Exhibit 5(a)
 | Atlanta Office 171 17th Street NW, Suite 2100 Atlanta, GA 30363-1031 Direct phone: 404.873.8500 Direct fax: 404.873.8501 E-mail: adminle@agg.com |
August 27, 2018
Sysco Corporation
1390 Enclave Parkway
Houston, TX 77077
| Re: | Registration Statement on FormS-3 |
Ladies and Gentlemen:
We have acted as counsel to Sysco Corporation, a Delaware Corporation (the “Company”), and to the wholly-owned subsidiaries of the Company listed on Schedule I hereto (collectively, the “Subsidiary Guarantors”) in connection with the registration statement on FormS-3 (the “Registration Statement”) filed by the Company and the Subsidiary Guarantors with the Securities and Exchange Commission (the “Commission”) on August , 2018, relating to the registration of an indeterminate amount of (i) shares of common stock, par value $1 per share, of the Company (“Common Stock”); (ii) shares of one or more classes or series of preferred stock, par value $1 per share, of the Company (“Preferred Stock”), (iii) one or more series of debt securities, which may be either senior (“Senior Debt Securities”) or subordinated (the “Subordinated Debt Securities”) (collectively, the “Debt Securities”); , and (iv) guarantees of the Debt Securities to be issued by the Subsidiary Guarantors (the “Guarantees,” and together with the Common Stock, the Preferred Stock, and the Debt Securities, the “Securities”), all of which Securities may be offered and sold by the Company from time to time pursuant to Rule 415 under the Securities Act of 1993, as amended (the “Securities Act”), and as set forth in the prospectus which forms a part of the Registration Statement (the “Prospectus”), and as to be set forth in one or more supplements to the Prospectus (each, a “Prospectus Supplement”).
The Senior Debt Securities and the Guarantees thereof will be issued under an Indenture (the “Senior Indenture”) among the Company, one or more Subsidiary Guarantors, which will be added pursuant to a supplemental indenture, as applicable, and such trustee as shall be named therein (the “Senior Trustee”). The Subordinated Debt Securities and the Guarantees thereof will be issued under an Indenture (the “Subordinated Indenture”) among the Company, one or more Subsidiary Guarantors, which will be added pursuant to a supplemental indenture, as applicable, and such trustee as shall be named therein (the “Subordinated Trustee,” and together with the Senior Trustee, each a “Trustee”). The Senior Indenture and the Subordinated Indenture are hereinafter referred to collectively as the “Indentures.”
Atlanta • Washington, D.C.
 |
August 27, 2018 Page 2 |
The amounts, prices and other specific terms of the Securities offered and sold under the Registration Statement will be set forth in the prospectus constituting a part of the Registration Statement and in one or more supplements to such prospectus (collectively, the “Prospectus”).
The terms of the Securities to be issued by the Company from time to time will be approved by the board of directors of the Company or a committee thereof or certain authorized officers of the Company as part of the corporate action taken (the “Company Corporate Proceedings”) in connection with the issuance of the Securities.
The terms of the Guarantees to be established by the Subsidiary Guarantors will be approved by the boards of directors of the Subsidiary Guarantors or a committee thereof or certain authorized officers of the Subsidiary Guarantors as part of the corporate action taken (the “Guarantor Corporate Proceedings”) in connection with the issuance of the Guarantees.
We have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments as we have deemed necessary for the purposes of this opinion, including (a) the amended and restated certificate of incorporation of the Company (the “Certificate of Incorporation”), (b) the amended and restated bylaws of the Company (the “Bylaws”), (c) the corporate and organizational documents of the Company and the Subsidiary Guarantors, (d) certain records or other evidence of the Company Corporate Proceedings and the Guarantor Corporate Proceedings and (e) the Registration Statement and exhibits thereto.
For purposes of this opinion, we have assumed the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the authenticity of the originals of all documents submitted to us as copies. We have also assumed the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of such persons signing on behalf of the parties thereto other than the Company and the Subsidiary Guarantors, and the due authorization, execution and delivery of all documents by the parties thereto other than the Company and the Subsidiary Guarantors. As to any facts material to the opinions expressed herein which we have not independently established or verified, we have relied upon statements and representations of officers and other representatives of the Company, the Subsidiary Guarantors and others. We have also made other assumptions that we believe to be appropriate for purposes of this letter.
Based upon and subject to the qualifications, assumptions and limitations set forth in this letter, we are of the opinion that:
1. With respect to any offering of Common Stock (the “Offered Common Stock”), the shares of the Offered Common Stock (including any Offered Common Stock duly issued upon conversion, exchange or exercise of any other Securities) will be duly authorized, validly issued, fully paid and nonassessable, provided that the consideration therefor is not less than the par value thereof.
2. With respect to any offering of any series of Preferred Stock (the “Offered Preferred Stock”), when the Certificate of Designations (as hereinafter defined) has been duly filed with
|
August 27, 2018 Page 3 |
the Secretary of State of the State of Delaware, the shares of the Offered Preferred Stock (including any Offered Preferred Stock duly issued upon conversion, exchange or exercise of any other Securities), will be duly authorized, validly issued, fully paid and nonassessable, provided that the consideration therefor is not less than the par value thereof.
3. When, as and if (a) the Registration Statement will have become effective pursuant to the provisions of the Securities Act, (b) any necessary supplemental indenture (or other such certificate or supplement) to the Indentures will have been duly approved by appropriate Company Corporate Proceedings and Guarantor Corporate Proceedings and such supplemental indenture (or other such certificate or supplement thereto) will have been duly authorized, executed and delivered by the parties, (c) the Debt Securities will have been duly issued in the form and containing the terms described and provided in the Prospectus and any Supplemental Prospectus, the Indentures (and any supplemental indenture or other such certificate or supplement thereto) and the respective Company Corporate Proceedings, and any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities with respect thereto are obtained, and (d) the Debt Securities have been duly executed by the Company and duly authenticated by the Trustee and delivered to the purchasers against payment of the agreed consideration therefor, the Debt Securities when issued will be legally issued and binding obligations of the Company.
4. Subject to the assumptions contained in paragraph 3 and elsewhere herein, when, as and if (a) the Guarantees will have been duly issued in the form and containing the terms described and provided in the Prospectus and any Supplemental Prospectus, the Indentures (and any supplemental indenture or other such certificate or supplement thereto) and the respective Guarantor Corporate Proceedings, and any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities with respect thereto are obtained, and (b) the Guarantees have been duly executed and delivered by the Subsidiary Guarantors, the Guarantees will be binding obligations of the Subsidiary Guarantors.
The opinions set forth herein are subject to the following assumptions, qualifications, limitations and exceptions being true and correct at or prior to the time of the delivery of any Securities offered pursuant to the Registration Statement (collectively, the “Offered Securities”): (i) the board of directors of the Company, and with respect to any Guarantees, the board of directors or other authorized body or persons of the Subsidiary Guarantors, including any appropriate committee appointed thereby, and appropriate officers of the Company or such Subsidiary Guarantors shall have duly established the terms of the Offered Securities and duly authorized and taken any other necessary corporate action to approve the issuance and sale of the Offered Securities and related matters (including without limitation with respect to Offered Preferred Stock, the execution, acknowledgment and filing of a Certificate of Designations (the “Certificate of Designations”) in accordance with the applicable provisions of the General Corporation Law of the State of Delaware) and such authorizations and actions have not been rescinded; (ii) the terms of the issuance and sale of the Offered Securities have been duly established in conformity with the applicable Certificate of Incorporation, Bylaws, Indenture, or purchase contract (collectively, the “Applicable Agreements”), and any other relevant agreement
|
August 27, 2018 Page 4 |
so as not to violate any applicable law, Certificate of Incorporation or Bylaws (subject to the further assumption that the Certificate of Incorporation and the Bylaws have not been amended from the date hereof in a manner that would affect the validity of any of the opinions rendered herein), or result in a default under or breach of any agreement or instrument binding upon the Company or any Subsidiary Guarantor and so as to comply with any restriction imposed by any court or governmental body having jurisdiction over the Company or any Subsidiary Guarantor; (iii) the Offered Securities and any certificates or receipts representing the interests in the relevant Offered Securities, have been duly authenticated, executed, countersigned, registered and delivered upon payment of the agreed-upon consideration therefor and have been duly issued and sold in accordance with any relevant agreement (including, any Applicable Agreements), any underwriting agreement with respect to the Offered Securities or any other duly authorized, executed and delivered, applicable, valid and binding purchase agreement, or as otherwise contemplated by the Registration Statement or any post-effective amendment thereto, and any Prospectus Supplement relating thereto; (iv) the Registration Statement (including all necessary post-effective amendments) will have been declared, or otherwise have become, effective under the Securities Act and such effectiveness shall not have been terminated or rescinded; (v) an appropriate Prospectus Supplement will have been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder describing the Offered Securities offered thereby; (vi) the Offered Securities will be issued and sold in compliance with applicable Federal and state securities laws and solely in the manner stated in the Registration Statement and the applicable Prospectus Supplement and there will not have occurred any change in law affecting the validity of the opinions rendered herein; (vii) if the Offered Securities will be sold pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to the Offered Securities in the form filed as an exhibit to the Registration Statement or any post-effective amendment thereto, or incorporated by reference therein, shall have been duly authorized, executed and delivered by the Company and the other parties thereto; and (viii) in the case of an Indenture, purchase contract, Certificate of Designations, or other agreement or instrument pursuant to which any Securities are to be issued, there shall be no terms or provisions contained therein which would affect the validity of any of the opinions rendered herein.
Our opinions expressed above are subject to the qualifications that we express no opinion as to the applicability of, compliance with or effect of (a) any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, (b) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), (c) public policy considerations which may limit the rights of parties to obtain certain remedies and (d) other commonly recognized statutory and judicial constraints on enforceability, including, without limitation, statutes of limitations. We express no opinion concerning the enforceability of any waiver of rights or defenses with respect to stay, extension or usury laws, and we express no opinion with respect to whether acceleration of Debt Securities may affect the collectability of any portion of the stated principal amount thereof which might be determined to constitute unearned interest thereon. In addition, we express no opinion as to (i) the right to collect any payment to the extent that such payment constitutes a penalty, premium, forfeiture or late
|
August 27, 2018 Page 5 |
payment charge, (ii) whether the exercise of a remedy limits or precludes the exercise of another remedy, (iii) the right to intervene in any legal proceeding pursuant to the Indenture, (iv) the extent that any delay contemplated by the Indenture exceeds the applicable statute of limitations, or (iv) any purported right of indemnification or exculpation with respect to illegal acts, intentional torts, willful conduct, or violations of securities laws.
Our advice on every legal issue addressed in this letter is based exclusively on the internal law of the State of New York, the General Corporation Law of the State of California, the General Corporation Law of the State of Delaware, the Delaware Limited Liability Company Act, the Maine Business Corporation Act, the General and Business Corporation Law of Missouri, and the Nebraska Model Business Corporation Act. Our advice represents our opinion as to how such issue would be resolved were it to be considered by the highest court in the jurisdiction that enacted such law. The manner in which any particular issue would be treated in any actual court case would depend in part on facts and circumstances particular to the case and would also depend on how the court involved chose to exercise the wide discretionary authority generally available to it. This letter is not intended to guarantee the outcome of any legal dispute which may arise in the future. 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.
We do not find it necessary for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the securities or “Blue Sky” laws of the various states to the issuance of the Securities nor do we express any opinion regarding the Securities Act or any other federal securities laws or regulations.
With respect to Opinion 4 above, we assume (a) adequate consideration to each Subsidiary Guarantor in exchange for its Guarantee, (b) that each Guarantee will possess a statement to the effect that it is absolute and unconditional, (c) that each Guarantee will contain language to the effect that it is enforceable despite any other circumstances that might otherwise constitute a defense to its enforcement, and (d) that there shall have been no fraudulent actions taken or representations made by any person in order to induce any Subsidiary Guarantor to issue a Guarantee.
To the extent that the obligations of the Company under an Indenture may be dependent on such matters, we assume for purposes of this opinion that the Trustee is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; that the Trustee is duly qualified to engage in activities contemplated by the Indenture; that the Indenture has been duly authorized, executed and delivered by the Trustee and constitutes the legally valid and binding obligation of the Trustee enforceable against the Trustee in accordance with its terms; that the Trustee is in compliance, with respect to acting as a trustee under the Indenture, with all applicable laws and regulations; and that the Trustee has the requisite organizational and legal power and authority to perform its obligations under the Indenture. We also note that in the absence of an enforceable waiver or consent, a guarantor may be discharged if: (i) action by the
|
August 27, 2018 Page 6 |
Trustee or debt securityholder impairs the value of collateral securing guaranteed debt to the detriment of the guarantor, (ii) the Trustee or debt securityholder elects remedies for default that impair the subrogation rights of the guarantor against the borrower, (iii) the guaranteed debt is materially modified, or (iv) the Trustee or debt securityholder otherwise takes action under the Applicable Agreements that materially prejudices the guarantor.
We assume no obligation to advise you of any change in the foregoing subsequent to the delivery of this opinion letter. This opinion is furnished to you in connection with the filing of the Registration Statement, and is not to be used, circulated, quoted or otherwise relied upon for any other purposes without the prior written consent of this firm.
We hereby consent to the filing of this opinion letter as Exhibit 5 to the Registration Statement and further consent to the reference to this firm under the caption “Legal Matters” in the prospectus constituting a part of the Registration Statement. In giving this consent, we do not thereby admit that this firm is an “expert” within the meaning of the Securities Act.
| Very truly yours, |
| /s/ ARNALL GOLDEN GREGORY LLP |
| ARNALL GOLDEN GREGORY LLP |
|
August 27, 2018 Page 7 |
Schedule I
Guarantors and Jurisdictions of Formation or Incorporation
Exact Name of Registrant As Specified in its Charter | State or Other Jurisdiction of Incorporation or Organization | |
Sysco Albany, LLC | Delaware | |
Sysco Atlanta, LLC | Delaware | |
Sysco Baltimore, LLC | Delaware | |
Sysco Baraboo, LLC | Delaware | |
Sysco Boston, LLC | Delaware | |
Sysco Central Alabama, Inc. | 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, Inc. | Delaware | |
Sysco Hampton Roads, Inc. | Delaware | |
Sysco Indianapolis, LLC | Delaware | |
Sysco Iowa, Inc. | Delaware | |
Sysco Jackson, LLC | Delaware | |
Sysco Jacksonville, Inc. | Delaware | |
Sysco Kansas City, Inc. | Missouri | |
Sysco Knoxville, LLC | Delaware | |
Sysco Lincoln, Inc. | Nebraska | |
Sysco Long Island, LLC | Delaware | |
Sysco Los Angeles, Inc. | Delaware |
|
August 27, 2018 Page 8 |
Exact Name of Registrant As Specified in its Charter | State or Other Jurisdiction of Incorporation or Organization | |
Sysco Louisville, Inc. | Delaware | |
Sysco Memphis, LLC | Delaware | |
Sysco Metro New York, LLC | Delaware | |
Sysco Minnesota, Inc. | Delaware | |
Sysco Montana, Inc. | Delaware | |
Sysco Nashville, LLC | Delaware | |
Sysco North Dakota, Inc. | Delaware | |
Sysco Northern New England, Inc. | Maine | |
Sysco Philadelphia, LLC | Delaware | |
Sysco Pittsburgh, LLC | Delaware | |
Sysco Portland, Inc. | Delaware | |
Sysco Raleigh, LLC | Delaware | |
Sysco Riverside, LLC | Delaware | |
Sysco Sacramento, Inc. | Delaware | |
Sysco San Diego, Inc. | Delaware | |
Sysco San Francisco, Inc. | California | |
Sysco Seattle, Inc. | Delaware | |
Sysco South Florida, Inc. | Delaware | |
Sysco Southeast Florida, LLC | Delaware | |
Sysco Spokane, Inc. | Delaware | |
Sysco St. Louis, LLC | Delaware | |
Sysco Syracuse, LLC | Delaware | |
Sysco USA I, Inc. | Delaware | |
Sysco USA II, LLC | Delaware | |
Sysco Ventura, Inc. | Delaware | |
Sysco Virginia, LLC | Delaware | |
Sysco West Coast Florida, Inc. | Delaware | |
Sysco Western Minnesota, Inc. | Delaware |