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):
| Commission File Number | Exact name of Registrant
as specified in its Address and Telephone Number |
IRS Employer Identification No. |
( (
|
||
( ( |
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):
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
| 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:
| Title of each class | Trading Symbol(s) |
Name of each exchange on which registered | ||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
| Emerging growth company | |
| Sysco Corporation | |
| Sysco Holdings Corporation |
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.
| Sysco Corporation | ¨ |
| Sysco Holdings Corporation | ¨ |
| Item 1.01 | Entry into a Material Definitive Agreement. |
Notes Offering
On September 25, 2026, Sysco Corporation and Sysco Holdings Corporation (each, an “Issuer” and together, the “Issuers”) issued and sold (i) C$750 million aggregate principal amount of the Issuers’ 4.250% Senior Notes due 2030 (the “2030 Notes”) and (ii) C$750 million aggregate principal amount of the Issuers’ 4.800% Senior Notes due 2034 (the “2034 Notes” and, together with the 2030 Notes, the “Notes”). The Notes were offered and sold pursuant to an automatically effective Registration Statement on Form S-3ASR (Registration No. 333-298926) filed on September 14, 2026. The Notes were issued pursuant to the Base Indenture dated as of September 25, 2026 (the “Base Indenture”), by and between the Issuers, the guarantors named therein and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented and amended by the First Supplemental Indenture thereto, dated as of September 25, 2026, by and among the Issuers, the guarantors named therein and the Trustee (the “First Supplemental Indenture”, and together with the Base Indenture, the “Indenture”). The Notes are guaranteed to the extent provided in the Indenture by the guarantors party to the First Supplemental Indenture. The relevant terms of the Notes are set forth in the Base Indenture and the First Supplemental Indenture (including in each case, the forms of the Notes), which are filed as Exhibits 4.1 and 4.2, respectively, to this Current Report on Form 8-K and incorporated herein by reference.
The net proceeds to the Issuers from the sale of the Notes were approximately C$1.49 billion, after deducting underwriters’ discounts and estimated offering expenses payable by the Issuers. The Issuers intend to use the net proceeds from the offering of the Notes to pay a portion of the cash consideration for the pending acquisition of JRD Unico, Inc., a Delaware corporation, and Warehouse Realty, LLC, a Delaware limited liability company, and all other fees, costs and expenses related thereto or, if the acquisition is not consummated, to pay for the Special Mandatory Redemption (as defined in the Notes).
The 2030 Notes pay interest at the rate of 4.250% per annum and the 2034 Notes pay interest at the rate of 4.800% per annum. Interest on the Notes shall be payable in cash semi-annually in arrears on April 3 and October 3, commencing April 3, 2027. The 2030 Notes will mature on October 3, 2030, and the 2034 Notes will mature on October 3, 2034.
The Notes are unsecured obligations of the Issuers and will rank equally in right of payment with all the Issuers’ other existing and future unsecured senior indebtedness, effectively junior in right of payment to their future secured indebtedness to the extent of the value of the assets securing that indebtedness and senior to any of their future subordinated indebtedness. The guarantees are unsecured obligations of the respective guarantors. The guarantees will rank equally in right of payment with all other existing and future unsecured senior indebtedness of the guarantors and will effectively rank junior to any future secured indebtedness of the guarantors to the extent of the value of the assets securing such indebtedness.
The terms of the Offering are described in a Prospectus dated September 14, 2026, as supplemented by a Prospectus Supplement dated September 22, 2026.
The foregoing descriptions of the Notes do not purport to be complete and are qualified in their entirety by reference to the full text of the First Supplemental Indenture (including the forms of the Notes), which is filed as Exhibit 4.2 to this Current Report on Form 8-K and incorporated herein by reference.
Additional Guarantor
On September 25, 2026, Sysco Corporation, Sysco Holdings Corporation (“Sysco Holdings”), the subsidiary guarantors party thereto, and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”) entered into a Fiftieth Supplemental Indenture (the “Guarantor Supplemental Indenture”), which amends and supplements the Indenture, dated as of June 15, 1995, as amended, among Sysco Corporation, the subsidiary guarantors party thereto, and the Trustee (and as further amended and supplemented from time to time, the “Existing Senior Notes Indenture”), pursuant to which Sysco Holdings guarantees the existing senior notes of Sysco Corporation governed by the Existing Senior Notes Indenture (the “Existing Notes”). Under the terms of the Guarantor Supplemental Indenture and the related guarantee, the guarantee of the Existing Notes will constitute a senior unsecured obligation of Sysco Holdings, ranking pari passu with all existing and future unsecured indebtedness of Sysco Holdings, including the Notes.
The foregoing description of the Guarantor Supplement Indenture does not purport to be complete and is qualified in its entirety by reference to the full text of the Guarantor Supplement Indenture, which is filed as Exhibit 4.3 to this Current Report on Form 8-K and incorporated herein by reference.
| 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 Current Report on Form 8-K is incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, each registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Sysco Corporation (Registrant) | ||
| By: | /s/ Andrew Wurdack | |
| Andrew Wurdack | ||
| Vice President, Securities and Corporate Governance & Assistant Secretary | ||
| Sysco Holdings
Corporation (Registrant) | ||
| Date: September 25, 2026 | By: | /s/ Andrew Wurdack |
| Andrew Wurdack | ||
| Secretary | ||
Exhibit 4.1
Execution Version
SYSCO CORPORATION
AND SYSCO HOLDINGS CORPORATION,
as Issuers,
THE GUARANTORS NAMED HEREIN,
as Guarantors,
AND
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
INDENTURE
Dated as of September 25, 2026
CERTAIN SECTIONS OF THIS INDENTURE RELATING
TO
SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
| TRUST INDENTURE | INDENTURE SECTION(S) | |
| ACT SECTION | ||
| Section 310 | (a)(1) | 609 |
| (a)(2) | 609 | |
| (a)(3) | Not Applicable | |
| (a)(4) | Not Applicable | |
| (b) | 608, 610 | |
| Section 311 | (a) | 613 |
| (b) | 613 | |
| Section 312 | (a) | 701, 702 |
| (b) | 702 | |
| (c) | 702 | |
| Section 313 | (a) | 703 |
| (b) | 703 | |
| (c) | 703 | |
| (d) | 703 | |
| Section 314 | (a) | 704 |
| (a)(4) | 101, 1004 | |
| (b) | Not Applicable | |
| (c)(1) | 102 | |
| (c)(2) | 102 | |
| (c)(3) | Not Applicable | |
| (d) | Not Applicable | |
| (e) | 102 | |
| Section 315 | (a) | 601 |
| (b) | 602 | |
| (c) | 601 | |
| (d) | 601 | |
| (e) | 514 | |
| Section 316 | (a) | 101 |
| (a)(1)(A) | 502, 512 | |
| (a)(1)(B) | 513 | |
| (a)(2) | Not Applicable | |
| (b) | 508 | |
| (c) | 104 | |
| Section 317 | (a)(1) | 503 |
| (a)(2) | 504 | |
| (b) | 1003 | |
| Section 318 | (a) | 107 |
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
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TABLE OF CONTENTS
Page
| Article I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION | 1 |
| Section 101. Definitions | 1 |
| Section 102. Compliance Certificates and Opinions | 12 |
| Section 103. Form of Documents Delivered to Trustee | 13 |
| Section 104. Acts of Holders; Record Dates | 13 |
| Section 105. Notices, Etc. to Trustee and Issuers | 15 |
| Section 106. Notice to Holders; Waiver | 17 |
| Section 107. Conflict with Trust Indenture Act | 17 |
| Section 108. Effect of Headings and Table of Contents | 17 |
| Section 109. Successors and Assigns | 18 |
| Section 110. Separability Clause | 18 |
| Section 111. Benefits of Indenture | 18 |
| Section 112. Governing Law; Waiver of Trial by Jury | 18 |
| Section 113. Legal Holidays | 18 |
| Section 114. Counterparts | 18 |
| Section 115. Foreign Account Tax Compliance Act (FATCA) | 19 |
| Section 116. Patriot Act | 19 |
| Section 117. Judgment Currency | 19 |
| Article II SECURITY FORMS | 20 |
| Section 201. Forms Generally | 20 |
| Section 202. Form of Legend for Global Securities | 20 |
| Section 203. Form of Trustee’s Certificate of Authentication | 21 |
| Article III THE SECURITIES | 21 |
| Section 301. Amount Unlimited; Issuable in Series | 21 |
| Section 302. Denominations | 25 |
| Section 303. Execution, Authentication, Delivery and Dating | 25 |
| Section 304. Temporary Securities | 26 |
| Section 305. Registration, Registration of Transfer and Exchange | 27 |
| Section 306. Mutilated, Destroyed, Lost and Stolen Securities | 29 |
| Section 307. Payment of Interest; Interest Rights Preserved; Optional Interest Reset | 30 |
| Section 308. Optional Extension of Maturity | 32 |
| Section 309. Persons Deemed Owners | 33 |
| Section 310. Cancellation | 33 |
| Section 311. Computation of Interest; Usury Not Intended | 34 |
| Section 312. CUSIP or ISIN Numbers | 34 |
| Article IV SATISFACTION AND DISCHARGE | 34 |
| Section 401. Satisfaction and Discharge of Indenture | 34 |
| Section 402. Application of Trust Money | 36 |
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| Article V REMEDIES | 36 |
| Section 501. Events of Default | 36 |
| Section 502. Acceleration of Maturity; Rescission and Annulment | 38 |
| Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee | 39 |
| Section 504. Trustee May File Proofs of Claim | 39 |
| Section 505. Trustee May Enforce Claims Without Possession of Securities | 40 |
| Section 506. Application of Money Collected | 40 |
| Section 507. Limitation on Suits | 40 |
| Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest | 41 |
| Section 509. Restoration of Rights and Remedies | 41 |
| Section 510. Rights and Remedies Cumulative | 41 |
| Section 511. Delay or Omission Not Waiver | 42 |
| Section 512. Control by Holders | 42 |
| Section 513. Waiver of Past Defaults | 42 |
| Section 514. Undertaking for Costs | 43 |
| Section 515. Waiver of Usury, Stay or Extension Laws | 43 |
| Article VI THE TRUSTEE | 43 |
| Section 601. Certain Duties and Responsibilities | 43 |
| Section 602. Notice of Defaults | 44 |
| Section 603. Certain Rights of Trustee | 45 |
| Section 604. Not Responsible for Recitals or Issuance of Securities | 47 |
| Section 605. May Hold Securities | 47 |
| Section 606. Money Held in Trust | 47 |
| Section 607. Compensation and Reimbursement | 47 |
| Section 608. Conflicting Interests | 48 |
| Section 609. Corporate Trustee Required; Eligibility | 48 |
| Section 610. Resignation and Removal; Appointment of Successor | 49 |
| Section 611. Acceptance of Appointment by Successor | 50 |
| Section 612. Merger, Conversion, Consolidation or Succession to Business | 51 |
| Section 613. Preferential Collection of Claims Against Issuers | 51 |
| Section 614. Appointment of Authenticating Agent | 52 |
| Article VII SECURITYHOLDERS’ LISTS AND REPORTS BY TRUSTEE AND ISSUERS | 53 |
| Section 701. Issuers to Furnish Trustee Names and Addresses of Holders | 53 |
| Section 702. Preservation of Information; Communications to Holders | 53 |
| Section 703. Reports by Trustee | 54 |
| Section 704. Reports by the Parent Entity | 54 |
| Article VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE | 54 |
| Section 801. Issuers May Consolidate, etc., Only on Certain Terms | 54 |
| Section 802. Successor Issuer Substituted | 55 |
| Article IX SUPPLEMENTAL INDENTURES | 56 |
| Section 901. Supplemental Indentures Without Consent of Holders | 56 |
| Section 902. Supplemental Indentures With Consent of Holders | 58 |
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| Section 903. Execution of Supplemental Indentures | 59 |
| Section 904. Effect of Supplemental Indentures | 59 |
| Section 905. Conformity with Trust Indenture Act | 60 |
| Section 906. Reference in Securities to Supplemental Indentures | 60 |
| Article X COVENANTS | 60 |
| Section 1001. Payment of Principal, Premium and Interest | 60 |
| Section 1002. Maintenance of Office or Agency | 60 |
| Section 1003. Money for Securities Payments to Be Held in Trust | 61 |
| Section 1004. Statement by Officer as to Default | 61 |
| Section 1005. Existence | 62 |
| Section 1006. Waiver of Certain Covenants | 62 |
| Section 1007. Limitations on Liens | 62 |
| Section 1008. Limitations on Sale and Lease-Back Transactions | 63 |
| Article XI REDEMPTION OF SECURITIES | 64 |
| Section 1101. Applicability of Article | 64 |
| Section 1102. Election to Redeem; Notice to Trustee | 64 |
| Section 1103. Selection of Securities to Be Redeemed | 64 |
| Section 1104. Notice of Redemption | 65 |
| Section 1105. Deposit of Redemption Price | 66 |
| Section 1106. Securities Payable on Redemption Date | 66 |
| Section 1107. Securities Redeemed in Part | 67 |
| Article XII SINKING FUNDS | 67 |
| Section 1201. Applicability of Article | 67 |
| Section 1202. Satisfaction of Sinking Fund Payments with Securities | 67 |
| Section 1203. Redemption of Securities for Sinking Fund | 68 |
| Article XIII REPAYMENT AT THE OPTION OF THE HOLDERS | 68 |
| Section 1301. Applicability of Article | 68 |
| Section 1302. Repayment of Securities | 68 |
| Section 1303. Exercise of Option | 68 |
| Section 1304. When Securities Presented for Repayment Become Due and Payable | 69 |
| Section 1305. Securities Repaid in Part | 69 |
| Article XIV DEFEASANCE AND COVENANT DEFEASANCE | 70 |
| Section 1401. Issuers’ Option to Effect Defeasance or Covenant Defeasance | 70 |
| Section 1402. Defeasance and Discharge | 70 |
| Section 1403. Covenant Defeasance | 70 |
| Section 1404. Conditions to Defeasance or Covenant Defeasance | 71 |
| Section 1405. Acknowledgment of Discharge By Trustee | 72 |
| Section 1406. Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions | 73 |
| Section 1407. Reinstatement | 74 |
| Section 1408. Qualifying Trustee | 74 |
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| Article XV GUARANTEES | 74 |
| Section 1501. Guarantee | 74 |
| Section 1502. Guarantee Unconditional | 75 |
| Section 1503. Ranking of Guarantees | 76 |
| Section 1504. Waivers; Subrogation | 76 |
| Section 1505. Additional Guarantors | 76 |
| Section 1506. No Waiver; Remedies Cumulative | 77 |
| Section 1507. Release of Guarantees | 77 |
| Section 1508. Reinstatement | 78 |
| Section 1509. No Third-Party Beneficiaries; Severability; Amendment; Notices to Guarantors | 78 |
| Article XVI IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, MANAGERS, DIRECTORS AND EMPLOYEES | 78 |
| Section 1601. Exemption from Individual Liability | 78 |
v
INDENTURE (herein called this “Indenture”), dated as of September 25, 2026, among SYSCO CORPORATION, a Delaware corporation (“Sysco Corporation”), SYSCO HOLDINGS CORPORATION, a Delaware corporation (“Sysco Holdings” and, together with Sysco Corporation, the “Issuers,” and each, an “Issuer”), the INITIAL GUARANTORS named on Schedule I hereto and any other Subsidiary that provides a guarantee (each, a “Guarantor,” and collectively, the “Guarantors”), and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as Trustee (herein called the “Trustee”).
RECITALS OF THE ISSUERS AND GUARANTORS
Each Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its debentures, notes or other evidences of indebtedness (herein called the “Securities”), to be issued in one or more series as in this Indenture provided.
Each Guarantor has duly authorized the execution and delivery of this Indenture and the guarantee by it, to the extent provided herein and in any indenture supplemental hereto, of the Securities of any series that may be designated as guaranteed by such Guarantor.
All things necessary to make this Indenture a valid agreement of each Issuer and each Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof, as follows:
Article I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article I have the meanings assigned to them in this Article I and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States of America, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States of America at the date of such computation; provided, that when two or more principles are so generally accepted, it shall mean that set of principles consistent with those in use by any of the Issuers;
(4) unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture;
(5) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;
(6) words importing any gender include the other genders;
(7) references to statutes are to be construed as including all statutory provisions consolidating, amending or replacing the statute referred to;
(8) references to “writing” include printing, typing, lithography and other means of reproducing words in a tangible, visible form;
(9) the words “including,” “includes” and “include” shall be deemed to be followed by the words “without limitation”; and
(10) unless otherwise provided, references to agreements and other instruments shall be deemed to include all amendments and other modifications to such agreements and instruments, but only to the extent such amendments and other modifications are not prohibited by the terms of this Indenture.
“Act,” when used with respect to any Holder, has the meaning specified in Section 104.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Attributable Debt” with regard to a Sale and Lease-Back Transaction with respect to any property means, at the time of determination, the lesser of: (a) the fair market value of such property (as determined in good faith by the Board of Directors of the Parent Entity); or (b) the present value of the total net amount of rent required to be paid under such lease during the remaining term thereof (including any period for which such lease has been extended), discounted at the rate of interest set forth or implicit in the terms of such lease (or, if not practicable to determine such rate, the weighted average interest rate per annum borne by the Securities then Outstanding) compounded semi-annually. In the case of any lease which is terminable by the lessee upon the payment of a penalty, such net amount shall be the lesser of the net amount determined assuming termination upon the first date such lease may be terminated (in which case the net amount shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated) or the net amount determined assuming no such termination.
2
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate Securities of one or more series.
“Authorized Person” means, in the case of either Issuer, any Person delegated by any of the Chairman of its Board of Directors, its Chief Executive Officer, the Vice Chairman of its Board of Directors, its Chief Financial Officer, its General Counsel, its President, its Treasurer, its Assistant Treasurer or one of its Vice Presidents to act on such Person’s behalf.
“Bankruptcy Law” has the meaning specified in Section 1502(2).
“Board of Directors” means, with respect to either Issuer or any Guarantor, (i) the board of managers or directors, as applicable, of such Person, (ii) any duly authorized committee of that board, (iii) any committee of officers of such Person or (iv) any officer of such Person acting, in the case of clauses (iii) and (iv), pursuant to authority granted by that board or any duly authorized committee of that board.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the applicable Issuer to have been duly adopted by the Board of Directors, or such committee of the Board of Directors or officers of the applicable Issuer to which authority to act on behalf of the Board of Directors has been delegated, and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day,” when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law or regulation to close.
“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 generally accepted accounting principles in the United States of America, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with generally accepted accounting principles in the United States of America and the maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty.
“CDS” means CDS Clearing and Depository Services Inc., or any successor securities clearing agency.
“Clearstream” means Clearstream Banking, S.A., or the successor to its securities clearance and settlement operations.
“Commission” means the Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
3
“Consolidated Net Tangible Assets” means, as of any particular time, the aggregate amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom: (a) all current liabilities, except for current maturities of long-term debt and of obligations under capital leases; and (b) intangible assets, to the extent included in said aggregate amount of assets, all as set forth on the most recent consolidated balance sheet of the Parent Entity and its consolidated Subsidiaries and computed in accordance with generally accepted accounting principles.
“Conversion Event” means the cessation of use of (i) a Foreign Currency both by the government of the country or countries that issued such Foreign Currency and for the settlement of transactions by a central bank or other public institutions of or within the international banking community, (ii) the Euro both within the European Monetary Union and for the settlement of transactions by public institutions of or within the European Union, (iii) the Canadian dollar both within Canada and for the settlement of transactions by the Bank of Canada or other public institutions or within the international banking community, or (iv) any currency unit or composite currency for the purposes for which it was established, or the imposition of exchange controls or any other circumstance beyond the control of the Issuers as a result of which any Foreign Currency in which any Securities are then payable is not available to the Issuers for making payments on such Securities when due.
“Corporate Trust Office” means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the date hereof is located at 1255 Corporate Drive, 6th Floor, Irving, Texas 75038.
“Corporation” means a corporation, association, company, limited liability company, joint-stock company or business or statutory trust.
“Covenant Defeasance” has the meaning specified in Section 1403.
“Defaulted Interest” has the meaning specified in Section 307(a).
“Defeasance” has the meaning specified in Section 1402.
“Depositary” means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency either registered under the Exchange Act or under applicable local law and that is designated to act as Depositary for such Securities as contemplated by Section 301.
“Dollar” or “Dollars” or “$” means a dollar or other equivalent unit of legal tender for payment of public or private debts in the United States of America.
“Domestic Subsidiary” means any Subsidiary that was formed under the laws of the United States or any state of the United States or the District of Columbia.
“DTC” means The Depository Trust Company, its nominees and their respective successors.
4
“Electronic Means” shall mean the following communications methods: 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.
“Euro” means the single currency of the participating member states from time to time of the European Monetary Union.
“Euroclear” means Euroclear S.A./N.V., a company organized under the laws of Belgium, as operator of the Euroclear System, or its successor in such capacity.
“European Monetary Union” means the Economic and Monetary Union established pursuant to the Treaty on European Union.
“Event of Default” has the meaning specified in Section 501.
“Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.
“Existing Notes” means the senior notes of Sysco Corporation that are outstanding as of the date of this Indenture, which were issued pursuant to the Indenture dated as of June 15, 1995 by and between Sysco Corporation and First Union National Bank as trustee, with The Bank of New York Mellon Trust Company, N.A., as successor trustee and U.S. Bank Trust Company, National Association, as successor trustee, and the guarantors party thereto from time to time, as it may be amended, supplemented or otherwise modified from time to time.
“Expiration Date” has the meaning specified in Section 104.
“Extension Notice” has the meaning specified in Section 308.
“Extension Period” has the meaning specified in Section 308.
“Final Maturity” has the meaning specified in Section 308.
“Foreign Currency” means any currency, currency unit or composite currency, including, without limitation, the Euro or the Canadian dollar, issued by the government or governments of one or more countries other than the United States of America or by any recognized confederation, union or association of such governments.
“Global Security” means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 202 (or such legend as may be specified as contemplated by Section 301 for such Securities).
“Government Obligation” means securities that are (i) direct obligations of the government (or, in the case of Securities payable in Euro, any member state of the European Monetary Union) that issued the currency in which the Securities of a particular series are payable, for the payment of which obligations the full faith and credit of such government is pledged, or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the government (or, in the case of Securities payable in Euro, any member state of the European Monetary Union) that issued the currency in which the Securities of such series are payable, the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by such government, and which, in the case of either clause (i) or (ii), are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such Government Obligation or a specific payment of principal of or interest on any such Government Obligation held by such custodian for the account of the holder of such depositary receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
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“Guarantee” with respect to Securities of any series which the Issuers shall determine will be guaranteed by another Person, means the unconditional and unsubordinated guarantee by a Guarantor of the due and punctual payment of principal of, premium, if any, and interest on a series of Securities when and as the same shall become due and payable, whether at the stated maturity, by acceleration, call for redemption or otherwise in accordance with the terms of the Securities of such series and this Indenture.
“Guaranteed Obligations” has the meaning specified in Section 1501(1).
“Guarantor” or “Guarantors” means, collectively, the Initial Guarantors and any other Person that provides a Guarantee of any series of Securities pursuant to Article XV, in each case until such Person’s Guarantee has been released in accordance with the terms of this Indenture.
“Holder” means a Person in whose name a Security is registered in the Security Register.
“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.
“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 301.
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“Initial Guarantors” means each of the Subsidiaries listed on Schedule I hereto.
“interest” when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Interest Payment Date” when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Investment Company Act” means the Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.
“Issuer” or “Issuers” means the Persons named as the “Issuers” in the first paragraph of this Indenture until one or more successor Persons shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Issuer” or “Issuers” shall mean or include each such successor Person.
“Issuer Request” or “Issuer Order” mean, respectively, a written request or order signed in the name of either Issuer by any manager of either Issuer, its President, its Chief Executive Officer, its Chief Financial Officer, its General Counsel, its Assistant General Counsel, its Treasurer, its Assistant Treasurer, its Vice President, its Secretary, its Assistant Secretary or its Authorized Person, and delivered to the Trustee.
“JRD Acquisition Transactions” means the transactions contemplated under the Merger Agreement.
“JRD Acquisition Transactions Closing Date” means the date on which the JRD Acquisition Transactions are consummated, as specified in an Officer’s Certificate delivered to the Trustee.
“Judgment Currency” has the meaning specified in Section 117.
“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 an Issuer or any Subsidiary of any Issuer shall not constitute Liens.
“Market Exchange Rate” means, unless otherwise specified with respect to any Securities pursuant to Section 301, (i) for any conversion involving Dollars into any Foreign Currency or any Foreign Currency into Dollars on any date, the rate published by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant date or, in the event the U.S. Federal Reserve Board has not published a rate of conversion, on the basis of the most recent exchange rate of Dollars into such Foreign Currency published in The Wall Street Journal on or prior to the second Business Day prior to the relevant payment date or, in the event The Wall Street Journal has not published such exchange rate, the rate determined by the Issuers in their sole discretion on the basis of the most recently available market exchange rate of Dollars into such Foreign Currency and (ii) for any conversion of one Foreign Currency into another Foreign Currency on any date, the spot rate at noon local time in the relevant market at which, in accordance with normal banking procedures, the Foreign Currency into which conversion is being made could be purchased with the Foreign Currency from which conversion is being made from major banks located in either New York City, London or any other principal market for Dollars or such purchased Foreign Currency, in each case determined by the Issuers. Unless otherwise specified by the Issuers, if there is more than one market for dealing in any Foreign Currency by reason of foreign exchange regulations or otherwise, the market to be used in respect of such Foreign Currency shall be that upon which a non-resident issuer of securities designated in such Foreign Currency would purchase such Foreign Currency in order to make payments in respect of such securities.
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“Maturity” when used with respect to any Security, means the date on which the principal of such Security or an installment of principal or premium, if any, becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Maximum Interest Rate” has the meaning specified in Section 311.
“Merger Agreement” means the Agreement and Plan of Merger, dated as of March 30, 2026, as may be amended from time to time, by and among Sysco Corporation, Sysco Holdings, Slider Merger Sub 1, Inc., a Delaware corporation and wholly-owned subsidiary of Sysco Holdings, Slider Merger Sub 2, Inc., a Delaware corporation and wholly-owned subsidiary of Sysco Holdings, Slider Merger Sub 3, LLC, a Delaware limited liability company and wholly-owned subsidiary of Sysco Holdings, JRD Unico, Inc., a Delaware corporation (“JRD”), Warehouse Realty, LLC, a Delaware limited liability company (“Warehouse Realty,” and together with JRD, known as “Jetro Restaurant Depot”), and Ki Atlantic Holdings Limited (as holder representative), which contains the terms and conditions of the proposed acquisition of Jetro Restaurant Depot by Sysco Corporation.
“New York Banking Day” means any day except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized or required by law or executive order to close.
“Notice of Default” means a written notice of the kind specified in Section 501(4).
“Officer’s Certificate” means, in the case of either Issuer, a certificate signed by its President, its Chief Executive Officer, its Chief Financial Officer, its General Counsel, its Assistant General Counsel, its Treasurer, its Assistant Treasurer, its Vice President, its Secretary or its Assistant Secretary and delivered to the Trustee.
“Opinion of Counsel” means a written opinion of counsel, who may be counsel for any of the Issuers or any of their Affiliates (and who may be an employee of any of the Issuers or any of their respective Affiliates), and which opinion shall be acceptable to the Trustee.
“Optional Reset Date” has the meaning specified in Section 307(b).
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“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.
“Original Stated Maturity” has the meaning specified in Section 308.
“Outstanding” when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Issuers) in trust or set aside and irrevocably segregated in trust by the Issuers (if any of the Issuers shall act as the Issuers’ Paying Agent) for the Holders of such Securities; provided, that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor reasonably satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to Section 1402; and
(4) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof reasonably satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Issuers; provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, (C) the principal amount of a Security denominated in one or more Foreign Currencies or currency units which shall be deemed to be Outstanding shall be the Dollar equivalent, determined as of such date in the manner provided as contemplated by Section 301, of the principal amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount determined as provided in such Clause), and (D) Securities owned by any of the Issuers or any other obligor upon the Securities or any Affiliate of any of the Issuers or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not any of the Issuers or any other obligor upon the Securities or any Affiliate of any of the Issuers or of such other obligor.
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“Parent Entity” means (a) before the JRD Acquisition Transactions Closing Date, Sysco Corporation, and (b) from and after the JRD Acquisition Transactions Closing Date, Sysco Holdings. For the avoidance of doubt, from and after the JRD Acquisition Transactions Closing Date, references in this Indenture to the Parent Entity shall mean Sysco Holdings.
“Paying Agent” means any Person authorized by any of the Issuers to pay the principal of or any premium or interest on any Securities on behalf of the Issuers. The Issuers initially authorize and appoint the Trustee as the Paying Agent for each series of the Securities.
“Periodic Offering” means an offering of Securities of a series from time to time the specific terms of which Securities, including the rate or rates of interest or formula for determining the rate or rates of interest thereon, if any, the Stated Maturity or Maturities thereof and the redemption provisions, if any, with respect thereto, are to be determined by the Issuers upon the issuance of such Securities.
“Person” means any individual, corporation, partnership, joint venture, trust, association, joint stock company, unincorporated organization, limited liability company, government or any agency or political subdivision thereof or any similar entity.
“Place of Payment” when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 301.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Principal Property” means the land, improvements, buildings and fixtures (including any leasehold interest therein) constituting the principal corporate office, any manufacturing plant, any manufacturing, distribution or research facility or any self-serve center (in each case, whether now owned or hereafter acquired) which is owned or leased by the Parent Entity or any Subsidiary and is located within the United States of America or Canada unless the Board of Directors of the Parent Entity has determined in good faith that such office, plant facility or center is not of material importance to the total business conducted by the Parent Entity and its Subsidiaries taken as a whole. With respect to any Sale and Lease-Back Transaction or series of related Sale and Lease-Back Transactions, the determination of whether any property is a Principal Property shall be determined by reference to all properties affected by such transaction or series of transactions.
“Redemption Date” when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
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“Redemption Price” when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301.
“Repayment Date” means, when used with respect to any Security to be repaid at the option of the Holder, the date fixed for such repayment by or pursuant to this Indenture.
“Required Currency” has the meaning specified in Section 117.
“Reset Notice” has the meaning specified in Section 307(b).
“Responsible Officer,” when used with respect to the Trustee, means an officer in the Corporate Trust Office thereof having direct responsibility for administration of this Indenture and, including any vice president, assistant vice president, assistant secretary, senior associate, associate, trust officer, or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and, in each case, also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.
“Sale and Lease-Back Transaction” means any arrangement with any Person providing for the leasing by the Parent Entity or any Subsidiary of any Principal Property which property has been or is to be sold or transferred by the Parent Entity or such Subsidiary to such Person.
“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“Securities Act” means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
“Security Register” and “Security Registrar” have the respective meanings specified in Section 305.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307(a).
“Stated Maturity” when used with respect to any Security or any installment of principal thereof or premium, if any, or interest thereon, means the date specified in such Security as the fixed date on which the principal of or premium, if any, on such Security or such installment of principal or interest is due and payable.
“Subsequent Interest Period” has the meaning specified in Section 307(b).
“Subsidiary” means any Corporation of which outstanding voting stock having the power to elect a majority of the board of directors or other governing body of such Corporation is at the time owned, directly or indirectly, by the Parent Entity or by one or more other Subsidiaries, or by the Parent Entity and one or more other Subsidiaries. For the purposes of this definition, “voting stock” means stock or unit which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock or unit has such voting power by reason of any contingency.
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“Sysco Corporation” means Sysco Corporation, a Delaware corporation, and, subject to Article VIII, its successors and assigns.
“Sysco Holdings” means Sysco Holdings Corporation, a Delaware corporation, and, subject to Article VIII, its successors and assigns.
“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
“Vice President” when used with respect to any of the Issuers, any Guarantor or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president.”
“Yield to Maturity” means the yield to maturity, computed at the time of issuance of a Security (or, if applicable, at the most recent redetermination of interest on such Security) and as set forth in such Security in accordance with generally accepted United States bond yield computation principles.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Issuers to the Trustee to take any action under any provision of this Indenture, the Issuers shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officer’s Certificate, if to be given by an officer of each Issuer, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.
Wherever this Indenture requires that an Officer’s Certificate be signed also by, or that any matter be certified or covered by an opinion or report of, a financial expert, an accountant or other expert, such financial expert, accountant or other expert (except as otherwise expressly provided in this Indenture) may be in the employ of the Issuers or any of their Affiliates, and shall be acceptable to the Trustee.
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Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture, other than an Officer’s Certificate required by Section 1004, shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, the individual has made or caused to be made such examination or investigation as is necessary to enable such individual to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons may certify or give an opinion as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of an Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which such Officer’s Certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the applicable Issuer stating that the information with respect to such factual matters is in the possession of the Issuer, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Issuers. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Issuers, if made in the manner provided in this Section 104.
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The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner which the Trustee deems sufficient. Where such execution is by a signer acting in a capacity other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or her authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Issuers in reliance thereon, whether or not notation of such action is made upon such Security.
The Issuers may, at their option, set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, but shall have no obligation to do so; provided, that the Issuers may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided, that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Issuers from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Issuers, at their own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section 512, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided, that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Issuers’ expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Issuers in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106.
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With respect to any record date set pursuant to this Section 104, the party hereto which sets such record dates may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided, that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 106, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section 104, the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.
Notwithstanding anything herein to the contrary, no request, demand, authorization, direction, notice, consent, waiver or other Act of a Holder given, made or taken pursuant to this Section 104 may be amended, withdrawn or revoked once given, made or taken by such Holder, unless the Issuers shall have provided for such amendment, withdrawal or revocation in connection with the solicitation of such request, demand, authorization, direction, notice, consent, waiver or other Act, or unless and to the extent required by applicable law.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents, each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
Section 105. Notices, Etc. to Trustee and Issuers. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with:
(1) the Trustee by any Holder or by the Issuers shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust – Sysco Corporation; or
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(2) the Issuers by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and delivered, first-class postage prepaid, to each of the Issuers addressed to the attention of the Chief Executive Officer of each of the Issuers at the address of the Issuers’ principal office or at any other address previously furnished in writing to the Trustee by the Issuers.
The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and related financing documents and delivered using Electronic Means; provided, however, that each of the Issuers, as applicable, 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 each of the Issuers, as applicable, whenever a person is to be added or deleted from the listing. If any of the Issuers, as applicable, 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 Issuers understand and agree 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 Issuers shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that all Authorized Officers of the Issuers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Issuers, as applicable. 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.
Any reference in this Indenture to “execute,” “executed,” “sign,” “signed,” “signature” or any other like term shall include execution by electronic signature (including, without limitation, any .pdf file, .jpeg file, or any other electronic or image file, or any “electronic signature” as defined under the U.S. Electronic Signatures in Global and National Commerce Act (“E-SIGN”) or the New York Electronic Signatures and Records Act (“ESRA”), which includes any electronic signature provided using Adobe Fill & Sign, Adobe Sign, DocuSign, or any other similar platform identified by the Issuers and reasonably available at no undue burden or expense to the Trustee). Any such electronic signature shall be valid, effective and legally binding as if such electronic signature were a handwritten signature and shall be deemed to have been duly and validly delivered for all purposes hereunder; notwithstanding anything herein to the contrary, the Trustee is not under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Trustee pursuant to reasonable procedures approved by the Trustee.
Each of the Issuers 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 Issuers, as applicable; (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.
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Notwithstanding any other provision of this Indenture or any Security, where this Indenture or any Security provides for notice of any event or any other communication (including any notice of redemption or repurchase) to a Holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic mail in accordance with accepted practices at the Depositary.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and delivered, first-class postage prepaid or otherwise delivered in accordance with the procedures of DTC, CDS, Euroclear or Clearstream, as applicable, to each Holder affected by such event, at its address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by delivery, neither the failure to deliver such notice, nor any defect in any notice so delivered, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular delivery service or by reason of any other cause it shall be impracticable to give such notice by delivery, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under the Trust Indenture Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
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Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuers shall bind their successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing Law; Waiver of Trial by Jury.
THIS INDENTURE, THE SECURITIES AND ANY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
Each of the Issuers, the Trustee and the Holders by their acceptance of the Securities 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 Indenture or the transactions contemplated hereby.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section 113)) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date, Redemption Date, Repayment Date or at the Stated Maturity, and no additional interest shall accrue as the result of such delayed payment.
Section 114. Counterparts.
This instrument 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. The exchange of copies of this Indenture and of signature pages by facsimile or portable document format (PDF) transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of an original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
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Section 115. Foreign Account Tax Compliance Act (FATCA).
In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (“Applicable Law”), the Issuers agree (i) to provide to U.S. Bank Trust Company, National Association sufficient information about Holders or other applicable parties and/or transactions (including any modification to the terms of such transactions) so U.S. Bank Trust Company, National Association can determine whether it has tax-related obligations under Applicable Law, (ii) that U.S. Bank Trust Company, National Association shall be entitled to make any withholding or deduction from payments under this Indenture to the extent necessary to comply with Applicable Law for which U.S. Bank Trust Company, National Association shall not have any liability, and (iii) to hold harmless U.S. Bank Trust Company, National Association for any losses it may suffer due to the actions it takes to comply with such Applicable Law. The terms of this section shall survive the termination of this Indenture.
Section 116. Patriot Act.
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
Section 117. Judgment Currency.
The Issuers agree, to the fullest extent that they may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of, or any premium or interest on, the Securities of any series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which, in accordance with normal banking procedures, the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding that on which a final, unappealable judgment is given; and (b) the obligations of the Issuers under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with clause (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable, and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture.
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Article II
SECURITY FORMS
Section 201. Forms Generally.
The Securities of each series and the Trustee’s certificate of authentication shall be in substantially such form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon (including, without limitation, any legends where applicable) as may be required to comply with applicable tax laws or the rules of any securities exchange or automated quotation system on which the Securities of such series may be listed or traded or the rules of any Depositary therefor or as may, consistently herewith, be determined to be appropriate by the officers executing such Securities, as evidenced by their execution thereof. If the form or forms of Securities of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by an Authorized Person of either Issuer and delivered to the Trustee at or prior to the delivery of the Issuer Order contemplated by Section 303 for the authentication and delivery of such Securities.
The definitive Securities of each series shall be typewritten, printed, lithographed or engraved or produced by any combination of these methods, or engraved on steel engraved borders, if required by any securities exchange or automated quotation system on which the Securities of such series may be listed or traded, or may be produced in any other manner permitted by the rules of any securities exchange or automated quotation system on which the Securities of such series may be listed or traded, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
Section 202. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the Securities evidenced thereby, every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
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 OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY.
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Section 203. Form of Trustee’s Certificate of Authentication.
The Trustee’s certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Date: __________________
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: | ||
| Authorized Signatory | ||
Article III
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution and, subject to Section 303, set forth, or determined in the manner provided, in an Officer’s Certificate or in an Issuer Order, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, Section 305, Section 306, Section 906, Section 1107 or Section 1305 and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder); provided, however, that the authorized aggregate principal amount of such series may from time to time be increased above such amount by a Board Resolution to such effect; provided, further, that if such additional Securities are not fungible for U.S. federal income tax purposes with the Securities of such series, such additional Securities shall have a different “CUSIP” or “ISIN” number;
(3) the date or dates on which the principal of any Securities of the series is payable, or the method by which such date or dates shall be determined or extended;
(4) the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates shall be determined, the date or dates from which such interest shall accrue, or the method by which such date or dates shall be determined, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date, if any, for the interest payable on any Interest Payment Date, or the method by which such date or dates shall be determined, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months, the right, if any, to extend or defer interest payments and the duration of such extension or deferral;
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(5) the place or places where the principal of and any premium and interest on any Securities of the series shall be payable, the place or places where the Securities of such series may be presented for registration of transfer or exchange, and the place or places where notices and demands to or upon the Issuers in respect of the Securities of such series may be made;
(6) the period or periods within or the date or dates on which, the price or prices at which and the term and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Issuers and, if other than by a Board Resolution, the manner in which any election by the Issuers to redeem the Securities shall be evidenced;
(7) the obligation or the right, if any, of the Issuers to redeem or purchase any Securities of the series pursuant to any sinking fund, amortization or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which, the currency or currencies (including currency unit or units) in which and the other terms and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $2,000 and any integral multiple of $1,000 above that amount, the denominations in which any Securities of the series shall be issuable;
(9) if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined;
(10) if other than the currency of the United States of America, the currency, currencies or currency units, including composite currencies, in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for purposes of the definition of “Outstanding” in Section 101;
(11) if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Issuers or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the period or periods within or the date or dates on which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);
(12) the percentage of the principal amount at which such Securities will be issued and, if other than the principal amount thereof, the portion of the principal amount of Securities of the series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502 or the method by which such portion shall be determined;
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(13) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(14) if applicable, that the Securities of the series, in whole or any specified part, shall not be defeasible or shall be defeasible in a manner varying from Section 1402 and Section 1403 and, if other than by a Board Resolution, the manner in which any election by the Issuers to defease such Securities shall be evidenced;
(15) whether the Securities of the series, or any portion thereof, shall initially be issuable in the form of a temporary Global Security representing all or such portion of the Securities of such series and provisions for the exchange of such temporary Global Security for one or more permanent Global Securities or definitive Securities of such series;
(16) if applicable, that any Securities of the series, or any portion thereof, shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 202 and any circumstances in addition to or in lieu of those set forth in Clause (2) of the last paragraph of Section 305 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;
(17) if applicable, that the Securities of the series, in whole or any specified part, shall be subject to the optional interest reset provisions of Section 307(b);
(18) if applicable, that the Securities of the series, in whole or any specified part, shall be subject to the optional extension of maturity provisions of Section 308;
(19) any deletion or addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 502 or in any other remedies provided in Article V;
(20) any addition to or change in the covenants set forth in Article X which applies to Securities of the series;
(21) the additions or changes, if any, to this Indenture with respect to the Securities of such series as shall be necessary to permit or facilitate the issuance of the Securities of such series in bearer form, registrable or not registrable as to principal, and with or without interest coupons;
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(22) the appointment of any Paying Agent or Agents for the Securities of such series, if other than the Trustee;
(23) the terms of any right to convert or exchange Securities of such series into any other securities or property of the Issuers or of any other Corporation or Person, and the additions or changes, if any, to this Indenture with respect to the Securities of such series to permit or facilitate such conversion or exchange;
(24) the terms and conditions, if any, pursuant to which the Securities of the series are secured;
(25) whether the Securities of the series will be subject to any restriction or condition on the transferability of the Securities of such series;
(26) whether the Securities shall be issued with Guarantees and, if so, to name one or more Guarantors, the terms and conditions, if any, of any Guarantee with respect to Securities of any series, to provide for the terms and conditions upon which Guarantees may be released or terminated, and any corresponding changes to the provisions of this Indenture as then in effect;
(27) whether and under what circumstances the Issuers will pay additional amounts to non-United States Holders of Securities of such series in respect of any tax assessment or government charge and, if so, whether the Issuers will have the option to redeem such Securities rather than pay such additional amounts (and the terms of any such option); and
(28) any other additional, eliminated or changed terms of the Securities of such series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 901).
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided herein or in or pursuant to the Board Resolution referred to above and (subject to Section 303) set forth, or determined in the manner provided, in the Officer’s Certificate or Issuer Order referred to above or in any such indenture supplemental hereto.
If any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by an Authorized Person of either Issuer and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate or Issuer Order setting forth the terms or the manner of determining the terms of the series.
With respect to Securities of a series offered in a Periodic Offering, the Board Resolution (or action taken pursuant thereto), Officer’s Certificate, Issuer Order or supplemental indenture referred to above may provide general terms or parameters for Securities of such series and provide either that the specific terms of particular Securities of such series shall be specified in a further Issuer Order or that such terms shall be determined by the Issuers in accordance with other procedures specified in the Issuer Order contemplated by the third paragraph of Section 303.
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Section 302. Denominations.
The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 301. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $2,000 and any integral multiple of $1,000 above that amount.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of each Issuer that is an obligor thereon by the Chairman of its Board of Directors, its Chief Executive Officer, the Vice Chairman of its Board of Directors, its Chief Financial Officer, its President, its Treasurer, one of its Vice Presidents or an Authorized Person of such Issuer. The signature of any of these individuals on the Securities may be manual, facsimile or electronic, provided that any electronic signature is a true representation of the signer’s actual signature.
Securities bearing the manual, facsimile or electronic signatures of individuals who were at any time the proper officers of an Issuer shall bind such Issuer notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Issuers may deliver Securities of any series executed by the Issuers to the Trustee for authentication, together with an Issuer Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Issuer Order shall authenticate and deliver such Securities; provided, however, that in the case of Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such Securities from time to time in accordance with such other procedures (including the receipt by the Trustee of oral or electronic instructions from the Issuers or their duly authorized agents, promptly confirmed in writing) acceptable to the Trustee as may be specified by or pursuant to an Issuer Order delivered to the Trustee prior to the time of the first authentication of Securities of such series. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating:
(1) that the form or forms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 201 in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been, or in the case of Securities of a series offered in a Periodic Offering, will be, established by or pursuant to Board Resolution as permitted by Section 301, that such terms have been, or in the case of Securities of a series offered in a Periodic Offering, will be, established in conformity with the provisions of this Indenture, subject, in the case of Securities of a series offered in a Periodic Offering, to any conditions specified in such Opinion of Counsel; and
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(3) that such Securities, when authenticated and delivered by the Trustee and issued by the Issuers in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Issuers enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
If such forms or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officer’s Certificate or Issuer Order otherwise required pursuant to Section 301 or the Issuer Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued. This paragraph shall not be applicable to Securities of a series that are issued pursuant to the proviso to Section 301(2).
Each Security shall be dated the date of its authentication.
With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely, as to the authorization by the Issuers of any of such Securities, the form or forms and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and the other documents delivered pursuant to Section 201 and Section 301 and this Section, as applicable, in connection with the first authentication of Securities of such series.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by the manual, facsimile or electronic signature of one of its authorized signatories (provided that any electronic signature is a true representation of the signer’s actual signature) and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Issuers, and the Issuers shall deliver such Security to the Trustee for cancellation as provided in Section 310, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Issuers may execute, and upon Issuer Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities of such series in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.
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If temporary Securities of any series are issued, the Issuers will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Issuers in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Issuers shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
The Issuers shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office being herein sometimes referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Issuers shall provide for the registration of Securities and of transfers of Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided, unless another Person is appointed “Security Registrar” for a series of Securities prior to the time Securities of that series are first issued in accordance with Section 301. The Issuers may also from time to time designate one or more co-registrars, and may from time to time rescind such designations of Security Registrar and any co-registrars. If in accordance with Section 301, the Issuers designate a transfer agent (in addition to the Security Registrar) with respect to any series of Securities, the Issuers may at any time rescind the designation of any such transfer agent or approve a change in the location through which any such transfer agent acts; provided, that the Issuers maintain a transfer agent in each Place of Payment for such series. The Issuers may at any time designate additional transfer agents with respect to any series of Securities.
Upon surrender for registration of transfer of any Security of a series at the office or agency of the Issuers in a Place of Payment for that series, the Issuers shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Issuers shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
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All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Issuers, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Issuers or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Issuers and the Security Registrar duly executed, by the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Issuers and the Security Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities.
If the Securities of any series are to be redeemed, neither the Trustee nor the Issuers shall be required, pursuant to the provisions of this Section 305, (A) to issue, register the transfer of or exchange any Securities of any series (or of any series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of the delivery of a notice of redemption of any such Securities selected for redemption under Section 1103 and ending at the close of business on the day of such delivery, or (B) to register the transfer of or exchange any Security so selected for redemption, in whole or in part, except, in the case of any Security to be redeemed in part, any portion not to be redeemed.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (A) such Depositary (i) has notified the Issuers that it is unwilling or unable to continue as Depositary for such Global Security, (ii) defaults in the performance of its duties as Depositary, or (iii) has ceased to be a clearing agency registered under the Exchange Act at a time when the Depositary is required to be so registered to act as depositary, in each case, unless the Issuers have approved a successor Depositary within 90 days after receipt of such notice or after it has become aware of such default or cessation, (B) the Issuers in their sole discretion determine, subject to the procedures of the Depositary, that such Global Security will be so exchangeable or transferable or (C) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
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(4) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section 305, Section 304, Section 306, Section 906, Section 1107 or Section 1305 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with such security or indemnity as may be required by the Issuers or the Trustee to save each of them harmless, the Issuers shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding and shall cancel and dispose of such mutilated Security in accordance with its customary procedures.
If there shall be delivered to the Issuers and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Issuers or the Trustee that such Security has been acquired by a bona fide purchaser, the Issuers shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding. If, after the delivery of such new Security, a bona fide purchaser of the original Security in lieu of which such new Security was issued presents for payment or registration such original Security, the Trustee shall be entitled to recover such new Security from the party to whom it was delivered or any party taking therefrom, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Issuers and the Trustee in connection therewith and shall cancel and dispose of such new Security in accordance with its customary procedures.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Issuers in their discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 306, the Issuers may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of counsel to the Issuers and the fees and expenses of the Trustee, its agents and counsel) connected therewith.
Every new Security of any series issued pursuant to this Section 306 in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Issuers, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
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The provisions of this Section 306 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved; Optional Interest Reset.
(a) Except as otherwise provided as contemplated by Section 301 with respect to any series of Securities, interest on any Security of any series which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest in respect of Securities of such series, except that, unless otherwise provided in the Securities of such series, interest payable on the Stated Maturity of the principal of a Security shall be paid to the Person to whom principal is paid. The initial payment of interest on any Security of any series which is issued between a Regular Record Date and the related Interest Payment Date shall be payable as provided in such Security or in or pursuant to the Board Resolution, Officer’s Certificate, Issuer Order or supplemental indenture pursuant to Section 301 with respect to the related series of Securities. Except in the case of a Global Security, at the option of the Issuers, interest on any series of Securities may be paid (i) by check delivered to the address of the Person entitled thereto as it shall appear on the Security Register of such series or (ii) by wire transfer in immediately available funds at such place and to such account as designated in writing by the Person entitled thereto as specified in the Security Register of such series at least fifteen days prior to the relevant Interest Payment Date.
Any Paying Agents will be identified in accordance with Section 301, except for the Trustee, who has been appointed as Paying Agent for the Securities as provided in the definition of “Paying Agent” contained in Section 101. The Issuers may at any time designate additional Paying Agents or rescind the designation of any Paying Agent; however, the Issuers at all times will be required to maintain a Paying Agent in each Place of Payment for each series of Securities.
Unless otherwise provided as contemplated by Section 301 with respect to any series of Securities, any interest on any Security of any series which is payable, but is not timely paid or duly provided for, on any Interest Payment Date for Securities of such series (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Issuers, at their election in each case, as provided in Clause (1) or (2) below:
(1) The Issuers may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series in respect of which interest is in default (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuers shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Issuers shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements reasonably satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as provided in this Clause (1). The Issuers shall fix or cause to be fixed each such Special Record Date and payment date; provided that no such special record date shall be less than 10 days prior to the related payment date for such Defaulted Interest. The Issuers shall promptly notify the Trustee in writing of such Special Record Date. At least 15 days before the Special Record Date, the Issuers (or, upon the written request of the Issuers, the Trustee in the name and at the expense of the Issuers) shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so delivered, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
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(2) The Issuers may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange or automated quotation system on which such Securities may be listed or traded, and upon such notice as may be required by such exchange or automated quotation system, if, after notice given by the Issuers to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
(b) The provisions of this Section 307(b) may be made applicable to any series of Securities pursuant to Section 301 (with such modifications, additions or substitutions as may be specified pursuant to Section 301). The interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) on any Security of such series may be reset by the Issuers on the date or dates specified on the face of such Security (each an “Optional Reset Date”). The Issuers may exercise such option with respect to such Security by notifying the Trustee of such exercise at least 50 but not more than 60 days prior to an Optional Reset Date for such Security, such notice to contain the information to be included in the Trustee’s notice referred to in the following sentence. If the Issuers exercise such option, not later than 40 days prior to each Optional Reset Date, the Trustee shall transmit, in the manner provided for in Section 106, to the Holder of any such Security a notice (the “Reset Notice”) indicating that the Issuers have elected to reset the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable), and (i) such new interest rate (or such new spread or spread multiplier, if applicable) and (ii) the provisions, if any, for redemption during the period from such Optional Reset Date to the next Optional Reset Date or if there is no such next Optional Reset Date, to the Stated Maturity of such Security (each such period a “Subsequent Interest Period”), including the date or dates on which or the period or periods during which and the price or prices at which such redemption may occur during the Subsequent Interest Period.
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Notwithstanding the foregoing, not later than 20 days prior to the Optional Reset Date, the Issuers may, at their option, revoke the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) provided for in the Reset Notice and establish an interest rate (or a spread or spread multiplier used to calculate such interest rate, if applicable) that is higher than the interest rate (or the spread or spread multiplier, if applicable) provided for in the Reset Notice, for the Subsequent Interest Period by causing the Trustee to transmit, in the manner provided for in Section 106, notice of such higher interest rate (or such higher spread or spread multiplier, if applicable) to the Holder of such Security. Such notice shall be irrevocable. All Securities with respect to which the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) is reset on an Optional Reset Date, and with respect to which the Holders of such Securities have not tendered such Securities for repayment (or have validly revoked any such tender) pursuant to the next succeeding paragraph, will bear such higher interest rate (or such higher spread or spread multiplier, if applicable).
The Holder of any such Security will have the option to elect repayment by the Issuers of the principal of such Security on each Optional Reset Date at a price equal to the principal amount thereof plus interest accrued to such Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the Holder must follow the procedures set forth in Article XIII for repayment at the option of Holders except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to such Optional Reset Date and except that, if the Holder has tendered any Security for repayment pursuant to the Reset Notice, the Holder may, by written notice to the Trustee, revoke such tender for repayment until the close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section 307 and Section 305, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308. Optional Extension of Maturity.
The provisions of this Section 308 may be made applicable to any series of Securities pursuant to Section 301 (with such modifications, additions or substitutions as may be specified pursuant to Section 301). The Stated Maturity of any Security of such series may be extended at the option of the Issuers for the period or periods specified on the face of such Security (each an “Extension Period”) up to but not beyond the date (the “Final Maturity”) set forth on the face of such Security. The Issuers may exercise such option with respect to any Security by notifying the Trustee of such exercise at least 50 but not more than 60 days prior to the Stated Maturity of such Security in effect prior to the exercise of such option (the “Original Stated Maturity”), such notice to contain the information to be included in the Trustee’s notice referred to in the following sentence. If the Issuers exercise such option, the Trustee shall transmit, in the manner provided for in Section 106, to the Holder of such Security not later than 40 days prior to the Original Stated Maturity a notice (the “Extension Notice”) indicating (i) the election of the Issuers to extend the Maturity, (ii) the new Stated Maturity, (iii) the interest rate applicable to the Extension Period and (iv) the provisions, if any, for redemption during such Extension Period. Upon the Trustee’s transmittal of the Extension Notice, the Stated Maturity of such Security shall be extended automatically and, except as modified by the Extension Notice and as described in the next paragraph, such Security will have the same terms as prior to the transmittal of such Extension Notice.
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Notwithstanding the foregoing, not later than 20 days before the Original Stated Maturity of such Security, the Issuers may, at their option, revoke the interest rate provided for in the Extension Notice and establish a higher interest rate for the Extension Period by causing the Trustee to transmit, in the manner provided for in Section 106, notice of such higher interest rate to the Holder of such Security. Such notice shall be irrevocable. All Securities with respect to which the Stated Maturity is extended will bear such higher interest rate.
If the Issuers extend the Maturity of any Security, the Holder will have the option to elect repayment of such Security by the Issuers on the Original Stated Maturity at a price equal to the principal amount thereof, plus interest accrued to such date. In order to obtain repayment on the Original Stated Maturity once the Issuers have extended the Maturity thereof, the Holder must follow the procedures set forth in Article XIII for repayment at the option of Holders, except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to the Original Stated Maturity and except that, if the Holder has tendered any Security for repayment pursuant to an Extension Notice, the Holder may, by written notice to the Trustee, revoke such tender for repayment until the close of business on the tenth day before the Original Stated Maturity.
Section 309. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Issuers, the Trustee and any agent of the Issuers or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 307) any interest on such Security and (subject to the record date provisions of Section 104) for all other purposes whatsoever, whether or not such Security be overdue, and none of the Issuers, the Trustee or any agent of the Issuers or the Trustee shall be affected by notice to the contrary.
Section 310. Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Issuers may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Issuers may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Issuers have not issued and sold, and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section 310, except as expressly permitted by this Indenture. All canceled Securities held by the Trustee shall be treated in accordance with its document retention policies.
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Section 311. Computation of Interest; Usury Not Intended.
Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
The amount of interest (or amounts deemed to be interest under applicable law) payable or paid on any Security shall be limited to an amount which shall not exceed the maximum nonusurious rate of interest allowed by the applicable laws of the State of New York, or any applicable law of the United States permitting a higher maximum nonusurious rate that preempts such applicable New York law, which could lawfully be contracted for, taken, reserved, charged or received (the “Maximum Interest Rate”). If, as a result of any circumstances whatsoever, the Issuers or any other Person is deemed to have paid interest (or amounts deemed to be interest under applicable law) or any Holder of a Security is deemed to have contracted for, taken, reserved, charged or received interest (or amounts deemed to be interest under applicable law), in excess of the Maximum Interest Rate, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of validity, and if under any such circumstance, the Trustee, acting on behalf of the Holders, or any Holder shall ever receive interest or anything that might be deemed interest under applicable law that would exceed the Maximum Interest Rate, such amount that would be excessive interest shall be applied to the reduction of the principal amount owing on the applicable Security or Securities and not to the payment of interest, or if such excessive interest exceeds the unpaid principal balance of any such Security or Securities, such excess shall be refunded to the Issuers; provided, that the Issuers and not the Trustee shall be responsible for collecting any such refund from the Holders. In addition, for purposes of determining whether payments in respect of any Security are usurious, all sums paid or agreed to be paid with respect to such Security for the use, forbearance or detention of money shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full term of such Security.
Section 312. CUSIP or ISIN Numbers.
The Issuers in issuing the Securities may use “CUSIP” or “ISIN” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” or “ISIN” numbers in notices of redemption as a convenience to Holders; provided, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuers shall promptly notify the Trustee in writing of any change in “CUSIP” or “ISIN” numbers.
Article IV
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Issuer Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for and as otherwise provided in this Section 401), and the Trustee, on demand of and at the expense of the Issuers, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
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(1) Either:
(a) all Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuers and thereafter repaid to the Issuers or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or
(b) all such Securities not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year of the date of deposit, or
(iii) are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuers,
and the Issuers, in the case of (i), (ii) or (iii) above, have deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose (a) an amount of cash in the currency, currencies or currency units in which the Securities of such series are then specified as payable at Stated Maturity, or (b) Government Obligations applicable to such Securities (determined on the basis of the currency, currencies or currency units in which the Securities of such series are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, money in an amount, or (c) a combination thereof, in each case sufficient, to pay and discharge the entire Indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Issuers have paid or caused to be paid all other sums payable hereunder by the Issuers; and
(3) the Issuers have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Issuers to the Trustee under Section 607 and, if money shall have been deposited with the Trustee pursuant to subclause (b) of Clause (1) of this Section 401, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
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Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including Issuers if any of the Issuers shall act as the Issuers’ Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money or Government Obligations have been deposited with the Trustee; provided that such money need not be segregated from other money except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section 301, if, after a deposit referred to in Clause (1) of Section 401 has been made in respect of any Security, (a) the Holder of such Security is entitled to, and does, elect pursuant to the terms of such Security to receive payment in a currency, currencies or currency units other than that in which such deposit has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency, currency unit or composite currency in which such deposit has been made, then the Indebtedness represented by such Security shall be deemed to have been, and shall be, fully discharged and satisfied through the payment of the principal of, and any premium and interest on, such Security as such payments become due out of the proceeds yielded by converting the amount or other property so deposited in respect of such Security into the currency, currencies or currency units in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to an election referred to in clause (a) above, the applicable Market Exchange Rate in effect on the second Business Day prior to each payment date, and (y) with respect to a Conversion Event, the applicable Market Exchange Rate in effect (as nearly as feasible) at the time of the Conversion Event.
Article V
REMEDIES
Section 501. Events of Default.
“Event of Default”, wherever used herein with respect to the Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series, and continuance of such default for a period of 30 days; or
(4) default in the performance, or breach, in any material respect, of any covenant or warranty of any Issuer, by any Issuer, in this Indenture with respect to a Security of that series (other than a covenant or warranty a default in the performance of which or the breach of which is elsewhere in this Section 501 specifically dealt with or which has expressly been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified delivery, to the Issuers by the Trustee or to the Issuers and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” under this Indenture; or
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(5) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of any Issuer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging any Issuer a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of any Issuer under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of any Issuer or of any substantial part of its respective property, or ordering the winding up or liquidation of its respective affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or
(6) the commencement by any Issuer of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of any Issuer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of any Issuer or of any substantial part of its property, or the making by it of an assignment of a substantial part of its property for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by any Issuer in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of that series,
provided, however, that no event described in Clause (4), Clause (5), Clause (6) and Clause (7) above shall constitute an Event of Default hereunder until a Responsible Officer has received written notice thereof as contemplated in Section 602.
Notwithstanding the foregoing provisions of this Section 501, if the principal or any premium or interest on any Security is payable in a Foreign Currency and a Conversion Event occurs in respect of such Foreign Currency, the Issuers will be entitled to satisfy their obligations to Holders of the Securities by making such payment in the currency of the United States of America in an amount equal to the currency of the United States of America equivalent of the amount payable in such other currency, as determined by the Issuers by reference to the Market Exchange Rate as such Market Exchange Rate is reported or otherwise made available by the Federal Reserve Bank of New York on the date of such payment, or, if such rate is not then available, on the basis of the most recently available Market Exchange Rate. Notwithstanding the foregoing provisions of this Section 501, any payment made under such circumstances in the currency of the United States of America where the required payment is in a Foreign Currency will not constitute an Event of Default under this Indenture.
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Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section 501(7) which is common to all Outstanding series of Securities) with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) to be due and payable immediately, by a notice in writing to the Issuers (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If an Event of Default under Section 501(7) which is common to all Outstanding series of Securities occurs and is continuing, then in such case, the Trustee or the Holders of not less than 25% in aggregate principal amount of all the Securities then Outstanding hereunder (treated as one class), by a notice in writing to the Issuers (and to the Trustee if given by Holders) may declare the principal amount (or, if any Securities are Original Issue Discount Securities, such portion of the principal amount as may be specified by the terms thereof) of all the Securities then Outstanding to be due and payable immediately, and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article V, the Event of Default giving rise to such declaration of acceleration shall, without further act, be deemed to have been waived, and such declaration and its consequences shall, without further act, be deemed to have been rescinded and annulled, if:
(1) the Issuers have paid or deposited with the Trustee a sum sufficient to pay:
(a) all overdue installments of interest on all Securities of that series,
(b) the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,
(c) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;
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(2) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Issuers covenant that if
(1) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days,
(2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof, or
(3) default is made in the deposit of any sinking fund payment, when and as due by the terms of any Security and such default continues for a period of 30 days, the Issuers will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, all amounts owing the Trustee, its agents and counsel under Section 607.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Issuers, any Guarantor or any other obligor upon the Securities, their respective property or their respective creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it and any predecessor Trustee under Section 607.
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No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of all amounts owing the Trustee and any predecessor Trustee under Section 607, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money or property collected or to be applied by the Trustee with respect to a series of Securities pursuant to this Article V shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money or property on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee (in all of its capacities under this Indenture) under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and interest on such series of Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such series of Securities for principal and any premium and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Issuers.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver, assignee, trustee, liquidator or sequestrator (or other similar official), or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
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(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered and, if requested, provided to the Trustee security or indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of security or indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing itself of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Securities, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 307) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption or repayment, on the Redemption Date or Repayment Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Issuers, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee, and the Holders shall continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
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Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article V or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series; provided, that:
(1) such direction shall not be in conflict with any rule of law or with this Indenture;
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(3) subject to the provisions of Section 601, the Trustee shall have the right to decline to follow such direction if (i) the Holders have failed to provide the Trustee with security or indemnity deemed by it to be sufficient in its sole discretion; or (ii) a Responsible Officer or Officers of the Trustee shall, in good faith, determine that the proceeding so directed would involve the Trustee in personal liability or would otherwise be contrary to applicable law.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default or Event of Default hereunder with respect to such series and its consequences and rescind acceleration, except a default or an Event of Default:
(1) in the payment of the principal of, or any premium on, or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such rescission or waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
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Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by its acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and such court may in its discretion assess reasonable costs including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided, that the provisions of this Section 514 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder or group of Holders holding in the aggregate more than 10% in principal amount of the Outstanding Securities, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security, on or after the respective due dates expressed in such Security.
Section 515. Waiver of Usury, Stay or Extension Laws.
Each of the Issuers covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and each of the Issuers (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Article VI
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuation of an Event of Default:
(1) The Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and the other transaction documents to which it is a party with respect to the Securities, and no implied covenants or obligations shall be read into this Indenture against the Trustee.
(2) In the absence of negligence, willful misconduct or bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, such party shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture, but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein.
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(b) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs; provided, the Trustee will be under no obligation to exercise any of the rights and powers under this Indenture at the request or direction of any Holders, unless such Holders have offered to the Trustee indemnity satisfactory to it against any loss, liability, or expenses, and then only to the extent required by the terms of this Indenture.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1) this Subsection (c) shall not be construed to limit the effect of Subsections (a) and (b) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a majority in principal amount of the outstanding Securities, determined as provided in Section 512, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any personal financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the Trustee shall give the Holders of Securities of such series notice of such default as and to the extent provided by the Trust Indenture Act; provided, however, that in the case of any default of the character specified in Section 501(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section 602, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
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The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Event of Default with respect to the Securities of a series, except an Event of Default under Section 501(1), Section 501(2) or Section 501(3) hereof (provided, that the Trustee is the principal Paying Agent with respect to the Securities of such series), unless a Responsible Officer shall have received written notice at the Corporate Trust Office of such Event of Default in accordance with Section 105 from the Issuers, any Subsidiary or the Holder of any Security, which notice states that the event referred to therein constitutes an Event of Default and references this Indenture and the relevant Securities.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Issuers mentioned herein shall be sufficiently evidenced by an Issuer Request or Issuer Order and Opinion of Counsel, and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution; the Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Issuer Request, Issuer Order, Opinion of Counsel or Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate;
(4) the Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity acceptable to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuers, personally or by agent or attorney;
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(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(8) the Trustee is not required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Indenture;
(9) in the event the Trustee receives inconsistent or conflicting requests and indemnity from two or more groups of Holders of Securities of a series, each representing less than a majority in aggregate principal amount of the Securities of such series Outstanding, the Trustee, in its sole discretion, may determine what action, if any, shall be taken;
(10) the Trustee’s immunities and protections from liability and its right to indemnification in connection with the performance of its duties under this Indenture shall extend to the Trustee’s officers, directors, agents and employees. Such immunities and protections and right to indemnification, together with the Trustee’s right to compensation, shall survive the Trustee’s resignation or removal and the satisfaction and discharge of this Indenture;
(11) except for information provided by the Trustee concerning the Trustee, the Trustee shall have no responsibility for any information in any offering memorandum or other disclosure material distributed with respect to the Securities, and the Trustee shall have no responsibility for compliance with any state or federal securities laws in connection with the Securities;
(12) the Trustee shall not be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(13) the Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused by, directly or indirectly, forces beyond its control (forces majeure), including without limitation strikes, work stoppages, pandemics, accidents, acts of war or terrorism, civil or military disturbances or closures, epidemics, pandemics, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services;
(14) the Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture;
(15) the rights, privileges, protections and benefits given to the Trustee, including, without limitation, its rights to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Persons employed to act hereunder;
(16) the Trustee may request that the Issuers deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;
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(17) the permissive right of the Trustee to take or refrain from taking any actions enumerated in this Indenture shall not be construed as a duty;
(18) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(19) the Trustee has no liability for interest nor any duty to invest funds deposited with it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Issuers, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Issuers of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Issuers, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Section 608 and Section 613, may otherwise deal with the Issuers with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other money except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Issuers.
Section 607. Compensation and Reimbursement.
The Issuers agree:
(1) to pay to the Trustee from time to time such compensation for all services rendered by it hereunder in such amounts as the Issuers and the Trustee shall agree in writing from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable and documented expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or willful misconduct; and
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(3) to indemnify the Trustee (which shall be deemed to include its officers, directors, employees and agents) for, and to hold it harmless against, any loss, damage, claims, liability or expense incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder, except those attributable to its negligence or willful misconduct, as determined in a final, non-appealable order of a court of competent jurisdiction. This indemnity shall survive resignation or removal of the Trustee, defeasance or termination of this Indenture and final payment in full of the Securities.
The Trustee shall notify the Issuers promptly of any claim for which it may seek indemnity under this Section 607. The Issuers shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and, in the event the subject matter of the claim involves a conflict of interest between the Issuers and the Trustee, the Issuers shall pay the reasonable and documented fees and expenses of such counsel. The Issuers need not pay for any settlement made without their consent.
As security for the performance of the obligations of the Issuers under this Section, the Trustee shall have a lien prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) or interest on particular Securities.
Without prejudice to any other rights available to the Trustee under applicable law, in the event the Trustee incurs expenses or renders services in any proceedings which result from an Event of Default under Section 501(5) or (6), or from any default which, with the passage of time, would become such Event of Default, the expenses so incurred and compensation for services so rendered are intended to constitute expenses of administration under the United States Bankruptcy Code or equivalent law.
Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section 609 and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section 609, it shall resign immediately in the manner and with the effect hereinafter specified in this Article VI.
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Section 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article VI shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Issuers. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may, at the expense of the Issuers, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Issuers.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request therefor by the Issuers or by any Holder who has been a bona fide Holder of a Security for at least six months; or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Issuers or by any such Holder; or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, (A) the Issuers, acting pursuant to the authority of a Board Resolution, may remove the Trustee with respect to all Securities, or (B) subject to Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
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If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Issuers, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Issuers and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 611, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Issuers. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Issuers or the Holders and accepted appointment in the manner required by Section 611, the Trustee or any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction (at the sole expense of the Issuers) for the appointment of a successor Trustee with respect to the Securities of such series.
The Issuers shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Issuers and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Issuers or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Issuers, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustee’s co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Issuers or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
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Upon request of any such successor Trustee, the Issuers shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article VI.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder; provided, that such corporation shall be otherwise qualified and eligible under this Article VI, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated, and in case any Securities shall not have been authenticated, any such successor to the Trustee may authenticate such Securities either in the name of any predecessor Trustee or in the name of such successor Trustee, and in all cases the certificate of authentication shall have the full force which it is provided anywhere in the Securities or in this Indenture that the certificate of the Trustee shall have.
Section 613. Preferential Collection of Claims Against Issuers.
If and when the Trustee shall be or become a creditor of any of the Issuers (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Issuers (or any such other obligor). For purposes of Section 311(b)(4) and (6) of the Trust Indenture Act:
(1) “cash transaction” means any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks and payable upon demand; and
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(2) “self-liquidating paper” means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Issuers (or any such obligor) for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security; provided, the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Issuers (or any such obligor) arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Issuers.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all of the corporate agency or corporate trust business of an Authenticating Agent shall be the successor Authenticating Agent hereunder; provided, that such corporation shall be otherwise eligible under this Section 614, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Issuers. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Issuers. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 614, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Issuers and shall give notice of such appointment in the manner provided in Section 106 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 614.
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The Issuers agree to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section 614.
If an appointment with respect to one or more series is made pursuant to this Section 614, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Date: __________________
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Authenticating Agent | ||
| By: | ||
| Authorized Officer | ||
Article VII
SECURITYHOLDERS’ LISTS AND REPORTS BY TRUSTEE AND ISSUERS
Section 701. Issuers to Furnish Trustee Names and Addresses of Holders.
The Issuers will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than June 15 and December 15 in each year, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each series as of the preceding June 1 or December 1, as the case may be; and
(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Issuers of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that if and so long as the Trustee shall be Security Registrar for Securities of a series, no such list need be furnished with respect to such series of Securities.
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided in the Trust Indenture Act.
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Every Holder of Securities, by receiving and holding the same, agrees with the Issuers and the Trustee that neither of the Issuers nor the Trustee nor any agent of any of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.
If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each May 15 following the date of this Indenture, deliver to Holders a brief report, dated as of such May 15, which complies with the provisions of Section 313(a).
Section 704. Reports by the Parent Entity.
The Parent Entity covenants to file with the Trustee, within 15 days after the Parent Entity is required to file the same with the Commission, copies of the annual reports and of the information, documents, and other reports that the Parent Entity may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act or pursuant to Section 314 of the Trust Indenture Act.
Delivery of the foregoing reports, information and documents to the Trustee shall be deemed satisfied, and such reports, information and documents shall be deemed to have been filed with and delivered to the Trustee, at the time the Parent Entity files (or, if applicable, any Issuer files) the same with the Commission through the Commission’s Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”) or any successor electronic filing system, or otherwise makes the same publicly available on a freely accessible website; provided that the Trustee shall have no obligation whatsoever to determine whether or not any such reports, information or documents have been filed or made publicly available, or to monitor or search EDGAR, any successor system or any website for any such reports, information or documents. Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee’s receipt thereof (or access thereto) shall not constitute actual or constructive notice or knowledge of any information contained therein or determinable from information contained therein, including the Parent Entity’s or any Issuer’s compliance with any of its covenants under this Indenture (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
Article VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Issuers May Consolidate, etc., Only on Certain Terms.
Other than the JRD Acquisition Transactions, none of the Issuers shall consolidate with or merge into any other Person or convey, transfer or lease all or substantially all of its properties and assets to any Person unless:
(1) in case an Issuer shall consolidate with or merge into any other Person, or convey, transfer or lease all or substantially all of its properties and assets to any Person, the Person formed by such consolidation or into which such Issuer is merged or to which such conveyance, transfer or lease is made shall be a Corporation, partnership, trust or other entity, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the Securities and the performance or observance of every covenant of this Indenture on the part of such Issuer to be performed or observed;
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(2) immediately after giving effect to such transaction, no Event of Default and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(3) such Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article VIII and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 802. Successor Issuer Substituted.
(1) Upon any consolidation of an Issuer with, or merger of an Issuer into, any other Person or any conveyance or transfer (other than a lease) of all or substantially all of the properties and assets of such Issuer to any Person in accordance with Section 801, the successor Person formed by such consolidation or into which such Issuer is merged or to which such conveyance or transfer (other than a lease) is made shall succeed to, and be substituted for, and may exercise every right and power of, such Issuer under this Indenture with the same effect as if such successor Person had been named as the Issuer herein; and in the event of any such conveyance or transfer (but not in the case of a lease) such Issuer shall be discharged from all obligations and covenants under this Indenture.
(2) Such successor Person may cause to be signed, and may issue either in its own name or in the name of such Issuer, any or all of the Securities issuable hereunder which theretofore shall not have been signed by such Issuer and delivered to the Trustee; and, upon the order of such successor Person instead of such Issuer and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers of such Issuer to the Trustee for authentication pursuant to such provisions and any Securities which such successor Person thereafter shall cause to be signed and delivered to the Trustee on its behalf for the purpose pursuant to such provisions. All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof.
(3) In case of any such consolidation, merger, conveyance, transfer or lease such changes in phraseology and form may be made in the Securities thereafter to be issued as may be appropriate.
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Article IX
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Issuers, when authorized by a Board Resolution (a copy of which shall be delivered to the Trustee) and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form reasonably satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to either Issuer, or successive successions, and the assumption by the successor Person of the covenants, agreements and obligations of any of the Issuers pursuant to Article VIII; or
(2) to add to the covenants of any of the Issuers or any Guarantor for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon any of the Issuers or any Guarantor; or
(3) to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); provided, however, that in respect of any such additional Events of Default such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such default or may limit the remedies available to the Trustee upon such default or may limit the right of the Holders of a majority in aggregate principal amount of that or those series of Securities to which such additional Events of Default apply to waive such default; or
(4) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities; provided, however, that if such addition, change or elimination shall adversely affect the interests of Holders of Securities of any series in any material respect, such addition, change or elimination shall become effective with respect to such series only when no such Security of such series remains Outstanding; or
(6) to convey, transfer, assign, mortgage or pledge any property to or with the Trustee or to surrender any right or power herein conferred upon either Issuer or any Guarantor; or
(7) to establish the forms or terms of Securities of any series as permitted by Section 201 and Section 301; or
(8) [reserved]; or
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(9) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611; or
(10) to cure any ambiguity, or to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein; or add or amend any other provision which shall not materially adversely affect the interests of the Holders of the Securities; or
(11) to make any other provisions with respect to matters or questions arising under this Indenture; provided, that (i) in the case of any cure, correction, supplement, matter, question, amendment or modification to (or which results in any change to) a Guarantee, such action shall be governed by Section 1509 and (ii) in all other cases, such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect; or
(12) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Section 401, Section 1402 and Section 1403; provided, that any such action shall not adversely affect the interests of the Holders of Securities of such series or any other series of Securities in any material respect; or
(13) to comply with the rules or regulations of any securities exchange or automated quotation system on which any of the Securities may be listed or traded; or
(14) to secure any series of Securities; or
(15) to add to, change or eliminate any of the provisions of this Indenture as shall be necessary or desirable in accordance with any amendments to the Trust Indenture Act; provided, that such action does not adversely affect the rights or interests of any Holder of Securities in any material respect; or
(16) to provide for the payment by the Issuers of additional amounts in respect of taxes imposed on certain Holders and for the treatment of such additional amounts as interest and for all matters incidental thereto; or
(17) to add Guarantors with respect to the Securities or release a Guarantor from its obligations under its Guarantee of Securities or this Indenture in accordance with the applicable provisions of this Indenture and the Securities of the applicable series; or
(18) to conform the terms of this Indenture and the Securities to any provision or other description of the Securities, as the case may be, contained in an offering document related thereto; or
(19) to comply with the rules of any applicable securities Depositary; or
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(20) to amend the provisions of Article XV in accordance with the applicable provisions of Section 1509.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of all series affected by such supplemental indenture (treated as one class), by Act of said Holders delivered to the Issuers and the Trustee, the Issuers, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that if the Board Resolutions shall expressly provide that any provisions to be changed or eliminated shall apply to fewer than all the Outstanding Securities hereunder or under a particular series under this Indenture, then, to the extent not inconsistent with the Trust Indenture Act, any such consent may be given by Holders of not less than a majority in principal amount of the Outstanding Securities hereunder or under such series to which such change or elimination shall apply; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(1) except to the extent permitted by Section 307 or Section 308 or otherwise specified in the form or terms of the Securities of any series as permitted by Section 201 and Section 301 with respect to extending the Stated Maturity of any Security of such series, change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security or any other Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repayment, on or after the Redemption Date or Repayment Date), or
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section 902, Section 513 or Section 1006, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section 902 and Section 1006, or the deletion of this proviso, in accordance with the requirements of Section 611 and Section 901(9), or
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(4) if the Securities of any series are convertible or exchangeable into any other securities or property of the Issuers, make any change that adversely affects in any material respect the right to convert or exchange any Security of such series (except as permitted by Section 901) or decrease the conversion or exchange rate or increase the conversion price of any such Security of such series, unless such decrease or increase is permitted by the terms of such Security, or
(5) if the Securities provide therefor, impair or affect any right of repayment at the option of the Holder of such Securities, or
(6) if the Securities of any series are secured, change the terms and conditions pursuant to which the Securities of such series are secured in a manner adverse to the Holders of the secured Securities of such series in any material respect.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section 902 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article IX or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise. The Trustee shall have no responsibility for determining whether any amendment or supplemental indenture will or may have an adverse effect on any Holder.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article IX, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
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Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article IX shall conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article IX may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Issuers shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Issuers, to any such supplemental indenture may be prepared and executed by the Issuers and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
Article X
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
Each Issuer covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Issuers will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Issuers in respect of the Securities of that series and this Indenture may be served. The Issuers initially appoint the Trustee, acting through its Corporate Trust Office, as their agent for said purpose. The Issuers will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuers shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Issuers hereby appoint the Trustee as their agent to receive all such presentations, surrenders, notices and demands.
The Issuers may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Issuers of their obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Issuers will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
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Section 1003. Money for Securities Payments to Be Held in Trust.
If either of the Issuers shall at any time act as the Issuers’ Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium or interest on any of the Securities of that series, segregate to the extent required by law and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Issuers shall have one or more Paying Agents for any series of Securities, they will, on or prior to each due date of the principal of or any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Issuers will promptly notify the Trustee of their action or failure so to act.
The Issuers will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 1003, that such Paying Agent will (1) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any default by the Issuers (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.
The Issuers may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Issuers or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Issuers or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by any of the Issuers, in trust for the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed for one year after such principal, premium or interest has become due and payable may be paid to any of the Issuers on Issuer Request, or (if then held by any of the Issuers) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Issuers for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuers as trustee thereof, shall thereupon cease.
Section 1004. Statement by Officer as to Default.
The Issuers will deliver to the Trustee, within 120 days after the end of each fiscal year of each of the Issuers ending after the date hereof, an Officer’s Certificate, the signer of which shall be the principal executive, principal accounting or principal financial officer of each Issuer, stating whether or not to the best knowledge of the signer thereof, the Issuers are in default in the performance and observance of any of the terms, provisions, covenants and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Issuers shall be in default, specifying all such defaults and the nature and status thereof of which he or she may have knowledge.
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Section 1005. Existence.
Subject to Article VIII and the Issuers’ ability to convert into a corporation, limited liability company, limited partnership or limited liability partnership under applicable law, each Issuer will do or cause to be done all things necessary to preserve and keep in full force and effect its respective corporate or other existence, as applicable.
Section 1006. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities of such series, the Issuers may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 301(20), Section 801, Section 901(2), Section 901(5), Section 901(7),Section 1007 and Section 1008 for the benefit of the Holders of such series, or in Section 1005, if the Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Issuers and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
Section 1007. Limitations on Liens.
The Parent Entity covenants in this Indenture that it will not, and will not permit any Subsidiary to, issue, incur, create, assume or guarantee any debt for borrowed money (including all obligations evidenced by bonds, debentures, notes or similar instruments) secured by a mortgage, security interest, pledge, lien, charge or other encumbrance (“mortgage”) upon any Principal Property or upon any shares of stock or Indebtedness of any Subsidiary that owns or leases a Principal Property (whether such Principal Property, shares or Indebtedness are now existing or owed or hereafter created or acquired) without in any such case effectively providing concurrently with the issuance, incurrence, creation, assumption or guaranty of any such secured debt, or the grant of such mortgage, that the Securities (together with, if the Parent Entity shall so determine, any other Indebtedness of or guarantee by the Parent Entity or such Subsidiary ranking equally with the Securities) shall be secured equally and ratably with (or, at the option of the Parent Entity, prior to) such secured debt. The foregoing restriction, however, will not apply to each of the following:
(a) mortgages on property, shares of stock or Indebtedness or other assets of any Corporation existing at the time such Corporation becomes a Subsidiary, provided that such mortgages or Liens are not incurred in anticipation of such Corporation’s becoming a Subsidiary;
(b) mortgages on property, shares of stock or Indebtedness or other assets existing at the time of acquisition thereof by the Parent Entity or a Subsidiary or to secure the payment of all or any part of the purchase price thereof, or mortgages on property, shares of stock or Indebtedness or other assets to secure any debt incurred prior to, at the time of, or within 180 days after, the latest of the acquisition thereof or, in the case of property, the completion of construction, the completion of improvements or the commencement of substantial commercial operation of such property for the purpose of financing all or any part of the purchase price thereof, such construction or the making of such improvements;
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(c) mortgages to secure Indebtedness owing to the Parent Entity or to a Subsidiary;
(d) mortgages existing at the date of the initial issuance of any Securities then Outstanding;
(e) mortgages on property of a Person existing at the time such Person is merged into or consolidated with the Parent Entity or a Subsidiary or at the time of a sale, lease or other disposition of all or substantially all of the properties of a Person to the Parent Entity or a Subsidiary provided that such mortgage was not incurred in anticipation of such merger or consolidation or sale, lease or other disposition;
(f) mortgages in favor of the United States of America or any state, territory or possession thereof (or the District of Columbia), or any department, agency, instrumentality or political subdivision of the United States of America or any state, territory or possession thereof (or the District of Columbia), to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any Indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of constructing or improving the property subject to such mortgages; or
(g) extensions, renewals or replacements of any mortgage referred to in the foregoing clauses (a), (b), (d), (e) or (f); provided, however, that the principal amount of Indebtedness secured thereby shall not exceed the principal amount of Indebtedness so secured at the time of such extension, renewal or replacement.
Any mortgages permitted by any of the foregoing clauses (a) through (g) shall not extend to or cover any Principal Property of the Parent Entity or such Subsidiary or shares of stock or Indebtedness of such Subsidiary, as the case may be, other than the property, including improvements thereto, stock or Indebtedness specified in such clauses.
Notwithstanding the restrictions outlined in the preceding paragraph, the Parent Entity or any Subsidiary will be permitted to issue, incur, create, assume or guarantee debt secured by a mortgage which would otherwise be subject to such restrictions, without equally and ratably securing the Securities, provided that after giving effect thereto, the aggregate amount of all debt so secured by mortgages (not including mortgages permitted under clauses (a) through (g) above) does not exceed 20% of the Consolidated Net Tangible Assets of the Parent Entity.
Section 1008. Limitations on Sale and Lease-Back Transactions.
The Parent Entity covenants that it will not, nor will it permit any Subsidiary to, enter into any Sale and Lease-Back Transaction with respect to any Principal Property, other than any such transaction involving a lease for a term of not more than three years or any such transaction between the Parent Entity and a Subsidiary or between Subsidiaries, unless: (a) the Parent Entity or such Subsidiary would be entitled to incur Indebtedness secured by a mortgage on the Principal Property involved in such transaction at least equal in amount to the Attributable Debt with respect to such Sale and Lease-Back Transaction, without equally and ratably securing the Securities, pursuant to the limitations on liens described above; or (b) the proceeds of such transaction are at least equal to the fair market value of the affected Principal Property (as determined in good faith by the Board of Directors of the Parent Entity) and the Parent Entity applies an amount equal to the greater of the net proceeds of such sale or the Attributable Debt with respect to such Sale and Lease-Back Transaction within 180 days of such sale to either (or a combination of) (i) the retirement (other than any mandatory retirement, mandatory prepayment or sinking fund payment or by payment at maturity) of debt for borrowed money of the Parent Entity or a Subsidiary (other than debt that is subordinated to the Securities or debt to the Parent Entity or a Subsidiary) that matures more than 12 months after the creation of such debt or (ii) the purchase, construction or development of other comparable property.
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Article XI
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for such Securities) in accordance with this Article XI.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Issuers to redeem any Securities shall be evidenced by an Issuer Order or in another manner specified as contemplated by Section 301 for such Securities. In case of any redemption at the election of the Issuers, the Issuers shall, not less than 10 nor more than 60 days prior to the Redemption Date fixed by the Issuers (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities (a) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, or (b) pursuant to an election of the Issuers which is subject to a condition specified in the terms of such Securities or elsewhere in this Indenture, the Issuers shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction or condition.
Section 1103. Selection of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected, from the Outstanding Securities of such series not previously called for redemption, by such method in accordance with the standard procedures of DTC, CDS, Euroclear, Clearstream or other relevant Depositary, as applicable, and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series; provided, that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence. For book-entry Securities subject to redemption, any redemption will be administered in compliance with the procedures of DTC, CDS, Euroclear, Clearstream, or other relevant Depositary, as applicable.
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The provisions of the preceding paragraph shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed. If the Issuers shall so direct, Securities registered in the name of either Issuer, any Affiliate or any Subsidiary thereof shall not be included in the Securities selected for redemption.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, or otherwise delivered in accordance with the procedures of DTC, CDS, Euroclear or Clearstream, as applicable, not less than 10 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at its address appearing in the Security Register.
With respect to Securities of each series to be redeemed, each notice of redemption shall identify the Securities to be redeemed (including “CUSIP” or “ISIN” numbers, if applicable) and shall state:
(1) the Redemption Date,
(2) the Redemption Price, or if not then ascertainable, the manner of calculation thereof,
(3) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date, the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
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(5) the place or places where each such Security is to be surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Issuers shall be given by the Issuers or, at the Issuers’ request, by the Trustee in the name and at the expense of the Issuers; provided, however, that the Issuers have delivered to the Trustee, at least 10 days prior to the Redemption Date (unless a shorter notice shall be satisfactory to the Trustee), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph. Any such notice of redemption shall be irrevocable. The notice if delivered in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, a failure to give such notice by delivery or any defect in the notice to the Holder of any Security designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security.
Any redemption or notice of any redemption may, at the Issuers’ discretion, be subject to one or more conditions precedent, including, but not limited to, completion of any equity offering or change of control, issuance of indebtedness or other transaction or event. Notice of any redemption in respect thereof will be given prior to the completion thereof, may be partial as a result of only some of the conditions being satisfied, may be delayed until such time as any or all such conditions shall be satisfied (or waived by the Issuers in their sole discretion) and may be rescinded at any time if the Issuers determine in their sole discretion that any or all of such conditions will not be satisfied (or waived). The Issuers may provide in such notice that payment of the applicable Redemption Price and the performance of its obligations with respect to such redemption may be performed by another Person.
Section 1105. Deposit of Redemption Price.
On or before the Redemption Date specified in the notice of redemption given as provided in Section 1104, the Issuers shall deposit with the Trustee or with a Paying Agent (or, if any of the Issuers is acting as the Issuers’ Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued and unpaid interest on, all the Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Issuers shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Issuers at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that, unless otherwise specified as contemplated by Section 301, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant record dates according to their terms and the provisions of Section 307.
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If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal amount (together with interest, if any, thereon accrued to the Redemption Date) and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Issuers or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Issuers and the Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing), and the Issuers shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination (which shall not be less than the minimum authorized denomination) as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
Article XII
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article XII shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of any Securities of any series is herein referred to as a “mandatory sinking fund payment”, and any sinking fund payment in excess of such minimum amount which is permitted to be made by the terms of such Securities is herein referred to as an “optional sinking fund payment”. If provided for by the terms of any Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of such Securities.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Issuers (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Issuers pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the terms of such Securities; provided, that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
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Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Issuers will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 1202 and stating the basis for any such credit and that such Securities have not previously been so credited and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days prior to each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Issuers in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 1106 and Section 1107.
Article XIII
REPAYMENT AT THE OPTION OF THE HOLDERS
Section 1301. Applicability of Article.
Repayment of Securities of any series before their Stated Maturity at the option of Holders thereof shall be made in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article XIII.
Section 1302. Repayment of Securities.
Securities of any series subject to repayment in whole or in part at the option of the Holders thereof will, unless otherwise provided in the terms of such Securities, be repaid at a price equal to the principal amount thereof and any premium thereon, together with interest thereon accrued to the Repayment Date specified in or pursuant to the terms of such Securities. The Issuers covenant that on or before the Repayment Date they will deposit with the Trustee or with a Paying Agent (or, if any of the Issuers is acting as the Issuers’ Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the principal (or, if so provided by the terms of the Securities of any series, a percentage of the principal) of, the premium, if any, and (except if the Repayment Date shall be an Interest Payment Date) accrued interest on, all the Securities or portions thereof, as the case may be, to be repaid on such date.
Section 1303. Exercise of Option.
Securities of any series subject to repayment at the option of the Holders thereof will contain an “Option to Elect Repayment” form on the reverse of such Securities. To be repaid at the option of the Holder, any Security so providing for such repayment, with the “Option to Elect Repayment” form on the reverse of such Security duly completed by the Holder (or by the Holder’s attorney duly authorized in writing), must be received by the Issuers at the Place of Payment therefor specified in the terms of such Security (or at such other place or places of which the Issuers shall from time to time notify the Holders of such Securities) not earlier than 45 days nor later than 30 days prior to the Repayment Date. If less than the entire principal amount of such Security is to be repaid in accordance with the terms of such Security, the principal amount of such Security to be repaid, in increments of the minimum denomination for Securities of such series, and the denomination or denominations of the Security or Securities to be issued to the Holder for the portion of the principal amount of such Security surrendered that is not to be repaid, must be specified. The principal amount of any Security providing for repayment at the option of the Holder thereof may not be repaid in part if, following such repayment, the unpaid principal amount of such Security would be less than the minimum authorized denomination of Securities of the series of which such Security to be repaid is a part. Except as otherwise may be provided by the terms of any Security providing for repayment at the option of the Holder thereof and as provided in Sections 307(b) and 308, exercise of the repayment option by the Holder shall be irrevocable unless waived by the Issuers.
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Section 1304. When Securities Presented for Repayment Become Due and Payable.
If Securities of any series providing for repayment at the option of the Holders thereof shall have been surrendered as provided in this Article XIII and as provided by or pursuant to the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become due and payable and shall be paid by the Issuers on the Repayment Date therein specified, and on and after such Repayment Date (unless the Issuers shall default in the payment of such Securities on such Repayment Date) such Securities shall, if the same were interest-bearing, cease to bear interest. Upon surrender of any such Security for repayment in accordance with such provisions, the principal amount of such Security so to be repaid shall be paid by the Issuers, together with accrued interest and/or premium, if any, to (but excluding) the Repayment Date; provided, however, that, unless otherwise specified as contemplated by Section 301, installments of interest, if any, whose Stated Maturity is on or prior to the Repayment Date shall be payable (but without interest thereon, unless the Issuers shall default in the payment thereof) to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant record dates according to their terms and the provisions of Section 307.
If the principal amount of any Security surrendered for repayment shall not be so repaid upon surrender thereof, such principal amount (together with interest, if any, thereon accrued to such Repayment Date) and any premium shall, until paid, bear interest from the Repayment Date at the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) set forth in such Security.
Section 1305. Securities Repaid in Part.
Upon surrender of any Security which is to be repaid in part only, the Issuers shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge and at the expense of the Issuers, a new Security or Securities of the same series, of any authorized denomination specified by the Holder, in an aggregate principal amount equal to and in exchange for the portion of the principal of such Security so surrendered which is not to be repaid.
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Article XIV
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Issuers’ Option to Effect Defeasance or Covenant Defeasance.
The Issuers may elect, at their option at any time, to have Section 1402 or Section 1403 applied to any Securities or any series of Securities, as the case may be, (unless designated pursuant to Section 301 as not being defeasible pursuant to Section 1402 or Section 1403), in accordance with any applicable requirements provided pursuant to Section 301 and upon compliance with the conditions set forth below in this Article XIV. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 301 for such Securities.
Section 1402. Defeasance and Discharge.
Upon the Issuers’ exercise of their option (if any) to have this Section 1402 applied to any Securities or any series of Securities, as the case may be, the Issuers shall be deemed to have been discharged from their obligations with respect to such Securities as provided in this Section 1402 on and after the date the conditions set forth in Section 1404 are satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that the Issuers shall be deemed to have paid and discharged the entire Indebtedness represented by such Securities and to have satisfied all their other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Issuers, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 1404 and as more fully set forth in Section 1406, payments in respect of the principal of and any premium and interest on such Securities when payments are due, (2) the Issuers’ obligations with respect to such Securities under Section 304, Section 305, Section 306, Section 1002 and Section 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article XIV. Subject to compliance with this Article XIV, the Issuers may exercise their option (if any) to have this Section 1402 applied to any Securities notwithstanding the prior exercise of their option (if any) to have Section 1403 applied to such Securities.
Section 1403. Covenant Defeasance.
Upon the Issuers’ exercise of their option (if any) to have this Section 1403 applied to any Securities or any series of Securities, as the case may be, (1) the Issuers shall be released from their obligations under any covenants provided pursuant to Section 301(20), Section 704 (to the extent of any covenants in addition to the requirements of the Trust Indenture Act), Section 801, Section 901(2), Section 901(5), Section 901(7), Section 1007 or Section 1008 for the benefit of the Holders of such Securities and (2) the occurrence of any event specified in Section 501(4) (with respect to any such covenants provided pursuant to Section 301(20), Section 704 (to the extent of any covenants in addition to the requirements of the Trust Indenture Act), Section 801, Section 901(2), Section 901(5), Section 901(7), Section 1007 or Section 1008), shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section 1403 on and after the date the conditions set forth in Section 1404 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Issuers may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 501(4)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
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Section 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1402 or Section 1403 to any Securities or any series of Securities, as the case may be:
(1) The Issuers shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 609 and agrees to comply with the provisions of this Article XIV applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (A) an amount of cash in the currency, currencies or currency units in which the Securities of such series are then specified as payable at Stated Maturity, or (B) Government Obligations applicable to such Securities (determined on the basis of the currency, currencies or currency units in which the Securities of such series are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, in each case, sufficient, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and any premium and interest on such Securities on the respective Stated Maturities or upon redemption, and any mandatory sinking fund payments or analogous payments applicable to such Securities on the day on which such payments are due and payable, in each case in accordance with the terms of this Indenture and such Securities.
(2) In the event of an election to have Section 1402 apply to any Securities or any series of Securities, as the case may be, the Issuers shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Issuers have received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a change in the applicable U.S. federal income tax law, in either case (A) or case (B) to the effect that, and based thereon such Opinion of Counsel shall confirm that, the beneficial owners of such Securities will not recognize gain or loss for U.S. federal income tax purposes as a result of the Defeasance to be effected with respect to such Securities and will be subject to U.S. federal income tax on the same amount, in the same manner and at the same times as would be the case if such Defeasance were not to occur.
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(3) In the event of an election to have Section 1403 apply to any Securities or any series of Securities, as the case may be, the Issuers shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of such Securities will not recognize gain or loss for U.S. federal income tax purposes as a result of the Covenant Defeasance to be effected with respect to such Securities and will be subject to U.S. federal income tax on the same amount, in the same manner and at the same times as would be the case if such Covenant Defeasance were not to occur.
(4) No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit (other than any such event resulting from the borrowing of funds to be applied to make such deposit and the grant of any Lien securing such borrowing) or, with regard to any such event specified in Sections 501(5) and (6), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day).
(5) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act).
(6) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which any of the Issuers is a party or by which any of the Issuers is bound.
(7) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under the Investment Company Act or exempt from registration thereunder.
(8) The Issuers shall have delivered to the Trustee an agreement whereby the Issuers irrevocably agree to forfeit their right, if any, (A) to reset the interest rate of such Securities pursuant to Section 307(b) and (B) to extend the Stated Maturity of such Securities pursuant to Section 308.
(9) If the Securities are to be redeemed prior to Stated Maturity (other than from mandatory sinking fund payments or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor reasonably satisfactory to the Trustee shall have been made.
(10) The Issuers shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
Section 1405. Acknowledgment of Discharge By Trustee.
Subject to Section 1407 below and after the Issuers have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent referred to in Section 1404 relating to the Defeasance or Covenant Defeasance, as the case may be, have been complied with, the Trustee upon request of the Issuers shall acknowledge in writing the Defeasance or the Covenant Defeasance, as the case may be.
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Section 1406. Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section 1406, the Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 1404 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including any of the Issuers acting as the Issuers’ Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other money except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section 301, if, after a deposit referred to in Section 1404(1) has been made in respect of any Security, (a) the Holder of such Security is entitled to, and does, elect pursuant to the terms of such Security to receive payment in a currency, currencies or currency units other than that in which such deposit has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency, currency unit or composite currency in which such deposit has been made, then the Indebtedness represented by such Security shall be deemed to have been, and shall be, fully discharged and satisfied through the payment of the principal of, and any premium and interest on, such Security as such payments become due out of the proceeds yielded by converting (from time to time as specified below, in the case of any such election) the amount or other property so deposited in respect of such Security into the currency, currencies or currency units in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to an election referred to in clause (a) above, the applicable Market Exchange Rate in effect on the second Business Day prior to each payment date, and (y) with respect to a Conversion Event, the applicable Market Exchange Rate in effect (as nearly as feasible) at the time of the Conversion Event. Any amount required to be paid by the Issuers on account of any such election or Conversion Event that is in excess of the amount or property theretofore deposited under Section 1404(1) in respect of such Security shall remain the obligation of the Issuers, and neither the Trustee nor any Paying Agent shall be liable for any shortfall resulting from fluctuations in applicable exchange rates.
The Issuers shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 1404 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article XIV to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuers from time to time upon Issuer Request any money or Government Obligations held by it as provided in Section 1404 with respect to any Securities which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities; provided that the Trustee shall not be required to liquidate any Government Obligations or other securities in order to comply with the provisions of this Section 1406.
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Section 1407. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article XIV with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Issuers have been discharged or released pursuant to Section 1402 or Section 1403 shall be revived and reinstated as though no deposit had occurred pursuant to this Article XIV with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money and Government Obligations held in trust pursuant to Section 1406 with respect to such Securities in accordance with this Article XIV; provided, however, that if the Issuers make any payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Issuers shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
Section 1408. Qualifying Trustee.
Any trustee appointed pursuant to Section 1404 for the purpose of holding trust funds deposited pursuant to that Section shall be appointed under an agreement in form acceptable to the Trustee and shall provide to the Trustee a certificate of such trustee, upon which certificate the Trustee shall be entitled to conclusively rely, that all conditions precedent provided for herein to the related Defeasance or Covenant Defeasance have been complied with. In no event shall the Trustee be liable for any acts or omissions of said trustee.
Article XV
GUARANTEES
Section 1501. Guarantee.
(1) Subject to the provisions of this Article XV, each Guarantor, jointly and severally, fully and unconditionally, guarantees, on an unsecured, senior basis, to each Holder of a Security of a series that is designated as guaranteed pursuant to Section 301 and authenticated and delivered by the Trustee, and to the Trustee and its successors and assigns, the punctual payment when due, whether at maturity, by acceleration, call for redemption or repurchase or otherwise, of the principal of, premium, if any, and interest on such Securities and all other amounts payable by the Issuers under this Indenture and such Securities, when and as the same shall become due and payable, whether at maturity, by acceleration or otherwise, according to the terms of such Securities and this Indenture (collectively, the “Guaranteed Obligations”). Failing payment when due of any amount so guaranteed, or failing performance of any other Guaranteed Obligation, for whatever reason, each Guarantor shall be obligated to pay, or to perform or cause the performance of, the same immediately. The Guarantee of each Guarantor is a guarantee of payment and not of collection.
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(2) The amount guaranteed by each 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 Guarantor that are relevant under the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act, the Uniform Voidable Transactions Act or any similar federal or state law to the extent applicable to its Guarantee, result in the obligations of such 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.
(3) Each Guarantor that makes a payment under its Guarantee shall be entitled, upon payment in full of all Guaranteed Obligations under this Indenture, to a contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment, determined in accordance with generally accepted accounting principles in the United States of America.
(4) No Guarantee shall be valid or obligatory for any purpose with respect to any Security until the certificate of authentication of such Security shall have been signed by or on behalf of the Trustee.
Section 1502. Guarantee Unconditional.
Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of this 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 Securities or the Trustee with respect thereto. The obligations of each Guarantor under its Guarantee shall be absolute and unconditional, irrespective of:
(1) any lack of validity, enforceability or genuineness of any provision of this Indenture, the Securities or any other agreement or instrument relating thereto;
(2) any change in the time, manner or place of payment of, or in any other term of, any or all of the Guaranteed Obligations, or any other amendment or waiver of or any consent to departure from this Indenture;
(3) 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 Guaranteed Obligations;
(4) the absence of any action to enforce the same, or any waiver or consent by the Trustee or any Holder of Securities with respect to any provisions of this Indenture; or
(5) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any of the Issuers or a Guarantor.
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Section 1503. Ranking of Guarantees.
Each Guarantor covenants and agrees that its obligation to make payments of the Guaranteed Obligations hereunder constitutes a senior unsecured obligation of such Guarantor ranking pari passu with all existing and future senior unsecured Indebtedness of such Guarantor.
Section 1504. Waivers; Subrogation.
(1) Each 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 Securities, 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 Issuers or any other Person or any collateral.
(2) Each Guarantor hereby irrevocably waives any claims or other rights that it may now or hereafter acquire against the Issuers that arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under this 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 Securities, against the Issuers 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 Issuers, 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, in each case until the Guaranteed Obligations and all other amounts payable under the Guarantees have been paid in full in cash. If any amount shall be paid to such Guarantor in violation of the preceding sentence at any time prior to the cash payment in full of the Guaranteed 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 the applicable Securities and shall forthwith be paid to the Trustee to be credited and applied to the Guaranteed Obligations and all other amounts payable under the Guarantees whether matured or unmatured or to be held as collateral for any Guaranteed Obligations or other amounts payable under the Guarantees thereafter arising. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and this Guarantee and that the waiver set forth in this Section 1504 is knowingly made in contemplation of such benefits.
Section 1505. Additional Guarantors.
(1) Each Issuer shall cause any of its wholly owned Domestic Subsidiaries that is not a Guarantor and that becomes a guarantor of the payment obligations of such Issuer under the Existing Notes or other Indebtedness of an Issuer to execute and deliver to the Trustee a supplemental indenture in a form reasonably satisfactory to the Trustee, pursuant to Section 901 and Section 301 pursuant to which such wholly owned Domestic Subsidiary shall become a Guarantor and shall guarantee the Issuers’ payment obligations with respect to each series of Securities then designated as guaranteed, on the terms and subject to the conditions set forth in this Article XV and in the applicable supplemental indenture, within thirty (30) days of becoming a guarantor under any Indebtedness of any of the Issuers or the Existing Notes.
(2) Any Person that is required to become a Guarantor pursuant to this Section, or that the Issuers otherwise elect to cause to become a Guarantor, shall become a Guarantor and be bound by (and entitled to the benefits of) this Article XV upon execution and delivery of a supplemental indenture in accordance with Article IX, and Schedule I hereto shall be deemed amended to include such Person.
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Section 1506. No Waiver; Remedies Cumulative.
No failure on the part of the Trustee or any Holder of Securities to exercise, and no delay in exercising, any right under this Article XV shall operate as a waiver thereof; nor shall any single or partial exercise of any right under this Article XV preclude any other or further exercise thereof or the exercise of any other right. The remedies provided in this Article XV are cumulative and not exclusive of any remedies provided by law.
Section 1507. Release of Guarantees.
(1) The Guarantee of a Guarantor with respect to any series of Securities shall be automatically and unconditionally released and discharged, and no further action by such Guarantor, the Issuers or the Trustee shall be required for such release, upon the earliest to occur of the date, if any, on which: (i) such Guarantor shall consolidate with or merge into an Issuer or any successor of an Issuer; (ii) an Issuer or any successor of an Issuer consolidates with or merges into such Guarantor; (iii) the sale, disposition, exchange or other transfer (including through merger, consolidation, amalgamation or otherwise) of the capital stock of such Guarantor (including any sale, disposition or other transfer following which such Guarantor is no longer a Subsidiary), if such sale, disposition, exchange or other transfer is made in a manner not in violation of this Indenture; or (iv) with respect to any Guarantor that is required to guarantee the Securities of such series solely because such Guarantor guarantees the Existing Notes or other Indebtedness of an Issuer, the release or discharge of such Guarantor’s guarantee of such Indebtedness or the full and final payment and performance of all obligations of the applicable Issuer under the Indebtedness giving rise to such Guarantor’s obligation to guarantee the Securities of such series. In addition, if the Issuers exercise their Defeasance option or Covenant Defeasance option with respect to the Securities of any series pursuant to Section 1402 or Section 1403, or upon satisfaction and discharge of this Indenture with respect to such series pursuant to Article IV, or upon payment in full of the principal of, premium, if any, and interest on such series and all other Guaranteed Obligations with respect to such series, each Guarantor shall be released from its obligations under this Article XV with respect to that series of Securities.
(2) The Guarantee of a Guarantor with respect to any series of Securities shall also be released and discharged upon the occurrence of any other event, or the satisfaction of any other condition, specified as a basis for release of such Guarantee pursuant to Section 301 or the terms of any indenture supplemental hereto establishing such series.
(3) At the request of the Issuers, the Trustee shall execute and deliver any documents, instruments or agreements reasonably necessary or desirable to evidence or effect such release; provided that the Trustee shall have received an Officer’s Certificate and an Opinion of Counsel to the effect that all conditions precedent to such release have been complied with.
77
Section 1508. 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 Guaranteed Obligations is rescinded or must otherwise be returned by any Holder of Securities or the Trustee upon the insolvency, bankruptcy or reorganization of either Issuer or any Guarantor or otherwise, all as though such payment had not been made.
Section 1509. No Third-Party Beneficiaries; Severability; Amendment; Notices to Guarantors.
Nothing in this Article XV, the Securities or this Indenture, express or implied, shall give to any Person, other than the Holders and the Trustee and, subject to the provisions hereof, their respective successors and assigns, any benefit or any legal or equitable right, remedy or claim under this Article XV.
If any provision or any application of this Article XV 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 Guarantor may amend the provisions of this Article XV with respect to such Guarantor at any time for any purpose without the consent of the Trustee or any Holder of Securities; provided, however, that if such amendment adversely affects (a) the rights of the Trustee or (b) any Holder of Securities, 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 Securities of the relevant series) shall be required and (ii) such 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 Guaranteed Obligations.
All communications and notices to any Guarantor hereunder shall be made in writing and shall be deemed to have been duly given if made to the Issuers in accordance with Section 105. Each Guarantor hereby appoints Sysco Corporation as its agent for the receipt of any such communications and notices and for the giving of any notice, direction, consent or waiver permitted or required to be given by such Guarantor hereunder.
Article XVI
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, MANAGERS, DIRECTORS AND EMPLOYEES
Section 1601. Exemption from Individual Liability .
No recourse under or upon any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, stockholder, officer, manager, director or employee, as such, past, present or future, of the Issuers, any Subsidiary or any successor Person, either directly or through the Issuers, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations of the Issuers, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers, managers, directors, or employees, as such, of the Issuers, any Subsidiary or any successor Person, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom; and that any and all such personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer, manager, director or employee, as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of such Securities.
78
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written.
| SYSCO CORPORATION | |||
| By: | /s/ Meena Dafesh | ||
| Name: | Meena Dafesh | ||
| Title: | Vice President, Global Treasurer | ||
| SYSCO HOLDINGS CORPORATION | |||
| By: | /s/ Meena Dafesh | ||
| Name: | Meena Dafesh | ||
| Title: | Treasurer | ||
[Signature Page to Indenture]
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written.
| GUARANTORS: | |
| SYSCO ALBANY, LLC | |
| SYSCO ASIAN FOODS, INC. | |
| SYSCO BALTIMORE, LLC | |
| SYSCO BARABOO, LLC | |
| SYSCO BOSTON, LLC | |
| SYSCO CENTRAL PENNSYLVANIA, LLC | |
| SYSCO CINCINNATI, LLC | |
| SYSCO COLUMBIA, LLC | |
| SYSCO CONNECTICUT, LLC | |
| SYSCO DETROIT, LLC | |
| SYSCO EASTERN WISCONSIN, LLC | |
| SYSCO GRAND RAPIDS, LLC | |
| SYSCO INDIANAPOLIS, LLC | |
| SYSCO JACKSON, LLC | |
| SYSCO LONG ISLAND, LLC | |
| SYSCO METRO NEW YORK, LLC | |
| SYSCO PHILADELPHIA, LLC | |
| SYSCO PITTSBURGH, LLC | |
| SYSCO ST. LOUIS, LLC | |
| SYSCO SYRACUSE, LLC | |
| SYSCO USA III, LLC | |
| SYSCO VIRGINIA, LLC | |
| SYSCO ATLANTA, LLC | |
| SYSCO CENTRAL ALABAMA, LLC | |
| SYSCO CHARLOTTE, LLC | |
| SYSCO EASTERN MARYLAND, LLC | |
| SYSCO GULF COAST, LLC | |
| SYSCO KNOXVILLE, LLC | |
| SYSCO MEMPHIS, LLC | |
| SYSCO NASHVILLE, LLC | |
| SYSCO RALEIGH, LLC | |
| SYSCO SOUTHEAST FLORIDA, LLC | |
| SYSCO USA II, LLC | |
| SYSCO CENTRAL CALIFORNIA, INC. | |
| SYSCO HAWAII, INC. | |
| SYSCO KANSAS CITY, INC. | |
| SYSCO LINCOLN, INC. | |
| SYSCO LOS ANGELES, INC. | |
| SYSCO MONTANA, INC. | |
| SYSCO PORTLAND, INC. | |
[Signature Page to Indenture]
| SYSCO RIVERSIDE, INC. | |
| SYSCO SACRAMENTO, INC. | |
| SYSCO SAN DIEGO, INC. | |
| SYSCO SAN FRANCISCO, INC. | |
| SYSCO SEATTLE, INC. | |
| SYSCO SPOKANE, INC. | |
| SYSCO USA I, INC. | |
| SYSCO VENTURA, INC. | |
| SYSCO CENTRAL ILLINOIS, INC. | |
| SYSCO CHICAGO, INC. | |
| SYSCO CLEVELAND, INC. | |
| SYSCO IOWA, INC. | |
| SYSCO LOUISVILLE, INC. | |
| SYSCO MINNESOTA, INC. | |
| SYSCO NORTH DAKOTA, INC. | |
| SYSCO NORTHERN NEW ENGLAND, INC. | |
| SYSCO WESTERN MINNESOTA, INC. | |
| SYSCO CENTRAL FLORIDA, INC. | |
| SYSCO HAMPTON ROADS, INC. | |
| SYSCO JACKSONVILLE, INC. | |
| SYSCO SOUTH FLORIDA, INC. | |
| SYSCO WEST COAST FLORIDA, INC. |
| By: | /s/ Brandon Sewell | |
| Brandon Sewell | ||
| Chief Financial Officer |
[Signature Page to Indenture]
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written.
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | |||
| By: | /s/ Michael K. Herberger | ||
| Name: | Michael K. Herberger | ||
| Title: | Vice President | ||
[Signature Page to Indenture]
SCHEDULE I
INITIAL GUARANTORS
| Exact Name of Guarantor as Specified in its Charter | State or Other Jurisdiction of Incorporation or Organization |
| Sysco Albany, LLC | Delaware |
| Sysco Asian Foods, Inc. | 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 Hawaii, 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 |
I-1
| Exact Name of Guarantor as Specified in its Charter | State or Other Jurisdiction of Incorporation or Organization |
| 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 USA III, LLC | Delaware |
| Sysco Ventura, Inc. | Delaware |
| Sysco Virginia, LLC | Delaware |
| Sysco West Coast Florida, Inc. | Delaware |
| Sysco Western Minnesota, Inc. | Delaware |
I-2
Exhibit 4.2
Execution Version
SYSCO CORPORATION
AND SYSCO HOLDINGS CORPORATION,
as Issuers,
THE GUARANTORS NAMED HEREIN,
as Guarantors,
AND
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of September 25, 2026
to
INDENTURE
Dated as of September 25, 2026
Relating to
C$750,000,000 4.250% Senior Notes due 2030
C$750,000,000 4.800% Senior Notes due 2034
TABLE OF CONTENTS
Page
Article One
Definitions and Other Provisions of General Application | ||
| Section 1.01 | References | 2 |
| Section 1.02 | Definitions | 2 |
Article Two
General Terms and Conditions of the Notes
| ||
| Section 2.01 | Designation and Principal Amount | 7 |
| Section 2.02 | Maturity | 7 |
| Section 2.03 | Form and Payment | 7 |
| Section 2.04 | Interest | 8 |
| Section 2.05 | Other Terms and Conditions | 9 |
Article Three
Redemption | ||
| Section 3.01 | Optional Redemption of the Notes | 9 |
| Section 3.02 | Special Mandatory Redemption of the Notes | 11 |
| Section 3.03 | Optional Redemption for Tax Reasons | 12 |
Article Four
Additional Covenants | ||
| Section 4.01 | Purchase of Notes upon a Change of Control Repurchase Event | 12 |
| Section 4.02 | Payment of Additional Amounts | 14 |
| Section 4.03 | Issuance in Canadian Dollars; Payment on the Notes | 16 |
Article Five
Miscellaneous | ||
| Section 5.01 | Application of First Supplemental Indenture | 16 |
| Section 5.02 | Trust Indenture Act | 16 |
| Section 5.03 | Conflict with Base Indenture | 17 |
| Section 5.04 | Governing Law | 17 |
| Section 5.05 | Successors | 17 |
| Section 5.06 | Counterparts | 17 |
| Section 5.07 | Trustee Disclaimer | 17 |
i
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of September 25, 2026 (this “First Supplemental Indenture”), among SYSCO CORPORATION, a Delaware corporation (“Sysco Corporation”), SYSCO HOLDINGS CORPORATION, a Delaware corporation (“Sysco Holdings” and, together with Sysco Corporation, the “Issuers,” and each, an “Issuer”), the INITIAL GUARANTORS named on Schedule I hereto and any other Subsidiary that provides a guarantee (each, a “Guarantor,” and collectively, the “Guarantors”), and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as Trustee (herein called the “Trustee”), to the Base Indenture (as defined below).
RECITALS
WHEREAS, the Issuers and the guarantors party thereto have heretofore executed and delivered to the Trustee an Indenture, dated as of September 25, 2026 (the “Base Indenture” and, together with this First Supplemental Indenture, the “Indenture”), providing for the issuance from time to time of their notes and other evidences of senior debt securities, to be issued in one or more series as therein provided;
WHEREAS, pursuant to the terms of the Base Indenture, on the date hereof, the Issuers desire to provide for the establishment of two series of notes to be known, respectively, as the 4.250% Senior Notes due 2030 (the “2030 Notes”) and the 4.800% Senior Notes due 2034 (the “2034 Notes” and, together with the 2030 Notes, the “Notes”), the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided in the Base Indenture and herein;
WHEREAS, the Notes will be fully and unconditionally guaranteed as to payment of principal, premium, if any, and interest on a senior unsecured basis by each of the Guarantors for the benefit of the Holders of the Notes;
WHEREAS, the conditions set forth in the Base Indenture for the execution and delivery of this First Supplemental Indenture have been met; and
WHEREAS, each Issuer and each Guarantor has requested and hereby requests that the Trustee join with it in the execution and delivery of this First Supplemental Indenture, and all acts and requirements necessary to make this First Supplemental Indenture a legal, valid and binding agreement of the parties, in accordance with its terms, and a valid supplement to, the Base Indenture with respect to the Notes have been done and performed.
WITNESSETH:
NOW, THEREFORE, for and in consideration of the premises contained herein, each party agrees for the benefit of each other party and for the equal and ratable benefit of the Holders of the Notes, as follows:
Article One
Definitions and Other Provisions of General Application
Section 1.01 References. Capitalized terms used but not defined in this First Supplemental Indenture shall have the meanings ascribed to them in the Base Indenture. References in this First Supplemental Indenture to article and section numbers shall be deemed to be references to article and section numbers of this First Supplemental Indenture unless otherwise specified.
Section 1.02 Definitions. For purposes of this First Supplemental Indenture, the following terms have the meanings ascribed to them as follows:
“2030 Notes” has the meaning specified in the Recitals.
“2034 Notes” has the meaning specified in the Recitals.
“Additional Amounts” has the meaning provided in Section 4.02.
“Additional Notes” means any additional Notes of a series that may be issued from time to time pursuant to Section 2.01(b).
“Applicable Canada Yield Spread” means, with respect to a series of Notes, the number of basis points set forth under the heading “Applicable Canada Yield Spread” opposite such series in the table in Section 3.01.
“Base Indenture” has the meaning provided in the Recitals.
“Below Investment Grade Ratings Event” means, with respect to a series of the Notes, that on any day during the period (the “Trigger Period”) commencing on the date of the first public announcement by the Parent Entity 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 has publicly announced that it is considering a possible ratings change), the Notes of such series cease to be rated Investment Grade 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 of such series at the commencement of any Trigger Period, the Notes of such series will be deemed to have ceased to be rated Investment Grade by at least two of the three Rating Agencies during that Trigger Period.
“Business Day” means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which commercial banks are authorized or required by law, regulation or executive order to close in The City of New York, New York, United States or in Toronto, Ontario, Canada.
2
“Canada Yield Price” means, with respect to the Notes of any series to be redeemed, the price, in respect of the principal amount of such Notes, calculated by the Issuers as of the third Business Day prior to the Redemption Date, equal to the sum of the present values of the Remaining Scheduled Payments of interest (not including any portion of the payments of interest accrued as of the Redemption Date) and principal on such Notes to be redeemed from the Redemption Date to the applicable Par Call Date (assuming that such Notes matured on the applicable Par Call Date), using as a discount rate the sum of the Government of Canada Yield on such Business Day plus the Applicable Canada Yield Spread.
“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 Parent Entity 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 Parent Entity’s Voting Stock (as defined below) or other Voting Stock into which the Parent Entity’s Voting Stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares;
(2) the Parent Entity consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Parent Entity, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Parent Entity 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 Parent Entity 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 Parent Entity’s consolidated assets, including the assets of the Parent Entity’s subsidiaries, taken as a whole, to one or more Persons (other than the Parent Entity or one of its subsidiaries);
(4) the first day on which a majority of the members of the Parent Entity’s 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 Parent Entity.
Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (1) the Parent Entity 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 Parent Entity’s Voting Stock 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. For the avoidance of doubt, the JRD Acquisition Transactions shall not constitute a “Change of Control” for purposes of the Indenture.
3
“Change of Control Offer” has the meaning provided in Section 4.01(a).
“Change of Control Payment Date” has the meaning provided in Section 4.01(a).
“Change of Control Purchase Price” has the meaning provided in Section 4.01(a).
“Change of Control Repurchase Event” means with respect to a series of the Notes, the occurrence of both a Change of Control and a Below Investment Grade Ratings Event for the Notes of such series. 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 Parent Entity’s Board of Directors who (1) was a member of the Parent Entity’s Board of Directors on the date the Notes were issued or (2) was nominated for election, elected or appointed to the Parent Entity’s Board of Directors with the approval of a majority of the Continuing Directors who were members of the Parent Entity’s Board of Directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the Parent Entity’s proxy statement in which such member was named as a nominee for election as a director, without objection to such nomination).
“Depositary” has the meaning provided in Section 2.03(c).
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“First Supplemental Indenture” has the meaning provided in the Preamble.
“Fitch” means Fitch Ratings Inc., a subsidiary of Hearst Communications, Inc., and its successors.
“Government of Canada Yield” means, on any date and with respect to any series of Notes, the bid-side yield to maturity on such date as determined by the arithmetic average (rounded to three decimal places) of the yields quoted at 10:00 a.m. (Toronto time) by any two investment dealers in Canada selected by the Issuers assuming semi-annual compounding and calculated in accordance with generally accepted financial practice, which a non-callable Government of Canada bond would carry if issued in Canadian dollars in Canada at 100% of its principal amount on such date with a term to maturity that most closely approximates the remaining term of such series of Notes to be redeemed to the applicable Par Call Date.
“Guarantor” has the meaning provided in the Preamble.
“Indenture” has the meaning provided in the Recitals.
4
“Initial Notes” means the aggregate principal amount of each series of Notes issued on the date hereof, as specified in Section 2.01.
“Interest Payment Date” has the meaning provided in Section 2.04.
“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).
“JRD Acquisition Transactions” means the mergers and the other transactions contemplated under the Merger Agreement.
“Market Exchange Rate” means, with respect to the conversion of Canadian dollars into U.S. dollars on any date, the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent U.S. dollar/Canadian dollar exchange rate published in The Wall Street Journal on or prior to the second Business Day prior to the relevant payment date or, in the event The Wall Street Journal has not published such exchange rate, the rate determined by the Issuers in their sole discretion on the basis of the most recently available market U.S. dollar/Canadian dollar exchange rate.
“Merger Agreement” means the Agreement and Plan of Merger, dated as of March 30, 2026, as may be amended from time to time, by and among Sysco Corporation, Sysco Holdings, Slider Merger Sub 1, Inc., a Delaware corporation and wholly-owned subsidiary of Sysco Holdings, Slider Merger Sub 2, Inc., a Delaware corporation and wholly-owned subsidiary of Sysco Holdings, Slider Merger Sub 3, LLC, a Delaware limited liability company and wholly-owned subsidiary of Sysco Holdings, JRD Unico, Inc., a Delaware corporation (“JRD”), Warehouse Realty, LLC, a Delaware limited liability company, and Ki Atlantic Holdings Limited (as holder representative).
“Moody’s” means Moody’s Ratings, Inc., a subsidiary of Moody’s Corporation and its successors.
“Notes” has the meaning provided in the Recitals. For the avoidance of doubt, “Notes” shall include any Additional Notes.
“Par Call Date” means, with respect to each series of Notes, the date set forth under the heading “Par Call Date” opposite such series in the table in Section 3.01.
“Parent Entity” means (a) before the JRD Acquisition Transactions, Sysco Corporation, and (b) from and after the JRD Acquisition Transactions, Sysco Holdings.
“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 Parent Entity may appoint a replacement for such Rating Agency that is a nationally recognized statistical rating agency.
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“Remaining Scheduled Payments” means, with respect to any Note of any series to be redeemed, the remaining scheduled payments of the principal thereof and interest thereon that would be due after the related Redemption Date but for such redemption if such Note matures on the applicable Par Call Date; provided, however, that, if such Redemption Date is not an Interest Payment Date with respect to such Note, the amount of the next succeeding scheduled interest payment thereon will be deemed to be reduced (solely for the purposes of this calculation) by the amount of interest accrued thereon to such Redemption Date.
“S&P” means S&P Global Ratings, a division of S&P Global, Inc., and its successors.
“Special Mandatory Redemption Date” means any Business Day that is no later than the 10th Business Day following the date of any Special Mandatory Redemption Event, which will be specified in the notice of special mandatory redemption sent to Holders of the Notes.
“Special Mandatory Redemption Event” means the earliest to occur of: (i) the consummation of the JRD Acquisition Transactions does not occur on or prior to (a) March 30, 2028 or (b) any later date as the parties to the Merger Agreement may agree, (ii) Sysco Corporation notifies the Trustee in writing that the Merger Agreement has terminated in accordance with its terms prior to the consummation of the JRD Acquisition Transactions or (iii) Sysco Corporation notifies the Trustee in writing and publicly announces that Sysco Corporation will not pursue the consummation of the JRD Acquisition Transactions.
“Special Mandatory Redemption Price” means a price equal to 101% of the aggregate principal amount of each series of the Notes being redeemed on the Special Mandatory Redemption Date, plus accrued and unpaid interest on the principal amount of such Notes to, but excluding, the Special Mandatory Redemption Date.
“Trustee” has the meaning provided in the Preamble.
“United States person” means (i) any individual who is a citizen or resident of the United States of America (the “United States”) for U.S. federal income tax purposes, (ii) a corporation, partnership or other entity created or organized in or under the laws of the United States, any state thereof or the District of Columbia (other than a partnership that is not treated as a United States person for U.S. federal income tax purposes), (iii) any estate the income of which is subject to U.S. federal income taxation regardless of its source, or (iv) any trust if a U.S. court can exercise primary supervision over the administration of the trust and one or more United States persons can control all substantial trust decisions, or if a valid election is in place to treat the trust as a United States person.
“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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Article Two
General Terms and Conditions of the Notes
Section 2.01 Designation and Principal Amount.
(a) There are hereby authorized and designated two series of Notes: the 4.250% Senior Notes due 2030 and the 4.800% Senior Notes due 2034. Each series of the Notes may be authenticated and delivered under the Indenture in an unlimited aggregate principal amount. The 2030 Notes issued on the date hereof pursuant to the terms of the Indenture shall be in an aggregate principal amount of C$750,000,000. The 2034 Notes issued on the date hereof pursuant to the terms of the Indenture shall be in an aggregate principal amount of C$750,000,000. In the case of each series of Notes, the amount shall be set forth in the written order of the Issuers for the authentication and delivery of the Notes pursuant to Section 301 of the Base Indenture. The Notes will be senior unsecured obligations of the Issuers and will rank equally in right of payment with all of the Issuers’ other existing and future senior unsecured indebtedness from time to time outstanding.
(b) The Issuers may from time to time, without notice to or the consent of the Holders of any series of the Notes, create and issue Additional Notes of any series ranking equally and ratably with such series of Notes in all respects, or in all respects except for the payment of interest accruing prior to the issue date or except for the first payment of interest following the issue date of such Additional Notes; provided that if such Additional Notes are not fungible for U.S. federal income tax purposes with the Notes of the applicable series, such Additional Notes will have a different “CUSIP”, “ISIN” and/or any other identifying number. Such Additional Notes will have the same terms as to status, redemption or otherwise as the applicable series of Notes, and will vote together as one class on all matters with respect to such series of Notes.
Section 2.02 Maturity(a). Unless an earlier redemption has occurred, the principal amount of the 2030 Notes shall mature and be due and payable, together with any accrued and unpaid interest thereon, on October 3, 2030 and the principal amount of the 2034 Notes shall mature and be due and payable, together with any accrued and unpaid interest thereon, on October 3, 2034. If the maturity date of any series of the Notes falls on a day that is not a Business Day, payment of principal, premium, if any, and interest for such Notes then due will be paid on the next Business Day. No interest on that payment will accrue from and after the maturity date.
Section 2.03 Form and Payment.
(a) The Notes and the Trustee’s Certificates of Authentication to be endorsed thereon are to be substantially in the form of Exhibit A and Exhibit B, which forms are hereby incorporated in and made a part of this First Supplemental Indenture.
(b) The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this First Supplemental Indenture, and the Issuers and the Trustee, by their execution and delivery of this First Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby.
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(c) Payments of principal, premium, if any, and/or interest, if any, on the global notes representing each series of the Notes shall be made by the Issuers through the Paying Agent to CDS Clearing and Depository Services Inc. (together with any successor thereto, the “Depositary”) no later than 11:00 a.m. (New York time) on the date such payment is due, and the Depositary will, in turn, distribute such payments to its participants in accordance with its rules and procedures. Computershare Advantage Trust of Canada will initially act as the Paying Agent, Security Registrar, transfer agent and Authenticating Agent for the Notes.
(d) The global notes representing each series of the Notes shall be deposited with, or on behalf of, the Depositary and shall be registered in the name of the Depositary or a nominee of the Depositary. No global note may be transferred except as a whole by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or such nominee to a successor of the Depositary or a nominee of such successor.
(e) Additional provisions relating to the Initial Notes, Additional Notes and any other Notes issued under this First Supplemental Indenture are set forth in Appendix A, which is hereby incorporated in and made a part of this First Supplemental Indenture.
Section 2.04 Interest.
(a) Interest on the 2030 Notes shall accrue at the rate of 4.250% per annum, payable semi-annually in arrears on April 3 and October 3 of each year, beginning on April 3, 2027. Interest on the 2034 Notes shall accrue at the rate of 4.800% per annum, payable semi-annually in arrears on April 3 and October 3 of each year, beginning on April 3, 2027. Each such interest payment date for each series of Notes is referred to as an “Interest Payment Date”.
Interest on the 2030 Notes shall be payable to the Holders in whose names the Notes of such series are registered at the close of business on March 15 and September 15, as the case may be (in each case, whether or not a Business Day), immediately preceding the related Interest Payment Date.
Interest on the 2034 Notes shall be payable to the Holders in whose names the Notes of such series are registered at the close of business on March 15 and September 15, as the case may be (in each case, whether or not a Business Day), immediately preceding the related Interest Payment Date.
(b) Interest on each series of the Notes will accrue from and including September 25, 2026 to, but excluding, the first Interest Payment Date and then from and including the immediately preceding Interest Payment Date to which interest has been paid or duly provided for to, but excluding, the next Interest Payment Date, Redemption Date or maturity date, as the case may be. For a full semi-annual interest period, interest on each series of the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months; and for any interest period that is not a full semi-annual interest period, interest will be computed on the basis of the actual number of days in the interest period divided by 365 (Actual/365 (Fixed)), also known as the Actual/Actual Canadian Compound Method. All Canadian dollar amounts resulting from this calculation will be rounded to the nearest cent. If any Interest Payment Date or other payment date for any series of the Notes is not a Business Day, then payment of principal, premium, if any, and interest shall be made on the next succeeding Business Day with the same force and effect as if made on the date such payment was due, and no interest on such payment shall accrue on that payment for the period from and after that Interest Payment Date or other payment date, as the case may be, to the date of that payment on the next succeeding Business Day.
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(c) All references in the Indenture to the payment of accrued and unpaid interest thereon to, but excluding, a certain date shall be subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date.
Section 2.05 Other Terms and Conditions.
(a) The Notes are not subject to a sinking fund.
(b) The Defeasance and Covenant Defeasance provisions of Article XIV of the Base Indenture (Defeasance and Covenant Defeasance) will apply to each series of the Notes and the covenants set forth in Article Four shall be subject to the provisions of Section 1403 of the Base Indenture.
(c) The provisions of Article IV of the Base Indenture (Satisfaction and Discharge) will apply to each series of the Notes.
(d) Each series of the Notes will be guaranteed by each of the Guarantors pursuant to and on the terms set forth in the Base Indenture. Each Guarantor hereby agrees that the Guarantee of such Guarantor set forth in Article XV of the Base Indenture will remain in full force and effect notwithstanding any failure to endorse on each Note a notation of its Guarantee.
(e) Each series of the Notes will be subject to the Events of Default provided in Section 501 of the Base Indenture.
(f) The Notes will be subject to the covenants provided in Article X of the Base Indenture (Covenants), as supplemented by Article Four.
Article Three
Redemption
Section 3.01 Optional Redemption of the Notes.
(a) Subject to Section 5.03, the provisions of Article XI of the Base Indenture, as supplemented by the provisions of this First Supplemental Indenture, shall apply to each series of the Notes.
(b) Each series of Notes will be redeemable at the Issuers’ option, in whole or in part, at any time and from time to time (in C$1,000 increments, provided that any remaining principal amount thereof will be at least the minimum authorized denomination thereof) prior to the applicable Par Call Date (as set forth in the table below), at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
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(1) the Canada Yield Price with respect to the Notes of the applicable series to be redeemed; and
(2) 100% of the principal amount of the Notes of the applicable series to be redeemed,
plus, in either case, accrued and unpaid interest thereon to, but excluding, the Redemption Date.
The Par Call Date and Applicable Canada Yield Spread for each series of Notes are as follows:
| Series | Par Call Date | Applicable Canada Yield Spread |
| 2030 Notes | September 3, 2030 (one month prior to maturity) | 19.5 basis points |
| 2034 Notes | August 3, 2034 (two months prior to maturity) | 27 basis points |
(c) At any time and from time to time on or after the applicable Par Call Date of each series of Notes, each applicable series of Notes shall be redeemable, in whole or in part, at the Issuers’ election (in C$1,000 increments, provided that any remaining principal amount thereof will be at least the minimum authorized denomination thereof), at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date for such Notes.
(d) On and after any Redemption Date for a series of Notes, interest will cease to accrue on such Notes or any portion thereof called for redemption, unless the Issuers default in the payment of the Redemption Price and accrued interest, if any or the redemption is otherwise cancelled as described in this Section 3.01. On or before the relevant Redemption Date for a series of Notes, the Issuers shall deposit with the Trustee or a Paying Agent or the Depositary funds sufficient to pay the Redemption Price of such Notes to be redeemed on such Redemption Date, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest, if any. If less than all of the Notes of a series are to be redeemed, the Notes of such series to be redeemed shall be selected in accordance with the procedures of the Depositary; provided, however, that in no event shall Notes of a principal amount of C$2,000 or less be redeemed in part.
(e) Notice of any redemption shall be electronically delivered, mailed or otherwise given in accordance with the procedures of the Depositary at least 10 days but not more than 60 days before the Redemption Date to each Holder of the Notes to be redeemed. Such notice shall state the Redemption Price (if known) or the formula pursuant to which the Redemption Price is to be determined if the Redemption Price cannot be determined at the time the notice is given. If the Redemption Price cannot be determined at the time such notice is to be given, the actual Redemption Price, calculated as described above in clause (1) or (2) of Section 3.01(b), as applicable, shall be set forth in an Officer’s Certificate delivered to the Trustee no later than two Business Days prior to the Redemption Date. Notice of redemption having been given as provided in the Base Indenture, the Notes called for redemption shall become due and payable on the relevant Redemption Date and at the applicable Redemption Price, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
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(f) Notice of any redemption of the Notes of any series in connection with a corporate transaction that is pending (including an equity offering or an incurrence of indebtedness), may, at the Issuers’ 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 Redemption Date. The Issuers will notify Holders of any such rescission as soon as practicable after the Issuers determine that they will not be able to satisfy or otherwise waive such condition precedent. 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, but excluding, the Redemption Date.
(g) The Issuers’ actions and determinations in determining any Redemption Price shall be conclusive and binding for all purposes, absent manifest error. Neither the Trustee nor any Paying Agent shall be responsible for determining or calculating the Redemption Price of any Note, or any component thereof, the Canada Yield Price or the Government of Canada Yield, and each shall be entitled to receive, and fully protected in relying upon, an Officer’s Certificate from each of the Issuers that states such Redemption Price.
Section 3.02 Special Mandatory Redemption of the Notes.
(a) If a Special Mandatory Redemption Event occurs, then the Issuers will redeem all of the Outstanding Notes of each series on the Special Mandatory Redemption Date at the Special Mandatory Redemption Price.
(b) The Issuers will cause a notice of Special Mandatory Redemption Event to be electronically delivered or mailed to the Trustee and the Paying Agent and electronically delivered, mailed or otherwise given in accordance with the procedures of the Depositary to each Holder of record of the Notes to be redeemed no later than the fifth Business Day following the occurrence of a Special Mandatory Redemption Event, which shall provide for the redemption of the Notes subject to mandatory redemption upon the occurrence of a Special Mandatory Redemption Event on the Special Mandatory Redemption Date. At the Issuers’ request, and expense, the Trustee shall deliver a notice of Special Mandatory Redemption to the Holders of the Notes; provided such request is accompanied by the notice of Special Mandatory Redemption to be given.
(c) Upon the deposit of funds sufficient to pay the Special Mandatory Redemption Price of all Notes to be redeemed on the Special Mandatory Redemption Date with the Depositary by no later than 10:00 a.m., New York City time, on such Special Mandatory Redemption Date, the Notes will cease to bear interest and all rights under such Notes shall terminate.
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(d) The notice of a Special Mandatory Redemption Event shall state:
(i) the Special Mandatory Redemption Date;
(ii) the Special Mandatory Redemption Price;
(iii) that on the Special Mandatory Redemption Date, the Special Mandatory Redemption Price shall become due and payable; and
(iv) that the Notes shall cease to bear interest on and after the Special Mandatory Redemption Date.
(e) The Trustee shall have no responsibility for any calculation or determination in respect of the Special Mandatory Redemption Event or the Special Mandatory Redemption Price, or any component thereof, and shall be entitled to receive, and fully protected in relying upon, an Officer’s Certificate from the Issuers that states the occurrence of such Special Mandatory Redemption Event and such Special Mandatory Redemption Price.
Section 3.03 Optional Redemption for Tax Reasons. If, as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated under the laws) of the United States (or any political subdivision or taxing authority of or in the United States), or any change in, or amendment to, an official position regarding the application or interpretation of such laws, regulations or rulings, which change or amendment is announced or becomes effective on or after September 22, 2026, the Issuers or a Guarantor become or, based upon a written opinion of independent counsel selected by the Issuers, will become obligated to pay Additional Amounts as described in Section 4.02 with respect to the Notes of any series, then the Issuers may at their option redeem, in whole, but not in part, the Notes of such series on not less than 10 nor more than 90 days’ prior notice, at a Redemption Price equal to 100% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the Redemption Date. The Issuers shall deliver to the Trustee an Officer’s Certificate stating that the Issuers are entitled to effect such redemption and setting forth in reasonable detail the facts constituting the basis therefor, together with such written opinion of counsel, and the Trustee shall be entitled to rely conclusively upon such Officer’s Certificate and opinion. The procedures for redemptions set forth in Section 3.01 will apply to any redemption pursuant to this Section 3.03.
Article Four
Additional Covenants
Section 4.01 Purchase of Notes upon a Change of Control Repurchase Event.
(a) If a Change of Control Repurchase Event occurs with respect to a series of Notes, unless the Issuers shall have exercised their right to redeem the Notes of such series as set forth in Section 3.01 or shall have defeased the Notes of such series as set forth in Article XIV of the Base Indenture, the Issuers shall be required to make an offer (the “Change of Control Offer”) to each Holder of the applicable Notes to repurchase all or any part (in a minimum principal amount of C$2,000 and integral multiples of C$1,000 in excess thereof) of that Holder’s Notes of such series, at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased, plus any accrued and unpaid interest on the Notes repurchased to, but excluding, the date of repurchase (“Change of Control Purchase Price”).
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Within 30 days following any Change of Control Repurchase Event or at the Issuers’ option, prior to any Change of Control, but in either case, after the public announcement of the Change of Control, the Issuers shall electronically deliver, mail or otherwise give in accordance with the procedures of the Depositary 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 and offering to repurchase such Notes on the payment date specified in the notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is electronically delivered, mailed or given (the “Change of Control Payment Date”). The notice shall disclose that any Note not tendered for repurchase will continue to accrue interest, specify the procedures for tendering Notes, and shall, if electronically delivered, mailed or otherwise given in accordance with the procedures of the Depositary prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on the Change of Control Repurchase Event occurring on or prior to the Change of Control Payment Date specified in the notice.
(b) On the Change of Control Payment Date, the Issuers shall, to the extent lawful:
(i) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(ii) deposit with the Depositary an amount equal to the aggregate Change of Control 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 Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuers.
(c) The Paying Agent will promptly distribute to each Holder of Notes properly tendered the purchase price for the Notes deposited by the Issuers. The Issuers 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 such Notes surrendered; provided, that each new Note will be in a minimum principal amount of C$2,000 and integral multiples of C$1,000 in excess thereof.
(d) Notwithstanding the foregoing, the Issuers 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 Issuers and such third party purchases all Notes properly tendered and not withdrawn under its offer.
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(e) The Trustee shall have no responsibility for any calculation or determination in respect of the Change of Control Repurchase Event or Change of Control Purchase Price of any Notes, or any component thereof, and shall be entitled to receive, and fully protected in relying upon, an Officer’s Certificate from the Issuers stating that such Change of Control Repurchase Event has occurred and specifying such repurchase price.
Section 4.02 Payment of Additional Amounts.
(a) The Issuers or the relevant Guarantor, as applicable, will, subject to the exceptions and limitations set forth below, pay as additional interest on the Notes or the Guarantees of such additional amounts (“Additional Amounts”) as are necessary in order that the net payment by the Issuers (or the relevant Guarantor) or a Paying Agent of the principal of, premium, if any, and interest with respect to the Notes or the Guarantees to a beneficial owner that is not a United States person, after withholding or deduction for any present or future tax, assessment or other governmental charge imposed by the United States or a taxing authority in the United States, will not be less than the amount provided in the Notes to be then due and payable; provided, however, that the foregoing obligation to pay Additional Amounts shall not apply to:
(i) to any tax, assessment or other governmental charge that would not have been imposed but for the Holder, a fiduciary, settlor, beneficiary, member or shareholder of the Holder, or a person holding a power over an estate or trust administered by a fiduciary Holder, being treated as:
(1) being or having been present in, or engaged in a trade or business in, the United States, being treated as having been present in, or engaged in a trade or business in, the United States, or having or having had a permanent establishment in the United States;
(2) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, the receipt of any payment in respect of the Notes or the enforcement of any rights under the Indenture), including being or having been a citizen or resident of the United States or treated as being or having been a resident thereof;
(3) being or having been a personal holding company, a passive foreign investment company, a foreign controlled foreign corporation or a controlled foreign corporation for U.S. federal income tax purposes, a foreign tax exempt organization, or a corporation that has accumulated earnings to avoid United States federal income tax;
(4) being or having been a “10-percent shareholder,” as defined in section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision, of an Issuer; or
(5) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business, within the meaning of section 881(c)(3) of the Code or any successor provision;
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(ii) to any Holder that is not the sole beneficial owner of the Notes, or a portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficiary or settlor with respect to the fiduciary, a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(iii) to any tax, assessment or other governmental charge that would not have been imposed but for the failure of the Holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of the Notes, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from such tax, assessment or other governmental charge;
(iv) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Issuers or the Paying Agent from the payment;
(v) to any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(vi) to any tax, assessment or other governmental charge that would not have been imposed but for the presentation by the Holder of any note, where presentation is required, for payment on a date more than 10 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(vii) to any U.S. federal backup withholding tax under Section 3406 of the Code;
(viii) to any tax, assessment or other governmental charge required to be withheld or deducted that is imposed on a payment pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version of such Sections that is substantively comparable and not materially more onerous to comply with), any Treasury regulations promulgated thereunder, or any other official interpretations thereof (collectively, “FATCA”), any agreement (including any intergovernmental agreement) entered into in connection therewith, or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or an intergovernmental agreement in respect of FATCA;
(ix) any tax, assessment or other governmental charge that is imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
(x) any tax, assessment or other governmental charge imposed by reason of the failure of the beneficial owner to fulfill the statement requirements of Section 871(h) or Section 881(c) of the Code;
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(xi) any tax imposed pursuant to Section 871(h)(6) or 881(c)(6) of the Code (or any amended or successor provisions); or
(xii) in the case of any combination of items (i) through (xi).
(b) All references in this First Supplemental Indenture or the Notes to the payment of principal, premium, if any, or interest on the Notes shall be deemed to include the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable.
(c) The Trustee and each Paying Agent shall be entitled to deduct or withhold from any payment on the Notes any amounts required by applicable law, and shall have no obligation to determine, calculate or verify any Additional Amounts, and shall be entitled to receive, and fully protected in relying upon, an Officer’s Certificate from the Issuers setting forth any Additional Amounts payable and the calculation thereof.
Section 4.03 Issuance in Canadian Dollars; Payment on the Notes.
(a) All payments of principal of, the Redemption Price (if any), and interest and Additional Amounts (if any) on the Notes will be payable in Canadian dollars, subject to Section 4.03(b).
(b) If the Canadian dollars are not available to the Issuers due to the imposition of exchange controls or other circumstances beyond the Issuers’ control or if a Conversion Event occurs with respect to Canadian dollars, then all payments in respect of the Notes will be made in U.S. dollars until the Canadian dollars are once again available to the Issuers. In such circumstances, the amount payable on any date in Canadian dollars will be converted into U.S. dollars at the Market Exchange Rate.
(c) Any payment in respect of the Notes made in U.S. dollars in accordance with Section 4.03(b) will not constitute an Event of Default under the Notes or the Indenture.
(d) All determinations made by the Issuers under this Section 4.03 will be at the Issuers’ sole discretion and, in the absence of manifest error, will be conclusive for all purposes and binding on the Holders of the Notes. Neither the Trustee nor any Paying Agent shall have any responsibility for any calculation or conversion in connection with the foregoing.
Article Five
Miscellaneous
Section 5.01 Application of First Supplemental Indenture. The Base Indenture, as supplemented by this First Supplemental Indenture, is in all respects ratified and confirmed. This First Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided.
Section 5.02 Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with the duties imposed by the Trust Indenture Act, the imposed duties shall control.
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Section 5.03 Conflict with Base Indenture. To the extent not expressly amended or modified by this First Supplemental Indenture, the Base Indenture shall remain in full force and effect. If any provision of this First Supplemental Indenture relating to the Notes is inconsistent with any provision of the Base Indenture, the provision of this First Supplemental Indenture shall control.
Section 5.04 Governing Law. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 5.05 Successors. All agreements of the Issuers in the Base Indenture, this First Supplemental Indenture and the Notes shall bind their successors. All agreements of the Trustee in the Base Indenture and this First Supplemental Indenture shall bind its successors.
Section 5.06 Counterparts. This instrument 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.
Section 5.07 Trustee Disclaimer. The Trustee makes no representation as to the validity, adequacy or sufficiency of this First Supplemental Indenture and the Notes other than as to the validity of the execution and delivery of the First Supplemental Indenture by the Trustee and the authentication of the Notes by the Trustee. The recitals and statements herein and in the Notes are deemed to be those of the Issuers and not the Trustee and the Trustee assumes no responsibility for the same and the Trustee does not make any representation with respect to such matters. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Issuers of Notes or the proceeds thereof.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties to this First Supplemental Indenture have caused it to be duly executed as of the day and year first above written.
| SYSCO CORPORATION | |||
| By: | /s/ Meena Dafesh | ||
| Name: | Meena Dafesh | ||
| Title: | Vice President, Global Treasurer | ||
| SYSCO HOLDINGS CORPORATION | |||
| By: | /s/ Meena Dafesh | ||
| Name: | Meena Dafesh | ||
| Title: | Treasurer | ||
[Signature Page to First Supplemental Indenture]
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed, all as of the day and year first above written.
GUARANTORS:
| SYSCO ALBANY, LLC | |
| SYSCO ASIAN FOODS, INC. | |
| SYSCO BALTIMORE, LLC | |
| SYSCO BARABOO, LLC | |
| SYSCO BOSTON, LLC | |
| SYSCO CENTRAL PENNSYLVANIA, LLC | |
| SYSCO CINCINNATI, LLC | |
| SYSCO COLUMBIA, LLC | |
| SYSCO CONNECTICUT, LLC | |
| SYSCO DETROIT, LLC | |
| SYSCO EASTERN WISCONSIN, LLC | |
| SYSCO GRAND RAPIDS, LLC | |
| SYSCO INDIANAPOLIS, LLC | |
| SYSCO JACKSON, LLC | |
| SYSCO LONG ISLAND, LLC | |
| SYSCO METRO NEW YORK, LLC | |
| SYSCO PHILADELPHIA, LLC | |
| SYSCO PITTSBURGH, LLC | |
| SYSCO ST. LOUIS, LLC | |
| SYSCO SYRACUSE, LLC | |
| SYSCO USA III, LLC | |
| SYSCO VIRGINIA, LLC | |
| SYSCO ATLANTA, LLC | |
| SYSCO CENTRAL ALABAMA, LLC | |
| SYSCO CHARLOTTE, LLC | |
| SYSCO EASTERN MARYLAND, LLC | |
| SYSCO GULF COAST, LLC | |
| SYSCO KNOXVILLE, LLC | |
| SYSCO MEMPHIS, LLC | |
| SYSCO NASHVILLE, LLC | |
| SYSCO RALEIGH, LLC | |
| SYSCO SOUTHEAST FLORIDA, LLC | |
| SYSCO USA II, LLC | |
| SYSCO CENTRAL CALIFORNIA, INC. | |
| SYSCO HAWAII, INC. | |
| SYSCO KANSAS CITY, INC. | |
| SYSCO LINCOLN, INC. | |
| SYSCO LOS ANGELES, INC. | |
| SYSCO MONTANA, INC. | |
| SYSCO PORTLAND, INC. | |
| SYSCO RIVERSIDE, INC. | |
| SYSCO SACRAMENTO, INC. |
[Signature Page to First Supplemental Indenture]
| SYSCO SAN DIEGO, INC. | |
| SYSCO SAN FRANCISCO, INC. | |
| SYSCO SEATTLE, INC. | |
| SYSCO SPOKANE, INC. | |
| SYSCO USA I, INC. | |
| SYSCO VENTURA, INC. | |
| SYSCO CENTRAL ILLINOIS, INC. | |
| SYSCO CHICAGO, INC. | |
| SYSCO CLEVELAND, INC. | |
| SYSCO IOWA, INC. | |
| SYSCO LOUISVILLE, INC. | |
| SYSCO MINNESOTA, INC. | |
| SYSCO NORTH DAKOTA, INC. | |
| SYSCO NORTHERN NEW ENGLAND, INC. | |
| SYSCO WESTERN MINNESOTA, INC. | |
| SYSCO CENTRAL FLORIDA, INC. | |
| SYSCO HAMPTON ROADS, INC. | |
| SYSCO JACKSONVILLE, INC. | |
| SYSCO SOUTH FLORIDA, INC. | |
| SYSCO WEST COAST FLORIDA, INC. |
| By: | /s/ Brandon Sewell | ||
| Name: | Brandon Sewell | ||
| Title: | Chief Financial Officer | ||
[Signature Page to First Supplemental Indenture]
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed, all as of the day and year first above written.
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | |||
| By: | /s/ Michael K. Herberger | ||
| Name: | Michael K. Herberger | ||
| Title: | Vice President | ||
[Signature Page to First Supplemental Indenture]
SCHEDULE
I
INITIAL GUARANTORS
| Exact Name of Guarantor as Specified in its Charter | State or Other Jurisdiction of Incorporation or Organization |
| Sysco Albany, LLC | Delaware |
| Sysco Asian Foods, Inc. | 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 Hawaii, 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 |
| Exact Name of Guarantor as Specified in its Charter | State or Other Jurisdiction of Incorporation or Organization |
| 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 USA III, LLC | Delaware |
| Sysco Ventura, Inc. | Delaware |
| Sysco Virginia, LLC | Delaware |
| Sysco West Coast Florida, Inc. | Delaware |
| Sysco Western Minnesota, Inc. | Delaware |
Appendix A
PROVISIONS RELATING TO INITIAL NOTES AND
ADDITIONAL NOTES OF EACH SERIES
Section 1.1 Definitions.
(a) Capitalized Terms.
Capitalized terms used but not defined in this Appendix A have the meanings given to them in the Base Indenture. The following capitalized terms have the following meanings:
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Global Note to the extent applicable to such transaction and as in effect from time to time.
“Definitive Note” means a certificated Initial Note or Additional Note issued pursuant to the Base Indenture that does not include the Global Notes Legend.
(b) Other Definitions.
| Term: | Defined in Section: |
| “Agent Members” | 2.1(b) |
| “Global Note” | 2.1(a) |
| “Global Notes Legend” | 2.2(d) |
Section 1.2 General.
The provisions of this Appendix A shall apply to each series of Notes.
Section 2.1 Form and Dating.
(a) The Initial Notes issued on the date hereof shall be offered and sold by the Issuers to the underwriters thereof pursuant to the Registration Statement on Form S-3 (333-298926) and shall be issued in the form of one or more permanent global securities in fully registered form, numbered R-1 upward (each, a “Global Note”).
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a Global Note deposited with or on behalf of the Depositary.
The Issuers shall execute and the Trustee shall, in accordance with this Section 2.1(b) and Section 303 of the Base Indenture and pursuant to an Issuers Order signed by one Officer of each Issuer, authenticate and deliver one or more Global Notes that (i) shall be registered in the name of the Depositary for such Global Note or Global Notes or the nominee of such Depositary and (ii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instructions.
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Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under the Indenture with respect to any Global Note held on their behalf by the Depositary under such Global Note, and the Depositary may be treated by the Issuers, the Trustee and any agent of the Issuers or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuers, the Trustee or any agent of the Issuers or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices of such Depositary governing the exercise of the rights of a Holder of a beneficial interest in any Global Note.
(c) Definitive Notes. Except as provided in Section 2.2 or Section 2.3 of this Appendix A, owners of beneficial interests in Global Notes shall not be entitled to receive physical delivery of Definitive Notes.
Section 2.2 Transfer and Exchange.
(a) Transfer and Exchange of Definitive Notes for Definitive Notes. When Definitive Notes are presented to the Security Registrar with a written request:
(i) to register the transfer of such Definitive Notes; or
(ii) to exchange such Definitive Notes for an equal principal amount of Definitive Notes of other authorized denominations,
the Security Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Definitive Notes surrendered for transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Issuers and the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.
(b) Restrictions on Transfer of a Definitive Note for a Beneficial Interest in a Global Note. A Definitive Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a Definitive Note, duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Issuers and the Security Registrar, together with:
(i) a certification from the transferor in the form of the Assignment Form provided on the reverse side of the Form of Note attached as an exhibit to the First Supplemental Indenture for exchange or registration of transfers; and
(ii) written instructions directing the Trustee to make, or to direct the Security Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such increase,
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the Trustee shall cancel such Definitive Note and cause, or direct the Security Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Security Registrar, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount of the Definitive Note to be exchanged and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Definitive Note so canceled. If the applicable Global Note is not then outstanding, the Issuers shall issue and the Trustee shall authenticate, upon written order of the Issuers in the form of an Officer’s Certificate, a new applicable Global Note in the appropriate principal amount.
(c) Transfer and Exchange of Global Notes.
(i) The transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depositary, in accordance with the Indenture and the Applicable Procedures of the Depositary therefor. A transferor of a beneficial interest in a Global Note shall deliver to the Security Registrar a written order given in accordance with the Depositary’s procedures containing information regarding the participant account of the Depositary to be credited with a beneficial interest in such Global Note, or another Global Note, and such account shall be credited in accordance with such order with a beneficial interest in the applicable Global Note and the account of the Person making the transfer shall be debited by an amount equal to the beneficial interest in the Global Note being transferred.
(ii) If the proposed transfer is a transfer of a beneficial interest in one Global Note to a beneficial interest in another Global Note, the Security Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Note to which such interest is being transferred in an amount equal to the principal amount of the interest to be so transferred, and the Security Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of the Global Note from which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix A (other than the provisions set forth in Section 2.3 of this Appendix A), a Global Note may not be transferred except as a whole and not in part if the transfer is by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.
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(d) Legends.
Each Global Note shall bear the following legend (“Global Notes Legend”):
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF CDS CLEARING AND DEPOSITORY SERVICES INC. (“CDS”), TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CDS & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS (AND ANY PAYMENT IS MADE TO CDS & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CDS & CO., HAS AN INTEREST HEREIN.
EXCEPT IN THE PROVINCE OF MANITOBA, UNLESS PERMITTED UNDER CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THESE NOTES MUST NOT TRADE THE NOTES BEFORE THE DATE THAT IS 4 MONTHS AND A DAY AFTER THE LATER OF (I) SEPTEMBER 25, 2026, AND (II) THE DATE THE ISSUERS BECOME REPORTING ISSUERS IN ANY PROVINCE OR TERRITORY OF CANADA.
IN THE PROVINCE OF MANITOBA, UNLESS OTHERWISE PERMITTED UNDER APPLICABLE CANADIAN SECURITIES LAWS OR WITH THE PRIOR WRITTEN CONSENT OF THE APPLICABLE REGULATOR, THE HOLDER OF THESE NOTES MUST NOT TRADE THE NOTES BEFORE THE DATE THAT IS TWELVE MONTHS AND A DAY AFTER THE DATE THE PURCHASER ACQUIRED THE NOTES.
(e) Cancellation or Adjustment of Global Note. At such time as all beneficial interests in a Global Note have either been exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, such Global Note shall be returned by the Depositary to the Trustee for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Security Registrar with respect to such Global Note to reflect such reduction.
(f) Obligations with Respect to Transfers and Exchanges of Notes.
(i) To permit registrations of transfers and exchanges, the Issuers shall execute and the Trustee or the Authentication Agent shall authenticate, Definitive Notes and Global Notes at the Security Registrar’s request.
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(ii) No service charge shall be made for any registration of transfer or exchange, but the Issuers may require payment of a sum sufficient to cover any transfer tax, assessments, or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charge payable upon exchanges pursuant to Sections 304, 305, 306, 1106 and 1305 of the Base Indenture).
(iii) Prior to the due presentation for registration of transfer of any Note, the Issuers, the Trustee, the Paying Agent or the Security Registrar may deem and treat the person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal, premium, if any, and interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Issuers, the Trustee, the Paying Agent or the Security Registrar shall be affected by notice to the contrary.
(iv) All Notes issued upon any transfer or exchange pursuant to the terms of the Indenture shall evidence the same debt and shall be entitled to the same benefits under the Indenture as the Notes surrendered upon such transfer or exchange.
(g) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in the Depositary or any other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption or repurchase) or the payment of any amount, under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders under the Notes shall be given or made only to the registered Holders (which shall be the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the applicable rules and procedures of the Depositary. The Trustee may conclusively rely and shall be fully protected in conclusively relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under the Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of the Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
(iii) Neither the Trustee nor any agent shall have any responsibility or liability for any actions taken or not taken by the Depositary.
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Section 2.3 Definitive Notes.
(a) A Global Note deposited with the Depositary or the Security Registrar pursuant to Section 2.1 may be transferred to the beneficial owners thereof in the form of Definitive Notes in an aggregate principal amount equal to the principal amount of such Global Note, in exchange for such Global Note, only if such transfer complies with Section 2.2 of this Appendix A and (i) the Depositary’s book-entry system ceases to exist; (ii) the Issuers determine that the Depositary is unwilling or unable to discharge properly its responsibilities as a Depositary for such Global Note and, in such case, and the Issuers are unable to locate a qualified successor, (iii) the Issuers, at their option, elect to issue Definitive Notes with respect to all or a portion of the Notes, (iv) it is required by law; or (v) an Event of Default has occurred and is continuing and the Security Registrar has received a request from the Depositary. In addition, any Affiliate of the Issuers or any Guarantor that is a beneficial owner of all or part of a Global Note may have such Affiliate’s beneficial interest transferred to such Affiliate in the form of a Definitive Note by providing a written request to the Issuers and the Trustee and such Opinions of Counsel, certificates or other information as may be required by the Indenture or the Issuers or Trustee.
(b) Any Global Note that is transferable to the beneficial owners thereof pursuant to this Section 2.3 shall be surrendered by the Depositary to the Trustee, to be so transferred, in whole or from time to time in part, without charge, and the Trustee or the Authentication Agent shall authenticate and deliver, upon such transfer of each portion of such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations. Any portion of a Global Note transferred pursuant to this Section 2.3 shall be executed, authenticated and delivered only in denominations of C$2,000 and integral multiples of C$1,000 in excess thereof and registered in such names as the Depositary shall direct.
(c) The registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Notes.
(d) In the event of the occurrence of any of the events specified in Section 2.3(a) of this Appendix A, the Issuers shall promptly make available to the Trustee a reasonable supply of Definitive Notes in fully registered form without interest coupons.
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Exhibit A
FORM OF 2030 NOTE
[GLOBAL NOTES ONLY
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 CDS CLEARING AND DEPOSITORY SERVICES INC. (“CDS”), TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CDS & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS (AND ANY PAYMENT IS MADE TO CDS & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CDS & CO., HAS AN INTEREST HEREIN.]
[ALL NOTES
EXCEPT IN THE PROVINCE OF MANITOBA, UNLESS PERMITTED UNDER CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THESE NOTES MUST NOT TRADE THE NOTES BEFORE THE DATE THAT IS 4 MONTHS AND A DAY AFTER THE LATER OF (I) [ ], AND (II) THE DATE THE ISSUERS BECOME REPORTING ISSUERS IN ANY PROVINCE OR TERRITORY OF CANADA.
IN THE PROVINCE OF MANITOBA, UNLESS OTHERWISE PERMITTED UNDER APPLICABLE CANADIAN SECURITIES LAWS OR WITH THE PRIOR WRITTEN CONSENT OF THE APPLICABLE REGULATOR, THE HOLDER OF THESE NOTES MUST NOT TRADE THE NOTES BEFORE THE DATE THAT IS TWELVE MONTHS AND A DAY AFTER [ ].]
SYSCO HOLDINGS CORPORATION and SYSCO CORPORATION
4.250% Senior Notes due 2030
| No.[ ] | CUSIP No.: 871983AA0 | |
| ISIN No.: CA871983AA05 | ||
| C$750,000,000 |
SYSCO HOLDINGS CORPORATION, a Delaware corporation, and SYSCO CORPORATION, a Delaware corporation (together, the “Issuers”), for value received promise to pay to [ ] or registered assigns the principal sum of C$750,000,000 on October 3, 2030 (the “Stated Maturity”).
Interest Payment Dates: April 3 and October 3 (each, an “Interest Payment Date”), commencing on April 3, 2027, and upon the Stated Maturity.
Interest Record Dates: March 15 and September 15 (each, a “Regular Record Date”).
Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.
Principal and interest on the Notes (as defined below), including payments made upon any redemption or repurchase of the Notes, shall be payable in Canadian Dollars, subject to the substitution of the U.S. dollar as the currency for all payments in respect of such Notes following the occurrence of certain events beyond the Issuers’ control as described in the Indenture (as defined below).
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IN WITNESS WHEREOF, the Issuers have caused this Note to be duly executed.
| SYSCO HOLDINGS CORPORATION | ||
| By: | ||
| Name: | ||
| Title: | ||
| SYSCO CORPORATION | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Note]
This is one of the Notes designated herein and referred to in the within-mentioned Indenture.
Dated: September 25, 2026
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Computershare Advantage Trust of Canada, as Authentication Agent | ||
| By: | ||
| Authorized Signatory | ||
[Signature Page to Note]
(REVERSE OF NOTE)
SYSCO HOLDINGS CORPORATION and SYSCO CORPORATION
4.250% Senior Notes due 2030
1. Interest.
Sysco Holdings Corporation and Sysco Corporation (together, the “Issuers”) promise to pay interest on the principal amount of this Note at the rate per annum described above. Cash interest on the Notes will accrue from the most recent date to which interest has been paid; or, if no interest has been paid, from September 25, 2026. Interest on this Note will be paid to but excluding the relevant Interest Payment Date or on such earlier date as the principal amount shall become due in accordance with the provisions hereof. The Issuers will pay interest semi-annually in arrears on each Interest Payment Date, beginning on April 3, 2027, and on the Stated Maturity. If any Interest Payment Date, Stated Maturity or other payment date with respect to the Notes is not a Business Day, the required payment of principal, premium, if any, or interest will be due on the next succeeding Business Day as if made on the date that such payment was due, and no interest will accrue on that payment for the period from and after that Interest Payment Date, Stated Maturity or other payment date, as the case may be, to the date of that payment on the next succeeding Business Day. For a full semi-annual interest period, interest will be computed on the basis of a 360-day year consisting of twelve 30-day months; and for any interest period that is not a full semi-annual interest period, interest will be computed on the basis of the actual number of days in the interest period divided by 365 (Actual/365 (Fixed)), also known as the Actual/Actual Canadian Compound Method. All Canadian dollar amounts resulting from this calculation will be rounded to the nearest cent.
The Issuers shall pay interest on overdue principal from time to time on demand at the rate borne by the Notes and at the same rate on overdue installments of interest (without regard to any applicable grace periods) to the extent lawful from the dates such amounts are due until such amounts are paid or made available for payment.
2. Paying Agent.
Initially, Computershare Advantage Trust of Canada will act as Paying Agent. The Issuers may change any Paying Agent without notice to the Holders.
3. Indenture; Defined Terms.
This Note is one of the 4.250% Senior Notes due 2030 (the “Notes”) issued under the Indenture, dated as of September 25, 2026 (as amended, modified or supplemented from time to time in accordance therewith, the “Base Indenture” and, as supplemented by the First Supplemental Indenture, dated as of September 25, 2026, the “Indenture”), among the Issuers, the guarantors party thereto and U.S. Bank Trust Company, National Association (the “Trustee”), as trustee. This Note is a “Security” and the Notes are “Securities” under the Indenture.
For purposes of this Note, unless otherwise defined herein, capitalized terms herein are used as defined in the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the “TIA”) as in effect on the date on which the Indenture is qualified under the TIA. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture and the TIA for a statement of them. To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern.
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4. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in denominations of C$2,000 and integral multiples of C$1,000 in excess thereof. A Holder shall register the transfer or exchange of Notes in accordance with the Indenture. The Issuers may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith as permitted by the Indenture. The Issuers need not issue, authenticate, register the transfer of or exchange any Notes or portions thereof for a period of fifteen (15) days before the sending of a notice of redemption, nor need the Issuers register the transfer or exchange of any Note selected for redemption in whole or in part.
5. Amendment; Modification; Waiver.
Subject to certain exceptions, the Indenture and the Notes may be amended, or default may be waived, with the consent of the Holders of a majority in principal amount of the Outstanding Notes. Without notice to or the consent of any Holder, the Issuers and the Trustee may amend or supplement the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency.
6. Optional Redemption; Special Mandatory Redemption; Redemption for Tax Reasons; Offer to Repurchase Upon Change of Control Repurchase Event.
The Notes are subject to optional redemption, redemption for tax reasons and special mandatory redemption, and may be the subject of a Change of Control Offer, in each case as further described in the Indenture. There is no sinking fund applicable to the Notes.
7. Defaults and Remedies.
If an Event of Default with respect to the Notes occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Notes may declare the principal amount of all the Notes to be due and payable immediately, by a notice in writing to the Issuers (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable.
The Indenture permits, subject to certain limitations therein provided, Holders of not less than a majority in aggregate principal amount of the Outstanding Notes to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee, with respect to the Notes.
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8. Authentication.
This Note shall not be valid until the Trustee and the Authentication Agent sign the certificate of authentication on this Note by manual or PDF or other electronically imaged (such as DocuSign or Adobe Sign) signature.
9. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
10. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuers have caused CUSIP numbers to be printed on the Notes as a convenience to the Holders of the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.
11. Guarantee.
As expressly set forth in the Indenture, payment of this Note is jointly and severally and fully and unconditionally guaranteed by the Guarantors that have become and continue to be Guarantors pursuant to the Indenture. Guarantors may be released from their obligations under the Indenture and their Guarantees under the circumstances specified in the Indenture.
12. Governing Law.
The laws of the State of New York shall govern the Indenture and this Note.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Issuers. The agent may substitute another to act for her.
Date: ________________ Your Signature: _____________________
Sign exactly as your name appears on the other side of this Note.
| Signature | ||
| Signature Guarantee: | ||
| Signature must be guaranteed | Signature |
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the United States Securities Exchange Act of 1934, as amended.
6
SCHEDULE OF EXCHANGES OF NOTES
The following exchanges of a part of this Global Note for certificated Notes or a part of another Global Note have been made:
| Date of Exchange | Amount of decrease in principal amount of this Global Note |
Amount of increase in principal amount of this Global Note |
Principal amount of this Global Note following such decrease (or increase) |
Signature of authorized signatory of Trustee | ||||
7
REPURCHASE EXERCISE NOTICE UPON A CHANGE OF CONTROL
To: Sysco Holdings Corporation and Sysco Corporation
The undersigned registered owner of this Security hereby acknowledges receipt of a notice from Sysco Holdings Corporation and Sysco Corporation (together, the “Issuers”) as to the occurrence of a Change of Control Repurchase Event with respect to the Issuers and hereby directs the Issuers to pay, or cause the Trustee to pay, an amount in cash equal to 101% of the aggregate principal amount of the Notes, or the portion thereof (which is C$2,000 principal amount or an integral multiple of C$1,000 in excess thereof) below designated, to be repurchased plus accrued and unpaid interest to, but excluding, the repurchase date, except as provided in the Indenture. The undersigned hereby agrees that the Notes will be repurchased as of the Change of Control Payment Date pursuant to the terms and conditions thereof and the Indenture.
| Dated: |
| Signature |
| Principal amount to be repurchased (at least C$2,000 or an integral multiple of C$1,000 in excess thereof): |
| Remaining principal amount following such repurchase: |
| By: | ||
| Authorized Signatory | ||
8
Exhibit B
FORM OF 2034 NOTE
[GLOBAL NOTES ONLY
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 CDS CLEARING AND DEPOSITORY SERVICES INC. (“CDS”), TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CDS & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS (AND ANY PAYMENT IS MADE TO CDS & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CDS & CO., HAS AN INTEREST HEREIN.]
[ALL NOTES
EXCEPT IN THE PROVINCE OF MANITOBA, UNLESS PERMITTED UNDER CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THESE NOTES MUST NOT TRADE THE NOTES BEFORE THE DATE THAT IS 4 MONTHS AND A DAY AFTER THE LATER OF (I) [ ], AND (II) THE DATE THE ISSUERS BECOME REPORTING ISSUERS IN ANY PROVINCE OR TERRITORY OF CANADA.
IN THE PROVINCE OF MANITOBA, UNLESS OTHERWISE PERMITTED UNDER APPLICABLE CANADIAN SECURITIES LAWS OR WITH THE PRIOR WRITTEN CONSENT OF THE APPLICABLE REGULATOR, THE HOLDER OF THESE NOTES MUST NOT TRADE THE NOTES BEFORE THE DATE THAT IS TWELVE MONTHS AND A DAY AFTER [ ].]
SYSCO HOLDINGS CORPORATION and SYSCO CORPORATION
4.800% Senior Notes due 2034
| No. [ ] | CUSIP No.: 871983AB8 | |
| ISIN No.: CA871983AB87 | ||
| C$750,000,000 |
SYSCO HOLDINGS CORPORATION, a Delaware corporation, and SYSCO CORPORATION, a Delaware corporation (together, the “Issuers”), for value received promise to pay to [ ] or registered assigns the principal sum of C$750,000,000 on October 3, 2034 (the “Stated Maturity”).
Interest Payment Dates: April 3 and October 3 (each, an “Interest Payment Date”), commencing on April 3, 2027, and upon the Stated Maturity.
Interest Record Dates: March 15 and September 15 (each, a “Regular Record Date”).
Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.
Principal and interest on the Notes (as defined below), including payments made upon any redemption or repurchase of the Notes, shall be payable in Canadian Dollars, subject to the substitution of the U.S. dollar as the currency for all payments in respect of such Notes following the occurrence of certain events beyond the Issuers’ control as described in the Indenture (as defined below).
2
IN WITNESS WHEREOF, the Issuers have caused this Note to be duly executed.
| SYSCO HOLDINGS CORPORATION | ||
| By: | ||
| Name: | ||
| Title: | ||
| SYSCO CORPORATION | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Note]
This is one of the Notes designated herein and referred to in the within-mentioned Indenture.
Dated: September 25, 2026
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Computershare Advantage Trust of Canada, as Authentication Agent | ||
| By: | ||
| Authorized Signatory | ||
[Signature Page to Note]
(REVERSE OF NOTE)
SYSCO HOLDINGS CORPORATION and SYSCO CORPORATION
4.800% Senior Notes due 2034
1. Interest.
Sysco Holdings Corporation and Sysco Corporation (together, the “Issuers”) promise to pay interest on the principal amount of this Note at the rate per annum described above. Cash interest on the Notes will accrue from the most recent date to which interest has been paid; or, if no interest has been paid, from September 25, 2026. Interest on this Note will be paid to but excluding the relevant Interest Payment Date or on such earlier date as the principal amount shall become due in accordance with the provisions hereof. The Issuers will pay interest semi-annually in arrears on each Interest Payment Date, beginning on April 3, 2027, and on the Stated Maturity. If any Interest Payment Date, Stated Maturity or other payment date with respect to the Notes is not a Business Day, the required payment of principal, premium, if any, or interest will be due on the next succeeding Business Day as if made on the date that such payment was due, and no interest will accrue on that payment for the period from and after that Interest Payment Date, Stated Maturity or other payment date, as the case may be, to the date of that payment on the next succeeding Business Day. For a full semi-annual interest period, interest will be computed on the basis of a 360-day year consisting of twelve 30-day months; and for any interest period that is not a full semi-annual interest period, interest will be computed on the basis of the actual number of days in the interest period divided by 365 (Actual/365 (Fixed)), also known as the Actual/Actual Canadian Compound Method. All Canadian dollar amounts resulting from this calculation will be rounded to the nearest cent.
The Issuers shall pay interest on overdue principal from time to time on demand at the rate borne by the Notes and at the same rate on overdue installments of interest (without regard to any applicable grace periods) to the extent lawful from the dates such amounts are due until such amounts are paid or made available for payment.
2. Paying Agent.
Initially, Computershare Advantage Trust of Canada will act as Paying Agent. The Issuers may change any Paying Agent without notice to the Holders.
3. Indenture; Defined Terms.
This Note is one of the 4.800% Senior Notes due 2034 (the “Notes”) issued under the Indenture, dated as of September 25, 2026 (as amended, modified or supplemented from time to time in accordance therewith, the “Base Indenture” and, as supplemented by the First Supplemental Indenture, dated as of September 25, 2026, the “Indenture”), among the Issuers, the guarantors party thereto and U.S. Bank Trust Company, National Association (the “Trustee”), as trustee. This Note is a “Security” and the Notes are “Securities” under the Indenture.
For purposes of this Note, unless otherwise defined herein, capitalized terms herein are used as defined in the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the “TIA”) as in effect on the date on which the Indenture is qualified under the TIA. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture and the TIA for a statement of them. To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern.
4. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in denominations of C$2,000 and integral multiples of C$1,000 in excess thereof. A Holder shall register the transfer or exchange of Notes in accordance with the Indenture. The Issuers may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith as permitted by the Indenture. The Issuers need not issue, authenticate, register the transfer of or exchange any Notes or portions thereof for a period of fifteen (15) days before the sending of a notice of redemption, nor need the Issuers register the transfer or exchange of any Note selected for redemption in whole or in part.
5. Amendment; Modification; Waiver.
Subject to certain exceptions, the Indenture and the Notes may be amended, or default may be waived, with the consent of the Holders of a majority in principal amount of the Outstanding Notes. Without notice to or the consent of any Holder, the Issuers and the Trustee may amend or supplement the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency.
6. Optional Redemption; Special Mandatory Redemption; Redemption for Tax Reasons; Offer to Repurchase Upon Change of Control Repurchase Event.
The Notes are subject to optional redemption, special mandatory redemption, redemption for tax reasons and may be the subject of a Change of Control Offer, in each case as further described in the Indenture. There is no sinking fund applicable to the Notes.
7. Defaults and Remedies.
If an Event of Default with respect to the Notes occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Notes may declare the principal amount of all the Notes to be due and payable immediately, by a notice in writing to the Issuers (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable.
The Indenture permits, subject to certain limitations therein provided, Holders of not less than a majority in aggregate principal amount of the Outstanding Notes to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee, with respect to the Notes.
8. Authentication.
This Note shall not be valid until the Trustee and the Authentication Agent sign the certificate of authentication on this Note by manual or PDF or other electronically imaged (such as DocuSign or Adobe Sign) signature.
9. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
10. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuers have caused CUSIP numbers to be printed on the Notes as a convenience to the Holders of the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.
11. Guarantee.
As expressly set forth in the Indenture, payment of this Note is jointly and severally and fully and unconditionally guaranteed by the Guarantors that have become and continue to be Guarantors pursuant to the Indenture. Guarantors may be released from their obligations under the Indenture and their Guarantees under the circumstances specified in the Indenture.
12. Governing Law.
The laws of the State of New York shall govern the Indenture and this Note.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Issuers. The agent may substitute another to act for her.
Date: ________________ Your Signature: _____________________
Sign exactly as your name appears on the other side of this Note.
| Signature | ||
| Signature Guarantee: | ||
| Signature must be guaranteed | Signature |
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the United States Securities Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF NOTES
The following exchanges of a part of this Global Note for certificated Notes or a part of another Global Note have been made:
| Date of Exchange | Amount of decrease in principal amount of this Global Note |
Amount of increase in principal amount of this Global Note |
Principal amount of this Global Note following such decrease (or increase) |
Signature of authorized signatory of Trustee | ||||
REPURCHASE EXERCISE NOTICE UPON A CHANGE OF CONTROL
To: Sysco Holdings Corporation and Sysco Corporation
The undersigned registered owner of this Security hereby acknowledges receipt of a notice from Sysco Holdings Corporation and Sysco Corporation (together, the “Issuers”) as to the occurrence of a Change of Control Repurchase Event with respect to the Issuers and hereby directs the Issuers to pay, or cause the Trustee to pay, an amount in cash equal to 101% of the aggregate principal amount of the Notes, or the portion thereof (which is C$2,000 principal amount or an integral multiple of C$1,000 in excess thereof) below designated, to be repurchased plus accrued and unpaid interest to, but excluding, the repurchase date, except as provided in the Indenture. The undersigned hereby agrees that the Notes will be repurchased as of the Change of Control Payment Date pursuant to the terms and conditions thereof and the Indenture.
| Dated: |
| Signature |
| Principal amount to be repurchased (at least C$2,000 or an integral multiple of C$1,000 in excess thereof): |
| Remaining principal amount following such repurchase: |
| By: | ||
| Authorized Signatory | ||
Exhibit 4.3
Execution Version
SYSCO CORPORATION,
as Issuer,
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
as Guarantors,
THE NEW GUARANTOR NAMED HEREIN
AND
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
FIFTIETH SUPPLEMENTAL INDENTURE
Dated as of September 25, 2026
Supplementing the Indenture
dated as of June 15, 1995
FIFTIETH SUPPLEMENTAL INDENTURE, dated as of the 25th day of September, 2026, 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”), Sysco Holdings Corporation, a corporation organized and existing under the laws of the State of Delaware (the “New Guarantor”) and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee”);
WHEREAS, the Issuer has heretofore executed and delivered an Indenture dated as of June 15, 1995 (as supplemented by the Thirteenth Supplemental Indenture dated as of February 17, 2012, the Twenty-Second Supplemental Indenture dated as of September 28, 2015, the Fortieth Supplemental Indenture dated as of December 13, 2021, the Forty-First Supplemental Indenture dated as of December 14, 2021, and as further amended and supplemented from time to time, the “Original 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 the Trustee is the successor trustee under the Original Indenture; and
WHEREAS, the Issuer has heretofore executed and delivered to the Trustee (i) 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, (ii) 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 6½% Debentures due August 1, 2028, (iii) 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, (iv) 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, (v) 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, (vi) 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, (vii) 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, (viii) 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, (ix) 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, (x) 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, (xi) 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, (xii) a Thirty-Seventh Supplemental Indenture dated as of April 2, 2020 providing for the issuance by the Issuer of $1,250,000,000 aggregate principal amount of 5.950% Senior Notes due 2030, (xiii) a Thirty-Eighth Supplemental Indenture dated as of April 2, 2020 providing for the issuance by the Issuer of $750,000,000 aggregate principal amount of 6.600% Senior Notes due 2040, (xiv) a Thirty-Ninth Supplemental Indenture dated as of April 2, 2020 providing for the issuance by the Issuer of $1,250,000,000 aggregate principal amount of 6.600% Senior Notes due 2050, (xv) a Forty-Second Supplemental Indenture dated as of December 14, 2021 providing for the issuance by the Issuer of $450,000,000 aggregate principal amount of 2.450% Senior Notes due 2031, (xvi) a Forty-Third Supplemental Indenture dated as of December 14, 2021 providing for the issuance by the Issuer of $800,000,000 aggregate principal amount of 3.150% Senior Notes due 2051, (xvii) a Forty-Fourth Supplemental Indenture dated as of November 17, 2023 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 5.750% Senior Notes due 2029, (xviii) a Forty-Fifth Supplemental Indenture dated as of November 17, 2023 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 6.000% Senior Notes due 2034, (xix) a Forty-Sixth Supplemental Indenture dated as of February 25, 2025 providing for the issuance by the Issuer of $700,000,000 aggregate principal amount of 5.100% Senior Notes due 2030, (xx) a Forty-Seventh Supplemental Indenture dated as of February 25, 2025 providing for the issuance by the Issuer of $550,000,000 aggregate principal amount of 5.400% Senior Notes due 2035, (xxi) a Forty-Eighth Supplemental Indenture dated as of February 13, 2026 providing for the issuance by the Issuer of $600,000,000 aggregate principal amount of 4.400% Senior Notes due 2031 and (xxii) a Forty-Ninth Supplemental Indenture dated as of February 13, 2026 providing for the issuance by the Issuer of $650,000,000 aggregate principal amount of 4.950% Senior Notes due 2036 (collectively, the “Prior Supplemental Indentures”) (the Original Indenture, as amended and supplemented by, and together with the Prior Supplemental Indentures and this Fiftieth Supplemental Indenture, collectively, the “Indenture”); and
1
WHEREAS, pursuant to that certain Guarantee Agreement dated as of September 25, 2026, the terms of which are set forth in the Form of Guarantee attached as Exhibit A hereto (the “Guarantee Agreement”), the New Guarantor has agreed to unconditionally guarantee the punctual payment when due, whether at stated maturity, by acceleration or otherwise, of the principal of, premium, if any, and interest on those of the Securities that remained outstanding and unpaid as of September 25, 2026 (the “Existing Guaranteed Securities”), when and as the same shall become due and payable according to the terms of such Existing Guaranteed Securities and as more fully described in the Indenture, and any other amounts payable under the Indenture; and
WHEREAS, Section 13.1 of the Original Indenture requires that prior to the initial issuance of Securities that are to be guaranteed by a Person that is not an Initial Guarantor, the parties to the Original Indenture and such Person shall enter into a supplemental indenture pursuant to Section 2.3 of the Original Indenture whereby such Person shall become a Guarantor under the Indenture; and
WHEREAS, the Issuer has requested that the Indenture be supplemented to add the New Guarantor as a party to the Indenture; 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 Section 8.1 thereof, and pursuant to appropriate resolutions of the Board of Directors of the Issuer, has duly determined to make, execute and deliver to the Trustee this Fiftieth Supplemental Indenture to the Original Indenture as permitted by Sections 8.1 and 13.1 of the Original Indenture; and
WHEREAS, each of the Subsidiary Guarantors, in the exercise of their power and authority conferred upon and reserved to them under the provisions of the Indenture, including Section 8.1 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 Fiftieth Supplemental Indenture to the Original Indenture as permitted by Sections 8.1 and 13.1 of the Original Indenture in order to add the New Guarantor as a party to the Indenture and as Guarantor of the Existing Guaranteed Securities; and
2
NOW, THEREFORE, THIS FIFTIETH SUPPLEMENTAL INDENTURE WITNESSETH that, in order to add the New Guarantor as a party to the Indenture, and for and in consideration of the premises and of the covenants contained in the Indenture and in this Fiftieth 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 Fiftieth Supplemental Indenture shall, unless the context otherwise requires, refer to this Fiftieth Supplemental Indenture.
ARTICLE II
NEW GUARANTORS
2.1 Additional Guarantors; Guarantee. The New Guarantor, by execution and delivery of this Fiftieth Supplemental Indenture, hereby agrees to be bound by the terms of the Original Indenture as a Guarantor. The New Guarantor, by execution and delivery of the Guarantee Agreement, hereby agrees to guarantee, together with the Initial Guarantors, the Existing Guaranteed Securities, on such terms and subject to such conditions as are set forth in such Guarantee Agreement.
2.2 Schedule I. Schedule I to this Fiftieth Supplemental Indenture shall be deemed to be modified to include the New Guarantors and shall be incorporated into the Original Indenture.
ARTICLE III
MISCELLANEOUS PROVISIONS
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 this Fiftieth Supplemental Indenture, any Guarantee or the proper authorization or the due execution hereof by the Issuer, any Subsidiary Guarantor or the New 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 and the New Guarantor.
3
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 Fiftieth 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. For the avoidance of doubt and notwithstanding anything to the contrary herein or in the Guarantee Agreement, in no event shall the consummation of the transactions contemplated by that certain merger agreement, dated as of March 30, 2026, by and among the Issuer, the New Guarantor, and the other subsidiaries party thereto, and JRD Unico, Inc., Warehouse Realty, LLC, and a holder representative, result in any release of the guarantee provided pursuant to the Guarantee Agreement.
THIS FIFTIETH SUPPLEMENTAL INDENTURE AND THE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
EACH OF THE PARTIES HERETO 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 FIFTIETH SUPPLEMENTAL INDENTURE, THE ORIGINAL INDENTURE, THE SECURITIES, THE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
This Fiftieth 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.
4
IN WITNESS WHEREOF, the parties hereto have caused this Fiftieth 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/ Meena Dafesh | |
| Name: Meena Dafesh | ||
| Title: Vice President, Global Treasurer | ||
| SUBSIDIARY GUARANTORS (listed on Schedule I) | ||
| By: | /s/ Andrew Wurdack | |
| Name: Andrew Wurdack | ||
| Title: Secretary | ||
Signature Page to Fiftieth Supplemental Indenture
| SYSCO HOLDINGS CORPORATION | ||
| By: | /s/ Meena Dafesh | |
| Name: Meena Dafesh | ||
| Title: Treasurer | ||
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ Michael K. Herberger | |
| Name: Michael K. Herberger | ||
| Title: Vice President | ||
Signature Page to Fiftieth Supplemental Indenture
SCHEDULE I
| Exact Name of Guarantor As Specified in its Charter | State or Other Jurisdiction of Incorporation or Organization | |
| Sysco Albany, LLC | Delaware | |
| Sysco Asian Foods, Inc. | 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 Hawaii, 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 |
| Exact Name of Guarantor As Specified in its Charter | State or Other Jurisdiction of Incorporation or Organization | |
| 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 USA III, LLC | Delaware | |
| Sysco Ventura, Inc. | Delaware | |
| Sysco Virginia, LLC | Delaware | |
| Sysco West Coast Florida, Inc. | Delaware | |
| Sysco Western Minnesota, Inc. | Delaware |
EXHIBIT A
FORM OF GUARANTEE
THIS GUARANTEE (as amended from time to time, this “Guarantee”), dated as of this _____ day of _________, 20__, is made by [name of subsidiary guarantor], a [state] [corporation / limited liability company] (the “Guarantor”), in favor of U.S. Bank Trust Company, National Association, as trustee (“Trustee”) for the registered holders (collectively, the “Holders”) of certain unsecured debentures, notes or other evidences of indebtedness (collectively, the “Securities”) of Sysco Corporation, a Delaware corporation (the “Issuer”), issued from time to time under the Indenture, dated June 15, 1995, by and between the Issuer and the Trustee (as successor trustee), as amended by the 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, the Fifth Supplemental Indenture dated as of July 27, 1998 providing for the issuance by the Issuer of $225,000,000 aggregate principal amount of 6½% Debentures due August 1, 2028, the 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, the 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, the Thirteenth Supplemental Indenture, dated as of February 17, 2012, the Twenty-Second Supplemental Indenture dated as of September 28, 2015, the 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, the 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, the 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, the 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, the 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, the 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, the 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, the Thirty-Seventh Supplemental Indenture dated as of April 2, 2020 providing for the issuance by the Issuer of $1,250,000,000 aggregate principal amount of 5.950% Senior Notes due 2030, the Thirty- Eighth Supplemental Indenture dated as of April 2, 2020 providing for the issuance by the Issuer of $750,000,000 aggregate principal amount of 6.600% Senior Notes due 2040, the Thirty-Ninth Supplemental Indenture dated as of April 2, 2020 providing for the issuance by the Issuer of $1,250,000,000 aggregate principal amount of 6.600% Senior Notes due 2050, the Fortieth Supplemental Indenture dated as of December 13, 2021, the Forty-First Supplemental Indenture dated as of December 14, 2021, the Forty-Second Supplemental Indenture dated as of December 14, 2021 providing for the issuance by the Issuer of $450,000,000 aggregate principal amount of 2.450% Senior Notes due 2031, the Forty-Third Supplemental Indenture dated as of December 14, 2021 providing for the issuance by the Issuer of $800,000,000 aggregate principal amount of 3.150% Senior Notes due 2051, the Forty-Fourth Supplemental Indenture dated as of November 17, 2023 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 5.750% Senior Notes due 2029, the Forty-Fifth Supplemental Indenture dated as of November 17, 2023 providing for the issuance by the Issuer of $500,000,000 aggregate principal amount of 6.000% Senior Notes due 2034, the Forty-Sixth Supplemental Indenture dated as of February 25, 2025 providing for the issuance by the Issuer of $700,000,000 aggregate principal amount of 5.100% Senior Notes due 2030, the Forty-Seventh Supplemental Indenture dated as of February 25, 2025 providing for the issuance by the Issuer of $550,000,000 aggregate principal amount of 5.400% Senior Notes due 2035, the Forty-Eighth Supplemental Indenture dated as of February 13, 2026 providing for the issuance by the Issuer of $600,000,000 aggregate principal amount of 4.400% Senior Notes due 2031, the Forty-Ninth Supplemental Indenture dated as of February 13, 2026 providing for the issuance by the Issuer of $650,000,000 aggregate principal amount of 4.950% Senior Notes due 2036 and the Fiftieth Supplemental Indenture dated as of September 25, 2026, entered into relating to this Guarantee (collectively, as amended, modified or supplemented from time to time, the “Indenture”).
1
W I T N E S S E T H:
Section 1. Guarantee.
(a) The Guarantor 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 Securities (the “Obligations”), when and as the same shall become due and payable according to the terms of the Securities and as more fully described in the Indenture, and any other amounts payable under the Indenture.
(b) It is the intention of the Guarantor that this Guarantee not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to this Guarantee. To effectuate the foregoing intention, the amount guaranteed by the Guarantor under this 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 the Guarantor that are relevant under such laws, result in the Obligations of the Guarantor under this 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.
Section 2. Guarantee Absolute. The Guarantor guarantees that the Obligations will be paid strictly in accordance with the terms of the 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 Securities with respect thereto. The liability of the Guarantor under this Guarantee shall be absolute and unconditional irrespective of:
(i) any lack of validity, enforceability or genuineness of any provision of the Indenture, the Securities or any other agreement or instrument relating thereto;
(ii) 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;
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(iii) 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;
(iv) the absence of any action to enforce same, or any waiver or consent by any Holder with respect to any provisions of the Indenture; or
(v) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Issuer or a guarantor.
Section 3. Ranking. The Guarantor covenants and agrees that its obligation to make payments of the Obligations hereunder constitutes a senior unsecured obligation of the Guarantor ranking pari passu with all existing and future unsecured indebtedness of the Guarantor.
Section 4. Waiver; Subrogation.
(a) The Guarantor hereby waives promptness, diligence, presentment, demand of payment, notice of acceptance and any other notice with respect to this Guarantee and any requirement that the Trustee, or the Holders of any Securities 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) The 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 the Guarantor’s obligations under this Guarantee or the Indenture, 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 Securities 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 the 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 this Guarantee, such amount shall be held in trust for the benefit of the Trustee and the Holders of any Securities and shall forthwith be paid to the Trustee, to be credited and applied to the Obligations and all other amounts payable under this Guarantee, whether matured or unmatured, in accordance with the terms of the Indenture and this Guarantee, or be held as collateral for any Obligations or other amounts payable under this Guarantee thereafter arising. The Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Guarantee and that the waiver set forth in this Section 4 is knowingly made in contemplation of such benefits.
Section 5. No Waiver; Remedies. No failure on the part of the Trustee or any Holder of the Securities to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
3
Section 6. Continuing Guarantee; Transfer of Interest. This Guarantee is a continuing guarantee and shall (a) remain in full force and effect until the earliest to occur of (i) the date, if any, on which the 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 the Guarantor and (iii) payment in full of the Obligations, (b) be binding upon the Guarantor, its successors and assigns, and (c) inure to the benefit of and be enforceable by any Holder of Securities, the Trustee, and by their respective successors, transferees, and assigns. This is a Guarantee of payment and not a guarantee of collection.
Section 7. Reinstatement. This Guarantee 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 the Securities or the Trustee upon the insolvency, bankruptcy or reorganization of the Issuer or otherwise, all as though such payment had not been made.
Section 8. Severability; Amendment. If any provision of this Guarantee or any application hereof 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. The Guarantor may amend this Guarantee at any time for any purpose without the consent of the Trustee or any Holder of the Securities; provided, however, that if such amendment adversely affects (a) the rights of the Trustee or (b) any Holder of the Securities, 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 Securities) shall be required and (ii) 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.
Section 9. Notices. All communications and notices hereunder shall be made in writing and deemed to have been duly given if mailed or transmitted by any standard form of telecommunication to Guarantor at:
[Name of Subsidiary Guarantor]
c/o Sysco Corporation
1390 Enclave Parkway
Houston, Texas 77077
Facsimile: 281-584-2510
Attn: General Counsel
Section 10. Governing Law. This Guarantee shall be governed by, and construed in accordance with the laws of the State of New York.
[Signature on following page.]
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IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.
| [SUBSIDIARY GUARANTOR] | ||
| By: | ||
| Name: | ||
| Title: | ||
Exhibit 5.1
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
September 25, 2026
Sysco Corporation
Sysco Holdings Corporation
1390 Enclave Parkway
Houston, Texas 77077
Registration Statement on Form S-3ASR (File No. 333-298926)
Ladies and Gentlemen:
We have acted as special counsel to Sysco Corporation, a Delaware corporation (“Sysco Corporation”) and Sysco Holdings Corporation, a Delaware corporation (“Sysco Holdings” and together with Sysco Corporation, the “Issuers”) in connection with the Registration Statement on Form S-3ASR (File No. 333-298926) (the “Registration Statement”), which became effective on September 14, 2026. You have asked us to furnish our opinion as to the legality of (i) C$750,000,000 aggregate principal amount of the Issuers’ 4.250% Senior Notes due 2030 (the “2030 Notes”) and (ii) C$750,000,000 aggregate principal amount of the Issuers’ 4.800% Senior Notes due 2034 (the “2034 Notes” and together with the 2030 Notes, the “Debt Securities”), including the guarantees (the “Guarantees”) which are registered under the Registration Statement and which are being sold today pursuant to an Underwriting Agreement dated September 22, 2026 (the “Underwriting Agreement”), by and among Goldman Sachs & Co. LLC, TD Securities Inc. and Merrill Lynch Canada Inc., as representatives of the several underwriters named on Schedule II thereto (the “Underwriters”), the Issuers and the guarantors who have signed the Underwriting Agreement (the “Guarantors”).
The Debt Securities and the related Guarantees are to be issued under a base indenture, dated as of September 25, 2026 (the “Base Indenture”), by and among the Issuers, the Guarantors and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented by the first supplemental indenture, dated as of September 25, 2026 (the “First Supplemental Indenture” and, together with the Base Indenture, the “Indenture”).
Sysco Corporation
Sysco Holdings Corporation
In connection with the furnishing of this opinion, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents:
| 1. | the Registration Statement; |
| 2. | the preliminary prospectus supplement dated September 18, 2026 (the “Preliminary Prospectus”); |
| 3. | the pricing term sheet dated September 22, 2026 set forth on Schedule IV to the Underwriting Agreement (the “Term Sheet”); |
| 4. | the final prospectus supplement dated September 22, 2026 (the “Final Prospectus”); |
| 5. | the Underwriting Agreement; |
| 6. | the Indenture; and |
| 7. | the form of Debt Securities to be issued on the date of this letter. |
In addition, we have examined (i) such corporate or limited liability company records of the Issuers and the Guarantors that we have considered appropriate, including a copy of the certificate of incorporation, as amended, and by-laws, as amended, of the Issuers and the certificate of incorporation, certificate of formation, by-laws, limited liability company agreement or operating agreement, in each case, as amended, of each Guarantor, as applicable, certified by the Issuers and each Guarantor, as applicable, as in effect on the date of this letter, (ii) copies of resolutions of the board of directors, board of managers or other equivalent governing body of the Issuers and each Guarantor, as applicable, relating to the issuance of the Debt Securities, certified by the Issuers and the Guarantors, as applicable, and (iii) such other certificates, agreements and documents that we deemed relevant and necessary as a basis for the opinions expressed below.
We have also relied upon oral and written statements of officers and representatives of the Issuers and the Guarantors, the representations and warranties of the Issuers and the Guarantors made in the Underwriting Agreement as to factual matters and upon certificates of public officials and the officers of the Issuers and the Guarantors.
Sysco Corporation
Sysco Holdings Corporation
In our examination of the documents referred to above, we have assumed, without independent investigation, the genuineness of all signatures, the legal capacity of all individuals who have executed any of the documents reviewed by us, the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as certified, photostatic, reproduced or conformed copies of valid existing agreements or other documents, the authenticity of all such latter documents and that the statements regarding matters of fact in the certificates, records, agreements, instruments and documents that we have examined are accurate and complete. We have also assumed, without independent investigation (i) that each Guarantor not incorporated or organized in the State of Delaware or the State of California (each, a “Non-Covered Guarantor”) is validly existing and in good standing under the laws of its jurisdiction of organization, (ii) that each Non-Covered Guarantor has all necessary corporate or limited liability company power, as applicable, to execute, deliver and perform its obligations under the Underwriting Agreement, the Indenture, the Debt Securities and the Guarantees, (iii) that the execution, delivery and performance of the Underwriting Agreement, the Indenture, the Debt Securities and the Guarantees have been duly authorized by all necessary corporate and limited liability company action and do not violate any Non-Covered Guarantor’s organizational documents or the laws of the jurisdiction of organization of any Non-Covered Guarantor and (iv) the due execution and delivery of the Underwriting Agreement, the Indenture and the Debt Securities under the laws of the jurisdiction of organization of each Non-Covered Guarantor.
Based upon the above, and subject to the stated assumptions, exceptions and qualifications, we are of the opinion that:
1. The Debt Securities, when duly authenticated by the Trustee, and duly issued and delivered by the Issuers against payment as provided in the Underwriting Agreement, will constitute legal, valid and binding obligations of each of the Issuers, enforceable against each Issuer in accordance with their terms, except that the enforceability of the Debt Securities may be subject to bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and subject to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
Sysco Corporation
Sysco Holdings Corporation
2. When the Debt Securities are duly issued and delivered by the Issuers against payment as provided in the Underwriting Agreement, each Guarantee will constitute a legal, valid and binding obligation of the applicable Guarantor, enforceable against such Guarantor in accordance with its terms, except that enforceability of such Guarantee may be subject to bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
The opinions expressed above are limited to the laws of the State of New York, the Delaware General Corporation Law, the Delaware Limited Liability Company Act, the California General Corporate Law and the federal laws of the United States of America. Our opinions are rendered only with respect to the laws, and the rules, regulations and orders under those laws, that are currently in effect.
We hereby consent to use of this opinion as an exhibit to the Registration Statement and to the use of our name under the heading “Legal Matters” in the base prospectus included in the Registration Statement and in the Final Prospectus. In giving this consent, we do not hereby admit that we come within the category of persons whose consent is required by the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder.
| Very truly yours, | |
| /s/ Paul, Weiss, Rifkind, Wharton & Garrison LLP | |
| PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP |
Exhibit 5.2
 | Mark L. Brasee Attorney 402.978.5306 fraserstryker.com |
September 25, 2026
Sysco Corporation
1390 Enclave Parkway
Houston, Texas 77077
| RE: | Indenture, dated September 25, 2026 (“Base Indenture”), among Sysco Corporation, a Delaware corporation (“Sysco Corporation”), Sysco Holdings Corporation, a Delaware corporation (“Sysco Holdings” and, together with Sysco Corporation, the “Issuers,” and each, an “Issuer”), the initial guarantors parties thereto and any other Subsidiary that provides a guarantee (collectively, “Guarantors”) and U.S. Bank Trust Company, National Association, a national banking association (“Trustee”); and |
First Supplemental Indenture, dated September 25, 2026 (“First Supplemental Indenture”), among Issuers, Guarantors and Trustee (the Base Indenture and the First Supplemental Indenture are, collectively, the “Indenture”).
Ladies and Gentlemen:
We have acted as special and limited Nebraska counsel to Sysco Lincoln, Inc., a Nebraska corporation (the "Subsidiary Guarantor"), in connection with the issuance by Issuers of C$750,000,000 aggregate principal amount of its 4.250% Senior Notes due 2030 (the “2030 Notes”) and C$750,000,000 aggregate principal amount of its 4.2550% Senior Notes due 2034 (the “2034 Notes”) (together with the 2030 Notes, the “Notes”) guaranteed by the Subsidiary Guarantors pursuant to (a) the Registration Statement of Issuers and the Guarantors on Form S-3 (Registration No. 333-298926) (the “Registration Statement”), which was filed by Issuers and the Guarantors with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), and (b) the related prospectus dated September 14, 2026, as supplemented by the prospectus supplement relating to the sale of the Notes dated September 18, 2026 (as so supplemented, the “Prospectus”), as filed by Issuers and the Guarantors with the Commission pursuant to Rule 424(b) under the Securities Act. Unless otherwise indicated, capitalized terms used but not defined herein shall have the meanings set forth in the Indentures.
The Notes and the related Guarantees (as defined below) are to be issued pursuant to the Indenture.
Fraser Stryker PC LLO
1501 Mike Fahey Street, Suite 400, Omaha, NE 68102 — TEL: 402.341.6000 — FAX: 402.341.8290
Sysco Corporation
1390 Enclave Parkway
Houston, Texas 77077
Page 2
September 25, 2026
Documents Reviewed.
In our capacity as Nebraska counsel to the Subsidiary Guarantor, we have examined the following documents:
| (a) | the Registration Statement and the Prospectus; |
| (b) | the Indenture; |
| (c) | Certain resolutions of the board of directors of Subsidiary Guarantor dated September 10, 2026; |
| (d) | the Certificate of Good Standing for Subsidiary Guarantor issued by the Nebraska Secretary of State on September 17, 2026 (the "Certificate"); and |
| (e) | Certificate of the Secretary of Guarantors dated as of September 25, 2026, (“Certificate of Secretary”). |
The documents listed in subparagraphs (a) through (e) above are hereinafter referred to as the “Financing Documents.”
Scope of Review.
In rendering this opinion letter we have also examined all certificates of public officials, limited liability company documents and records and other certificates and instruments that we deem necessary for the purposes of the opinions expressed in this opinion letter. As to various questions of fact material to our opinions, we have relied upon on statements, representations and other certificates of Issuers and Subsidiary Guarantor and, as to matters addressed therein, upon certificates or communications from public officials. The opinions set forth in this letter, as they relate to a specific document, relate only to the specified document and do not extend to any documents, agreements, or instruments referred to in the document, or exhibits or schedules to such document not expressly identified in this letter as having been examined by us, other than the document referenced herein. Except as expressly described herein, we have not undertaken or made inquiry into or any examination of Subsidiary Guarantor's entity or business records or any records relating to the assets or liabilities of Subsidiary Guarantor, or any business conducted by Subsidiary Guarantor, nor have we undertaken any search of or made any inquiry into certificates or records of public officials.
Assumptions.
In preparing this opinion letter:
| (i) | We have assumed the legal competency of all individual signers of documents. |
| (ii) | We have assumed that all signatures of parties are genuine. |
| (iii) | We have assumed the due authorization, execution and delivery of all documents by all parties to the Indenture other than Subsidiary Guarantor. |
Sysco Corporation
1390 Enclave Parkway
Houston, Texas 77077
Page 3
September 25, 2026
| (iv) | In those cases where we have examined copies of documents, we have assumed that those copies are complete and accurate. We have also assumed that all public records are accurate and complete. |
| (v) | With respect to Subsidiary Guarantor's good standing, we have relied on the Certificate. |
| (vi) | We have assumed that there has not been any mutual mistake of fact or misunderstanding, fraud, duress or undue influence. |
| (vii) | We have assumed that the conduct of the parties to the Indentures comply with any requirement of good faith, fair dealing and conscionability. |
| (viii) | We have assumed that the Indentures accurately reflect the complete understanding of the parties with respect to the transactions contemplated by and the rights and obligations of the parties thereunder and there are no agreements or understandings among the parties, written or oral, and there is no usage of trade or course of prior dealing among the parties that would, in either case, define, supplement, or qualify the terms of the Indentures. |
| (ix) | Trustee is in full compliance with all laws to the extent the noncompliance would be material to the opinions expressed herein, including federal laws and regulations. |
| (x) | Trustee, and each of their successors, will administer the Indentures in accordance applicable law. |
| (xi) | In connection with rendering the opinions contained herein, we have not examined any other documents executed in connection with the Indentures other than the Financing Documents and are relying without investigation and with your permission on the factual representations of Issuers and Subsidiary Guarantor in such documents. |
Opining Jurisdiction.
We express no opinion with respect to the effect of any law other than the law of the State of Nebraska (“Applicable Law”). We advise you that issues addressed by this opinion letter may be governed in whole or in part by other laws, but we express no opinion as to whether any relevant difference exists between the laws upon which our opinions are based and any other laws which may actually govern.
Sysco Corporation
1390 Enclave Parkway
Houston, Texas 77077
Page 4
September 25, 2026
Opinions.
Based on the foregoing and upon such investigation as we have deemed necessary, and subject to the qualifications and exceptions contained in this opinion letter, we are of the opinion that:
1. Subsidiary Guarantor is a validly existing corporation in good standing under the laws of, and authorized to do business in, the State of Nebraska.
2. Subsidiary Guarantor has the requisite corporate power and authority to execute and deliver the Indenture and the First Supplemental Indenture and to perform its obligations under the Base Indenture and the First Supplemental Indenture and the Guarantees.
3. The Base Indenture and the First Supplemental Indenture have been duly authorized, executed and delivered by Subsidiary Guarantor.
Qualifications.
Notwithstanding any provision in this opinion letter to the contrary, each of the opinions set forth in this opinion letter is subject to the following additional qualifications:
Exclusions.
No opinions should be implied beyond those expressly stated in this opinion letter.
Limitations.
Each of the opinions set forth in this opinion letter is subject to the effect of generally applicable rules of law that:
| (i) | limit or affect the enforcement of provisions of a contract that purport to require waiver of the obligations of good faith, fair dealing, diligence, and reasonableness; |
| (ii) | provide that forum selection clauses in contracts are not necessarily binding on the court(s) in the forum selected; |
| (iii) | limit the availability of a remedy under certain circumstances where another remedy has been elected; |
| (iv) | limit the right of a creditor to use force or cause a breach of the peace in enforcing rights; |
Sysco Corporation
1390 Enclave Parkway
Houston, Texas 77077
Page 5
September 25, 2026
| (v) | relate to the sale or disposition of collateral or the requirements of a commercially reasonable sale, including statutory cure provisions and rights of reinstatement and limitations on deficiency judgments; |
| (vi) | limit the enforceability of provisions releasing, exculpating, or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves gross negligence, recklessness, willful misconduct, or unlawful conduct; |
| (vii) | may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange; |
| (viii) | govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys' fees and other costs; |
| (ix) | may, in the absence of a waiver or consent, discharge a guarantor to the extent that (A) action by a creditor impairs the value of collateral securing guaranteed debt to the detriment of the Subsidiary Guarantor, or (B) guaranteed debt is materially modified; |
| (x) | may permit a party who has materially failed to render or offer performance required by the contract to cure that failure unless (A) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance, or (B) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract; |
| (xi) | limit or affect the enforceability of a waiver of a right of redemption; |
| (xii) | impose limitations on attorneys' or trustees' fees; |
| (xiii) | limit or affect the enforceability of provisions that purport to establish evidentiary standards; and |
| (xiv) | limit or affect the enforceability of provisions that provide for payment of increased interest rates upon delinquency in payment or upon any other default; or payment of liquidated damages or prepayment premiums to the extent such payments are deemed to be penalties or forfeitures. |
Sysco Corporation
1390 Enclave Parkway
Houston, Texas 77077
Page 6
September 25, 2026
Effective Date; No Obligation to Update.
This opinion letter is rendered as of its date, and we express no opinion as to circumstances or events which may occur subsequent to such date. Further, we undertake no, and hereby disclaim any, obligation to advise you of any changes in, or any new developments which might affect, any matters or opinions set forth in this opinion letter.
Use.
This opinion letter has been prepared for use in connection with the filing by Issuers of a Current Report on Form 8-K relating to the offering, sale and issuance of the Notes and the Guarantees. We hereby consent to the filing of this opinion letter as an exhibit to the above-described Form 8-K. Paul, Weiss, Rifkind, Wharton & Garrison LLP may rely on this opinion as to matters of Applicable Law in connection with any legal opinion by the same being rendered as an exhibit to the above-described Form 8-K on the date hereof.
Sincerely,
/s/ Fraser Stryker PC LLO
FRASER STRYKER PC LLO
Exhibit 5.3
900 West 48th Place, Suite 900, Kansas City, Missouri, 64112 • 816.753.1000
September 25, 2026
Sysco Corporation
1390 Enclave Parkway
Houston, Texas 77077
Ladies and Gentlemen:
We have acted as special Missouri counsel to Sysco Kansas City, Inc., a Missouri corporation (the “Opinion Guarantor”), a subsidiary of Sysco Corporation, a Delaware corporation (the “Parent”), in connection with the issuance by the Parent and Sysco Holdings Corporation, a Delaware corporation (“Holdings” and, together with the Parent, the “Issuers”), as co-issuers, of (i) C$750,000,000 aggregate principal amount of its 4.250% Senior Notes due 2030 (the “2030 Notes”), and (ii) C$750,000,000 aggregate principal amount of its 4.800% Senior Notes due 2034 (the “2034 Notes” and, together with the 2030 Notes, the “Notes”).
The Issuers’ obligations under the Notes will be guaranteed to the extent provided in the CAD Senior Notes Indenture (as defined below) (such guarantees, the “Guarantees”) on a senior unsecured basis by the Guarantors (as defined below) (including the Opinion Guarantor). The Notes and the Guarantees are being offered pursuant to that certain prospectus supplement dated September 22, 2026 and the accompanying base prospectus dated September 14, 2026 that form part of the Parent’s effective registration statement on Form S-3ASR (File No. 333-298926) (the “Registration Statement”), under the Securities Act of 1933, as amended (the “Securities Act”). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.
The Notes and the Guarantees are to be issued pursuant to the Senior Note Indenture dated as of September 25, 2026 (the “Senior Base Indenture”) among the Issuers, the Guarantors and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented and amended by the First Supplemental Indenture thereto dated as of the date hereof (the “First Supplemental Indenture”) among the Issuers, the subsidiary guarantors party thereto (collectively, the “Guarantors”) and the Trustee. The Senior Base Indenture, as amended and supplemented by the First Supplemental Indenture, is referred to herein as the “CAD Senior Notes Indenture.”
For purposes of this opinion letter, we have examined copies of such agreements, instruments and documents as we have deemed an appropriate basis on which to render the opinions hereinafter expressed. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including electronic copies). We have also assumed the legal capacity for all purposes relevant hereto of all natural persons and, with respect to all parties to agreements or instruments relevant hereto other than the Opinion Guarantor, that such parties other than the Opinion Guarantor had the requisite power and authority (corporate or otherwise) to execute, deliver and perform such agreements or instruments, that such parties other than the Opinion Guarantor have duly authorized such agreements or instruments by all requisite action (corporate or otherwise), that such agreements or instruments have been duly executed and delivered by such parties and that such agreements or instruments are the valid, binding and enforceable obligations of all parties thereto. As to all matters of fact, we have relied on the representations and statements of fact made in the documents so reviewed, including all statements in certificates of public officials and officers of the Opinion Guarantor that we reviewed, and we have not independently established the facts so relied on. This opinion letter is given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on the applicable provisions of the laws of the State of Missouri (but not including any laws, statutes, ordinances, administrative decisions, rules or regulations of any political subdivision below the state level), as currently in effect. We express no opinion herein as to any other statutes, rules or regulations (and in particular, we express no opinion as to any effect that such other statutes, rules or regulations may have on the opinions expressed herein).
Based upon, subject to and limited by the foregoing, we are of the opinion that:
1. The Opinion Guarantor is validly existing as a corporation under the laws of the State of Missouri.
2. The Opinion Guarantor has the corporate power and authority under the laws of the State of Missouri to issue the Guarantees.
3. Each Guarantee has been duly authorized by the Opinion Guarantor.
This opinion letter has been prepared for use in connection with the filing by each of the Issuers of its respective Current Report on Form 8-K relating to the offering, sale and issuance of the Notes and the Guarantees. This opinion letter is given only as of the time of its delivery, and we assume no obligation or responsibility to update or supplement this opinion letter after its delivery.
We hereby consent to the filing of this opinion letter as Exhibit 5.3 to each of the above-described Form 8-K filings. In giving this consent, we do not thereby admit that we are an “expert” within the meaning of the Securities Act. Paul, Weiss, Rifkind, Wharton & Garrison LLP may rely on this opinion as to matters of Missouri law in connection with any legal opinion by the same being rendered as an exhibit to each of the above-described Form 8-K filings on the date hereof.
| Very truly yours, | |
| /s/ Polsinelli PC | |
| Polsinelli PC |
Exhibit 5.4
| Merrill’s Wharf | |
| 254 Commercial Street | |
| Portland, ME 04101 | |
| PH 207.791.1100 | |
| FX 207.791.1350 | |
| [email protected] | |
| pierceatwood.com |
September 25, 2026
Sysco Corporation and Sysco Holdings Corporation
1390 Enclave Parkway
Houston, Texas 77077
| Re: | Sysco Northern New England, Inc. |
Ladies and Gentlemen:
At your request, this opinion is being furnished to you for filing as Exhibit 5.4 to the Current Report of the Company on Form 8-K to be filed with the Securities and Exchange Commission on the date hereof (the “Form 8-K”). We are special Maine counsel for the limited purpose of providing certain Maine law opinions regarding Sysco Northern New England, Inc., a Maine corporation (“Sysco Maine”) in connection with that certain First Supplemental Indenture, dated as of September 25, 2026, among Sysco Corporation and Sysco Holdings Corporation (collectively, the “Issuer”), certain subsidiary guarantors party thereto (the “Guarantors”), including Sysco Maine, and U.S. Bank Trust Company, National Association, as Trustee (the “Trustee”) (the “Supplemental Indenture”). Terms defined in this letter or in any of its exhibits or schedules have the defined meaning wherever they are used in this letter, its exhibits or its schedules.
For purposes of rendering our opinions in this letter, we have reviewed:
| A. | an executed copy of the Supplemental Indenture; |
| B. | the certificates identified in Exhibit A attached hereto (collectively, the “Certificates”), which include certifications by officers of Sysco Maine with respect to the Articles of Incorporation and Bylaws of Sysco Maine, as each is in effect as of the date hereof and amended to date (respectively, each the “Articles of Incorporation” and the “Bylaws”); and |
| C. | such other documents as we have deemed necessary in order to render the opinions set forth herein. |
Subject to the assumptions, qualifications, exclusions and other limitations in this letter and in the schedules attached to this letter, we advise you that:
| 1. | Sysco Maine is a corporation legally existing and in good standing under the laws of the State of Maine. |
| 2. | Sysco Maine has the corporate power and authority to execute and deliver the Supplemental Indenture and to perform its obligations thereunder. |
| 3. | Sysco Maine has taken all corporate action necessary to authorize the execution, delivery and performance of the Supplemental Indenture, including the guarantee provided therein. |
| 4. | Sysco Maine has duly executed and delivered the Supplemental Indenture. |
Sysco Corporation and Sysco Holdings Corporation
Page 2
September 25, 2026
In preparing this letter, we did not search any electronic databases or the dockets of any court, regulatory body or governmental agency or other filing office in any jurisdiction. In addition, we relied without any independent verification upon the assumptions recited in Schedule A to this letter and upon: (i) information contained in certificates obtained from governmental authorities; (ii) factual information provided to us in the Certificate identified in Item 2 of Exhibit A; and such other sources as we have deemed reasonable. We have assumed without investigation that there has been no relevant change or development between the dates as of which the information cited in the preceding sentence was given and the date of this letter and that the information upon which we have relied is accurate and does not omit disclosures necessary to prevent such information from being misleading.
Our advice on every legal issue addressed in this letter is based exclusively on the internal laws of the State of Maine. We advise you that issues addressed by this letter may be governed in whole or in part by other laws, but we express no opinion as to whether any relevant difference exists between the laws upon which our opinions are based and any other laws which may actually govern. In preparing this letter, we have relied without any independent verification upon the assumptions recited in Schedule A to this letter. Our opinions are subject to all qualifications in the attached Schedule B and do not cover or otherwise address any law or legal matter which is identified in the attached Schedule C. The attached exhibits and schedules are an integral part of this letter.
Our opinions herein are limited to the Supplemental Indenture. Other than the Supplemental Indenture, we render no opinion as to any other document or instrument associated with the transactions contemplated by the Supplemental Indenture, or as to the impact of incorporating by reference the terms, conditions, covenants or agreements of the same into the Supplemental Indenture, notwithstanding any provision or statement in the Supplemental Indenture either generally or specifically referring to, purporting to incorporate by reference or obligating the parties thereto to perform terms, covenants or agreements set forth in any other document or instrument associated with the transaction contemplated in the Supplemental Indenture.
This letter speaks as of the time of its delivery on the date it bears. We do not assume any obligation to provide you with any subsequent opinion or advice by reason of any fact about which our firm did not have actual knowledge at that time, by reason of any change subsequent to that time in any law covered by any of our opinions, or for any other reason. The term “actual knowledge” whenever it is used in this letter (including its Schedules) with respect to our firm means the actual awareness at the time this letter is delivered on the date it bears by those attorneys of this firm who have had significant involvement with the preparation of this opinion letter.
Sysco Corporation and Sysco Holdings Corporation
Page 3
September 25, 2026
We hereby consent to the filing of this opinion letter as an exhibit to the 8-K. In giving the foregoing consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the United States Securities and Exchange Commission thereunder. In addition, Paul, Weiss, Rifkind, Wharton & Garrison LLP may rely on this opinion as to matters of Maine law in connection with any legal opinion being rendered by the same on the date hereof with respect to the matters set forth herein. This opinion letter may not be used or relied on for any other purpose without our prior written consent.
| Very truly yours, | ||
| PIERCE ATWOOD LLP | ||
| By: | /s/ Andrea Suter | |
| A Partner | ||
ExHIBIT A
certificates
| 1. | Certificate from the Secretary of State of the State of Maine attesting to the legal existence and good standing of Sysco Maine in the State of Maine, dated September 11, 2026 (the “Good Standing Certificate”). |
| 2. | Certificate of Secretary of the Guarantors, executed by the Secretary of the Guarantors, including Sysco Maine, dated as of the date of this letter containing certifications for Sysco Maine with respect to, among other things: (i) Sysco Maine’s Articles of Incorporation and Bylaws and all amendments thereto; (ii) the resolutions authorizing the transactions contemplated by the Supplemental Indenture; (iii) the execution, delivery and performance by Sysco Maine of the Supplemental Indenture; and (iv) the incumbency of the officers of Sysco Maine. |
SCHEDULE A
Assumptions
Our opinions in the letter to which this Schedule is attached (“our letter”) are subject to each of the assumptions set forth in this Schedule, upon which we have relied, without investigation:
| 1. | The unconditional physical or electronic delivery of the Supplemental Indenture by Sysco Maine. |
| 2. | Any natural person who executed the Supplemental Indenture was legally competent to do so. |
| 3. | Each document submitted to us for review is accurate and complete, each such document that is an original is authentic, each such document that is a copy conforms to an authentic original, and all signatures on each such document are genuine. |
| 4. | The Good Standing Certificate relied on by us is accurate and complete, and all relevant official public records to which the Good Standing Certificate relates are accurate and complete. |
| 5. | There has been no relevant change or development between the dates as of which the information cited in the Certificate were given and the date of this letter, and the Certificate and other documents upon which we have relied are accurate and do not omit disclosures necessary to prevent such information from being misleading. |
| 6. | There has not been, with respect to any transaction contemplated by the Supplemental Indenture, any mutual mistake of fact or misunderstanding, fraud, duress or undue influence. |
| 7. | There are no agreements or understandings among the parties, written or oral, and there is no usage of trade or course of prior dealing among the parties that would, in either case, define, supplement or qualify the terms of the Supplemental Indenture. |
| 8. | All information required to be disclosed in connection with any consent or approval by the board of directors of Sysco Maine and all other information required to be disclosed in connection with any issue relevant to our opinions has in fact been fully and fairly disclosed to all persons to whom it is required to be disclosed. |
| 9. | The Supplemental Indenture is in substantially the same form as the corresponding draft reviewed by the board of directors of Sysco Maine in connection with its approval of the transactions contemplated by the Supplemental Indenture. |
| 10. | Each of the parties to the Supplemental Indenture has consented in writing to the electronic execution and delivery of the Supplemental Indenture. |
Schedule B
QUALIFICATIONS
| 1. | Our opinion expressed in paragraph 1 regarding the legal existence and good standing of Sysco Maine is based solely on the Good Standing Certificate, is rendered as of the date of the Good Standing Certificate, and is not intended to provide, and shall not be construed as providing, any conclusions or assurances beyond those conveyed by the Good Standing Certificate. We render no opinion as to the tax good standing of Sysco Maine in any jurisdiction. |
| 2. | The opinions expressed in paragraphs 2 and 3 of our letter with respect to the performance by Sysco Maine of its respective obligations under the Supplemental Indenture are limited to the performance of those obligations necessary for Sysco Maine to execute and deliver the Supplemental Indenture and consummate the transactions contemplated therein on the date hereof. We express no opinion with respect to the performance by Sysco Maine of its obligations under the Supplemental Indenture after the date hereof. |
| 3. | We express no opinion regarding: |
| a. | the perfection of any lien or security interest in any property (whether real, personal or mixed, and whether such perfection be accomplished or purport to be accomplished by filing, by possession, by control or otherwise); |
| b. | Sysco Maine’s rights in or title to any of its properties, including without limitation, any of the Collateral; |
| c. | the validity, binding effect or enforceability of the Supplemental Indenture; or |
| d. | the creation, effect of perfection or priority of any lien or security interest purported to be granted in any of the Supplemental Indenture. |
SCHEDULE C
Excluded LawS and legal issues
None of the opinions or advice contained in our letter covers or otherwise addresses any of the following laws, regulations or other governmental requirements or legal issues:
| 1. | securities laws or any rules or regulations promulgated thereunder, including, without limitation, the anti-fraud provisions thereof, state “Blue Sky” laws and regulations, and laws and regulations relating to commodity (and other) futures and indices and other similar instruments; |
| 2. | pension and employee benefit laws and regulations (e.g., ERISA); |
| 3. | antitrust and unfair competition laws and regulations; |
| 4. | laws and regulations concerning filing and notice requirements; |
| 5. | compliance with fiduciary duty requirements; |
| 6. | the statutes and ordinances, the administrative decisions and the rules and regulations of counties, towns, municipalities and special political subdivisions (whether created or enabled through legislative action at the state or regional level, e.g., water agencies, joint power districts, turnpike and toll road authorities, rapid transit districts or authorities, and port authorities) and judicial decisions to the extent that they deal with any of the foregoing; |
| 7. | fraudulent transfer and fraudulent conveyance laws; |
| 8. | laws limiting or regulating the maximum amount of interest that may be charged, collected, received or contracted for; |
| 9. | environmental laws and regulations; |
| 10. | land use and subdivision laws and regulations; |
| 11. | tax laws and regulations; |
| 12. | patent, trademark, copyright and other federal and state intellectual property laws and regulations; |
| 13. | racketeering laws and regulations (e.g., RICO); |
| 14. | health and safety laws and regulations (e.g., OSHA); |
| 15. | labor laws and regulations; |
| 16. | laws, regulations and policies concerning (a) national and local emergency, (b) possible judicial deference to acts of sovereign states, and (c) criminal and civil forfeiture laws; |
| 17. | other statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes); and |
| 18. | the effect of any law, regulation or order which hereafter becomes effective. |
We have not undertaken any research for purposes of determining whether Sysco Maine or any of the transactions which may occur in connection with the Supplemental Indenture are subject to any law or other governmental requirement other than to those laws and requirements which in our experience would generally be recognized as applicable by lawyers in Maine, and none of our opinions cover any such law or other requirement unless (a) the firm had actual knowledge of its applicability at the time our letter was delivered on the date it bears, and (b) it is not excluded from coverage by other provisions in our letter or in any Schedule to our letter.
C-2