors herein are, at and as of the Time of Delivery, true and correct, the condition that the Company and the Guarantors shall have performed all of their respective obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; the final term sheet contemplated by Section 5(a) hereof, and any other material required to be filed by the Company or the Guarantors pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction;
(b) Baker Botts L.L.P., counsel for the Underwriters, shall have furnished to the Representatives such opinion or opinions, dated the Time of Delivery, with respect to the incorporation of the Company, the Registration Statement, the Prospectus and such other related matters as the Representatives may reasonably request, in form and substance satisfactory to the Representatives, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Bracewell LLP, counsel for the Company and the Guarantors, shall have furnished to the Representatives their written opinion, dated the Time of Delivery, in substantially the form
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attached hereto as Annex I; and Gerald W. Clanton, Assistant Secretary, Associate General Counsel, Securities, Governance and Corporate Finance of the Company, shall have furnished to the Representatives his written opinion, dated the Time of Delivery, in substantially the form attached hereto as Annex II;
(d) On the date of the Prospectus in connection with the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at the Time of Delivery, Ernst & Young LLP shall have furnished to the Representatives a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to the Representatives, to the effect set forth in Annex III hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package and the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Disclosure Package and the Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Disclosure Package and the Prospectus there shall not have been any change in the capital stock or long term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus;
(f) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization,” as that term is defined by the Commission in Section 3(a)(62) of the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities;
(g) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by any of Federal, New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war; or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus;
18
(h) The Company shall have complied with the provisions of Section 5(e) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement; and
(i) The Company and the Guarantors shall have furnished or caused to be furnished to the Representatives at the Time of Delivery certificates of officers of the Company and the Guarantors satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company and the Guarantors herein at and as of such time, as to the performance by the Company and the Guarantors of all of their respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (e) of this Section and as to such other matters as the Representatives may reasonably request.
9.
(a) The Company and the Guarantors, jointly and severally, will indemnify and hold harmless each Underwriter, its affiliates, and its and their officers and directors and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that neither the Company nor the Guarantors shall be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use therein.
(b) Each Underwriter, severally and not jointly, will indemnify and hold harmless the Company and the Guarantors against any losses, claims, damages or liabilities to which the Company and the Guarantors may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any such amendment or
19
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and will reimburse the Company and the Guarantors for any legal or other expenses reasonably incurred by the Company and the Guarantors in connection with investigating or defending any such action or claim as such expenses are incurred. The Company hereby acknowledges that the only information furnished to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, are the statements set forth in the list of Underwriters and their respective participation in the sale of the Securities, the seventh, eighth and ninth paragraphs under the section entitled “Underwriting” in the Preliminary Prospectus and the Pricing Prospectus.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any indemnification liability which it may have to the indemnified party except to the extent the indemnifying party is materially prejudiced by such failure and shall not relieve the indemnifying party from any other liability that it may have to such indemnified party. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. However, in the event that (i) any indemnified party reasonably determines in its judgment that having common counsel would present such counsel with a conflict of interest, (ii) the indemnifying party fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to such indemnified party in a timely manner or (iii) counsel to such indemnified party determines that one or more defenses may be available to such indemnified party that are not available to the indemnifying party or another indemnified party, then such indemnified party may employ separate counsel to represent or defend it in any such action or proceeding and the indemnifying party will pay the reasonable and customary fees and disbursements of such counsel; provided, however, that the indemnifying party will not be required to pay the fees and disbursements of more than one separate counsel (in addition to local counsel) for such indemnified party in any jurisdiction in any single action or proceeding. In the absence of any of the foregoing, in any action or proceeding the defense of which the indemnifying party assumes, such indemnified party will have the right to participate in such litigation and to retain its own counsel at such indemnified party’s own expense. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such
20
action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors on the one hand and the Underwriters on the other from the offering of the Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Guarantors on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantors on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company and the Guarantors bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Guarantors on the one hand or the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, the Guarantors and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company and the Guarantors under this Section 9 shall be in addition to any liability which the Company and the Guarantors may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any
21
Underwriter within the meaning of the Act and each broker-dealer affiliate of any Underwriter; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and the Guarantors (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company) and to each person, if any, who controls the Company and the Guarantors within the meaning of the Act.
10.
(a) If any Underwriter shall default in its obligation to purchase the Securities which it has agreed to purchase hereunder, the Representatives may in their discretion arrange for any one or more of them or another party or other parties to purchase such Securities on the terms contained herein. If within thirty six hours after such default by any Underwriter the Representatives do not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of thirty six hours within which to procure another party or other parties satisfactory to the Representatives to purchase such Securities on such terms. In the event that, within the respective prescribed periods, the Representatives notify the Company that they have so arranged for the purchase of such Securities, or the Company notifies the Representatives that it has so arranged for the purchase of such Securities, the Representatives or the Company shall have the right to postpone the Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company and the Guarantors agree to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in the opinion of the Representatives may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount of such Securities which remains unpurchased does not exceed one eleventh of the aggregate principal amount of all the Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities which such Underwriter agreed to purchase hereunder and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Securities which such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount of Securities which remains unpurchased exceeds one eleventh of the aggregate principal amount of all the Securities, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any non-defaulting
22
Underwriter or the Company or the Guarantors, except for the expenses to be borne by the Company, the Guarantors and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements of the Company, the Guarantors and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company or any Guarantor, or any officer or director or controlling person of the Company or any Guarantor, and shall survive delivery of and payment for the Securities.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, neither the Company nor any Guarantor shall then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but, if for any other reason, the Securities are not delivered by or on behalf of the Company and the Guarantors as provided herein, the Company and the Guarantors will reimburse the Underwriters through the Representatives for all out of pocket expenses approved in writing by the Representatives, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Securities, but the Company and the Guarantors shall then be under no further liability to any Underwriter except as provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, the Representatives shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by the Representatives.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to the Representatives in care of (i) BofA Securities, Inc., One Bryant Park, New York, New York 10036 and (ii) Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282-2198; and if to the Company shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company or the Guarantors set forth in the Registration Statement, Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its Underwriters’ Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the Company by the Representatives upon request. Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company and the Guarantors, which information may include the name and address of their respective clients, as well as other information that will allow the underwriters to properly identify their respective clients.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and the Guarantors and, to the extent provided in Sections 9 and 11 hereof, the officers and directors of the Company and the Guarantors and each person who
23
controls the Company, any Guarantor or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein, the term “business day” shall mean any day when the Commission’s office in Washington, D.C. is open for business.
16. The Company and the Guarantors acknowledge and agree that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company and the Guarantors, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company or any Guarantor, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the Company or any Guarantor with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or any Guarantor on other matters) or any other obligation to the Company or any Guarantor except the obligations expressly set forth in this Agreement and (iv) the Company and the Guarantors have consulted their own legal and financial advisors to the extent they deemed appropriate. The Company and the Guarantors agree that they will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company or any Guarantor, in connection with such transaction or the process leading thereto.
17.
(a) In the event that any Underwriter is a Covered Entity and becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
(c) For purposes of this Section 17, a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R.
24
§§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
18. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company, the Guarantors and the Underwriters, or any of them, with respect to the subject matter hereof.
19. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
20. Each of the Company, the Guarantors and the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
21. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument.
22. Notwithstanding anything herein to the contrary, the Company and the Guarantors are authorized to disclose to any persons the U.S. federal and state income tax treatment and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses) provided to the Company and the Guarantors relating to that treatment and structure, without the Underwriters imposing any limitation of any kind. However, any information relating to the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any person to comply with securities laws. For this purpose, “tax structure” is limited to any facts that may be relevant to that treatment.
25
If the foregoing is in accordance with your understanding, please sign and return to us six counterparts hereof, and upon the acceptance hereof by the Representatives, on behalf of each of the Underwriters, this letter and such acceptance hereof shall constitute a binding agreement between each of the Underwriters, the Company and the Guarantors. It is understood that your acceptance of this letter on behalf of each of the Underwriters is pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Company for examination upon request, but without warranty on your part as to the authority of the signers thereof.
| Very truly yours, | ||||
| SYSCO CORPORATION | ||||
| By: | /s/ Adolfo Jimenez | |||
| Name: | Adolfo Jimenez | |||
| Title: | Vice President and Treasurer | |||
| SYSCO ALBANY, LLC SYSCO ATLANTA, LLC SYSCO BALTIMORE, LLC SYSCO BARABOO, LLC SYSCO BOSTON, LLC SYSCO CENTRAL ALABAMA, LLC SYSCO CENTRAL CALIFORNIA, INC. SYSCO CENTRAL FLORIDA, INC. SYSCO CENTRAL ILLINOIS, INC. SYSCO CENTRAL PENNSYLVANIA, LLC SYSCO CHARLOTTE, LLC SYSCO CHICAGO, INC. SYSCO CINCINNATI, LLC SYSCO CLEVELAND, INC. SYSCO COLUMBIA, LLC SYSCO CONNECTICUT, LLC SYSCO DETROIT, LLC SYSCO EASTERN MARYLAND, LLC SYSCO EASTERN WISCONSIN, LLC SYSCO GRAND RAPIDS, LLC SYSCO GULF COAST, LLC SYSCO HAMPTON ROADS, INC. SYSCO INDIANAPOLIS, LLC SYSCO IOWA, INC. SYSCO JACKSON, LLC SYSCO JACKSONVILLE, INC. SYSCO KANSAS CITY, INC. SYSCO KNOXVILLE, LLC | ||||
Signature Page to Underwriting Agreement
| SYSCO LINCOLN, INC. SYSCO LONG ISLAND, LLC SYSCO LOS ANGELES, INC. SYSCO LOUISVILLE, INC. SYSCO MEMPHIS, LLC SYSCO METRO NEW YORK, LLC SYSCO MINNESOTA, INC. SYSCO MONTANA, INC. SYSCO NASHVILLE, LLC SYSCO NORTH DAKOTA, INC. SYSCO NORTHERN NEW ENGLAND, INC. SYSCO PHILADELPHIA, LLC SYSCO PITTSBURGH, LLC SYSCO PORTLAND, INC. SYSCO RALEIGH, LLC SYSCO RIVERSIDE, INC. SYSCO SACRAMENTO, INC. SYSCO SAN DIEGO, INC. SYSCO SAN FRANCISCO, INC. SYSCO SEATTLE, INC. SYSCO SOUTH FLORIDA, INC. SYSCO SOUTHEAST FLORIDA, LLC SYSCO SPOKANE, INC. SYSCO ST. LOUIS, LLC SYSCO SYRACUSE, LLC SYSCO USA I, INC. SYSCO USA II, LLC SYSCO VENTURA, INC. SYSCO VIRGINIA, LLC SYSCO WEST COAST FLORIDA, INC. SYSCO WESTERN MINNESOTA, INC. | ||||
| By: | /s/ Adolfo Jimenez | |||
| Name: | Adolfo Jimenez | |||
| Title: | Treasurer | |||
Signature Page to Underwriting Agreement
| Accepted as of the date hereof: | ||||
| GOLDMAN SACHS & CO. LLC | ||||
| By: | /s/ Adam Greene | |||
| Name: | Adam Greene | |||
| Title: | Managing Director | |||
| BOFA SECURITIES, INC. | ||||
| By: | /s/ Sandeep Chawla | |||
| Name: | Sandeep Chawla | |||
| Title: | Managing Director | |||
| J.P. MORGAN SECURITIES LLC | ||||
| By: | /s/ Stephen L. Sheiner | |||
| Name: | Stephen L. Sheiner | |||
| Title: | Executive Director | |||
| TD SECURITIES (USA) LLC | ||||
| By: | /s/ Damian Engen | |||
| Name: | Damian Engen | |||
| Title: | Managing Director | |||
| WELLS FARGO SECURITIES, LLC | ||||
| By: | /s/ Carolyn Hurley | |||
| Name: | Carolyn Hurley | |||
| Title: | Director | |||
| On behalf of each of the Underwriters | ||||
Signature Page to Underwriting Agreement
SCHEDULE I
|
Exact Name of Guarantor As Specified in its Charter |
State or Other Jurisdiction of Incorporation or Organization | |
| Sysco Albany, LLC | Delaware | |
| Sysco Atlanta, LLC | Delaware | |
| Sysco Baltimore, LLC | Delaware | |
| Sysco Baraboo, LLC | Delaware | |
| Sysco Boston, LLC | Delaware | |
| Sysco Central Alabama, LLC | Delaware | |
| Sysco Central California, Inc. | California | |
| Sysco Central Florida, Inc. | Delaware | |
| Sysco Central Illinois, Inc. | Delaware | |
| Sysco Central Pennsylvania, LLC | Delaware | |
| Sysco Charlotte, LLC | Delaware | |
| Sysco Chicago, Inc. | Delaware | |
| Sysco Cincinnati, LLC | Delaware | |
| Sysco Cleveland, Inc. | Delaware | |
| Sysco Columbia, LLC | Delaware | |
| Sysco Connecticut, LLC | Delaware | |
| Sysco Detroit, LLC | Delaware | |
| Sysco Eastern Maryland, LLC | Delaware | |
| Sysco Eastern Wisconsin, LLC | Delaware | |
| Sysco Grand Rapids, LLC | Delaware | |
| Sysco Gulf Coast, LLC | Delaware | |
| Sysco Hampton Roads, Inc. | Delaware | |
| Sysco Indianapolis, LLC | Delaware | |
| Sysco Iowa, Inc. | Delaware | |
| Sysco Jackson, LLC | Delaware | |
| Sysco Jacksonville, Inc. | Delaware | |
| Sysco Kansas City, Inc. | Missouri | |
| Sysco Knoxville, LLC | Delaware | |
| Sysco Lincoln, Inc. | Nebraska | |
| Sysco Long Island, LLC | Delaware | |
| Sysco Los Angeles, Inc. | Delaware | |
| Sysco Louisville, Inc. | Delaware | |
| Sysco Memphis, LLC | Delaware | |
| Sysco Metro New York, LLC | Delaware | |
| Sysco Minnesota, Inc. | Delaware | |
| Sysco Montana, Inc. | Delaware | |
| Sysco Nashville, LLC | Delaware | |
| Sysco North Dakota, Inc. | Delaware | |
| Sysco Northern New England, Inc. | Maine | |
| Sysco Philadelphia, LLC | Delaware | |
| Sysco Pittsburgh, LLC | Delaware | |
| Sysco Portland, Inc. | Delaware | |
| Sysco Raleigh, LLC | Delaware | |
| Sysco Riverside, Inc. | Delaware | |
| Sysco Sacramento, Inc. | Delaware | |
| Sysco San Diego, Inc. | Delaware | |
| Sysco San Francisco, Inc. | California | |
| Sysco Seattle, Inc. | Delaware | |
| Sysco South Florida, Inc. | Delaware | |
| Sysco Southeast Florida, LLC | Delaware | |
| Sysco Spokane, Inc. | Delaware | |
| Sysco St. Louis, LLC | Delaware | |
| Sysco Syracuse, LLC | Delaware | |
| Sysco USA I, Inc. | Delaware | |
| Sysco USA II, LLC | Delaware | |
| Sysco Ventura, Inc. | Delaware | |
| Sysco Virginia, LLC | Delaware | |
| Sysco West Coast Florida, Inc. | Delaware | |
| Sysco Western Minnesota, Inc. | Delaware | |
2
SCHEDULE II(a)
| Principal Amount of 2030 Notes to be Purchased |
||||
| Underwriter | ||||
| BofA Securities, Inc. |
$ | 60,000,000 | ||
| Goldman Sachs & Co. LLC |
60,000,000 | |||
| J.P. Morgan Securities LLC |
60,000,000 | |||
| TD Securities (USA) LLC |
60,000,000 | |||
| Wells Fargo Securities, LLC |
60,000,000 | |||
| Deutsche Bank Securities Inc. |
30,000,000 | |||
| HSBC Securities (USA) Inc. |
30,000,000 | |||
| U.S. Bancorp Investments, Inc. |
30,000,000 | |||
| PNC Capital Markets LLC |
16,250,000 | |||
| Santander Investment Securities Inc. |
16,250,000 | |||
| Siebert Williams Shank & Co., LLC |
16,250,000 | |||
| SunTrust Robinson Humphrey, Inc. |
16,250,000 | |||
| Barclays Capital Inc. |
9,000,000 | |||
| BNP Paribas Securities Corp. |
9,000,000 | |||
| Lloyds Securities Inc. |
9,000,000 | |||
| Rabo Securities USA, Inc. |
9,000,000 | |||
| Scotia Capital (USA) Inc. |
9,000,000 | |||
|
|
|
|||
| Total |
$ | 500,000,000 | ||
|
|
|
|||
SCHEDULE II(b)
| Principal Amount of 2050 Notes to be Purchased |
||||
| Underwriter | ||||
| BofA Securities, Inc. |
$ | 60,000,000 | ||
| Goldman Sachs & Co. LLC |
60,000,000 | |||
| J.P. Morgan Securities LLC |
60,000,000 | |||
| TD Securities (USA) LLC |
60,000,000 | |||
| Wells Fargo Securities, LLC |
60,000,000 | |||
| Deutsche Bank Securities Inc. |
30,000,000 | |||
| HSBC Securities (USA) Inc. |
30,000,000 | |||
| U.S. Bancorp Investments, Inc. |
30,000,000 | |||
| PNC Capital Markets LLC |
16,250,000 | |||
| Santander Investment Securities Inc. |
16,250,000 | |||
| Siebert Williams Shank & Co., LLC |
16,250,000 | |||
| SunTrust Robinson Humphrey, Inc. |
16,250,000 | |||
| Barclays Capital Inc. |
9,000,000 | |||
| BNP Paribas Securities Corp. |
9,000,000 | |||
| Lloyds Securities Inc. |
9,000,000 | |||
| Rabo Securities USA, Inc. |
9,000,000 | |||
| Scotia Capital (USA) Inc. |
9,000,000 | |||
|
|
|
|||
| Total |
$ | 500,000,000 | ||
|
|
|
|||
SCHEDULE III
(a) Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package: Electronic Roadshow dated February 11, 2020
(b) Additional Documents Incorporated by Reference: None
ANNEX I
FORM OF OPINION OF BRACEWELL LLP
BofA Securities, Inc.
Goldman Sachs & Co. LLC
J.P. Morgan Securities LLC
TD Securities (USA) LLC
Wells Fargo Securities, LLC
As representatives of the several Underwriters
named in Schedule II to the Underwriting Agreement
c/o BofA Securities, Inc.
One Bryant Park
New York, New York 10036
c/o Goldman Sachs & Co. LLC
200 West Street
New York, NY 10282-2198
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o TD Securities (USA) LLC
31 West 52nd Street, 2nd Floor
New York, New York 10019
c/o Wells Fargo Securities, LLC
550 South Tryon Street 5th Floor
Charlotte, North Carolina 28202
Ladies and Gentlemen:
We have acted as special counsel to Sysco Corporation, a Delaware corporation (the “Company”), and the Guarantors (as defined below) in connection with the purchase by you today pursuant to the Underwriting Agreement dated February 11, 2020 (the “Underwriting Agreement”) by and among the Company, the Guarantors listed on Schedule I thereto (the “Guarantors”) and you, as Representatives of the several underwriters named in Schedule II thereto (the “Underwriters”), of (i) $500,000,000 aggregate principal amount of the Company’s 2.400% Senior Notes due 2030 (the “2030 Notes”), issued pursuant to the Indenture dated as of June 15, 1995 (the “Base
Indenture”) between the Company and The Bank of New York Mellon Trust Company, N.A. (“Bank of New York Mellon”) as successor to First Union National Bank, as trustee, as supplemented and amended by the Thirteenth Supplemental Indenture thereto dated as of February 17, 2012 (the “Thirteenth Supplemental Indenture”) among the Company, the guarantors named therein and Bank of New York Mellon, and the Thirty-Fourth Supplemental Indenture thereto dated as of February 13, 2020 (the “Thirty-Fourth Supplemental Indenture”) among the Company, the Guarantors and U.S. Bank National Association (as trustee solely with respect to the Notes (as defined below) and any other series of Securities (as defined in the Base Indenture) issued thereunder for which U.S. Bank National Association may be designated from time to time as trustee, in lieu of Bank of New York Mellon) (the “Trustee”), and (ii) $500,000,000 aggregate principal amount of the Company’s 3.300% Senior Notes due 2050 (the “2050 Notes” and, together with the 2030 Notes, the “Notes”), issued pursuant to the Base Indenture, as supplemented and amended by the Thirteenth Supplemental Indenture and the Thirty-Fifth Supplemental Indenture thereto dated as of February 13, 2020 (the “Thirty-Fifth Supplemental Indenture”) among the Company, the Guarantors and the Trustee. The Base Indenture, as amended and supplemented by the Thirteenth Supplemental Indenture, the Thirty-Fourth Supplemental Indenture and the Thirty-Fifth Supplemental Indenture is referred to herein as the “Indenture.” The Notes are guaranteed to the extent provided in the Indenture (the “Guarantees” and, together with the Notes, the “Securities”) by the Guarantors. We have been requested by the Company to furnish this opinion to you pursuant to Section 8(c) of the Underwriting Agreement.
In connection with the opinion set forth below, we have examined (i) the Registration Statement on Form S-3 (Registration No. 333-227056) filed by the Company and the Guarantors with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), on August 27, 2018 (such registration statement, as amended as of the date and time of the execution and delivery of the Underwriting Agreement and including the documents incorporated by reference therein, being hereinafter referred to as the “Registration Statement”); (ii) the Prospectus dated August 27, 2018 included in the Registration Statement (the “Base Prospectus”); (iii) the Preliminary Prospectus Supplement relating to the Securities dated February 11, 2020 and filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act on February 11, 2020 (including the documents incorporated by reference therein, the “Preliminary Prospectus Supplement”); (iv) the Free Writing Prospectus dated February 11, 2020 and filed by the Company with the Commission pursuant to Rule 433 under the Securities Act on February 11, 2020 (the “Issuer Free Writing Prospectus”); (v) the Prospectus Supplement relating to the Securities dated February 11, 2020 and filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act on February 12, 2020 (including the documents incorporated by reference therein, the “Prospectus Supplement” and, together with the Base Prospectus, the “Prospectus”); (vi) the Underwriting Agreement; (vii) the Base Indenture; (viii) the Thirteenth Supplemental Indenture; (ix) the Thirty-Fourth Supplemental Indenture; (x) the Thirty-Fifth Supplemental Indenture; (xi) the certificates of incorporation or certificates of formation of the Company and each of the Guarantors incorporated or formed pursuant to the laws of the State of Delaware (the “Delaware Guarantors”), as applicable, and the bylaws or limited liability company agreements of the Company and
each of the Delaware Guarantors, as applicable; and (xii) certain resolutions of the board of directors, managing members or sole members of the Company and each of the Delaware Guarantors, as applicable. We also have made such investigations of law and examined originals or copies of such other documents and records as we have deemed necessary and relevant as a basis for the opinion hereinafter expressed. With your approval, we have relied as to certain matters of fact on information obtained from public officials and officers of the Company and the Guarantors, the documents delivered to you today at the closing of the purchase and sale of the Notes and the representations and warranties made by the parties to the Underwriting Agreement contained therein. In the course of the foregoing investigations and examinations, we assumed (w) the genuineness of all signatures on, and the authenticity of, all documents and records submitted to us as originals and the conformity to original documents and records of all documents and records submitted to us as copies; (x) the truthfulness of all statements of fact set forth in the documents and records examined by us; (y) except to the extent set forth in paragraphs 3, 4 and 6 below, the due authorization, execution and delivery by the parties thereto of all documents and instruments examined by us; and (z) except to the extent set forth in paragraphs 3 and 4 below, that, to the extent such documents and instruments purport to constitute agreements of such parties, they constitute valid, binding and enforceable obligations of such parties.
Based on the foregoing and subject to the qualifications, limitations and assumptions set forth herein, and having due regard for such legal considerations as we deem relevant, we are of the opinion that:
| 1. | The Company is an existing corporation in good standing under the laws of the State of Delaware and has the corporate power and authority to own its properties and to conduct its business as such business is described in the Prospectus and to execute and deliver the Underwriting Agreement, the Indenture and the Notes. |
| 2. | Each Delaware Guarantor is an existing corporation or limited liability company in good standing under the laws of the State of Delaware and has the corporate or limited liability company, as applicable, power and authority to execute and deliver the Underwriting Agreement and the Indenture. |
The 2030 Notes have been duly authorized and executed by the Company and, when authenticated by the Trustee and issued and delivered in the manner provided in the Base Indenture, as supplemented by the Thirteenth Supplemental Indenture and the Thirty-Fourth Supplemental Indenture, against payment of the consideration therefor in accordance with the Underwriting Agreement, will have been duly authenticated, issued and delivered and will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and will be entitled to the benefits provided by the Indenture. The 2050 Notes have been duly authorized and executed by the Company and, when authenticated by the Trustee and issued and delivered in the manner
provided in the Base Indenture, as supplemented by the Thirteenth Supplemental Indenture and the Thirty-Fifth Supplemental Indenture, against payment of the consideration therefor in accordance with the Underwriting Agreement, will have been duly authenticated, issued and delivered and will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and will be entitled to the benefits provided by the Indenture. The Notes and the Guarantees conform in all material respects to the descriptions thereof contained in the Prospectus.
| 3. | The Base Indenture has been duly authorized, executed and delivered by the Company. Each of the Thirteenth Supplemental Indenture, the Thirty-Fourth Supplemental Indenture and the Thirty-Fifth Supplemental Indenture has been duly authorized, executed and delivered by the Company and each of the Delaware Guarantors. Assuming the due authorization, execution and delivery of (i) the Base Indenture and the Thirteenth Supplemental Indenture by Bank of New York Mellon and (ii) the Thirty-Fourth Supplemental Indenture and the Thirty-Fifth Supplemental Indenture by the Trustee, the Indenture constitutes a valid and binding agreement of the Company and each of the Guarantors, enforceable against the Company and each of the Guarantors in accordance with its terms. The Indenture conforms in all material respects to the description thereof contained in the Prospectus. |
| 4. | The Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended. |
| 5. | The Underwriting Agreement has been duly authorized, executed and delivered by the Company and each of the Delaware Guarantors. |
| 6. | The authorization, execution and delivery of the Notes by the Company and of the Indenture and the Underwriting Agreement by the Company and the Guarantors do not, and the issuance of the Notes and the Guarantees by the Company and the Guarantors, respectively, in accordance with the Indenture, the issuance and sale of the Notes to the Underwriters in accordance with the Underwriting Agreement, and the performance by the Company and the Guarantors of their respective obligations under the Notes, the Indenture and the Underwriting Agreement and the consummation of the transactions contemplated thereby will not, conflict with, result in a breach or violation of any of the terms or provisions of, constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to (i) the certificate of incorporation or bylaws of the Company or the certificate of incorporation or formation, bylaws or limited liability company agreement, as applicable, of any of the Delaware Guarantors, (ii) any U.S. federal, Texas or New York law, the General Corporation Law of the State |
| of Delaware or the Delaware Limited Liability Company Act, or (iii) any indenture, mortgage, deed of trust or loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement, the Company’s Annual Report on Form 10–K for the year ended June 29, 2019, the Company’s Quarterly Reports on Form 10-Q for the quarters ended September 28, 2019, or December 28, 2019, or any Current Report on Form 8-K of the Company filed since June 29, 2019 (except, in the case of clause (ii), where such violations would not, individually or in the aggregate, (a) have a material adverse effect on the financial condition, business, properties or results of operations of the Company and its subsidiaries, taken as a whole or (b) materially and adversely affect the ability of the Company or any of the Guarantors to perform their respective obligations under the Underwriting Agreement, the Indenture or the Notes). |
| 7. | No consent, approval, authorization, registration or order of, or filing with, any U.S. federal, Texas, Delaware or New York governmental agency or authority or court having jurisdiction over the Company or any Guarantor is required under U.S. federal, Texas or New York law, the General Corporation Law of the State of Delaware or the Delaware Limited Liability Company Act for (i) the issuance and sale by the Company of the Notes, (ii) the issuance by the Guarantors of the Guarantees, or (iii) the execution, delivery and performance by the Company and the Guarantors of their respective obligations under the Notes, the Indenture and the Underwriting Agreement, except (a) as have been obtained or made and (b) as may be required under state securities or “blue sky” laws in connection with the purchase and distribution of the Notes and the Guarantees by the Underwriters, as to which we express no opinion. |
| 8. | The Company is not and, after giving effect to the issuance and sale of the Notes to the Underwriters, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended. |
| 9. | The statements made in the Base Prospectus, as supplemented by the Preliminary Prospectus Supplement and the Issuer Free Writing Prospectus, and in the Prospectus under the captions “Description of Debt Securities and Guarantees” and “Description of Notes,” insofar as they purport to constitute summaries of the terms of the Notes, the Guarantees and the Indenture, constitute accurate summaries of such terms in all material respects. |
| 10. | The statements made in the Preliminary Prospectus Supplement and the Prospectus under the caption “Material United States Federal Tax Considerations,” insofar as they purport to constitute summaries of matters of U.S. federal tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects. |
| 11. | The Registration Statement has become effective under the Securities Act, and the Prospectus Supplement was timely filed with the Commission pursuant to and in accordance with Rule 424(b)(2) under the Securities Act. To our knowledge after due inquiry, no stop order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for such purpose has been instituted or threatened by the Commission. |
| 12. | The Registration Statement, as of the date it became effective under the Securities Act, the Preliminary Prospectus Supplement, as of 3:15 p.m., Eastern time on February 11, 2020, the Issuer Free Writing Prospectus, as of its date, and the Prospectus, as of the date of the Prospectus Supplement and the date hereof, appeared on their face to be appropriately responsive, in all material respects, to the requirements of the Securities Act and the rules and regulations of the Commission thereunder, except that in each case we express no opinion with respect to the financial statements and the notes and schedules thereto or other financial or accounting data contained or incorporated or deemed incorporated by reference in or omitted from the Registration Statement, the Preliminary Prospectus Supplement or the Prospectus or the Trustee’s Statement of Eligibility on Form T-1 (the “Form T-1”). |
| 13. | The documents incorporated by reference in the Registration Statement and the Prospectus, when they were filed with the Commission, appeared on their face to comply as to form in all material respects with the requirements of the particular form under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder, except that in each case we express no opinion with respect to the financial statements and the notes and schedules thereto or other financial or accounting data contained or incorporated or deemed incorporated by reference therein in or omitted therefrom. |
The foregoing opinion is, with your approval, predicated upon and qualified in its entirety by the following:
| (a) | The foregoing opinion is based on and is limited to the laws of the State of New York, the laws of the State of Texas, the General Corporation Law of the State of Delaware, the Delaware Limited Liability Company Act and the relevant federal law of the United States. We express no opinion with respect to the state securities or “blue sky” laws of any jurisdiction or with respect to the law of any other jurisdiction. We are not admitted to the practice of law in the State of Delaware. With respect to paragraph 7, we express no opinion with respect to the anti-fraud provisions of the federal securities laws. |
| (b) | The enforceability of the obligations of the Company and the Guarantors under the Indenture and the Notes is subject to the effect of any applicable |
| bankruptcy (including, without limitation, fraudulent conveyance and preference), insolvency, reorganization, rehabilitation, moratorium or similar laws and decisions relating to or affecting the enforcement of creditors’ rights generally, and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief. Such principles are of general application, and in applying such principles a court, among other things, might decline to order the Company or the Guarantors to perform covenants. We express no opinion with respect to the validity, binding effect or enforceability of any provisions in the Indenture or the Notes with respect to waiver, delay, extension or omission of notice or enforcement of rights or remedies, waivers of defenses or waivers of benefits of stay, extension, moratorium, redemption, statutes of limitations or other non-waivable benefits provided by operation of law. In addition, the enforceability of any exculpatory, indemnification or contribution provisions contained in the Indenture may be limited by applicable law or public policy. |
| (c) | Whenever our opinion is based on circumstances that are “to our knowledge after due inquiry,” we have, with your approval, relied as to factual matters exclusively on certificates of officers (after the discussion of the contents thereof with such officers) of the Company or the Guarantors or certificates of public officials as to the existence or nonexistence of the circumstances upon which such opinions are predicated. We have no reason to believe, however, that any such certificate is untrue or inaccurate in any material respect. |
Because the primary purpose of our engagement was not to establish or confirm factual matters or financial or accounting matters and because of the wholly or partially non-legal character of many of the statements contained in the Registration Statement, the Prospectus, the Preliminary Prospectus Supplement and the Issuer Free Writing Prospectus, we are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Prospectus, the Preliminary Prospectus Supplement or the Issuer Free Writing Prospectus (except to the extent expressly set forth in paragraphs 10 and 11 above), and we have not independently verified the accuracy, completeness or fairness of such statements (except as aforesaid). Without limiting the foregoing, we assume no responsibility for, have not independently verified and have not been asked to comment on the accuracy, completeness or fairness of the financial statements, schedules and other financial or accounting data included in the Registration Statement, the Prospectus, the Preliminary Prospectus Supplement or the Issuer Free Writing Prospectus, and we have not examined the accounting, financial or other records from which such financial statements, schedules and other financial or accounting data were derived. We are not experts with respect to any portion of the Registration Statement, the Prospectus, the Preliminary Prospectus Supplement or the Issuer Free Writing Prospectus, including,
without limitation, such financial statements, schedules and other financial or accounting data therein. However, we have participated in conferences with officers and other representatives of the Company, its independent registered public accounting firm, your representatives and your counsel at which the contents of the Registration Statement, the Prospectus, the Preliminary Prospectus Supplement and the Issuer Free Writing Prospectus and related matters were discussed. Based upon such participation and review, and relying as to materiality in part upon the factual statements of officers and other representatives of the Company and of your representatives, we advise you that no facts have come to our attention that have caused us to believe that (i) any part of the Registration Statement, when such part became effective (including the documents incorporated by reference therein, but excluding the financial statements, schedules and other financial or accounting data and the Form T-1, as to which we have not been asked to comment), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement (including the documents incorporated by reference therein and the information deemed to be part of the Registration Statement pursuant to Rule 430B under the Securities Act, but excluding the financial statements, schedules and other financial or accounting data and the Form T-1, as to which we have not been asked to comment), at the date of the Underwriting Agreement, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Prospectus (including the documents incorporated by reference therein, but excluding the financial statements, schedules and other financial or accounting data, as to which we have not been asked to comment), as of the date of the Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, or (iv) the Base Prospectus, as supplemented by the Preliminary Prospectus Supplement, and the Issuer Free Writing Prospectus, considered together (including the documents incorporated by reference therein, but excluding the financial statements, schedules and other financial or accounting data, as to which we have not been asked to comment), as of 3:15 p.m., Eastern time, on February 11, 2020 contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
This opinion is solely for your benefit, in your capacity as Representatives of the Underwriters, pursuant to Section 8(c) of the Underwriting Agreement, and may not be used or relied upon by you in any other capacity or for any other purpose and may not be used or relied upon for any purpose by any other person or entity without our express prior written authorization. Except for the use permitted herein, this opinion may not be quoted, circulated or published, in whole or in part, or otherwise referred to, filed with or furnished to any other person or entity, without our express prior written authorization. The opinion expressed herein is not an opinion with respect to matters of fact or a guarantee and should not be construed or relied upon as such. The opinion expressed herein is as of the date hereof, and we expressly disclaim any responsibility to update our opinion after the date hereof. This opinion is strictly limited to the matters stated herein, and no other or more extensive opinion is intended, implied or to be inferred beyond the matters expressly stated herein.
ANNEX II
FORM OF OPINION OF GERALD W. CLANTON
BofA Securities, Inc.
Goldman Sachs & Co. LLC
J.P. Morgan Securities LLC
TD Securities (USA) LLC
Wells Fargo Securities, LLC
As representatives of the several Underwriters
named in Schedule II to the Underwriting Agreement
c/o BofA Securities, Inc.
One Bryant Park
New York, New York 10036
c/o Goldman Sachs & Co. LLC
200 West Street
New York, NY 10282-2198
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o TD Securities (USA) LLC
31 West 52nd Street, 2nd Floor
New York, New York 10019
c/o Wells Fargo Securities, LLC
550 South Tryon Street 5th Floor
Charlotte, North Carolina 28202
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 8(c) of that certain Underwriting Agreement, dated as of February 11, 2020 (the “Underwriting Agreement”), among Sysco Corporation, a Delaware corporation (the “Company”), the Guarantors listed on Schedule I thereto (the “Guarantors” and, together with the Company, the “Opinion Parties”) and you, as Representatives of the several underwriters named in Schedule II thereto (the “Underwriters”), relating to the issuance and sale by the Company to the Underwriters of $500,000,000 aggregate principal amount of the Company’s 2.400% Senior Notes due 2030 (the “2030 Notes”) and $500,000,000 aggregate principal amount of the Company’s 3.300% Senior Notes due 2050 (the “2050 Notes” and, together with the 2030 Notes, the “Notes”), issued pursuant to the Indenture dated as of June 15, 1995 (the “Base Indenture”) between the Company and The Bank of New
York Mellon Trust Company, N.A. (“Bank of New York Mellon”) as successor to First Union National Bank, as trustee, as supplemented and amended by the Thirteenth Supplemental Indenture thereto, dated as of February 17, 2012 (the “Thirteenth Supplemental Indenture”) among the Company, the guarantors named therein and Bank of New York Mellon, the Thirty-Fourth Supplemental Indenture thereto dated as of February 13, 2020 (the “Thirty-Fourth Supplemental Indenture”) and the Thirty-Fifth Supplemental Indenture thereto dated as of February 13, 2020 (the “Thirty-Fifth Supplemental Indenture”), among the Company, the Guarantors and U.S. Bank National Association, as trustee solely with respect to the Notes and any other series of Securities (as defined in the Base Indenture) issued thereunder for which U.S. Bank National Association may be designated from time to time as trustee, in lieu of Bank of New York Mellon (the “Trustee”). The Base Indenture, as amended and supplemented by the Thirteenth Supplemental Indenture, the Thirty-Fourth Supplemental Indenture and the Thirty-Fifth Supplemental Indenture, is referred to herein as the “Indenture.” The Notes are guaranteed to the extent provided in the Indenture by the Guarantors. Capitalized terms used and not defined herein have the meanings given to such terms in the Underwriting Agreement.
I am Assistant Secretary Associate General Counsel, Securities, Governance and Corporate Finance of the Company and Vice President and Secretary of each of the Guarantors, and I am generally familiar with each Opinion Party’s organizational history, properties, operations and Organizational Documents (as defined below). In connection with this opinion, I have considered, among other things:
(i) the certificate of incorporation or certificate of formation of each Opinion Party;
(ii) the operating agreement or bylaws of each Opinion Party (together with the documents in clause (i) above, the “Organizational Documents”);
(iii) executed counterparts of the Underwriting Agreement, the Indenture and the Notes;
(iv) the Registration Statement, the Basic Prospectus and the Prospectus; and
(v) such other documents, transactions and matters of law as I deemed necessary in order to render this opinion.
My opinions expressed below are specifically subject to the following limitations, exceptions, qualifications and assumptions:
(a) In the examination of any and all documents, instruments, certificates and agreements, I have assumed the genuineness of all signatures (other than those of the Opinion Parties), the authenticity of all documents submitted to me as originals and the conformity to authentic, original documents of all documents submitted to me as certified, conformed or photostatic copies. I have also assumed that each natural person executing any document, instrument, certificate or agreement that I have reviewed in connection with this opinion was legally competent to do so.
(b) As to various questions of fact relevant to the opinions expressed herein, I have relied upon, and assumed the accuracy of, certificates and other information of or from public officials and/or responsible officers of the Opinion Parties and the representations and warranties contained in the Underwriting Agreement.
(c) In basing the opinions and other matters set forth herein on “my knowledge,” the words “my knowledge” signify that, in the course of my representation of the Opinion Parties, no information has come to my attention that would give me actual knowledge or actual notice that any such opinions or other matters are not accurate or that any of the documents, certificates, reports, and information on which I have relied are not accurate and complete.
Based on the foregoing, and subject to the limitations, qualifications and assumptions set forth herein, I am of the opinion that:
1. The Company and each Guarantor has been qualified as a foreign corporation or limited liability company for the transaction of business and is in good standing under the laws of each jurisdiction (other than its jurisdiction of formation) in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified or in good standing in any such jurisdiction is not reasonably likely to, individually or in the aggregate, have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries.
2. Each Guarantor has the corporate or limited liability company, as applicable, power and authority to own its properties and conduct its business.
3. To my knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is subject which are reasonably likely to individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries; and, to my knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
4. To my knowledge, there are no contracts, agreements or understandings between the Company and any other person granting such person the right to require the Company to include the offering of any securities of the Company owned or to be owned by such person in the offering registered pursuant to the Registration Statement.
5. To my knowledge, neither the Company nor any of its subsidiaries is (a) in violation of its Organizational Documents or similar organizational documents, as applicable, (b) in default, and to my knowledge no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the performance or observance of any obligation, agreement, term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound or (c) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (b) and (c) above, for any such defaults or violations that would not, individually or in the aggregate, have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries.
6. To my knowledge, no document incorporated by reference in the Prospectus, when such document was filed with the Securities and Exchange Commission, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such document was so filed, not misleading.
7. I do not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement, the Basic Prospectus or the Prospectus that are not filed or incorporated by reference or described as required.
This opinion has been rendered solely for your benefit in connection with the Underwriting Agreement and the transactions contemplated thereby and may not be relied upon or otherwise referred to by any other person or for any other purpose without my prior written consent. I undertake no responsibility to update or supplement this opinion in any respect after the date hereof. The opinions expressed in this letter are limited to the matters set forth in this letter, and no other opinions should be inferred beyond the matters expressly stated.
ANNEX III
DESCRIPTION OF ERNST & YOUNG LLP COMFORT LETTER
Pursuant to Section 8(d) of the Underwriting Agreement, the accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the Company and its subsidiaries within the meaning of the Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary financial information and schedules (and, if applicable, prospective financial statements and/or pro forma financial information) examined by them and included or incorporated by reference in the Registration Statement or the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act or the Exchange Act, as applicable, and the related published rules and regulations thereunder; and, if applicable, they have made a review in accordance with standards established by the American Institute of Certified Public Accountants of the consolidated interim financial statements, selected financial data, pro forma financial information, prospective financial statements and/or condensed financial statements derived from audited financial statements of the Company for the periods specified in such letter, as indicated in their reports thereon, copies of which have been furnished to the representatives of the Underwriters (the “Representatives”);
(iii) They have made a review in accordance with standards established by the American Institute of Certified Public Accountants of the unaudited condensed consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included in the Prospectus and/or included in the Company’s quarterly reports on Form 10-Q incorporated by reference into the Prospectus as indicated in their reports thereon copies of which have been furnished to the Representatives; and on the basis of specified procedures including inquiries of officials of the Company who have responsibility for financial and accounting matters regarding whether the unaudited condensed consolidated financial statements referred to in paragraph (vi)(A)(i) below comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations, nothing came to their attention that caused them to believe that the unaudited condensed consolidated financial statements do not comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the consolidated results of operations and financial position of the Company for the five most recent fiscal years included in the Prospectus and included or incorporated by reference in Item 6 of the Company’s Annual Report on Form 10-K for the most recent fiscal year agrees with the corresponding amounts (after restatement where applicable) in the audited consolidated financial statements for such five fiscal years which were included or incorporated by reference in the Company’s Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under selected captions with the disclosure requirements of Regulation S-K and on the basis of limited procedures specified in such letter nothing came to their attention as a result of the foregoing procedures that caused them to believe that this information does not conform in all material respects with the disclosure requirements of Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an examination in accordance with generally accepted auditing standards, consisting of a reading of the unaudited financial statements and other information referred to below, a reading of the latest available interim financial statements of the Company and its subsidiaries, inspection of the minute books of the Company and its subsidiaries since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, inquiries of officials of the Company and its subsidiaries responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included or incorporated by reference in the Company’s Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations, or (ii) any material modifications should be made to the unaudited consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included or incorporated by reference in the Company’s Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus, for them to be in conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet items included in the Prospectus do not agree with the corresponding items in the unaudited consolidated financial statements from which such data and items were derived, and any such unaudited data and items were not determined on a basis substantially consistent with the basis for the corresponding amounts in the audited consolidated financial statements included or incorporated by reference in the Company’s Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in the Prospectus but from which were derived the unaudited condensed financial statements referred to in clause (A) and any unaudited income statement data and balance sheet items included in the Prospectus and referred to in clause (B) were not determined on a basis substantially consistent with the basis for the audited financial statements included or incorporated by reference in the Company’s Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial statements included or incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Act and the published rules and regulations thereunder or the pro forma adjustments have not been properly applied to the historical amounts in the compilation of those statements;
(E) as of a specified date not more than three business days prior to the date of such letter, there have been any changes in the consolidated capital stock (other than issuances of capital stock upon exercise of options and stock appreciation rights, upon earn outs of performance shares and upon conversions of convertible securities, in each case which were outstanding on the date of the latest balance sheet included or incorporated by reference in the Prospectus) or any increase in the consolidated long term debt of the Company and its subsidiaries, or any decreases in consolidated net current assets or stockholders’ equity or other items specified by the Representatives, or any increases in any items specified by the Representatives, in each case as compared with amounts shown in the latest balance sheet included or incorporated by reference in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial statements included or incorporated by reference in the Prospectus to the specified date referred to in clause (E) there were any decreases in consolidated net revenues or operating profit or the total or per share amounts of consolidated net income or other items specified by the Representatives, or any increases in any items specified by the Representatives, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Representatives, except in each case for increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; and
(vii) In addition to the examination referred to in their report(s) included or incorporated by reference in the Prospectus and the limited procedures, inspection of minute books, inquiries and other procedures referred to in paragraphs (iii) and (vi) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Representatives which are derived from the general accounting records of the Company and its subsidiaries, which appear in the Prospectus (excluding documents incorporated by reference) or in Part II of, or in exhibits and schedules to, the Registration Statement specified by the Representatives or in documents incorporated by reference in the Prospectus specified by the Representatives, and have compared certain of such amounts, percentages and financial information with the accounting records of the Company and its subsidiaries and have found them to be in agreement.
Exhibit 4.1
Execution Version
SYSCO CORPORATION,
as Issuer,
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
as Guarantors,
AND
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
THIRTY-FOURTH SUPPLEMENTAL INDENTURE
Dated as of February 13, 2020
Supplementing the Indenture
dated as of June 15, 1995
THIRTY-FOURTH SUPPLEMENTAL INDENTURE (this “Thirty-Fourth Supplemental Indenture”) dated as of the 13th day of February, 2020, among SYSCO CORPORATION, a corporation organized and existing under the laws of the State of Delaware (the “Issuer”), the SUBSIDIARY GUARANTORS named on Schedule I hereto (each, a “Subsidiary Guarantor,” and collectively, the “Subsidiary Guarantors”) and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee”);
WHEREAS, the Issuer and the Subsidiary Guarantors desire to designate the Trustee as trustee under the Original Indenture (as defined below) solely with respect to the Notes (as defined below) and any other Securities (as defined below) issued thereunder for which the Trustee may be designated from time to time as trustee, in lieu of The Bank of New York Mellon Trust Company, N.A. (“BONYM”), and the Trustee desires to accept such designation; and
WHEREAS, the Issuer has heretofore executed and delivered an Indenture dated as of June 15, 1995 (as supplemented by the Thirteenth Supplemental Indenture described below, the “Original Indenture,” and as further supplemented by this Thirty-Fourth Supplemental Indenture, the “Indenture”) providing for the issuance by the Issuer from time to time of its unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series (in the Original Indenture and herein called the “Securities”); and
WHEREAS, the Issuer has heretofore executed and delivered to BONYM (i) a First Supplemental Indenture dated as of June 27, 1995 providing for the issuance by the Issuer of $150,000,000 aggregate principal amount of 61⁄2% Senior Notes due June 15, 2005, (ii) a Second Supplemental Indenture dated as of May 1, 1996 providing for the issuance by the Issuer of $200,000,000 aggregate principal amount of 7% Senior Notes due May 1, 2006, (iii) a Third Supplemental Indenture dated as of April 25, 1997 providing for the issuance by the Issuer of $50,000,000 aggregate principal amount of 7.16% Debentures due April 15, 2027, (iv) a Fourth Supplemental Indenture dated as of April 25, 1997 providing for the issuance by the Issuer of $100,000,000 aggregate principal amount of 7.25% Senior Notes due April 15, 2007, (v) a Fifth Supplemental Indenture dated as of July 27, 1998 providing for the issuance by the Issuer of $225,000,000 aggregate principal amount of 61⁄2% Debentures due August 1, 2028, (vi) a Sixth Supplemental Indenture dated as of April 5, 2002 providing for the issuance by the Issuer of $200,000,000 aggregate principal amount of 4.75% Notes due July 30, 2005, (vii) a Seventh Supplemental Indenture dated as of March 5, 2004 providing for the issuance by the Issuer of $200,000,000 aggregate principal amount of 4.60% Senior Notes due March 15, 2014, (viii) an Eighth Supplemental Indenture dated as of September 22, 2005 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 5.375% Senior Notes due September 21, 2035, (ix) a Ninth Supplemental Indenture dated as of February 12, 2008 providing for the issuance by the Issuer of $250,000,000 aggregate principal amount of 4.20% Senior Notes due February 12, 2013, (x) a Tenth Supplemental Indenture dated as of February 12, 2008 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 5.25% Senior Notes due February 12, 2018, (xi) an Eleventh Supplemental Indenture dated as of March 17, 2009 providing for the issuance by the Issuer of $250,000,000 aggregate principal amount of 5.375% Senior Notes due March 17, 2019, (xii) a Twelfth Supplemental Indenture dated as of March 17, 2009 providing for the issuance by the Issuer of $250,000,000 aggregate principal amount of 6.625% Senior Notes due March 17, 2039, (xiii) a Thirteenth Supplemental Indenture dated as of February 17, 2012 to
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reflect, among other things, the addition of certain guarantees of Securities outstanding and unpaid as of January 19, 2011 and to provide for the possibility of additional guarantees of payment obligations on new Securities that may thereafter be issued under the indenture dated as of June 15, 1995 (the “Thirteenth Supplemental Indenture”), (xiv) a Fourteenth Supplemental Indenture dated as of June 12, 2012 providing for the issuance by the Issuer of $300,000,000 aggregate principal amount of 0.55% Senior Notes due 2015, (xv) a Fifteenth Supplemental Indenture dated as of June 12, 2012 providing for the issuance by the Issuer of $450,000,000 aggregate principal amount of 2.60% Senior Notes due 2022, (xvi) a Sixteenth Supplemental Indenture dated as of October 2, 2014 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 1.45% Senior Notes due 2017, (xvii) a Seventeenth Supplemental Indenture dated as of October 2, 2014 providing for the issuance by the Issuer of $750,000,000 aggregate principal amount of 2.35% Senior Notes due 2019, (xviii) an Eighteenth Supplemental Indenture dated as of October 2, 2014 providing for the issuance by the Issuer of $750,000,000 aggregate principal amount of 3.00% Senior Notes due 2021, (xix) a Nineteenth Supplemental Indenture dated as of October 2, 2014 providing for the issuance by the Issuer of $1,250,000,000 aggregate principal amount of 3.50% Senior Notes due 2024, (xx) a Twentieth Supplemental Indenture dated as of October 2, 2014 providing for the issuance by the Issuer of $750,000,000 aggregate principal amount of 4.35% Senior Notes due 2034, (xxi) a Twenty-First Supplemental Indenture dated as of October 2, 2014 providing for the issuance by the Issuer of $1,000,000,000 aggregate principal amount of 4.50% Senior Notes due 2044, (xxii) a Twenty-Second Supplemental Indenture dated as of September 28, 2015 to reflect, among other things, the addition of certain guarantees of Securities outstanding and unpaid as of September 28, 2015, (xxiii) a Twenty-Third Supplemental Indenture dated as of September 28, 2015 providing for the issuance by the Issuer of $750,000,000 aggregate principal amount of 2.60% Senior Notes due 2020, (xxiv) a Twenty-Fourth Supplemental Indenture dated as of September 28, 2015 providing for the issuance by the Issuer of $750,000,000 aggregate principal amount of 3.75% Senior Notes due 2025, (xxv) a Twenty-Fifth Supplemental Indenture dated as of September 28, 2015 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 4.85% Senior Notes due 2045, (xxvi) a Twenty-Sixth Supplemental Indenture dated as of April 1, 2016 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 1.90% Senior Notes due 2019, (xxvii) a Twenty-Seventh Supplemental Indenture dated as of April 1, 2016 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 2.50% Senior Notes due 2021, (xxviii) a Twenty-Eighth Supplemental Indenture dated as of April 1, 2016 providing for the issuance by the Issuer of $1,000,000,000 aggregate principal amount of 3.30% Senior Notes due 2026, (xxix) a Twenty-Ninth Supplemental Indenture dated as of April 1, 2016 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 4.50% Senior Notes due 2046 and (xxx) a Thirtieth Supplemental Indenture dated as of June 23, 2016 providing for the issuance by the Issuer of €500,000,000 aggregate principal amount of 1.250% Senior Notes due 2023; and
WHEREAS, the Issuer has heretofore executed and delivered to the Trustee (i) a Thirty-First Supplemental Indenture dated as of June 22, 2017 providing for the issuance by the Issuer of $750,000,000 aggregate principal amount of 3.250% Senior Notes due 2027, (ii) a Thirty-Second Supplemental Indenture dated as of March 19, 2018 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 3.550% Senior Notes due 2025 and (iii) a Thirty-Third Supplemental Indenture dated as of March 19, 2018 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 4.450% Senior Notes due 2048; and
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WHEREAS, simultaneously herewith, the Issuer and the Subsidiary Guarantors are executing and delivering to the Trustee a Thirty-Fifth Supplemental Indenture dated as of February 13, 2020 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 3.300% Senior Notes due 2050 and the unconditional guarantee by each Subsidiary Guarantor of the punctual payment when due, whether at stated maturity, by acceleration or otherwise, of the principal of, premium, if any, and interest on such Senior Notes; and
WHEREAS, the Issuer, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Original Indenture, including Sections 2.3 and 8.1 thereof, and pursuant to appropriate resolutions of the Board of Directors and the Chief Financial Officer of the Issuer has duly determined to make, execute and deliver to the Trustee this Thirty-Fourth Supplemental Indenture to the Original Indenture as permitted by Sections 2.1, 2.3 and 8.1 of the Original Indenture in order to establish the form or terms of, and to provide for the creation and issue of, a series of Securities under the Original Indenture in the aggregate principal amount of $500,000,000; and
WHEREAS, the Subsidiary Guarantors, in the exercise of their power and authority conferred upon and reserved to them under the provisions of the Original Indenture, including Section 2.3 thereof, and pursuant to appropriate resolutions of the Board of Directors or other governing body of each of the Subsidiary Guarantors has duly determined to make, execute and deliver to the Trustee this Thirty-Fourth Supplemental Indenture to the Original Indenture as permitted by Sections 2.3 and 13.1 of the Original Indenture in order to establish the terms of the Guarantees (as defined in the Thirteenth Supplemental Indenture) of the 2.400% Senior Notes due 2030 and the obligations of the Issuer thereunder; and
WHEREAS, all things necessary to make the Securities provided for herein, when executed by the Issuer and authenticated and delivered by the Trustee or any Authenticating Agent and issued upon the terms and subject to the conditions hereinafter and in the Original Indenture set forth against payment therefor, the valid, binding and legal obligations of the Issuer and the Subsidiary Guarantors and to make this Thirty-Fourth Supplemental Indenture a valid, binding and legal agreement of the Issuer and the Subsidiary Guarantors, have been done.
NOW, THEREFORE, THIS THIRTY-FOURTH SUPPLEMENTAL INDENTURE WITNESSETH that, in order to establish the terms of a series of Securities, and for and in consideration of the premises and of the covenants contained in the Original Indenture and in this
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Thirty-Fourth Supplemental Indenture and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
1.1. Definitions. Each capitalized term that is used herein and is defined in the Original Indenture shall have the meaning specified in the Original Indenture unless that term is otherwise defined herein.
1.2. Section References. Each reference to a particular section set forth in this Thirty-Fourth Supplemental Indenture shall, unless the context otherwise requires, refer to this Thirty-Fourth Supplemental Indenture.
ARTICLE II
TITLE AND TERMS OF SECURITIES
2.1 Title of the Securities. This Thirty-Fourth Supplemental Indenture hereby establishes a series of Securities designated as the “2.400% Senior Notes due 2030” of the Issuer (the “Notes”). For purposes of the Original Indenture, the Notes shall constitute a single series of Securities.
2.2 Term of the Notes. The Notes shall mature on February 15, 2030 (the “Stated Maturity”). In the event that the Stated Maturity of any Note is not a Business Day, principal and interest payable at maturity shall be paid on the next succeeding Business Day with the same effect as if that Business Day were the Stated Maturity and no interest shall accrue or be payable for the period from and after the Stated Maturity to the next succeeding Business Day.
2.3 Amount and Denominations; Currency of Payment. The aggregate principal amount in which the Notes may be initially issued under this Thirty-Fourth Supplemental Indenture is limited to $500,000,000. The Issuer, without the consent of the Holders thereof, may issue additional Notes from time to time after the date hereof; provided that such additional Notes must have the same ranking, interest rate, maturity and other terms as the initially issued Notes. Any additional Notes shall be consolidated and form a single series with the Notes then outstanding, except for issue date, authentication date, issue price and, if applicable, first interest payment date.
The Notes shall be issued in the form of one or more Registered Global Securities in the name of Cede & Co., as registered owner and nominee for The Depository Trust Company, New York, New York (“DTC”). DTC shall initially act as Depositary for the Notes.
The Notes shall be denominated in United States dollars in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
2.4 Interest and Interest Rates. Each Note shall bear interest at the rate of 2.400% per annum from the date of issue or from the most recent Interest Payment Date (as defined in Section 2.5 below) to which interest on such Note has been paid or duly provided for, commencing with the Interest Payment Date next succeeding the date of issue, until the principal thereof is paid or made available for payment. Interest shall be payable to the Person in whose name a Note is
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registered at the close of business on the Regular Record Date (as defined in Section 2.5 below) next preceding an Interest Payment Date. Notwithstanding the foregoing, if a Note is originally issued after the Regular Record Date and before the corresponding Interest Payment Date, the first payment of interest on the Note shall be made on the next succeeding Interest Payment Date to the Person in whose name that Note was registered on the Regular Record Date with respect to such next succeeding Interest Payment Date. Interest on each Note shall be computed on the basis of a 360-day year comprising twelve 30-day months. All dollar amounts resulting from this calculation will be rounded to the nearest cent.
2.5 Interest Payments. The interest payment dates for each Note shall be February 15 and August 15, in each year (the “Interest Payment Dates”), beginning August 15, 2020, and the regular record dates shall be the February 1 and August 1, whether or not a Business Day (the “Regular Record Dates”) preceding those Interest Payment Dates, respectively. Interest shall also be payable at maturity of any Note.
If an Interest Payment Date with respect to the Notes would otherwise fall on a day that is not a Business Day, such Interest Payment Date shall be postponed to the next succeeding Business Day with respect to the Notes and no interest shall accrue or be payable on such next succeeding Business Day for the period from and after such original Interest Payment Date to such next succeeding Business Day.
Except as provided in the immediately preceding paragraph, interest payments shall be in the amount of interest accrued to, but excluding, the Interest Payment Date.
2.6 Place of Payment, Transfer and Exchange. The Issuer authorizes and appoints the Trustee as the sole paying agent (the “Paying Agent”) with respect to any Notes represented by Registered Global Securities, without prejudice to the Issuer’s authority to appoint additional paying agents from time to time pursuant to Section 3.4 of the Original Indenture. Payments of principal on each Note and interest thereon payable at maturity or upon redemption shall be made in immediately available funds in such currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, at the request of the Holder, at the office or agency of the Paying Agent in New York, New York or any other duly appointed Paying Agent, provided that the Note is presented to the Paying Agent in time for the Paying Agent to make the payments in immediately available funds in accordance with its normal procedures. So long as any Notes are represented by a Registered Global Security, interest (other than interest payable at maturity or upon redemption) shall be paid in immediately available funds by wire transfer to the Depositary for such Notes, on the written order of the Depositary. In addition, the Issuer may maintain an agent, in such location or locations as the Issuer may select, to provide the Holders with an office at which they may present the Notes for payment. The Issuer hereby acknowledges that any such agent so maintained will accept Notes for presentment, take payment instructions from the Holder and forward the Notes presented and any related payment instructions to the Paying Agent by overnight courier, for next day delivery. Notes presented as set forth in the previous sentence shall be deemed to be presented to the Paying Agent on the Business Day next succeeding the day the Notes are delivered to such agent. Payment of interest (other than interest payable in accordance with the preceding provisions of this paragraph) will, subject to certain exceptions provided in the Original Indenture, be made by check mailed to the
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address of the Person entitled thereto as such address shall appear in the Security register as of the applicable Regular Record Date or, at the option of the Issuer, by wire transfer to an account maintained by such Person with a bank located in the United States.
The Issuer appoints the Trustee as the sole Security registrar with respect to the Notes, without prejudice to the Issuer’s authority to appoint additional Security registrars from time to time pursuant to Section 2.8 of the Original Indenture. The Notes may be presented by the Holders thereof for registration of transfer or exchange at the office or agency of the Security registrar or any successor or co-registrar in New York, New York. In addition, the Issuer may maintain an agent, in such location or locations as the Issuer may select, to provide the Holders with an office at which they may present the Notes for registration of transfer or exchange. The Issuer hereby acknowledges that any such agent so maintained by the Issuer will accept Notes for registration of transfer or exchange and forward those Notes to the Security registrar by overnight courier, for next day delivery. Notes accepted as set forth in the immediately preceding sentence shall be deemed to be presented to the Security registrar on the Business Day next succeeding the day that Notes are delivered to such agent.
2.7 No Sinking Fund. The Notes shall not be subject to any sinking fund.
2.8 Redemption at the Option of the Issuer. At any time before November 15, 2029, the Notes are redeemable as a whole or in part, at the option of the Issuer, at a redemption price, calculated by the Quotation Agent, equal to the greater of the following amounts, plus, in either case, accrued and unpaid interest on the principal amount of the Notes being redeemed to the date of redemption: (i) 100% of the principal amount of the Notes being redeemed; or (ii) the sum of the present values of the remaining scheduled payments of the principal of and interest on the Notes to be redeemed that would be due if the Notes matured on November 15, 2029 (exclusive of interest accrued to the date of redemption), discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points. At any time on or after November 15, 2029, the Notes are redeemable as a whole or in part, at the option of the Issuer, at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest on the principal amount of the Notes being redeemed to the date of redemption.
As used in this Section 2.8 only, the terms set forth below shall have the following respective meanings:
“Business Day” means any calendar day that is not a Saturday, Sunday or legal holiday in New York, New York and on which commercial banks are open for business in New York, New York.
“Comparable Treasury Issue” means the United States Treasury security or securities selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining term of the Notes (assuming the Notes matured on November 15, 2029) to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Notes (assuming the Notes matured on November 15, 2029).
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“Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (2) if the Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Primary Treasury Dealer” means a primary U.S. Government securities dealer in New York City.
“Quotation Agent” means Goldman Sachs & Co. LLC or its successor.
“Reference Treasury Dealer” means each of Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC, TD Securities (USA) LLC and Wells Fargo Securities, LLC or their respective affiliates which are Primary Treasury Dealers, and their respective successors; provided, however, that if any of the foregoing ceases to be a Primary Treasury Dealer, the Issuer will substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotation” means, with respect to a particular Reference Treasury Dealer and a particular redemption date, the average, as calculated by the Quotation Agent, of the bid and asked price for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Quotation Agent by such Reference Treasury Dealer as of 3:30 p.m., New York City time, on the third Business Day preceding that redemption date.
“Treasury Rate” means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity or interpolated (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
All determinations made by the Quotation Agent with respect to determining the redemption price will be final and binding on all parties, absent manifest error.
Notice of any redemption will be given at least 10 days but not more than 60 days before the date of redemption to each Holder of Notes to be redeemed, or as otherwise provided in accordance with DTC procedures. If fewer than all of the Notes are to be redeemed, the Trustee will select the particular Notes or portions of Notes to be redeemed by lot or pro rata or by another method the Trustee deems fair and appropriate (in each case, to the extent such Notes are held in global form, subject to the procedures of DTC).
Notice of any redemption of the Notes in connection with a corporate transaction that is pending (including an equity offering or an incurrence of indebtedness, but excluding, for the avoidance of doubt, a Change of Control that constitutes a Change of Control Repurchase Event)
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may, at the Issuer’s discretion, be given subject to one or more conditions precedent, including, but not limited to, completion of the transaction. If such redemption is so subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied or otherwise waived by the date of redemption. The Issuer shall notify Holders of any such rescission as soon as practicable after the Issuer determines that the Issuer will not be able to satisfy or otherwise waive such condition precedent (but in no event later than 11:00 am Eastern Time on the date specified as the redemption date in the notice of redemption). Once notice of redemption is mailed or sent, subject to the satisfaction of any conditions precedent provided in the notice of redemption, the notes called for redemption will become due and payable on the redemption date and at the applicable redemption price, plus accrued and unpaid interest to the date of redemption.
Unless the Issuer defaults in payment of the redemption price, subject to the satisfaction of any conditions precedent provided in the notice of redemption, on or after the date of redemption, interest will cease to accrue on the Notes or portions thereof called for redemption.
2.9 Change of Control Repurchase Event. If a Change of Control Repurchase Event (as defined below) occurs, unless the Issuer has exercised its right to redeem the Notes as described above or has defeased the Notes pursuant to Section 10.1 of the Original Indenture, the Issuer will be required to make an irrevocable offer to each Holder of Notes to repurchase all or any part (equal to or in excess of $2,000 and in integral multiples of $1,000 in excess thereof) of that Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased to, but not including, the date of repurchase. Within 30 days following a Change of Control Repurchase Event or, at the Issuer’s option, prior to a Change of Control (as defined below), but in either case, after the public announcement of the Change of Control, the Issuer will give, or shall cause to be given, a notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event, offering to repurchase Notes on the payment date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is given, disclosing that any Note not tendered for repurchase will continue to accrue interest, and specifying the procedures for tendering Notes. The notice shall, if given prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on a Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice. The Issuer must comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Notes, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached the obligations of the Issuer under the Change of Control Repurchase Event provisions of the Notes by virtue of such conflict.
On the repurchase date following a Change of Control Repurchase Event, the Issuer will be required, to the extent lawful, to: (i) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer; (ii) deposit with the Paying Agent an amount
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equal to the aggregate purchase price in respect of all Notes or portions of Notes properly tendered; and (iii) deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officers’ Certificate stating the aggregate principal amount of Notes being purchased.
The Paying Agent will promptly distribute to each Holder of Notes properly tendered the purchase price for the Notes deposited by the Issuer. The Issuer will execute, and the Authenticating Agent will promptly authenticate and deliver (or cause to be transferred by book-entry) to each Holder a new note equal in principal amount to any unpurchased portion of any Notes surrendered provided that each new Note will be in a principal amount of an integral multiple of $1,000. The Issuer will not be required to make an offer to repurchase the Notes upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Issuer and such third party purchases all Notes properly tendered and not withdrawn under its offer.
As used in this Section 2.9, the terms set forth below shall have the following respective meanings:
“Below Investment Grade Ratings Event” means that on any day during the period (the “Trigger Period”) commencing 60 days prior to the first public announcement by the Issuer of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which Trigger Period will be extended following consummation of a Change of Control for up to an additional 60 days for so long as any of the Rating Agencies (as defined below) has publicly announced that it is considering a possible ratings change), the Notes cease to be rated Investment Grade (as defined below) by at least two of the three Rating Agencies. Unless at least two of the three Rating Agencies are providing a rating for the Notes at the commencement of any Trigger Period, the Notes will be deemed to have ceased to be rated Investment Grade by at least two of the three Rating Agencies during that Trigger Period.
“Change of Control” means the occurrence of any of the following: (1) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) (other than the Issuer or one of its subsidiaries) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Voting Stock (as defined below) of the Issuer or other Voting Stock into which the Voting Stock of the Issuer is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares; (2) the Issuer consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Issuer, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Issuer or such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Voting Stock of the Issuer outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving Person immediately after giving effect to such transaction; (3) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or more series of related transactions, of all or substantially all of the
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consolidated assets of the Issuer, including the assets of the subsidiaries of the Issuer, taken as a whole, to one or more Persons (other than the Issuer or one of its subsidiaries); (4) the first day on which a majority of the members of the Board of Directors is composed of members who are not Continuing Directors; or (5) the adoption of a plan relating to the liquidation or dissolution of the Issuer. Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (1) the Issuer becomes a direct or indirect wholly owned subsidiary of a holding company and (2)(A) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Voting Stock of the Issuer immediately prior to that transaction or (B) immediately following that transaction no Person (other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company.
“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment Grade Ratings Event for the Notes. Notwithstanding the foregoing, no Change of Control Repurchase Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
“Continuing Directors” means, as of any date of determination, any member of the Board of Directors who (1) was a member of the Board of Directors on the date the Notes were issued or (2) was nominated for election, elected or appointed to the Board of Directors with the approval of a majority of the Continuing Directors who were members of the Board of Directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the proxy statement of the Issuer in which such member was named as a nominee for election as a director, without objection to such nomination).
“Fitch” means Fitch Inc., a subsidiary of Fimalac, S.A., and its successors.
“Investment Grade” means a rating of Baa3 or higher by Moody’s (or its equivalent under any successor rating categories of Moody’s); a rating of BBB- or higher by S&P (or its equivalent under any successor rating categories of S&P); and a rating of BBB- or higher by Fitch (or its equivalent under any successor rating categories of Fitch).
“Moody’s” means Moody’s Investors Service, Inc., and its successors.
“Rating Agency” means each of Moody’s, S&P and Fitch; provided, that if any of Moody’s, S&P and Fitch ceases to provide rating services to issuers or investors, the Issuer may appoint a replacement for such Rating Agency that is a “nationally recognized statistical rating agency” as defined in the Exchange Act.
“S&P” means Standard & Poor’s Ratings Services, a division of McGraw-Hill, Inc., and its successors.
“Voting Stock” of any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date means the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.
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2.10 Form and Other Terms of the Notes. Attached hereto as Annex A is a form of a Note denominated in United States dollars, which form is hereby established as a form in which Notes may be issued. In addition, any Note may be issued in such other form as may be provided by, or not inconsistent with, the terms of the Original Indenture and this Thirty-Fourth Supplemental Indenture.
2.11 Appointment. The Trustee will be the Trustee for the Notes under the Indenture.
ARTICLE III
SUBSIDIARY GUARANTEES
3.1 Guarantee.
(a) Each Subsidiary Guarantor, on a joint and several basis, hereby unconditionally guarantees the punctual payment when due, whether at stated maturity, by acceleration or otherwise, of the principal of, premium, if any, and interest on the Notes, when and as the same shall become due and payable according to the terms of the Notes and as more fully described in the Indenture, and any other amounts payable under the Indenture (the “Obligations”).
(b) It is the intention of each Subsidiary Guarantor that its Guarantee not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Voidable Transactions Act or any similar federal or state law to the extent applicable to its Guarantee. To effectuate the foregoing intention, the amount guaranteed by each Subsidiary Guarantor under its Guarantee shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Subsidiary Guarantor that are relevant under such laws, result in the Obligations of such Subsidiary Guarantor under its Guarantee not constituting a fraudulent transfer or conveyance. For purposes hereof, “Bankruptcy Law” means Title 11 of the U.S. Code, or any similar federal or state law for the relief of debtors.
(c) Following the date of this Thirty-Fourth Supplemental Indenture, prior to the guarantee of any previously Outstanding Securities issued pursuant to the Original Indenture or the initial issuance of Securities that are to be guaranteed, in either case by a Person that is not a Subsidiary Guarantor (or, if provided by the terms of the Original Indenture, a successor to a Subsidiary Guarantor), the parties hereto and such Person shall enter into a supplemental indenture pursuant to Section 2.3 of the Original Indenture whereby such Person shall become a Subsidiary Guarantor under this Thirty-Fourth Supplemental Indenture.
(d) Following the date of this Thirty-Fourth Supplemental Indenture, the Issuer shall cause any wholly owned Domestic Subsidiary that is not a Subsidiary Guarantor and that becomes a guarantor under any other Indebtedness of the Issuer or the Existing Notes to execute and deliver to the Trustee within 30 days of becoming a guarantor under any other Indebtedness of the Issuer or the Existing Notes, a supplemental indenture pursuant to which such wholly owned Domestic Subsidiary shall become a Subsidiary Guarantor and shall provide a Guarantee.
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As used in this Section 3.1, the terms set forth below shall have the following respective meanings:
“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Domestic Subsidiary” means any Subsidiary of a Person that was formed under the laws of the United States or any state of the United States or the District of Columbia.
“Existing Notes” means the senior notes of the Issuer issued pursuant to the Original Indenture, as it may be amended, supplemented or otherwise modified from time to time.
“GAAP” means generally accepted accounting principles in the United States of America.
“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable or accrued liabilities, incurred or accrued in the ordinary course of business), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (f) all guarantees by such Person of Indebtedness of others and (g) all Capital Lease Obligations of such Person. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
“Lien” shall mean any mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest; provided, precautionary or other filings filed in connection with operating leases of the Issuer or any Subsidiary shall not constitute Liens.
3.2 Guarantee Absolute. Each Subsidiary Guarantor guarantees that the Obligations will be paid strictly in accordance with the terms of the Original Indenture and this Thirty-Fourth Supplemental Indenture, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holders of the Notes or the Trustee with respect thereto. The liability of each Subsidiary Guarantor under its Guarantee shall be absolute and unconditional irrespective of:
(a) any lack of validity, enforceability or genuineness of any provision of the Indenture, the Notes or any other agreement or instrument relating thereto;
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(b) any change in the time, manner or place of payment of, or in any other term of, any or all of the Obligations, or any other amendment or waiver of or any consent to departure from the Indenture;
(c) any exchange, release or non-perfection of any collateral, or any release or amendment or waiver of or consent to departure from any other guarantee, for all or any of the Obligations;
(d) the absence of any action to enforce same, or any waiver or consent by the Trustee or any Holder of Notes with respect to any provisions of the Indenture; or
(e) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Issuer or a Subsidiary Guarantor.
3.3 Ranking. Each Subsidiary Guarantor covenants and agrees that its obligation to make payments of the Obligations hereunder constitutes a senior unsecured obligation of such Subsidiary Guarantor ranking pari passu with all existing and future unsecured indebtedness of such Subsidiary Guarantor.
3.4 Waiver; Subrogation.
(a) Each Subsidiary Guarantor hereby waives promptness, diligence, presentment, demand of payment, notice of acceptance and any other notice with respect to its Guarantee and any requirement that the Trustee, or the Holders of any Notes, protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against the Issuer or any other Person or any collateral.
(b) Each Subsidiary Guarantor hereby irrevocably waives any claims or other rights that it may now or hereafter acquire against the Issuer that arise from the existence, payment, performance or enforcement of such Subsidiary Guarantor’s obligations under the Indenture (including its Guarantee), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Trustee, or the Holders of any Notes, against the Issuer or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Issuer, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to such Subsidiary Guarantor in violation of the preceding sentence at any time prior to the cash payment in full of the Obligations and all other amounts payable under the Guarantees, such amount shall be held in trust for the benefit of the Trustee and the Holders of any Notes and shall forthwith be paid to the Trustee, to be credited and applied to the Obligations and all other amounts payable under its Guarantee, whether matured or unmatured, in accordance with the terms of the Indenture (including the Guarantees), or be held
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as collateral for any Obligations or other amounts payable under the Guarantees thereafter arising. Each Subsidiary Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture (including its Guarantee) and that the waiver set forth in this Section 3.4 is knowingly made in contemplation of such benefits.
3.5 No Waiver; Remedies. No failure on the part of the Trustee or any Holder of Notes to exercise, and no delay in exercising, any right under this Article III shall operate as a waiver thereof; nor shall any single or partial exercise of any right under this Article III preclude any other or further exercise thereof or the exercise of any other right. The remedies provided in this Article III are cumulative and not exclusive of any remedies provided by law.
3.6 Continuing Guarantee; Transfer of Interest. Each Subsidiary Guarantor’s Guarantee is a continuing guarantee of such Subsidiary Guarantor and shall (a) remain in full force and effect until the earliest to occur of (i) the date, if any, on which such Subsidiary Guarantor shall consolidate with or merge into the Issuer or any successor thereto, (ii) the date, if any, on which the Issuer or any successor thereto shall consolidate with or merge into such Subsidiary Guarantor and (iii) payment in full of the Obligations, (b) be binding upon such Subsidiary Guarantor, its successors and assigns, and (c) inure to the benefit of and be enforceable by any Holder of Notes, the Trustee, and by their respective successors, transferees, and assigns. Each Guarantee is a guarantee of payment and not a guarantee of collection.
3.7 Reinstatement. The Guarantees shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Obligations is rescinded or must otherwise be returned by any Holder of Notes or the Trustee upon the insolvency, bankruptcy or reorganization of the Issuer or otherwise, all as though such payment had not been made.
3.8 Severability; Amendment. If any provision or any application of this Article III shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not be affected or impaired thereby. Each Subsidiary Guarantor may amend the provisions of this Article III with respect to such Subsidiary Guarantor at any time for any purpose without the consent of the Trustee or any Holder of Notes; provided, however, that if such amendment adversely affects (a) the rights of the Trustee or (b) any Holder of Notes, then (i) the prior written consent of the Trustee (in the case of (b), acting at the written direction of the Holders of more than 50% in aggregate principal amount of the Notes) shall be required and (ii) such Subsidiary Guarantor shall give written notice of any such change to any nationally recognized statistical ratings organization that, at the time such amendment is put into effect, has provided then-current ratings applicable to any of the Obligations.
3.9 Notices. All communications and notices to any Guarantor hereunder shall be made in writing and deemed to have been duly given if mailed or transmitted to the Issuer in accordance with the Original Indenture.
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ARTICLE IV
MISCELLANEOUS PROVISIONS
4.1 Trustee and Paying Agent. The Trustee makes no undertaking or representation in respect of, and shall not be responsible in any manner whatsoever for and in respect of, the validity or sufficiency of the Notes, any Guarantee, this Thirty-Fourth Supplemental Indenture or the proper authorization or the due execution hereof by the Issuer or any Subsidiary Guarantor or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Issuer.
4.2 Effect of Amendment. Except as expressly amended hereby, the Original Indenture, as heretofore amended and supplemented, shall continue in full force and effect in accordance with the provisions thereof and the Original Indenture is in all respects hereby ratified and confirmed. This Thirty-Fourth Supplemental Indenture and all its provisions shall be deemed a part of the Original Indenture in the manner and to the extent herein and therein provided. Notwithstanding anything in the Original Indenture or this Thirty-Fourth Supplemental Indenture to the contrary, to the extent any provisions of this Thirty-Fourth Supplemental Indenture or any Notes issued hereunder shall conflict with any provision of the Original Indenture, the provisions of this Thirty-Fourth Supplemental Indenture or the Notes, as applicable, shall control with respect to the Notes but not any other series of Securities.
4.3 Governing Law. THIS THIRTY-FOURTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4.4 Waiver of Jury Trial. EACH OF THE PARTIES HERETO (AND EACH NOTEHOLDER BY ACCEPTANCE OF A NOTE) HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS THIRTY-FOURTH SUPPLEMENTAL INDENTURE, THE ORIGINAL INDENTURE, THE NOTES, THE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
4.5 Instructions. The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to the Indenture and delivered using the following communications methods: S.W.I.F.T., e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder (collectively, “Electronic Means”); provided, however, that the Issuer shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Issuer whenever a Person is to be added or deleted from the listing. If the Issuer elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Issuer understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Issuer shall be
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responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Issuer and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Issuer. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Issuer; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
4.6 FATCA Withholding Tax. The Issuer hereby covenants with the Trustee and each Paying Agent that it will provide the Trustee and such Paying Agent with sufficient information so as to enable the Trustee and such Paying Agent to determine whether or not each of the Trustee and such Paying Agent, respectively, is obliged, in respect of any payments to be made by it pursuant to the Indenture, to make any withholding or deduction pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended, any regulations or other official guidance thereunder (the “Code”) or otherwise imposed pursuant to Sections 1471 through 1474 of the Code and any regulations, or agreements thereunder or official interpretations thereof or any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any law implementing such an intergovernmental agreement). The Trustee and each Paying Agent shall be entitled to make any withholding or deduction pursuant to an agreement described in Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations or agreements thereunder or official interpretations thereof) or any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any law implementing such an intergovernmental agreement) (collectively, “FATCA Withholding Tax”), and shall have no obligation to gross-up any payment hereunder or to pay any additional amount as a result of such FATCA Withholding Tax.
This Thirty-Fourth Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Thirty-Fourth Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written.
| SYSCO CORPORATION | ||||
| By: | /s/ Adolfo Jimenez | |||
| Name: | Adolfo Jimenez | |||
| Title: | Vice President and Treasurer | |||
| SUBSIDIARY GUARANTORS (listed on Schedule I) | ||||
| By: | /s/ Adolfo Jimenez | |||
| Name: | Adolfo Jimenez | |||
| Title: | Treasurer | |||
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||||
| By: | /s/ Michael K. Herberger | |||
| Name: | Michael K. Herberger | |||
| Title: | Vice President | |||
SCHEDULE I
| Exact Name of Guarantor As Specified in its Charter |
State or Other Jurisdiction of Incorporation or Organization | |
| Sysco Albany, LLC | Delaware | |
| Sysco Atlanta, LLC | Delaware | |
| Sysco Baltimore, LLC | Delaware | |
| Sysco Baraboo, LLC | Delaware | |
| Sysco Boston, LLC | Delaware | |
| Sysco Central Alabama, LLC | Delaware | |
| Sysco Central California, Inc. | California | |
| Sysco Central Florida, Inc. | Delaware | |
| Sysco Central Illinois, Inc. | Delaware | |
| Sysco Central Pennsylvania, LLC | Delaware | |
| Sysco Charlotte, LLC | Delaware | |
| Sysco Chicago, Inc. | Delaware | |
| Sysco Cincinnati, LLC | Delaware | |
| Sysco Cleveland, Inc. | Delaware | |
| Sysco Columbia, LLC | Delaware | |
| Sysco Connecticut, LLC | Delaware | |
| Sysco Detroit, LLC | Delaware | |
| Sysco Eastern Maryland, LLC | Delaware | |
| Sysco Eastern Wisconsin, LLC | Delaware | |
| Sysco Grand Rapids, LLC | Delaware | |
| Sysco Gulf Coast, LLC | Delaware | |
| Sysco Hampton Roads, Inc. | Delaware | |
| Sysco Indianapolis, LLC | Delaware | |
| Sysco Iowa, Inc. | Delaware | |
| Sysco Jackson, LLC | Delaware | |
| Sysco Jacksonville, Inc. | Delaware | |
| Sysco Kansas City, Inc. | Missouri | |
| Sysco Knoxville, LLC | Delaware | |
| Sysco Lincoln, Inc. | Nebraska | |
| Sysco Long Island, LLC | Delaware | |
| Sysco Los Angeles, Inc. | Delaware | |
| Exact Name of Guarantor As Specified in its Charter |
State or Other Jurisdiction of Incorporation or Organization | |
| Sysco Louisville, Inc. | Delaware | |
| Sysco Memphis, LLC | Delaware | |
| Sysco Metro New York, LLC | Delaware | |
| Sysco Minnesota, Inc. | Delaware | |
| Sysco Montana, Inc. | Delaware | |
| Sysco Nashville, LLC | Delaware | |
| Sysco North Dakota, Inc. | Delaware | |
| Sysco Northern New England, Inc. | Maine | |
| Sysco Philadelphia, LLC | Delaware | |
| Sysco Pittsburgh, LLC | Delaware | |
| Sysco Portland, Inc. | Delaware | |
| Sysco Raleigh, LLC | Delaware | |
| Sysco Riverside, Inc. | Delaware | |
| Sysco Sacramento, Inc. | Delaware | |
| Sysco San Diego, Inc. | Delaware | |
| Sysco San Francisco, Inc. | California | |
| Sysco Seattle, Inc. | Delaware | |
| Sysco South Florida, Inc. | Delaware | |
| Sysco Southeast Florida, LLC | Delaware | |
| Sysco Spokane, Inc. | Delaware | |
| Sysco St. Louis, LLC | Delaware | |
| Sysco Syracuse, LLC | Delaware | |
| Sysco USA I, Inc. | Delaware | |
| Sysco USA II, LLC | Delaware | |
| Sysco Ventura, Inc. | Delaware | |
| Sysco Virginia, LLC | Delaware | |
| Sysco West Coast Florida, Inc. | Delaware | |
| Sysco Western Minnesota, Inc. | Delaware | |
[FORM OF FACE OF SECURITY]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
REGISTERED REGISTERED
SYSCO CORPORATION
2.400% Senior Note due 2030
| No. SC-0001 | CUSIP: 871829 BK2 | |
| PRINCIPAL AMOUNT: $ | AUTHENTICATION DATE: | |
| ORIGINAL ISSUE DATE: | STATED MATURITY: February 15, 2030 | |
| INTEREST RATE: 2.400% per annum | SUBJECT TO DEFEASANCE PURSUANT TO SECTION 10.1 OF THE INDENTURE REFERRED TO HEREIN | |
ISSUE PRICE: % of principal amount
Sysco Corporation, a corporation organized and existing under the laws of the State of Delaware (herein called the “Issuer”, which term includes any successor Person under the Indenture referred to herein), for value received, hereby promises to pay to CEDE & Co., or registered assigns, the principal sum of U.S. DOLLARS ($ ) on February 15, 2030 (the “Stated Maturity”) and to pay interest thereon at the rate of 2.400% per annum, computed on the basis of a 360-day year comprising twelve 30-day months, from February 13, 20201 (the “Original Issue Date”) or from the most recent Interest Payment Date to which interest has been paid or duly provided for, on February 15 and August 15 in each year and at the Stated Maturity or upon redemption, commencing August 15, 20202 until the principal hereof is paid or made available for payment. If an Interest Payment Date would otherwise fall on a day that is not a Business Day, such Interest Payment Date shall be postponed to the next succeeding Business Day and no interest shall accrue or be payable on such next succeeding Business Day for the period from and after such original Interest Payment Date to such next succeeding Business Day. Except as provided in the immediately preceding sentence, interest payments shall be in the amount of interest accrued to, but excluding, the applicable Interest Payment Date.
The interest payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture referred to herein, be paid to the Person in whose name this Note is registered at the close of business on the Regular Record Date for such interest, which shall be February 1 or August 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.
| 1 | Or such later date as is appropriate in the case of additional Notes. |
| 2 | Or such later date as is appropriate in the case of additional Notes. |
Payments of principal on this Note and interest payable on this Note at the Stated Maturity or upon redemption of this Note shall be made in immediately available funds in such currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, at the request of the Holder upon presentation and surrender of this Note, at the office or agency of the Paying Agent in New York, New York or any other duly appointed Paying Agent, provided that this Note is presented to the Paying Agent in time for the Paying Agent to make payments in immediately available funds in accordance with its normal procedures. So long as any 2.400% Senior Notes due 2030 of the Issuer (the “Notes”) are represented by a Registered Global Security, interest (other than interest payable at maturity or upon redemption) shall be paid in immediately available funds by wire transfer to the Depositary for such Notes, on the written order of the Depositary. In addition, the Issuer may maintain an agent, in such location or locations as the Issuer may select, to provide the Holders with an office at which they may present the Notes for payment. Notes presented to an agent in accordance with the provisions of the Indenture referred to herein shall be deemed to be presented to the Paying Agent on the Business Day next succeeding the day the Notes are delivered to such agent.
Payment of interest (other than interest payable in accordance with the provisions of the immediately preceding paragraph) will, subject to certain exceptions provided in the Indenture referred to herein, be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security register as of the applicable Regular Record Date or, at the option of the Issuer, by wire transfer to an account maintained by such Person with a bank located in the United States.
At any time before November 15, 2029, the Notes are redeemable as a whole or in part, at the option of the Issuer, at a redemption price, calculated by the Quotation Agent, equal to the greater of the following amounts, plus, in either case, accrued and unpaid interest on the principal amount of the Notes being redeemed to the date of redemption: (i) 100% of the principal amount of the Notes being redeemed; or (ii) the sum of the present values of the remaining scheduled payments of the principal of and interest on the Notes to be redeemed that would be due if the Notes matured on November 15, 2029 (exclusive of interest accrued to the date of redemption), discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points. At any time on or after November 15, 2029, the Notes are redeemable as a whole or in part, at the option of the Issuer, at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest on the principal amount of the Notes being redeemed to the date of redemption.
As used in this paragraph and in the immediately three preceding paragraphs only, the terms set forth below shall have the following respective meanings:
“Business Day” means any calendar day that is not a Saturday, Sunday or legal holiday in New York, New York and on which commercial banks are open for business in New York, New York.
“Comparable Treasury Issue” means the United States Treasury security or securities selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining term of the Notes (assuming the Notes matured on November 15, 2029)
to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Notes (assuming the Notes matured on November 15, 2029).
“Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (2) if the Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Primary Treasury Dealer” means a primary U.S. Government securities dealer in New York City.
“Quotation Agent” means Goldman Sachs & Co. LLC or its successor.
“Reference Treasury Dealer” means each of Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC, TD Securities (USA) LLC and Wells Fargo Securities, LLC or their respective affiliates which are Primary Treasury Dealers, and their respective successors; provided, however, that if any of the foregoing ceases to be a Primary Treasury Dealer, the Issuer will substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotation” means, with respect to a particular Reference Treasury Dealer and a particular redemption date, the average, as calculated by the Quotation Agent, of the bid and asked price for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Quotation Agent by such Reference Treasury Dealer as of 3:30 p.m., New York City time, on the third Business Day preceding that redemption date.
“Treasury Rate” means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity or interpolated (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
All determinations made by the Quotation Agent with respect to determining the redemption price will be final and binding on all parties, absent manifest error.
Notice of any redemption will be given at least 10 days but not more than 60 days before the date of redemption to each Holder of Notes to be redeemed, or as otherwise provided in accordance with DTC procedures. If fewer than all of the Notes are to be redeemed, the Trustee will select the particular Notes or portions of Notes to be redeemed by lot or pro rata or by another method the Trustee deems fair and appropriate (in each case, to the extent such Notes are held in global form, subject to the procedures of DTC).
Notice of any redemption of the Notes in connection with a corporate transaction that is pending (including an equity offering or an incurrence of indebtedness, but excluding, for the avoidance of doubt, a Change of Control that constitutes a Change of Control Repurchase
Event) may, at the Issuer’s discretion, be given subject to one or more conditions precedent, including, but not limited to, completion of the transaction. If such redemption is so subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied or otherwise waived by the date of redemption. The Issuer shall notify Holders of any such rescission as soon as practicable after the Issuer determines that the Issuer will not be able to satisfy or otherwise waive such condition precedent (but in no event later than 11:00 am Eastern Time on the date specified as the redemption date in the notice of redemption). Once notice of redemption is mailed or sent, subject to the satisfaction of any conditions precedent provided in the notice of redemption, the notes called for redemption will become due and payable on the redemption date and at the applicable redemption price, plus accrued and unpaid interest to the date of redemption.
Unless the Issuer defaults in payment of the redemption price, subject to the satisfaction of any conditions precedent provided in the notice of redemption, on or after the date of redemption, interest will cease to accrue on the Notes or portions thereof called for redemption.
In the event of redemption of this Note in part only, a new Note or Notes of like tenor and in an aggregate principal amount equal to the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
If a Change of Control Repurchase Event (as defined below) occurs, unless the Issuer has exercised its right to redeem the Notes as described above or has defeased the Notes pursuant to Section 10.1 of the Indenture referred to herein, the Issuer will be required to make an irrevocable offer to each Holder of Notes to repurchase all or any part (equal to or in excess of $2,000 and in integral multiples of $1,000 in excess thereof) of that Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased to, but not including, the date of repurchase. Within 30 days following a Change of Control Repurchase Event or, at the Issuer’s option, prior to a Change of Control (as defined below), but in either case, after the public announcement of the Change of Control, the Issuer will give, or shall cause to be given, a notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event, offering to repurchase Notes on the payment date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is given, disclosing that any Note not tendered for repurchase will continue to accrue interest, and specifying the procedures for tendering Notes. The notice shall, if given prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on a Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice. The Issuer must comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Notes, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached the obligations of the Issuer under the Change of Control Repurchase Event provisions of the Notes by virtue of such conflict.
On the repurchase date following a Change of Control Repurchase Event, the Issuer will be required, to the extent lawful, to: (i) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer; (ii) deposit with the Paying Agent an amount equal to the aggregate purchase price in respect of all Notes or portions of Notes properly tendered; and (iii) deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officers’ Certificate stating the aggregate principal amount of Notes being purchased.
The Paying Agent will promptly distribute to each Holder of Notes properly tendered the purchase price for the Notes deposited by the Issuer. The Issuer will execute, and the Authenticating Agent will promptly authenticate and deliver (or cause to be transferred by book-entry) to each Holder a new note equal in principal amount to any unpurchased portion of any Notes surrendered provided that each new Note will be in a principal amount of an integral multiple of $1,000. The Issuer will not be required to make an offer to repurchase the Notes upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Issuer and such third party purchases all Notes properly tendered and not withdrawn under its offer.
As used in this paragraph and in the three immediately preceding paragraphs, the terms set forth below shall have the following respective meanings:
“Below Investment Grade Ratings Event” means that on any day during the period (the “Trigger Period”) commencing 60 days prior to the first public announcement by the Issuer of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which Trigger Period will be extended following consummation of a Change of Control for up to an additional 60 days for so long as any of the Rating Agencies (as defined below) has publicly announced that it is considering a possible ratings change), the Notes cease to be rated Investment Grade (as defined below) by at least two of the three Rating Agencies. Unless at least two of the three Rating Agencies are providing a rating for the Notes at the commencement of any Trigger Period, the Notes will be deemed to have ceased to be rated Investment Grade by at least two of the three Rating Agencies during that Trigger Period.
“Change of Control” means the occurrence of any of the following: (1) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) (other than the Issuer or one of its subsidiaries) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Voting Stock (as defined below) of the Issuer or other Voting Stock into which the Voting Stock of the Issuer is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares; (2) the Issuer consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Issuer, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Issuer or such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Voting Stock of the Issuer outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving Person
immediately after giving effect to such transaction; (3) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or more series of related transactions, of all or substantially all of the consolidated assets of the Issuer, including the assets of the subsidiaries of the Issuer, taken as a whole, to one or more Persons (other than the Issuer or one of its subsidiaries); (4) the first day on which a majority of the members of the Board of Directors is composed of members who are not Continuing Directors; or (5) the adoption of a plan relating to the liquidation or dissolution of the Issuer. Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (1) the Issuer becomes a direct or indirect wholly owned subsidiary of a holding company and (2)(A) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Voting Stock of the Issuer immediately prior to that transaction or (B) immediately following that transaction no Person (other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company.
“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment Grade Ratings Event for the Notes. Notwithstanding the foregoing, no Change of Control Repurchase Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
“Continuing Directors” means, as of any date of determination, any member of the Board of Directors who (1) was a member of the Board of Directors on the date the Notes were issued or (2) was nominated for election, elected or appointed to the Board of Directors with the approval of a majority of the Continuing Directors who were members of the Board of Directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the proxy statement of the Issuer in which such member was named as a nominee for election as a director, without objection to such nomination).
“Fitch” means Fitch Inc., a subsidiary of Fimalac, S.A., and its successors.
“Investment Grade” means a rating of Baa3 or higher by Moody’s (or its equivalent under any successor rating categories of Moody’s); a rating of BBB- or higher by S&P (or its equivalent under any successor rating categories of S&P); and a rating of BBB- or higher by Fitch (or its equivalent under any successor rating categories of Fitch).
“Moody’s” means Moody’s Investors Service, Inc., and its successors.
“Rating Agency” means each of Moody’s, S&P and Fitch; provided, that if any of Moody’s, S&P and Fitch ceases to provide rating services to issuers or investors, the Issuer may appoint a replacement for such Rating Agency that is a “nationally recognized statistical rating agency” as defined in the Exchange Act.
“S&P” means Standard & Poor’s Ratings Services, a division of McGraw-Hill, Inc., and its successors.
“Voting Stock” of any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date means the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.
The Notes are not subject to any sinking fund.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, directly or through an Authenticating Agent, by manual signature of an authorized signatory, this Note shall not be entitled to any benefit under the Indenture referred to herein or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed under its corporate seal.
| SYSCO CORPORATION | ||||
| By: | /s/ Adolfo Jimenez | |||
| Name: | Adolfo Jimenez | |||
| Title: | Vice President and Treasurer | |||
| Attest: | /s/ Eve M. McFadden | |||
| Name: | Eve M. McFadden | |||
| Title: | Vice President – Legal, General | |||
| Counsel and Corporate Secretary | ||||
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
Date:
This is one of the Securities referred to in the within-mentioned Indenture.
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||
| By: |
| |
| Authorized Signatory | ||
[REVERSE OF NOTE]
SYSCO CORPORATION
2.400% Senior Note due 2030
This Note is one of a duly authorized issue of securities of the Issuer (the “Securities”), issued and to be issued in one or more series under an Indenture dated as of June 15, 1995 by and between the Issuer and First Union National Bank as trustee, with The Bank of New York Mellon Trust Company, N.A., as successor trustee, as supplemented by a First Supplemental Indenture dated as of June 27, 1995, a Second Supplemental Indenture dated as of May 1, 1996, a Third Supplemental Indenture dated as of April 25, 1997, a Fourth Supplemental Indenture dated as of April 25, 1997, a Fifth Supplemental Indenture dated as of July 27, 1998, a Sixth Supplemental Indenture dated as of April 5, 2002, a Seventh Supplemental Indenture dated as of March 5, 2004, an Eighth Supplemental Indenture dated as of September 22, 2005, a Ninth Supplemental Indenture dated as of February 12, 2008, a Tenth Supplemental Indenture dated as of February 12, 2008, an Eleventh Supplemental Indenture dated as of March 17, 2009, a Twelfth Supplemental Indenture dated as of March 17, 2009, a Thirteenth Supplemental Indenture dated as of February 17, 2012 (the “Thirteenth Supplemental Indenture”), a Fourteenth Supplemental Indenture dated as of June 12, 2012, a Fifteenth Supplemental Indenture dated as of June 12, 2012, a Sixteenth Supplemental Indenture dated as of October 2, 2014, a Seventeenth Supplemental Indenture dated as of October 2, 2014, an Eighteenth Supplemental Indenture dated as of October 2, 2014, a Nineteenth Supplemental Indenture dated as of October 2, 2014, a Twentieth Supplemental Indenture dated as of October 2, 2014, a Twenty-First Supplemental Indenture dated as of October 2, 2014, a Twenty-Second Supplemental Indenture dated as of September 28, 2015, a Twenty-Third Supplemental Indenture dated as of September 28, 2015, a Twenty-Fourth Supplemental Indenture dated as of September 28, 2015, a Twenty-Fifth Supplemental Indenture dated as of September 28, 2015, a Twenty-Sixth Supplemental Indenture dated as of April 1, 2016, a Twenty-Seventh Supplemental Indenture dated as of April 1, 2016, a Twenty-Eighth Supplemental Indenture dated as of April 1, 2016, a Twenty-Ninth Supplemental Indenture dated as of April 1, 2016, a Thirtieth Supplemental Indenture dated as of June 23, 2016, a Thirty-First Supplemental Indenture dated as of June 22, 2017, a Thirty-Second Supplemental Indenture dated as of March 19, 2018, a Thirty-Third Supplemental Indenture dated as of March 19, 2018, a Thirty-Fourth Supplemental Indenture dated as of February 13, 2020 (the “Thirty-Fourth Supplemental Indenture” and, together with the Indenture dated as of June 15, 1995, and the Thirteenth Supplemental Indenture, the “Indenture”), among the Company, the Subsidiary Guarantors and U.S. Bank National Association, as trustee thereunder solely with respect to the Notes and any other series of Securities issued thereunder for which U.S. Bank National Association may be designated from time to time as trustee, in lieu of The Bank of New York Mellon Trust Company, N.A. (the “Trustee”), and a Thirty-Fifth Supplemental Indenture dated as of February 13, 2020, to which Indenture reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, each subsidiary guarantor party thereto (collectively, the “Subsidiary Guarantors”), the Trustee and the Holders of the 2.400% Senior Notes due 2030 of the Issuer (the “Notes”) and of the terms upon which the Notes are, and are to be, authenticated and delivered. The acceptance of this Note shall be deemed to constitute the consent and agreement of the Holder hereof to all the terms and conditions of the Indenture. This Note is a Security of the series designated on the face hereof, which series is initially limited in aggregate principal amount to $500,000,000. To secure the due and punctual payment of principal
of, premium, if any, and interest on the Notes and any other amounts payable by the Issuer under the Indenture and the Notes when and as the same shall be due and payable, whether at stated maturity, by acceleration or otherwise, according to the terms of this Note and the Indenture, the Subsidiary Guarantors have unconditionally guaranteed the Obligations (as defined in the Thirty-Fourth Supplemental Indenture) on a senior basis pursuant to the terms of the Indenture.
If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be declared due and payable in the manner and with the effect provided in the Indenture. Events of Default are defined in the Indenture and generally include: (i) default for 30 days in payment of any interest on the Notes; (ii) default in any payment of principal on any of the Notes when due and payable; (iii) failure on the part of the Issuer duly to observe or perform any of the covenants or agreements on the part of the Issuer in the Securities or in the Indenture which shall not have been remedied within 90 days after written notice by the Trustee or by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of all series affected thereby; or (iv) certain events involving bankruptcy, insolvency or reorganization of the Issuer. If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the Securities of each such affected series of then Outstanding Securities (voting as a single class) may declare the entire principal of all Securities of all such affected series, and the interest accrued thereon, if any, to be immediately due and payable, except that, in the case of an Event of Default arising from certain events of bankruptcy, insolvency or reorganization of the Issuer, the principal and interest on the Securities shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. Subject to certain limitations, the Holders of a majority in aggregate principal amount of the Securities of each series affected (with all such series voting as a single class) at the time Outstanding shall have the right to direct the Trustee in its exercise of any trust or power conferred on the Trustee with respect to the Securities of such series by the Indenture, provided that the Trustee may decline to follow any such direction if the Trustee determines the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith shall determine that the action or proceeding so directed would involve the Trustee in personal liability or if the Trustee in good faith shall so determine that the actions or forbearances specified in or pursuant to such direction would be unduly prejudicial to the interest of Holders of the Securities of all series so affected not joining in the giving of said direction. The Trustee may withhold from Holders notice of any continuing default (except a default in payment of principal or interest) if it determines that withholding notice is in their best interests. The Indenture requires the Issuer to furnish an annual compliance certificate to the Trustee.
The Indenture contains provisions permitting the Issuer and the Trustee to modify the Indenture or any supplemental indenture without the consent of the Holders for one or more of the following purposes (as more particularly set forth in the Indenture): (1) to convey, transfer, assign, mortgage or pledge any property or assets to the Trustee as security for the Securities of one or more series; (2) to evidence the succession of another entity to the Issuer; (3) to add to the covenants of the Issuer or add Events of Default for the benefit of Holders; (4) to cure any ambiguity, to correct or supplement any provision of the Indenture which may be defective or inconsistent with any other provision of the Indenture, or to make any other provisions with respect to matters or questions arising under the Indenture as shall not adversely affect the interests of the Holders in any material respect; (5) to establish the form or terms of Securities of any series as permitted by Sections 2.1 and 2.3 of the Indenture; and (6) to evidence the appointment of a successor Trustee.
The Indenture also permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Issuer and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of the Securities then Outstanding of each series to be affected (voting as a single class). The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Securities of all series at the time Outstanding with respect to which a default or Event of Default shall have occurred and be continuing (voting as a single class), on behalf of the Holders of all such Securities, to waive certain past defaults and Events of Default under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Security issued upon the registration of transfer hereof or in exchange for or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
Without the consent of each Holder of each Note so effected, the Issuer may not extend the final maturity of any Note, or reduce the rate (or alter the method of computation) of interest thereon or extend the time for payment thereof, or reduce (or alter the method of computation of) any amount payable on redemption or repayment thereof or extend the time for payment thereof, or make the principal thereof or interest thereon (including any amount in respect of original issue discount) payable in any coin or currency other than that provided in the Notes or in accordance with the terms thereof, or reduce the amount that would be due and payable upon an acceleration of the maturity of any Note, or impair or affect the right of any Holder to institute suit for the payment thereof.
A supplemental indenture that changes or eliminates any covenant or other provision of the Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of Holders of Securities of such series, or of Coupons appertaining to such Securities, with respect to such covenant provision, shall be deemed not to affect the rights under the Indenture of Holders of Securities of any other series or of the Coupons appertaining to such Securities.
As set forth in, and subject to the provisions of, the Indenture, no Holder of any Note will have any right to institute any proceeding, judicial or otherwise, with respect to the Indenture or for any remedy thereunder, unless (1) such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to the Notes, (2) the Holders of not less than 25% in aggregate principal amount of the Outstanding Notes shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, (3) the Trustee shall not have received from the Holders of a majority in aggregate principal amount of the Outstanding Notes a direction inconsistent with such request and (4) the Trustee shall have failed to institute such proceeding within 60 days; provided, however, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal of or any interest on this Note on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note, as described on the face hereof, at the times, place and rate, and in the coin or currency, herein prescribed.
The Notes are issuable only in fully registered form and are represented either by one or more global certificates registered in the name of a depositary or in the name of its nominee or by a certificate or certificates registered in the name of the beneficial owner(s) of such Notes or its or their nominee(s). The Notes are issuable in denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes and of like tenor of any authorized denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations set forth in the Indenture or this Note, the transfer of this Note is registrable in the Security register, upon surrender of this Note for registration of transfer or exchange at the office or agency of the Security registrar or any successor or co-registrar in New York, New York, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes of like tenor, of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees. The Issuer shall not be required to exchange or register a transfer of (a) any Notes for a period of 15 days next preceding the first giving of notice of redemption of the Notes, or (b) the Notes selected, called or being called for redemption, in whole or in part, except, in the case of any Note to be redeemed in part, the portion thereof not so to be redeemed.
In addition, the Issuer may maintain an agent, in such location or locations as the Issuer may select, to provide the Holders with an office at which they may present the Notes for registration of transfer or exchange. Notes accepted as set forth in the immediately preceding sentence shall be deemed to be presented to the Security registrar on the Business Day next succeeding the day that Notes are delivered to such agent.
No service charge shall be made for any registration of transfer or exchange of Notes, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Subject to the terms of the Indenture, prior to due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and none of the Issuer, the Trustee or any such agent shall be affected by notice to the contrary.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Note or of certain restrictive covenants and Events of Default with respect to this Note, in each case upon compliance with certain conditions set forth in the Indenture. The Indenture with respect to the Notes shall be discharged and canceled upon the payment of all of the Notes and shall be discharged except for certain obligations upon the irrevocable deposit with the Trustee of any combination of funds and U.S. Government Obligations sufficient for such payment.
In the case of any conflict between the provisions of this Note and the Indenture, the provisions of the Indenture shall control.
THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
All capitalized terms used but not defined in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
As provided in the Indenture, no recourse under or upon any obligation, covenant or agreement contained in the Indenture, or in this Note, or because of any indebtedness evidenced hereby, shall be had against any incorporator, as such, or against any past, present or future stockholder, officer, director or employee, as such, of the Issuer or of any successor, either directly or through the Issuer or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being, by acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.
FORM OF ASSIGNMENT
ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
Please insert Social Security or
other identifying number of assignee
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF ASSIGNEE
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the within Note and all rights thereunder, hereby irrevocably constituting and appointing , attorney to transfer said Note on the books of the Issuer, with full power of substitution in the premises.
| Dated: |
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| Notice: The signature(s) to this assignment must correspond with the name(s) as written on the face of the within instrument in every particular, without alteration or enlargement, or any change whatsoever. | ||
SCHEDULE OF INCREASES OR DECREASES IN THE PRINCIPAL AMOUNT
OF THIS NOTE
The original principal amount of this Note is U.S. Dollars ($ ). The following increases or decreases in the principal amount of this Note have been made:
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Exhibit 4.3
Execution Version
SYSCO CORPORATION,
as Issuer,
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
as Guarantors,
AND
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
THIRTY-FIFTH SUPPLEMENTAL INDENTURE
Dated as of February 13, 2020
Supplementing the Indenture
dated as of June 15, 1995
THIRTY-FIFTH SUPPLEMENTAL INDENTURE (this “Thirty-Fifth Supplemental Indenture”) dated as of the 13th day of February, 2020, among SYSCO CORPORATION, a corporation organized and existing under the laws of the State of Delaware (the “Issuer”), the SUBSIDIARY GUARANTORS named on Schedule I hereto (each, a “Subsidiary Guarantor,” and collectively, the “Subsidiary Guarantors”) and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee”);
WHEREAS, the Issuer and the Subsidiary Guarantors desire to designate the Trustee as trustee under the Original Indenture (as defined below) solely with respect to the Notes (as defined below) and any other Securities (as defined below) issued thereunder for which the Trustee may be designated from time to time as trustee, in lieu of The Bank of New York Mellon Trust Company, N.A. (“BONYM”), and the Trustee desires to accept such designation; and
WHEREAS, the Issuer has heretofore executed and delivered an Indenture dated as of June 15, 1995 (as supplemented by the Thirteenth Supplemental Indenture described below, the “Original Indenture,” and as further supplemented by this Thirty-Fifth Supplemental Indenture, the “Indenture”) providing for the issuance by the Issuer from time to time of its unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series (in the Original Indenture and herein called the “Securities”); and
WHEREAS, the Issuer has heretofore executed and delivered to BONYM (i) a First Supplemental Indenture dated as of June 27, 1995 providing for the issuance by the Issuer of $150,000,000 aggregate principal amount of 61⁄2% Senior Notes due June 15, 2005, (ii) a Second Supplemental Indenture dated as of May 1, 1996 providing for the issuance by the Issuer of $200,000,000 aggregate principal amount of 7% Senior Notes due May 1, 2006, (iii) a Third Supplemental Indenture dated as of April 25, 1997 providing for the issuance by the Issuer of $50,000,000 aggregate principal amount of 7.16% Debentures due April 15, 2027, (iv) a Fourth Supplemental Indenture dated as of April 25, 1997 providing for the issuance by the Issuer of $100,000,000 aggregate principal amount of 7.25% Senior Notes due April 15, 2007, (v) a Fifth Supplemental Indenture dated as of July 27, 1998 providing for the issuance by the Issuer of $225,000,000 aggregate principal amount of 61⁄2% Debentures due August 1, 2028, (vi) a Sixth Supplemental Indenture dated as of April 5, 2002 providing for the issuance by the Issuer of $200,000,000 aggregate principal amount of 4.75% Notes due July 30, 2005, (vii) a Seventh Supplemental Indenture dated as of March 5, 2004 providing for the issuance by the Issuer of $200,000,000 aggregate principal amount of 4.60% Senior Notes due March 15, 2014, (viii) an Eighth Supplemental Indenture dated as of September 22, 2005 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 5.375% Senior Notes due September 21, 2035, (ix) a Ninth Supplemental Indenture dated as of February 12, 2008 providing for the issuance by the Issuer of $250,000,000 aggregate principal amount of 4.20% Senior Notes due February 12, 2013, (x) a Tenth Supplemental Indenture dated as of February 12, 2008 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 5.25% Senior Notes due February 12, 2018, (xi) an Eleventh Supplemental Indenture dated as of March 17, 2009 providing for the issuance by the Issuer of $250,000,000 aggregate principal amount of 5.375% Senior Notes due March 17, 2019, (xii) a Twelfth Supplemental Indenture dated as of March 17, 2009 providing for the issuance by the Issuer of $250,000,000 aggregate principal amount of 6.625% Senior Notes due March 17, 2039, (xiii) a Thirteenth Supplemental Indenture dated as of February 17, 2012 to
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reflect, among other things, the addition of certain guarantees of Securities outstanding and unpaid as of January 19, 2011 and to provide for the possibility of additional guarantees of payment obligations on new Securities that may thereafter be issued under the indenture dated as of June 15, 1995 (the “Thirteenth Supplemental Indenture”), (xiv) a Fourteenth Supplemental Indenture dated as of June 12, 2012 providing for the issuance by the Issuer of $300,000,000 aggregate principal amount of 0.55% Senior Notes due 2015, (xv) a Fifteenth Supplemental Indenture dated as of June 12, 2012 providing for the issuance by the Issuer of $450,000,000 aggregate principal amount of 2.60% Senior Notes due 2022, (xvi) a Sixteenth Supplemental Indenture dated as of October 2, 2014 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 1.45% Senior Notes due 2017, (xvii) a Seventeenth Supplemental Indenture dated as of October 2, 2014 providing for the issuance by the Issuer of $750,000,000 aggregate principal amount of 2.35% Senior Notes due 2019, (xviii) an Eighteenth Supplemental Indenture dated as of October 2, 2014 providing for the issuance by the Issuer of $750,000,000 aggregate principal amount of 3.00% Senior Notes due 2021, (xix) a Nineteenth Supplemental Indenture dated as of October 2, 2014 providing for the issuance by the Issuer of $1,250,000,000 aggregate principal amount of 3.50% Senior Notes due 2024, (xx) a Twentieth Supplemental Indenture dated as of October 2, 2014 providing for the issuance by the Issuer of $750,000,000 aggregate principal amount of 4.35% Senior Notes due 2034, (xxi) a Twenty-First Supplemental Indenture dated as of October 2, 2014 providing for the issuance by the Issuer of $1,000,000,000 aggregate principal amount of 4.50% Senior Notes due 2044, (xxii) a Twenty-Second Supplemental Indenture dated as of September 28, 2015 to reflect, among other things, the addition of certain guarantees of Securities outstanding and unpaid as of September 28, 2015, (xxiii) a Twenty-Third Supplemental Indenture dated as of September 28, 2015 providing for the issuance by the Issuer of $750,000,000 aggregate principal amount of 2.60% Senior Notes due 2020, (xxiv) a Twenty-Fourth Supplemental Indenture dated as of September 28, 2015 providing for the issuance by the Issuer of $750,000,000 aggregate principal amount of 3.75% Senior Notes due 2025, (xxv) a Twenty-Fifth Supplemental Indenture dated as of September 28, 2015 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 4.85% Senior Notes due 2045, (xxvi) a Twenty-Sixth Supplemental Indenture dated as of April 1, 2016 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 1.90% Senior Notes due 2019, (xxvii) a Twenty-Seventh Supplemental Indenture dated as of April 1, 2016 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 2.50% Senior Notes due 2021, (xxviii) a Twenty-Eighth Supplemental Indenture dated as of April 1, 2016 providing for the issuance by the Issuer of $1,000,000,000 aggregate principal amount of 3.30% Senior Notes due 2026, (xxix) a Twenty-Ninth Supplemental Indenture dated as of April 1, 2016 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 4.50% Senior Notes due 2046 and (xxx) a Thirtieth Supplemental Indenture dated as of June 23, 2016 providing for the issuance by the Issuer of €500,000,000 aggregate principal amount of 1.250% Senior Notes due 2023; and
WHEREAS, the Issuer has heretofore executed and delivered to the Trustee (i) a Thirty-First Supplemental Indenture dated as of June 22, 2017 providing for the issuance by the Issuer of $750,000,000 aggregate principal amount of 3.250% Senior Notes due 2027, (ii) a Thirty-Second Supplemental Indenture dated as of March 19, 2018 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 3.550% Senior Notes due 2025 and (iii) a Thirty-Third Supplemental Indenture dated as of March 19, 2018 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 4.450% Senior Notes due 2048; and
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WHEREAS, simultaneously herewith, the Issuer and the Subsidiary Guarantors are executing and delivering to the Trustee a Thirty-Fourth Supplemental Indenture dated as of February 13, 2020 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 2.400% Senior Notes due 2030 and the unconditional guarantee by each Subsidiary Guarantor of the punctual payment when due, whether at stated maturity, by acceleration or otherwise, of the principal of, premium, if any, and interest on such Senior Notes; and
WHEREAS, the Issuer, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Original Indenture, including Sections 2.3 and 8.1 thereof, and pursuant to appropriate resolutions of the Board of Directors and the Chief Financial Officer of the Issuer has duly determined to make, execute and deliver to the Trustee this Thirty-Fifth Supplemental Indenture to the Original Indenture as permitted by Sections 2.1, 2.3 and 8.1 of the Original Indenture in order to establish the form or terms of, and to provide for the creation and issue of, a series of Securities under the Original Indenture in the aggregate principal amount of $500,000,000; and
WHEREAS, the Subsidiary Guarantors, in the exercise of their power and authority conferred upon and reserved to them under the provisions of the Original Indenture, including Section 2.3 thereof, and pursuant to appropriate resolutions of the Board of Directors or other governing body of each of the Subsidiary Guarantors has duly determined to make, execute and deliver to the Trustee this Thirty-Fifth Supplemental Indenture to the Original Indenture as permitted by Sections 2.3 and 13.1 of the Original Indenture in order to establish the terms of the Guarantees (as defined in the Thirteenth Supplemental Indenture) of the 3.300% Senior Notes due 2050 and the obligations of the Issuer thereunder; and
WHEREAS, all things necessary to make the Securities provided for herein, when executed by the Issuer and authenticated and delivered by the Trustee or any Authenticating Agent and issued upon the terms and subject to the conditions hereinafter and in the Original Indenture set forth against payment therefor, the valid, binding and legal obligations of the Issuer and the Subsidiary Guarantors and to make this Thirty-Fifth Supplemental Indenture a valid, binding and legal agreement of the Issuer and the Subsidiary Guarantors, have been done.
NOW, THEREFORE, THIS THIRTY-FIFTH SUPPLEMENTAL INDENTURE WITNESSETH that, in order to establish the terms of a series of Securities, and for and in consideration of the premises and of the covenants contained in the Original Indenture and in this
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Thirty-Fifth Supplemental Indenture and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
1.1. Definitions. Each capitalized term that is used herein and is defined in the Original Indenture shall have the meaning specified in the Original Indenture unless that term is otherwise defined herein.
1.2. Section References. Each reference to a particular section set forth in this Thirty-Fifth Supplemental Indenture shall, unless the context otherwise requires, refer to this Thirty-Fifth Supplemental Indenture.
ARTICLE II
TITLE AND TERMS OF SECURITIES
2.1 Title of the Securities. This Thirty-Fifth Supplemental Indenture hereby establishes a series of Securities designated as the “3.300% Senior Notes due 2050” of the Issuer (the “Notes”). For purposes of the Original Indenture, the Notes shall constitute a single series of Securities.
2.2 Term of the Notes. The Notes shall mature on February 15, 2050 (the “Stated Maturity”). In the event that the Stated Maturity of any Note is not a Business Day, principal and interest payable at maturity shall be paid on the next succeeding Business Day with the same effect as if that Business Day were the Stated Maturity and no interest shall accrue or be payable for the period from and after the Stated Maturity to the next succeeding Business Day.
2.3 Amount and Denominations; Currency of Payment. The aggregate principal amount in which the Notes may be initially issued under this Thirty-Fifth Supplemental Indenture is limited to $500,000,000. The Issuer, without the consent of the Holders thereof, may issue additional Notes from time to time after the date hereof; provided that such additional Notes must have the same ranking, interest rate, maturity and other terms as the initially issued Notes. Any additional Notes shall be consolidated and form a single series with the Notes then outstanding, except for issue date, authentication date, issue price and, if applicable, first interest payment date.
The Notes shall be issued in the form of one or more Registered Global Securities in the name of Cede & Co., as registered owner and nominee for The Depository Trust Company, New York, New York (“DTC”). DTC shall initially act as Depositary for the Notes.
The Notes shall be denominated in United States dollars in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
2.4 Interest and Interest Rates. Each Note shall bear interest at the rate of 3.300% per annum from the date of issue or from the most recent Interest Payment Date (as defined in Section 2.5 below) to which interest on such Note has been paid or duly provided for, commencing with the Interest Payment Date next succeeding the date of issue, until the principal thereof is paid or made available for payment. Interest shall be payable to the Person in whose name a Note is
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registered at the close of business on the Regular Record Date (as defined in Section 2.5 below) next preceding an Interest Payment Date. Notwithstanding the foregoing, if a Note is originally issued after the Regular Record Date and before the corresponding Interest Payment Date, the first payment of interest on the Note shall be made on the next succeeding Interest Payment Date to the Person in whose name that Note was registered on the Regular Record Date with respect to such next succeeding Interest Payment Date. Interest on each Note shall be computed on the basis of a 360-day year comprising twelve 30-day months. All dollar amounts resulting from this calculation will be rounded to the nearest cent.
2.5 Interest Payments. The interest payment dates for each Note shall be February 15 and August 15, in each year (the “Interest Payment Dates”), beginning August 15, 2020, and the regular record dates shall be the February 1 and August 1, whether or not a Business Day (the “Regular Record Dates”) preceding those Interest Payment Dates, respectively. Interest shall also be payable at maturity of any Note.
If an Interest Payment Date with respect to the Notes would otherwise fall on a day that is not a Business Day, such Interest Payment Date shall be postponed to the next succeeding Business Day with respect to the Notes and no interest shall accrue or be payable on such next succeeding Business Day for the period from and after such original Interest Payment Date to such next succeeding Business Day.
Except as provided in the immediately preceding paragraph, interest payments shall be in the amount of interest accrued to, but excluding, the Interest Payment Date.
2.6 Place of Payment, Transfer and Exchange. The Issuer authorizes and appoints the Trustee as the sole paying agent (the “Paying Agent”) with respect to any Notes represented by Registered Global Securities, without prejudice to the Issuer’s authority to appoint additional paying agents from time to time pursuant to Section 3.4 of the Original Indenture. Payments of principal on each Note and interest thereon payable at maturity or upon redemption shall be made in immediately available funds in such currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, at the request of the Holder, at the office or agency of the Paying Agent in New York, New York or any other duly appointed Paying Agent, provided that the Note is presented to the Paying Agent in time for the Paying Agent to make the payments in immediately available funds in accordance with its normal procedures. So long as any Notes are represented by a Registered Global Security, interest (other than interest payable at maturity or upon redemption) shall be paid in immediately available funds by wire transfer to the Depositary for such Notes, on the written order of the Depositary. In addition, the Issuer may maintain an agent, in such location or locations as the Issuer may select, to provide the Holders with an office at which they may present the Notes for payment. The Issuer hereby acknowledges that any such agent so maintained will accept Notes for presentment, take payment instructions from the Holder and forward the Notes presented and any related payment instructions to the Paying Agent by overnight courier, for next day delivery. Notes presented as set forth in the previous sentence shall be deemed to be presented to the Paying Agent on the Business Day next succeeding the day the Notes are delivered to such agent. Payment of interest (other than interest payable in accordance with the preceding provisions of this paragraph) will, subject to certain exceptions provided in the Original Indenture, be made by check mailed to the
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address of the Person entitled thereto as such address shall appear in the Security register as of the applicable Regular Record Date or, at the option of the Issuer, by wire transfer to an account maintained by such Person with a bank located in the United States.
The Issuer appoints the Trustee as the sole Security registrar with respect to the Notes, without prejudice to the Issuer’s authority to appoint additional Security registrars from time to time pursuant to Section 2.8 of the Original Indenture. The Notes may be presented by the Holders thereof for registration of transfer or exchange at the office or agency of the Security registrar or any successor or co-registrar in New York, New York. In addition, the Issuer may maintain an agent, in such location or locations as the Issuer may select, to provide the Holders with an office at which they may present the Notes for registration of transfer or exchange. The Issuer hereby acknowledges that any such agent so maintained by the Issuer will accept Notes for registration of transfer or exchange and forward those Notes to the Security registrar by overnight courier, for next day delivery. Notes accepted as set forth in the immediately preceding sentence shall be deemed to be presented to the Security registrar on the Business Day next succeeding the day that Notes are delivered to such agent.
2.7 No Sinking Fund. The Notes shall not be subject to any sinking fund.
2.8 Redemption at the Option of the Issuer. At any time before August 15, 2049, the Notes are redeemable as a whole or in part, at the option of the Issuer, at a redemption price, calculated by the Quotation Agent, equal to the greater of the following amounts, plus, in either case, accrued and unpaid interest on the principal amount of the Notes being redeemed to the date of redemption: (i) 100% of the principal amount of the Notes being redeemed; or (ii) the sum of the present values of the remaining scheduled payments of the principal of and interest on the Notes to be redeemed that would be due if the Notes matured on August 15, 2049 (exclusive of interest accrued to the date of redemption), discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points. At any time on or after August 15, 2049, the Notes are redeemable as a whole or in part, at the option of the Issuer, at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest on the principal amount of the Notes being redeemed to the date of redemption.
As used in this Section 2.8 only, the terms set forth below shall have the following respective meanings:
“Business Day” means any calendar day that is not a Saturday, Sunday or legal holiday in New York, New York and on which commercial banks are open for business in New York, New York.
“Comparable Treasury Issue” means the United States Treasury security or securities selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining term of the Notes (assuming the Notes matured on August 15, 2049) to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Notes (assuming the Notes matured on August 15, 2049).
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“Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (2) if the Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Primary Treasury Dealer” means a primary U.S. Government securities dealer in New York City.
“Quotation Agent” means Goldman Sachs & Co. LLC or its successor.
“Reference Treasury Dealer” means each of Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC, TD Securities (USA) LLC and Wells Fargo Securities, LLC or their respective affiliates which are Primary Treasury Dealers, and their respective successors; provided, however, that if any of the foregoing ceases to be a Primary Treasury Dealer, the Issuer will substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotation” means, with respect to a particular Reference Treasury Dealer and a particular redemption date, the average, as calculated by the Quotation Agent, of the bid and asked price for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Quotation Agent by such Reference Treasury Dealer as of 3:30 p.m., New York City time, on the third Business Day preceding that redemption date.
“Treasury Rate” means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity or interpolated (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
All determinations made by the Quotation Agent with respect to determining the redemption price will be final and binding on all parties, absent manifest error.
Notice of any redemption will be given at least 10 days but not more than 60 days before the date of redemption to each Holder of Notes to be redeemed, or as otherwise provided in accordance with DTC procedures. If fewer than all of the Notes are to be redeemed, the Trustee will select the particular Notes or portions of Notes to be redeemed by lot or pro rata or by another method the Trustee deems fair and appropriate (in each case, to the extent such Notes are held in global form, subject to the procedures of DTC).
Notice of any redemption of the Notes in connection with a corporate transaction that is pending (including an equity offering or an incurrence of indebtedness, but excluding, for the avoidance of doubt, a Change of Control that constitutes a Change of Control Repurchase Event)
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may, at the Issuer’s discretion, be given subject to one or more conditions precedent, including, but not limited to, completion of the transaction. If such redemption is so subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied or otherwise waived by the date of redemption. The Issuer shall notify Holders of any such rescission as soon as practicable after the Issuer determines that the Issuer will not be able to satisfy or otherwise waive such condition precedent (but in no event later than 11:00 am Eastern Time on the date specified as the redemption date in the notice of redemption). Once notice of redemption is mailed or sent, subject to the satisfaction of any conditions precedent provided in the notice of redemption, the notes called for redemption will become due and payable on the redemption date and at the applicable redemption price, plus accrued and unpaid interest to the date of redemption.
Unless the Issuer defaults in payment of the redemption price, subject to the satisfaction of any conditions precedent provided in the notice of redemption, on or after the date of redemption, interest will cease to accrue on the Notes or portions thereof called for redemption.
2.9 Change of Control Repurchase Event. If a Change of Control Repurchase Event (as defined below) occurs, unless the Issuer has exercised its right to redeem the Notes as described above or has defeased the Notes pursuant to Section 10.1 of the Original Indenture, the Issuer will be required to make an irrevocable offer to each Holder of Notes to repurchase all or any part (equal to or in excess of $2,000 and in integral multiples of $1,000 in excess thereof) of that Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased to, but not including, the date of repurchase. Within 30 days following a Change of Control Repurchase Event or, at the Issuer’s option, prior to a Change of Control (as defined below), but in either case, after the public announcement of the Change of Control, the Issuer will give, or shall cause to be given, a notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event, offering to repurchase Notes on the payment date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is given, disclosing that any Note not tendered for repurchase will continue to accrue interest, and specifying the procedures for tendering Notes. The notice shall, if given prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on a Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice. The Issuer must comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Notes, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached the obligations of the Issuer under the Change of Control Repurchase Event provisions of the Notes by virtue of such conflict.
On the repurchase date following a Change of Control Repurchase Event, the Issuer will be required, to the extent lawful, to: (i) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer; (ii) deposit with the Paying Agent an amount
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equal to the aggregate purchase price in respect of all Notes or portions of Notes properly tendered; and (iii) deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officers’ Certificate stating the aggregate principal amount of Notes being purchased.
The Paying Agent will promptly distribute to each Holder of Notes properly tendered the purchase price for the Notes deposited by the Issuer. The Issuer will execute, and the Authenticating Agent will promptly authenticate and deliver (or cause to be transferred by book-entry) to each Holder a new note equal in principal amount to any unpurchased portion of any Notes surrendered provided that each new Note will be in a principal amount of an integral multiple of $1,000. The Issuer will not be required to make an offer to repurchase the Notes upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Issuer and such third party purchases all Notes properly tendered and not withdrawn under its offer.
As used in this Section 2.9, the terms set forth below shall have the following respective meanings:
“Below Investment Grade Ratings Event” means that on any day during the period (the “Trigger Period”) commencing 60 days prior to the first public announcement by the Issuer of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which Trigger Period will be extended following consummation of a Change of Control for up to an additional 60 days for so long as any of the Rating Agencies (as defined below) has publicly announced that it is considering a possible ratings change), the Notes cease to be rated Investment Grade (as defined below) by at least two of the three Rating Agencies. Unless at least two of the three Rating Agencies are providing a rating for the Notes at the commencement of any Trigger Period, the Notes will be deemed to have ceased to be rated Investment Grade by at least two of the three Rating Agencies during that Trigger Period.
“Change of Control” means the occurrence of any of the following: (1) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) (other than the Issuer or one of its subsidiaries) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Voting Stock (as defined below) of the Issuer or other Voting Stock into which the Voting Stock of the Issuer is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares; (2) the Issuer consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Issuer, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Issuer or such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Voting Stock of the Issuer outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving Person immediately after giving effect to such transaction; (3) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or more series of related transactions, of all or substantially all of the
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consolidated assets of the Issuer, including the assets of the subsidiaries of the Issuer, taken as a whole, to one or more Persons (other than the Issuer or one of its subsidiaries); (4) the first day on which a majority of the members of the Board of Directors is composed of members who are not Continuing Directors; or (5) the adoption of a plan relating to the liquidation or dissolution of the Issuer. Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (1) the Issuer becomes a direct or indirect wholly owned subsidiary of a holding company and (2)(A) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Voting Stock of the Issuer immediately prior to that transaction or (B) immediately following that transaction no Person (other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company.
“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment Grade Ratings Event for the Notes. Notwithstanding the foregoing, no Change of Control Repurchase Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
“Continuing Directors” means, as of any date of determination, any member of the Board of Directors who (1) was a member of the Board of Directors on the date the Notes were issued or (2) was nominated for election, elected or appointed to the Board of Directors with the approval of a majority of the Continuing Directors who were members of the Board of Directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the proxy statement of the Issuer in which such member was named as a nominee for election as a director, without objection to such nomination).
“Fitch” means Fitch Inc., a subsidiary of Fimalac, S.A., and its successors.
“Investment Grade” means a rating of Baa3 or higher by Moody’s (or its equivalent under any successor rating categories of Moody’s); a rating of BBB- or higher by S&P (or its equivalent under any successor rating categories of S&P); and a rating of BBB- or higher by Fitch (or its equivalent under any successor rating categories of Fitch).
“Moody’s” means Moody’s Investors Service, Inc., and its successors.
“Rating Agency” means each of Moody’s, S&P and Fitch; provided, that if any of Moody’s, S&P and Fitch ceases to provide rating services to issuers or investors, the Issuer may appoint a replacement for such Rating Agency that is a “nationally recognized statistical rating agency” as defined in the Exchange Act.
“S&P” means Standard & Poor’s Ratings Services, a division of McGraw-Hill, Inc., and its successors.
“Voting Stock” of any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date means the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.
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2.10 Form and Other Terms of the Notes. Attached hereto as Annex A is a form of a Note denominated in United States dollars, which form is hereby established as a form in which Notes may be issued. In addition, any Note may be issued in such other form as may be provided by, or not inconsistent with, the terms of the Original Indenture and this Thirty-Fifth Supplemental Indenture.
2.11 Appointment. The Trustee will be the Trustee for the Notes under the Indenture.
ARTICLE III
SUBSIDIARY GUARANTEES
3.1 Guarantee.
(a) Each Subsidiary Guarantor, on a joint and several basis, hereby unconditionally guarantees the punctual payment when due, whether at stated maturity, by acceleration or otherwise, of the principal of, premium, if any, and interest on the Notes, when and as the same shall become due and payable according to the terms of the Notes and as more fully described in the Indenture, and any other amounts payable under the Indenture (the “Obligations”).
(b) It is the intention of each Subsidiary Guarantor that its Guarantee not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Voidable Transactions Act or any similar federal or state law to the extent applicable to its Guarantee. To effectuate the foregoing intention, the amount guaranteed by each Subsidiary Guarantor under its Guarantee shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Subsidiary Guarantor that are relevant under such laws, result in the Obligations of such Subsidiary Guarantor under its Guarantee not constituting a fraudulent transfer or conveyance. For purposes hereof, “Bankruptcy Law” means Title 11 of the U.S. Code, or any similar federal or state law for the relief of debtors.
(c) Following the date of this Thirty-Fifth Supplemental Indenture, prior to the guarantee of any previously Outstanding Securities issued pursuant to the Original Indenture or the initial issuance of Securities that are to be guaranteed, in either case by a Person that is not a Subsidiary Guarantor (or, if provided by the terms of the Original Indenture, a successor to a Subsidiary Guarantor), the parties hereto and such Person shall enter into a supplemental indenture pursuant to Section 2.3 of the Original Indenture whereby such Person shall become a Subsidiary Guarantor under this Thirty-Fifth Supplemental Indenture.
(d) Following the date of this Thirty-Fifth Supplemental Indenture, the Issuer shall cause any wholly owned Domestic Subsidiary that is not a Subsidiary Guarantor and that becomes a guarantor under any other Indebtedness of the Issuer or the Existing Notes to execute and deliver to the Trustee within 30 days of becoming a guarantor under any other Indebtedness of the Issuer or the Existing Notes, a supplemental indenture pursuant to which such wholly owned Domestic Subsidiary shall become a Subsidiary Guarantor and shall provide a Guarantee.
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As used in this Section 3.1, the terms set forth below shall have the following respective meanings:
“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Domestic Subsidiary” means any Subsidiary of a Person that was formed under the laws of the United States or any state of the United States or the District of Columbia.
“Existing Notes” means the senior notes of the Issuer issued pursuant to the Original Indenture, as it may be amended, supplemented or otherwise modified from time to time.
“GAAP” means generally accepted accounting principles in the United States of America.
“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable or accrued liabilities, incurred or accrued in the ordinary course of business), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (f) all guarantees by such Person of Indebtedness of others and (g) all Capital Lease Obligations of such Person. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
“Lien” shall mean any mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest; provided, precautionary or other filings filed in connection with operating leases of the Issuer or any Subsidiary shall not constitute Liens.
3.2 Guarantee Absolute. Each Subsidiary Guarantor guarantees that the Obligations will be paid strictly in accordance with the terms of the Original Indenture and this Thirty-Fifth Supplemental Indenture, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holders of the Notes or the Trustee with respect thereto. The liability of each Subsidiary Guarantor under its Guarantee shall be absolute and unconditional irrespective of:
(a) any lack of validity, enforceability or genuineness of any provision of the Indenture, the Notes or any other agreement or instrument relating thereto;
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(b) any change in the time, manner or place of payment of, or in any other term of, any or all of the Obligations, or any other amendment or waiver of or any consent to departure from the Indenture;
(c) any exchange, release or non-perfection of any collateral, or any release or amendment or waiver of or consent to departure from any other guarantee, for all or any of the Obligations;
(d) the absence of any action to enforce same, or any waiver or consent by the Trustee or any Holder of Notes with respect to any provisions of the Indenture; or
(e) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Issuer or a Subsidiary Guarantor.
3.3 Ranking. Each Subsidiary Guarantor covenants and agrees that its obligation to make payments of the Obligations hereunder constitutes a senior unsecured obligation of such Subsidiary Guarantor ranking pari passu with all existing and future unsecured indebtedness of such Subsidiary Guarantor.
3.4 Waiver; Subrogation.
(a) Each Subsidiary Guarantor hereby waives promptness, diligence, presentment, demand of payment, notice of acceptance and any other notice with respect to its Guarantee and any requirement that the Trustee, or the Holders of any Notes, protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against the Issuer or any other Person or any collateral.
(b) Each Subsidiary Guarantor hereby irrevocably waives any claims or other rights that it may now or hereafter acquire against the Issuer that arise from the existence, payment, performance or enforcement of such Subsidiary Guarantor’s obligations under the Indenture (including its Guarantee), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Trustee, or the Holders of any Notes, against the Issuer or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Issuer, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to such Subsidiary Guarantor in violation of the preceding sentence at any time prior to the cash payment in full of the Obligations and all other amounts payable under the Guarantees, such amount shall be held in trust for the benefit of the Trustee and the Holders of any Notes and shall forthwith be paid to the Trustee, to be credited and applied to the Obligations and all other amounts payable under its Guarantee, whether matured or unmatured, in accordance with the terms of the Indenture (including the Guarantees), or be held
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as collateral for any Obligations or other amounts payable under the Guarantees thereafter arising. Each Subsidiary Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture (including its Guarantee) and that the waiver set forth in this Section 3.4 is knowingly made in contemplation of such benefits.
3.5 No Waiver; Remedies. No failure on the part of the Trustee or any Holder of Notes to exercise, and no delay in exercising, any right under this Article III shall operate as a waiver thereof; nor shall any single or partial exercise of any right under this Article III preclude any other or further exercise thereof or the exercise of any other right. The remedies provided in this Article III are cumulative and not exclusive of any remedies provided by law.
3.6 Continuing Guarantee; Transfer of Interest. Each Subsidiary Guarantor’s Guarantee is a continuing guarantee of such Subsidiary Guarantor and shall (a) remain in full force and effect until the earliest to occur of (i) the date, if any, on which such Subsidiary Guarantor shall consolidate with or merge into the Issuer or any successor thereto, (ii) the date, if any, on which the Issuer or any successor thereto shall consolidate with or merge into such Subsidiary Guarantor and (iii) payment in full of the Obligations, (b) be binding upon such Subsidiary Guarantor, its successors and assigns, and (c) inure to the benefit of and be enforceable by any Holder of Notes, the Trustee, and by their respective successors, transferees, and assigns. Each Guarantee is a guarantee of payment and not a guarantee of collection.
3.7 Reinstatement. The Guarantees shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Obligations is rescinded or must otherwise be returned by any Holder of Notes or the Trustee upon the insolvency, bankruptcy or reorganization of the Issuer or otherwise, all as though such payment had not been made.
3.8 Severability; Amendment. If any provision or any application of this Article III shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not be affected or impaired thereby. Each Subsidiary Guarantor may amend the provisions of this Article III with respect to such Subsidiary Guarantor at any time for any purpose without the consent of the Trustee or any Holder of Notes; provided, however, that if such amendment adversely affects (a) the rights of the Trustee or (b) any Holder of Notes, then (i) the prior written consent of the Trustee (in the case of (b), acting at the written direction of the Holders of more than 50% in aggregate principal amount of the Notes) shall be required and (ii) such Subsidiary Guarantor shall give written notice of any such change to any nationally recognized statistical ratings organization that, at the time such amendment is put into effect, has provided then-current ratings applicable to any of the Obligations.
3.9 Notices. All communications and notices to any Guarantor hereunder shall be made in writing and deemed to have been duly given if mailed or transmitted to the Issuer in accordance with the Original Indenture.
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ARTICLE IV
MISCELLANEOUS PROVISIONS
4.1 Trustee and Paying Agent. The Trustee makes no undertaking or representation in respect of, and shall not be responsible in any manner whatsoever for and in respect of, the validity or sufficiency of the Notes, any Guarantee, this Thirty-Fifth Supplemental Indenture or the proper authorization or the due execution hereof by the Issuer or any Subsidiary Guarantor or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Issuer.
4.2 Effect of Amendment. Except as expressly amended hereby, the Original Indenture, as heretofore amended and supplemented, shall continue in full force and effect in accordance with the provisions thereof and the Original Indenture is in all respects hereby ratified and confirmed. This Thirty-Fifth Supplemental Indenture and all its provisions shall be deemed a part of the Original Indenture in the manner and to the extent herein and therein provided. Notwithstanding anything in the Original Indenture or this Thirty-Fifth Supplemental Indenture to the contrary, to the extent any provisions of this Thirty-Fifth Supplemental Indenture or any Notes issued hereunder shall conflict with any provision of the Original Indenture, the provisions of this Thirty-Fifth Supplemental Indenture or the Notes, as applicable, shall control with respect to the Notes but not any other series of Securities.
4.3 Governing Law. THIS THIRTY-FIFTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4.4 Waiver of Jury Trial. EACH OF THE PARTIES HERETO (AND EACH NOTEHOLDER BY ACCEPTANCE OF A NOTE) HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS THIRTY-FIFTH SUPPLEMENTAL INDENTURE, THE ORIGINAL INDENTURE, THE NOTES, THE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
4.5 Instructions. The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to the Indenture and delivered using the following communications methods: S.W.I.F.T., e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder (collectively, “Electronic Means”); provided, however, that the Issuer shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Issuer whenever a Person is to be added or deleted from the listing. If the Issuer elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Issuer understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Issuer shall be
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responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Issuer and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Issuer. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Issuer; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
4.6 FATCA Withholding Tax. The Issuer hereby covenants with the Trustee and each Paying Agent that it will provide the Trustee and such Paying Agent with sufficient information so as to enable the Trustee and such Paying Agent to determine whether or not each of the Trustee and such Paying Agent, respectively, is obliged, in respect of any payments to be made by it pursuant to the Indenture, to make any withholding or deduction pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended, any regulations or other official guidance thereunder (the “Code”) or otherwise imposed pursuant to Sections 1471 through 1474 of the Code and any regulations, or agreements thereunder or official interpretations thereof or any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any law implementing such an intergovernmental agreement). The Trustee and each Paying Agent shall be entitled to make any withholding or deduction pursuant to an agreement described in Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations or agreements thereunder or official interpretations thereof) or any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any law implementing such an intergovernmental agreement) (collectively, “FATCA Withholding Tax”), and shall have no obligation to gross-up any payment hereunder or to pay any additional amount as a result of such FATCA Withholding Tax.
This Thirty-Fifth Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Thirty-Fifth Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written.
| SYSCO CORPORATION | ||||
| By: | /s/ Adolfo Jimenez | |||
| Name: | Adolfo Jimenez | |||
| Title: | Vice President and Treasurer | |||
| SUBSIDIARY GUARANTORS (listed on Schedule I) | ||||
| By: | /s/ Adolfo Jimenez | |||
| Name: | Adolfo Jimenez | |||
| Title: | Treasurer | |||
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||||
| By: | /s/ Michael K. Herberger | |||
| Name: | Michael K. Herberger | |||
| Title: | Vice President | |||
|
Exact Name of Guarantor As Specified in its Charter |
State or Other Jurisdiction of Incorporation or Organization | |
| Sysco Albany, LLC |
Delaware | |
| Sysco Atlanta, LLC |
Delaware | |
| Sysco Baltimore, LLC |
Delaware | |
| Sysco Baraboo, LLC |
Delaware | |
| Sysco Boston, LLC |
Delaware | |
| Sysco Central Alabama, LLC |
Delaware | |
| Sysco Central California, Inc. |
California | |
| Sysco Central Florida, Inc. |
Delaware | |
| Sysco Central Illinois, Inc. |
Delaware | |
| Sysco Central Pennsylvania, LLC |
Delaware | |
| Sysco Charlotte, LLC |
Delaware | |
| Sysco Chicago, Inc. |
Delaware | |
| Sysco Cincinnati, LLC |
Delaware | |
| Sysco Cleveland, Inc. |
Delaware | |
| Sysco Columbia, LLC |
Delaware | |
| Sysco Connecticut, LLC |
Delaware | |
| Sysco Detroit, LLC |
Delaware | |
| Sysco Eastern Maryland, LLC |
Delaware | |
| Sysco Eastern Wisconsin, LLC |
Delaware | |
| Sysco Grand Rapids, LLC |
Delaware | |
| Sysco Gulf Coast, LLC |
Delaware | |
| Sysco Hampton Roads, Inc. |
Delaware | |
| Sysco Indianapolis, LLC |
Delaware | |
| Sysco Iowa, Inc. |
Delaware | |
| Sysco Jackson, LLC |
Delaware | |
| Sysco Jacksonville, Inc. |
Delaware | |
| Sysco Kansas City, Inc. |
Missouri | |
| Sysco Knoxville, LLC |
Delaware | |
| Sysco Lincoln, Inc. |
Nebraska | |
| Sysco Long Island, LLC |
Delaware | |
| Sysco Los Angeles, Inc. |
Delaware | |
|
Exact Name of Guarantor As Specified in its Charter |
State or Other Jurisdiction of Incorporation or Organization | |
| Sysco Louisville, Inc. |
Delaware | |
| Sysco Memphis, LLC |
Delaware | |
| Sysco Metro New York, LLC |
Delaware | |
| Sysco Minnesota, Inc. |
Delaware | |
| Sysco Montana, Inc. |
Delaware | |
| Sysco Nashville, LLC |
Delaware | |
| Sysco North Dakota, Inc. |
Delaware | |
| Sysco Northern New England, Inc. |
Maine | |
| Sysco Philadelphia, LLC |
Delaware | |
| Sysco Pittsburgh, LLC |
Delaware | |
| Sysco Portland, Inc. |
Delaware | |
| Sysco Raleigh, LLC |
Delaware | |
| Sysco Riverside, Inc. |
Delaware | |
| Sysco Sacramento, Inc. |
Delaware | |
| Sysco San Diego, Inc. |
Delaware | |
| Sysco San Francisco, Inc. |
California | |
| Sysco Seattle, Inc. |
Delaware | |
| Sysco South Florida, Inc. |
Delaware | |
| Sysco Southeast Florida, LLC |
Delaware | |
| Sysco Spokane, Inc. |
Delaware | |
| Sysco St. Louis, LLC |
Delaware | |
| Sysco Syracuse, LLC |
Delaware | |
| Sysco USA I, Inc. |
Delaware | |
| Sysco USA II, LLC |
Delaware | |
| Sysco Ventura, Inc. |
Delaware | |
| Sysco Virginia, LLC |
Delaware | |
| Sysco West Coast Florida, Inc. |
Delaware | |
| Sysco Western Minnesota, Inc. |
Delaware | |
[FORM OF FACE OF SECURITY]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
| REGISTERED | REGISTERED |
SYSCO CORPORATION
3.300% Senior Note due 2050
| No. SC-0001 | CUSIP: 871829 BJ5 | |
| PRINCIPAL AMOUNT: $ | AUTHENTICATION DATE: | |
| ORIGINAL ISSUE DATE: | STATED MATURITY: February 15, 2050 | |
| INTEREST RATE: 3.300% per annum | SUBJECT TO DEFEASANCE PURSUANT TO SECTION 10.1 OF THE INDENTURE REFERRED TO HEREIN | |
| ISSUE PRICE: % of principal amount | ||
Sysco Corporation, a corporation organized and existing under the laws of the State of Delaware (herein called the “Issuer”, which term includes any successor Person under the Indenture referred to herein), for value received, hereby promises to pay to CEDE & Co., or registered assigns, the principal sum of U.S. DOLLARS ($ ) on February 15, 2050 (the “Stated Maturity”) and to pay interest thereon at the rate of 3.300% per annum, computed on the basis of a 360-day year comprising twelve 30-day months, from February 13, 20201 (the “Original Issue Date”) or from the most recent Interest Payment Date to which interest has been paid or duly provided for, on February 15 and August 15 in each year and at the Stated Maturity or upon redemption, commencing August 15, 20202 until the principal hereof is paid or made available for payment. If an Interest Payment Date would otherwise fall on a day that is not a Business Day, such Interest Payment Date shall be postponed to the next succeeding Business Day and no interest shall accrue or be payable on such next succeeding Business Day for the period from and after such original Interest Payment Date to such next succeeding Business Day. Except as provided in the immediately preceding sentence, interest payments shall be in the amount of interest accrued to, but excluding, the applicable Interest Payment Date.
The interest payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture referred to herein, be paid to the Person in whose name this Note is registered at the close of business on the Regular Record Date for such interest, which shall be February 1 or August 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.
| 1 | Or such later date as is appropriate in the case of additional Notes. |
| 2 | Or such later date as is appropriate in the case of additional Notes. |
Payments of principal on this Note and interest payable on this Note at the Stated Maturity or upon redemption of this Note shall be made in immediately available funds in such currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, at the request of the Holder upon presentation and surrender of this Note, at the office or agency of the Paying Agent in New York, New York or any other duly appointed Paying Agent, provided that this Note is presented to the Paying Agent in time for the Paying Agent to make payments in immediately available funds in accordance with its normal procedures. So long as any 3.300% Senior Notes due 2050 of the Issuer (the “Notes”) are represented by a Registered Global Security, interest (other than interest payable at maturity or upon redemption) shall be paid in immediately available funds by wire transfer to the Depositary for such Notes, on the written order of the Depositary. In addition, the Issuer may maintain an agent, in such location or locations as the Issuer may select, to provide the Holders with an office at which they may present the Notes for payment. Notes presented to an agent in accordance with the provisions of the Indenture referred to herein shall be deemed to be presented to the Paying Agent on the Business Day next succeeding the day the Notes are delivered to such agent.
Payment of interest (other than interest payable in accordance with the provisions of the immediately preceding paragraph) will, subject to certain exceptions provided in the Indenture referred to herein, be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security register as of the applicable Regular Record Date or, at the option of the Issuer, by wire transfer to an account maintained by such Person with a bank located in the United States.
At any time before August 15, 2049, the Notes are redeemable as a whole or in part, at the option of the Issuer, at a redemption price, calculated by the Quotation Agent, equal to the greater of the following amounts, plus, in either case, accrued and unpaid interest on the principal amount of the Notes being redeemed to the date of redemption: (i) 100% of the principal amount of the Notes being redeemed; or (ii) the sum of the present values of the remaining scheduled payments of the principal of and interest on the Notes to be redeemed that would be due if the Notes matured on August 15, 2049 (exclusive of interest accrued to the date of redemption), discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points. At any time on or after August 15, 2049, the Notes are redeemable as a whole or in part, at the option of the Issuer, at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest on the principal amount of the Notes being redeemed to the date of redemption.
As used in this paragraph and in the immediately three preceding paragraphs only, the terms set forth below shall have the following respective meanings:
“Business Day” means any calendar day that is not a Saturday, Sunday or legal holiday in New York, New York and on which commercial banks are open for business in New York, New York.
“Comparable Treasury Issue” means the United States Treasury security or securities selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining term of the Notes (assuming the Notes matured on August 15, 2049) to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Notes (assuming the Notes matured on August 15, 2049).
“Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (2) if the Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Primary Treasury Dealer” means a primary U.S. Government securities dealer in New York City.
“Quotation Agent” means Goldman Sachs & Co. LLC or its successor.
“Reference Treasury Dealer” means each of Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC, TD Securities (USA) LLC and Wells Fargo Securities, LLC or their respective affiliates which are Primary Treasury Dealers, and their respective successors; provided, however, that if any of the foregoing ceases to be a Primary Treasury Dealer, the Issuer will substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotation” means, with respect to a particular Reference Treasury Dealer and a particular redemption date, the average, as calculated by the Quotation Agent, of the bid and asked price for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Quotation Agent by such Reference Treasury Dealer as of 3:30 p.m., New York City time, on the third Business Day preceding that redemption date.
“Treasury Rate” means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity or interpolated (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
All determinations made by the Quotation Agent with respect to determining the redemption price will be final and binding on all parties, absent manifest error.
Notice of any redemption will be given at least 10 days but not more than 60 days before the date of redemption to each Holder of Notes to be redeemed, or as otherwise provided in accordance with DTC procedures. If fewer than all of the Notes are to be redeemed, the Trustee will select the particular Notes or portions of Notes to be redeemed by lot or pro rata or by another method the Trustee deems fair and appropriate (in each case, to the extent such Notes are held in global form, subject to the procedures of DTC).
Notice of any redemption of the Notes in connection with a corporate transaction that is pending (including an equity offering or an incurrence of indebtedness, but excluding, for the avoidance of doubt, a Change of Control that constitutes a Change of Control Repurchase Event) may, at the Issuer’s discretion, be given subject to one or more conditions precedent, including, but not limited to, completion of the transaction. If such redemption is so subject to
satisfaction of one or more conditions precedent, such notice shall describe each such condition, and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied or otherwise waived by the date of redemption. The Issuer shall notify Holders of any such rescission as soon as practicable after the Issuer determines that the Issuer will not be able to satisfy or otherwise waive such condition precedent (but in no event later than 11:00 am Eastern Time on the date specified as the redemption date in the notice of redemption). Once notice of redemption is mailed or sent, subject to the satisfaction of any conditions precedent provided in the notice of redemption, the notes called for redemption will become due and payable on the redemption date and at the applicable redemption price, plus accrued and unpaid interest to the date of redemption.
Unless the Issuer defaults in payment of the redemption price, subject to the satisfaction of any conditions precedent provided in the notice of redemption, on or after the date of redemption, interest will cease to accrue on the Notes or portions thereof called for redemption.
In the event of redemption of this Note in part only, a new Note or Notes of like tenor and in an aggregate principal amount equal to the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
If a Change of Control Repurchase Event (as defined below) occurs, unless the Issuer has exercised its right to redeem the Notes as described above or has defeased the Notes pursuant to Section 10.1 of the Indenture referred to herein, the Issuer will be required to make an irrevocable offer to each Holder of Notes to repurchase all or any part (equal to or in excess of $2,000 and in integral multiples of $1,000 in excess thereof) of that Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased to, but not including, the date of repurchase. Within 30 days following a Change of Control Repurchase Event or, at the Issuer’s option, prior to a Change of Control (as defined below), but in either case, after the public announcement of the Change of Control, the Issuer will give, or shall cause to be given, a notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event, offering to repurchase Notes on the payment date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is given, disclosing that any Note not tendered for repurchase will continue to accrue interest, and specifying the procedures for tendering Notes. The notice shall, if given prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on a Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice. The Issuer must comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Notes, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached the obligations of the Issuer under the Change of Control Repurchase Event provisions of the Notes by virtue of such conflict.
On the repurchase date following a Change of Control Repurchase Event, the Issuer will be required, to the extent lawful, to: (i) accept for payment all Notes or portions of Notes
properly tendered pursuant to the Change of Control Offer; (ii) deposit with the Paying Agent an amount equal to the aggregate purchase price in respect of all Notes or portions of Notes properly tendered; and (iii) deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officers’ Certificate stating the aggregate principal amount of Notes being purchased.
The Paying Agent will promptly distribute to each Holder of Notes properly tendered the purchase price for the Notes deposited by the Issuer. The Issuer will execute, and the Authenticating Agent will promptly authenticate and deliver (or cause to be transferred by book-entry) to each Holder a new note equal in principal amount to any unpurchased portion of any Notes surrendered provided that each new Note will be in a principal amount of an integral multiple of $1,000. The Issuer will not be required to make an offer to repurchase the Notes upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Issuer and such third party purchases all Notes properly tendered and not withdrawn under its offer.
As used in this paragraph and in the three immediately preceding paragraphs, the terms set forth below shall have the following respective meanings:
“Below Investment Grade Ratings Event” means that on any day during the period (the “Trigger Period”) commencing 60 days prior to the first public announcement by the Issuer of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which Trigger Period will be extended following consummation of a Change of Control for up to an additional 60 days for so long as any of the Rating Agencies (as defined below) has publicly announced that it is considering a possible ratings change), the Notes cease to be rated Investment Grade (as defined below) by at least two of the three Rating Agencies. Unless at least two of the three Rating Agencies are providing a rating for the Notes at the commencement of any Trigger Period, the Notes will be deemed to have ceased to be rated Investment Grade by at least two of the three Rating Agencies during that Trigger Period.
“Change of Control” means the occurrence of any of the following: (1) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) (other than the Issuer or one of its subsidiaries) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Voting Stock (as defined below) of the Issuer or other Voting Stock into which the Voting Stock of the Issuer is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares; (2) the Issuer consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Issuer, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Issuer or such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Voting Stock of the Issuer outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving Person immediately after giving effect to such transaction; (3) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or
more series of related transactions, of all or substantially all of the consolidated assets of the Issuer, including the assets of the subsidiaries of the Issuer, taken as a whole, to one or more Persons (other than the Issuer or one of its subsidiaries); (4) the first day on which a majority of the members of the Board of Directors is composed of members who are not Continuing Directors; or (5) the adoption of a plan relating to the liquidation or dissolution of the Issuer. Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (1) the Issuer becomes a direct or indirect wholly owned subsidiary of a holding company and (2)(A) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Voting Stock of the Issuer immediately prior to that transaction or (B) immediately following that transaction no Person (other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company.
“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment Grade Ratings Event for the Notes. Notwithstanding the foregoing, no Change of Control Repurchase Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
“Continuing Directors” means, as of any date of determination, any member of the Board of Directors who (1) was a member of the Board of Directors on the date the Notes were issued or (2) was nominated for election, elected or appointed to the Board of Directors with the approval of a majority of the Continuing Directors who were members of the Board of Directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the proxy statement of the Issuer in which such member was named as a nominee for election as a director, without objection to such nomination).
“Fitch” means Fitch Inc., a subsidiary of Fimalac, S.A., and its successors.
“Investment Grade” means a rating of Baa3 or higher by Moody’s (or its equivalent under any successor rating categories of Moody’s); a rating of BBB- or higher by S&P (or its equivalent under any successor rating categories of S&P); and a rating of BBB- or higher by Fitch (or its equivalent under any successor rating categories of Fitch).
“Moody’s” means Moody’s Investors Service, Inc., and its successors.
“Rating Agency” means each of Moody’s, S&P and Fitch; provided, that if any of Moody’s, S&P and Fitch ceases to provide rating services to issuers or investors, the Issuer may appoint a replacement for such Rating Agency that is a “nationally recognized statistical rating agency” as defined in the Exchange Act.
“S&P” means Standard & Poor’s Ratings Services, a division of McGraw-Hill, Inc., and its successors.
“Voting Stock” of any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date means the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.
The Notes are not subject to any sinking fund.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, directly or through an Authenticating Agent, by manual signature of an authorized signatory, this Note shall not be entitled to any benefit under the Indenture referred to herein or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed under its corporate seal.
| SYSCO CORPORATION | ||||
| By: | /s/ Adolfo Jimenez | |||
| Name: | Adolfo Jimenez | |||
| Title: | Vice President and Treasurer | |||
| Attest: | /s/ Eve M. McFadden | |||
| Name: | Eve M. McFadden | |||
| Title: | Vice President – Legal, General | |||
| Counsel and Corporate Secretary | ||||
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
Date:
This is one of the Securities referred to in the within-mentioned Indenture.
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||
| By: |
| |
| Authorized Signatory | ||
[REVERSE OF NOTE]
SYSCO CORPORATION
3.300% Senior Note due 2050
This Note is one of a duly authorized issue of securities of the Issuer (the “Securities”), issued and to be issued in one or more series under an Indenture dated as of June 15, 1995 by and between the Issuer and First Union National Bank as trustee, with The Bank of New York Mellon Trust Company, N.A., as successor trustee, as supplemented by a First Supplemental Indenture dated as of June 27, 1995, a Second Supplemental Indenture dated as of May 1, 1996, a Third Supplemental Indenture dated as of April 25, 1997, a Fourth Supplemental Indenture dated as of April 25, 1997, a Fifth Supplemental Indenture dated as of July 27, 1998, a Sixth Supplemental Indenture dated as of April 5, 2002, a Seventh Supplemental Indenture dated as of March 5, 2004, an Eighth Supplemental Indenture dated as of September 22, 2005, a Ninth Supplemental Indenture dated as of February 12, 2008, a Tenth Supplemental Indenture dated as of February 12, 2008, an Eleventh Supplemental Indenture dated as of March 17, 2009, a Twelfth Supplemental Indenture dated as of March 17, 2009, a Thirteenth Supplemental Indenture dated as of February 17, 2012 (the “Thirteenth Supplemental Indenture”), a Fourteenth Supplemental Indenture dated as of June 12, 2012, a Fifteenth Supplemental Indenture dated as of June 12, 2012, a Sixteenth Supplemental Indenture dated as of October 2, 2014, a Seventeenth Supplemental Indenture dated as of October 2, 2014, an Eighteenth Supplemental Indenture dated as of October 2, 2014, a Nineteenth Supplemental Indenture dated as of October 2, 2014, a Twentieth Supplemental Indenture dated as of October 2, 2014, a Twenty-First Supplemental Indenture dated as of October 2, 2014, a Twenty-Second Supplemental Indenture dated as of September 28, 2015, a Twenty-Third Supplemental Indenture dated as of September 28, 2015, a Twenty-Fourth Supplemental Indenture dated as of September 28, 2015, a Twenty-Fifth Supplemental Indenture dated as of September 28, 2015, a Twenty-Sixth Supplemental Indenture dated as of April 1, 2016, a Twenty-Seventh Supplemental Indenture dated as of April 1, 2016, a Twenty-Eighth Supplemental Indenture dated as of April 1, 2016, a Twenty-Ninth Supplemental Indenture dated as of April 1, 2016, a Thirtieth Supplemental Indenture dated as of June 23, 2016, a Thirty-First Supplemental Indenture dated as of June 22, 2017, a Thirty-Second Supplemental Indenture dated as of March 19, 2018, a Thirty-Third Supplemental Indenture dated as of March 19, 2018, a Thirty-Fourth Supplemental Indenture dated as of February 13, 2020 and a Thirty-Fifth Supplemental Indenture dated as of February 13, 2020 (the “Thirty-Fifth Supplemental Indenture” and, together with the Indenture dated as of June 15, 1995, and the Thirteenth Supplemental Indenture, the “Indenture”), among the Company, the Subsidiary Guarantors and U.S. Bank National Association, as trustee thereunder solely with respect to the Notes and any other series of Securities issued thereunder for which U.S. Bank National Association may be designated from time to time as trustee, in lieu of The Bank of New York Mellon Trust Company, N.A. (the “Trustee”), to which Indenture reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, each subsidiary guarantor party thereto (collectively, the “Subsidiary Guarantors”), the Trustee and the Holders of the 3.300% Senior Notes due 2050 of the Issuer (the “Notes”) and of the terms upon which the Notes are, and are to be, authenticated and delivered. The acceptance of this Note shall be deemed to constitute the consent and agreement of the Holder hereof to all the terms and conditions of the Indenture. This Note is a Security of the series designated on the face hereof, which series is initially limited in aggregate principal amount to $500,000,000. To secure the due and punctual payment of principal
of, premium, if any, and interest on the Notes and any other amounts payable by the Issuer under the Indenture and the Notes when and as the same shall be due and payable, whether at stated maturity, by acceleration or otherwise, according to the terms of this Note and the Indenture, the Subsidiary Guarantors have unconditionally guaranteed the Obligations (as defined in the Thirty-Fifth Supplemental Indenture) on a senior basis pursuant to the terms of the Indenture.
If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be declared due and payable in the manner and with the effect provided in the Indenture. Events of Default are defined in the Indenture and generally include: (i) default for 30 days in payment of any interest on the Notes; (ii) default in any payment of principal on any of the Notes when due and payable; (iii) failure on the part of the Issuer duly to observe or perform any of the covenants or agreements on the part of the Issuer in the Securities or in the Indenture which shall not have been remedied within 90 days after written notice by the Trustee or by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of all series affected thereby; or (iv) certain events involving bankruptcy, insolvency or reorganization of the Issuer. If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the Securities of each such affected series of then Outstanding Securities (voting as a single class) may declare the entire principal of all Securities of all such affected series, and the interest accrued thereon, if any, to be immediately due and payable, except that, in the case of an Event of Default arising from certain events of bankruptcy, insolvency or reorganization of the Issuer, the principal and interest on the Securities shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. Subject to certain limitations, the Holders of a majority in aggregate principal amount of the Securities of each series affected (with all such series voting as a single class) at the time Outstanding shall have the right to direct the Trustee in its exercise of any trust or power conferred on the Trustee with respect to the Securities of such series by the Indenture, provided that the Trustee may decline to follow any such direction if the Trustee determines the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith shall determine that the action or proceeding so directed would involve the Trustee in personal liability or if the Trustee in good faith shall so determine that the actions or forbearances specified in or pursuant to such direction would be unduly prejudicial to the interest of Holders of the Securities of all series so affected not joining in the giving of said direction. The Trustee may withhold from Holders notice of any continuing default (except a default in payment of principal or interest) if it determines that withholding notice is in their best interests. The Indenture requires the Issuer to furnish an annual compliance certificate to the Trustee.
The Indenture contains provisions permitting the Issuer and the Trustee to modify the Indenture or any supplemental indenture without the consent of the Holders for one or more of the following purposes (as more particularly set forth in the Indenture): (1) to convey, transfer, assign, mortgage or pledge any property or assets to the Trustee as security for the Securities of one or more series; (2) to evidence the succession of another entity to the Issuer; (3) to add to the covenants of the Issuer or add Events of Default for the benefit of Holders; (4) to cure any ambiguity, to correct or supplement any provision of the Indenture which may be defective or inconsistent with any other provision of the Indenture, or to make any other provisions with respect to matters or questions arising under the Indenture as shall not adversely affect the interests of the Holders in any material respect; (5) to establish the form or terms of Securities of any series as permitted by Sections 2.1 and 2.3 of the Indenture; and (6) to evidence the appointment of a successor Trustee.
The Indenture also permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Issuer and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of the Securities then Outstanding of each series to be affected (voting as a single class). The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Securities of all series at the time Outstanding with respect to which a default or Event of Default shall have occurred and be continuing (voting as a single class), on behalf of the Holders of all such Securities, to waive certain past defaults and Events of Default under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Security issued upon the registration of transfer hereof or in exchange for or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
Without the consent of each Holder of each Note so effected, the Issuer may not extend the final maturity of any Note, or reduce the rate (or alter the method of computation) of interest thereon or extend the time for payment thereof, or reduce (or alter the method of computation of) any amount payable on redemption or repayment thereof or extend the time for payment thereof, or make the principal thereof or interest thereon (including any amount in respect of original issue discount) payable in any coin or currency other than that provided in the Notes or in accordance with the terms thereof, or reduce the amount that would be due and payable upon an acceleration of the maturity of any Note, or impair or affect the right of any Holder to institute suit for the payment thereof.
A supplemental indenture that changes or eliminates any covenant or other provision of the Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of Holders of Securities of such series, or of Coupons appertaining to such Securities, with respect to such covenant provision, shall be deemed not to affect the rights under the Indenture of Holders of Securities of any other series or of the Coupons appertaining to such Securities.
As set forth in, and subject to the provisions of, the Indenture, no Holder of any Note will have any right to institute any proceeding, judicial or otherwise, with respect to the Indenture or for any remedy thereunder, unless (1) such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to the Notes, (2) the Holders of not less than 25% in aggregate principal amount of the Outstanding Notes shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, (3) the Trustee shall not have received from the Holders of a majority in aggregate principal amount of the Outstanding Notes a direction inconsistent with such request and (4) the Trustee shall have failed to institute such proceeding within 60 days; provided, however, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal of or any interest on this Note on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note, as described on the face hereof, at the times, place and rate, and in the coin or currency, herein prescribed.
The Notes are issuable only in fully registered form and are represented either by one or more global certificates registered in the name of a depositary or in the name of its nominee or by a certificate or certificates registered in the name of the beneficial owner(s) of such Notes or its or their nominee(s). The Notes are issuable in denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes and of like tenor of any authorized denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations set forth in the Indenture or this Note, the transfer of this Note is registrable in the Security register, upon surrender of this Note for registration of transfer or exchange at the office or agency of the Security registrar or any successor or co-registrar in New York, New York, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes of like tenor, of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees. The Issuer shall not be required to exchange or register a transfer of (a) any Notes for a period of 15 days next preceding the first giving of notice of redemption of the Notes, or (b) the Notes selected, called or being called for redemption, in whole or in part, except, in the case of any Note to be redeemed in part, the portion thereof not so to be redeemed.
In addition, the Issuer may maintain an agent, in such location or locations as the Issuer may select, to provide the Holders with an office at which they may present the Notes for registration of transfer or exchange. Notes accepted as set forth in the immediately preceding sentence shall be deemed to be presented to the Security registrar on the Business Day next succeeding the day that Notes are delivered to such agent.
No service charge shall be made for any registration of transfer or exchange of Notes, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Subject to the terms of the Indenture, prior to due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and none of the Issuer, the Trustee or any such agent shall be affected by notice to the contrary.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Note or of certain restrictive covenants and Events of Default with respect to this Note, in each case upon compliance with certain conditions set forth in the Indenture. The Indenture with respect to the Notes shall be discharged and canceled upon the payment of all of the Notes and shall be discharged except for certain obligations upon the irrevocable deposit with the Trustee of any combination of funds and U.S. Government Obligations sufficient for such payment.
In the case of any conflict between the provisions of this Note and the Indenture, the provisions of the Indenture shall control.
THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
All capitalized terms used but not defined in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
As provided in the Indenture, no recourse under or upon any obligation, covenant or agreement contained in the Indenture, or in this Note, or because of any indebtedness evidenced hereby, shall be had against any incorporator, as such, or against any past, present or future stockholder, officer, director or employee, as such, of the Issuer or of any successor, either directly or through the Issuer or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being, by acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.
FORM OF ASSIGNMENT
ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
Please insert Social Security or
other identifying number of assignee
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF ASSIGNEE
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the within Note and all rights thereunder, hereby irrevocably constituting and appointing , attorney to transfer said Note on the books of the Issuer, with full power of substitution in the premises.
| Dated: |
| Notice: The signature(s) to this assignment must correspond with the name(s) as written on the face of the within instrument in every particular, without alteration or enlargement, or any change whatsoever. |
SCHEDULE OF INCREASES OR DECREASES IN THE PRINCIPAL AMOUNT
OF THIS NOTE
The original principal amount of this Note is U.S. Dollars ($ ). The following increases or decreases in the principal amount of this Note have been made:
| Date of |
Amount of decrease in principal amount of this Note |
Amount of increase in principal amount of this Note |
Principal amount of this Note following such decrease (or increase) |
Signature of authorized signatory of Trustee or Depositary |
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Exhibit 5.1
February 13, 2020
Sysco Corporation
1390 Enclave Parkway
Houston, Texas 77077
Ladies and Gentlemen:
We have acted as special counsel for Sysco Corporation, a Delaware corporation (the “Company”), in connection with the issuance by the Company of $500,000,000 aggregate principal amount of its 2.400% Senior Notes due 2030 (the “2030 Notes”) and $500,000,000 aggregate principal amount of its 3.300% Senior Notes due 2050 (the “2050 Notes” and, together with the 2030 Notes, the “Notes”) guaranteed by the Guarantors (as defined below), pursuant to (a) the Registration Statement of the Company and the Guarantors on Form S-3 (Registration No. 333-227056) (the “Registration Statement”), which was filed by the Company and the Guarantors with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), and (b) the related prospectus dated August 27, 2018, as supplemented by the prospectus supplement relating to the sale of the Notes dated February 11, 2020 (as so supplemented, the “Prospectus”), as filed by the Company and the Guarantors with the Commission pursuant to Rule 424(b) under the Act. At your request, this opinion is being furnished to you for filing as Exhibit 5.1 to the Current Report of the Company on Form 8-K to be filed with the Commission on the date hereof (the “Form 8-K”).
The Notes and the related Guarantees (as defined below) are to be issued pursuant to the Indenture dated as of June 15, 1995 (the “Base Indenture”) between the Company and The Bank of New York Mellon Trust Company, N.A. as successor to First Union National Bank, as trustee (“Bank of New York Mellon”), as supplemented and amended by the Thirteenth Supplemental Indenture thereto dated as of February 17, 2012 (the “Thirteenth Supplemental Indenture”) among the Company, the guarantors named therein and Bank of New York Mellon, the Thirty-Fourth Supplemental Indenture thereto dated as of the date hereof (the “Thirty-Fourth Supplemental Indenture”) and the Thirty-Fifth Supplemental Indenture thereto dated as of the date hereof (the “Thirty-Fifth Supplemental Indenture”) among the Company, the Guarantors and U.S. Bank National Association, as trustee solely with respect to the Notes and any other series of Securities (as defined in the Base Indenture) issued thereunder for which U.S. Bank National Association has been designated or may be designated from time to time as trustee, in lieu of Bank of New York Mellon (the “Trustee”). The Base Indenture, as amended and supplemented by the Thirteenth Supplemental Indenture, the Thirty-Fourth Supplemental Indenture and the Thirty-Fifth Supplemental Indenture, is referred to herein as the “Indenture.” The Notes are guaranteed to the extent provided in the Indenture (the “Guarantees”) by the Guarantors.
We have examined originals, or copies certified or otherwise identified, of (i) the certificates of incorporation or certificates of formation of the Company and each of the Guarantors, as applicable, and the bylaws or limited liability company agreements of the Company and each of the Guarantors,
| Bracewell LLP | T: +1.713.223.2300 F: +1.800.404.3970 711 Louisiana Street, Suite 2300, Houston, Texas 77002-2770 bracewell.com |
AUSTIN CONNECTICUT DALLAS DUBAI HOUSTON LONDON NEW YORK SAN ANTONIO SEATTLE WASHINGTON, DC
February 13, 2020
Page 2
as applicable; (ii) the Underwriting Agreement dated February 11, 2020 (the “Underwriting Agreement”) by and among the Company, the Guarantors named in Schedule I thereto (the “Guarantors”) and BofA Securities, Inc., Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC, TD Securities (USA) LLC and Wells Fargo Securities, LLC, as representatives of the several Underwriters named in Schedule II thereto (the “Underwriters”), relating to the issuance and sale of the Notes and the Guarantees; (iii) the Registration Statement and the Prospectus; (iv) the Base Indenture; (v) the Thirteenth Supplemental Indenture; (vi) the Thirty-Fourth Supplemental Indenture; (vii) the Thirty-Fifth Supplemental Indenture; (viii) certain resolutions of the board of directors, managing members or sole members of the Company and each of the Guarantors, as applicable; and (ix) certificates of public officials and of representatives of the Company and the Guarantors. We also have made such investigations of law and examined originals or copies of such other documents and records as we have deemed necessary and relevant as a basis for the opinions hereinafter expressed. In giving such opinion, we have relied upon certificates and representations of officers of each of the Company and the Guarantors, of governmental and public officials and of other sources believed by us to be responsible with respect to the accuracy of the material factual matters contained therein or covered thereby. We have assumed that the signatures on all documents examined by us are genuine, all documents submitted to us as originals are authentic and all documents submitted as certified or photostatic copies conform to the originals thereof.
Based on the foregoing, and subject to the qualifications, limitations and assumptions set forth herein, we are of the opinion that, when the Notes have been duly executed, issued and delivered by the Company and authenticated and delivered by the Trustee in accordance with the terms of the Indenture and duly purchased and paid for by the Underwriters in accordance with the terms of the Underwriting Agreement, the Notes and the related Guarantees will constitute legal, valid and binding obligations of the Company and the Guarantors, respectively, enforceable against the Company and each of the Guarantors, respectively, in accordance with their terms, except as such enforcement is subject to (i) bankruptcy, fraudulent conveyance or transfer, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and (ii) the application of general principles of equity (regardless of whether considered in a proceeding at law or in equity) including, without limitation, (a) the possible unavailability of specific performance, injunctive relief or any other equitable remedy and (b) concepts of good faith, reasonableness, fair dealing and materiality.
In giving the foregoing opinion, we have assumed the due authorization of the Guarantees and the due authorization, execution and delivery of the Thirteenth Supplemental Indenture, the Thirty-Fourth Supplemental Indenture and the Thirty-Fifth Supplemental Indenture by each of the Guarantors incorporated or formed pursuant to the laws of any jurisdiction other than the State of Delaware. We express no opinions concerning (a) the validity or enforceability of any provisions contained in the Indenture that purport to waive or not give effect to rights to notices, defenses, subrogation or other rights or benefits that cannot be effectively waived under applicable law, or (b) the enforceability of indemnification provisions to the extent they purport to relate to liabilities resulting from or based upon negligence or any violation of federal or state securities or blue sky laws.
AUSTIN CONNECTICUT DALLAS DUBAI HOUSTON LONDON NEW YORK SAN ANTONIO SEATTLE WASHINGTON, DC
February 13, 2020
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The foregoing opinion is limited to the relevant contract law of the State of New York, the General Corporation Law of the State of Delaware, the Delaware Limited Liability Company Act and the relevant federal law of the United States of America. We express no opinion with respect to the federal or state securities laws or blue sky laws of any jurisdiction, including the anti-fraud provisions of any such laws, or with respect to the law of any other jurisdiction. The opinion expressed herein is given as of the date hereof, and we undertake no, and hereby disclaim any, obligation to advise you of any change in any matter set forth herein.
We hereby consent to the filing of this opinion of counsel as an exhibit to the Form 8-K and to the reference to our Firm under the heading “Legal Matters” in the Prospectus. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Bracewell LLP
Bracewell LLP
AUSTIN CONNECTICUT DALLAS DUBAI HOUSTON LONDON NEW YORK SAN ANTONIO SEATTLE WASHINGTON, DC
Exhibit 99.1
SYSCO ANNOUNCES INAUGURAL SUSTAINABILITY BOND ISSUANCE
HOUSTON, February 13, 2020 - Sysco Corporation (NYSE: SYY), the leading global foodservice distribution company, announced today the closing of its inaugural Sustainability Bond issuance. Net proceeds from the $500 million offering will fund projects that help advance the company’s 2025 Corporate Social Responsibility (CSR) Goals.
“We are proud to lead our industry in issuing our first ever Sustainability Bond, demonstrating our deep commitment to caring for people, sourcing products responsibly and protecting the planet,” said Neil Russell, Sysco’s vice president of corporate affairs. “The high level of interest from institutional investors for this offering indicates the market’s support for our CSR strategy.”
Through fiscal year 2019, Sysco made significant achievements toward achieving its 2025 CSR goals including:
| • | Launching three solar garden sites, supporting 10% of Sysco’s U.S. electricity usage – halfway to the company’s goal; |
| • | Increasing waste diversion to 73% in U.S. and Canada operations; and |
| • | Providing 7.5 million meals to communities where we live and work. |
Under Sysco’s Sustainability Bond Framework, eligible projects include renewable energy, energy efficiency, clean transportation and waste reduction projects, among others. The consultancy Sustainalytics, a leading global provider of environmental, social and corporate governance research and ratings, reviewed Sysco’s Sustainability Bond Framework and confirmed in their Second Party Opinion that it is aligned with Sysco’s sustainability objectives and the Sustainability Bond Guidelines 2018.
In total, the offering that closed today raised $1 billion, comprised of $500 million in 10-year 2.4% senior notes, representing the Sustainability Bond issuance, and an additional $500 million in 30-year 3.3% senior notes.
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About Sysco
Sysco is the global leader in selling, marketing and distributing food products to restaurants, healthcare and educational facilities, lodging establishments and other customers who prepare meals away from home. Its family of products also includes equipment and supplies for the foodservice and hospitality industries. With more than 69,000 associates, the company operates more than 320 distribution facilities worldwide and serves more than 650,000 customer locations. For fiscal 2019 that ended June 29, 2019, the company generated sales of more than $60 billion. Information about our CSR program, including Sysco’s 2019 Corporate Social Responsibility Report, can be found at www.sysco.com/csr2019report.
Cautionary Statement Regarding Forward-Looking Statements
Statements made in this document that look forward in time or that express management’s beliefs, expectations or hopes are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These statements include our expectations regarding the use of net proceeds from the offering to fund projects that help advance the company’s 2025 CSR Goals. Such forward-looking statements reflect the views of management at the time such statements are made and are subject to a number of risks, uncertainties, estimates, and assumptions that may cause actual results to differ materially from current expectations, including market conditions and those risks detailed in Sysco’s Annual Report on Form 10-K for the year ended June 29, 2019, as filed with the SEC, our subsequent filings with the SEC, and the prospectus and prospectus supplement delivered in connection with the public offering of senior notes discussed in this release. We do not undertake to update our forward-looking statements, except as required by applicable law.
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