EXHIBIT 4(j)
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SYSCO CORPORATION
AND
WACHOVIA BANK, NATIONAL ASSOCIATION
(Formerly First Union National Bank of North Carolina)
Trustee
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SEVENTH SUPPLEMENTAL INDENTURE
Dated as of March 5, 2004
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Supplementing the Indenture
dated as of June 15, 1995
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SEVENTH SUPPLEMENTAL INDENTURE, dated as of the 5th day of March, 2004,
between SYSCO CORPORATION, a corporation organized and existing under the laws
of the State of Delaware (the "Company"), and WACHOVIA BANK, NATIONAL
ASSOCIATION (formerly First Union National Bank of North Carolina), a national
banking association, as trustee (the "Trustee");
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an Indenture dated as of June 15, 1995 (the "Original Indenture") providing for
the issuance by the Company from time to time of its unsecured debentures, notes
or other evidences of indebtedness to be issued in one or more series (in the
Original Indenture and herein called the "Securities"); and
WHEREAS, the Company has heretofore executed and delivered to the Trustee
(i) a First Supplemental Indenture dated as of June 27, 1995 providing for the
issuance by the Company of $150,000,000 aggregate principal amount of 6-1/2%
Senior Notes due June 15, 2005, (ii) a Second Supplemental Indenture dated as of
May 1, 1996 providing for the issuance by the Company of $200,000,000 aggregate
principal amount of 7% Senior Notes due May 1, 2006, (iii) a Third Supplemental
Indenture dated as of April 25, 1997 providing for the issuance by the Company
of $50,000,000 aggregate principal amount of 7.16% Debentures due April 15,
2027, (iv) a Fourth Supplemental Indenture dated as of April 25, 1997 providing
for the issuance by the Company of $100,000,000 aggregate principal amount of
7.25% Senior Notes due April 15, 2007, (v) a Fifth Supplemental Indenture dated
as of July 27, 1998 providing for the issuance by the Company of $225,000,000
aggregate principal amount of 6-1/2% Debentures due August 1, 2028 and (v) a
Sixth Supplemental Indenture dated as of April 5, 2002 providing for the
issuance by the Company of $200,000,000 aggregate principal amount of 4.75%
Notes due July 30, 2005; and
WHEREAS, the Company, in the exercise of the power and authority conferred
upon and reserved to it under the provisions of the Original Indenture,
including Section 2.3 thereof, and pursuant to appropriate resolutions of the
Board of Directors, has duly determined to make, execute and deliver to the
Trustee this Seventh Supplemental Indenture to the Original Indenture as
permitted by Sections 2.1, 2.3 and 8.1 of the Original Indenture in order to
establish the form or terms of, and to provide for the creation and issue of, a
series of Securities under the Original Indenture in the aggregate principal
amount of $200,000,000; and
WHEREAS, all things necessary to make the Securities provided for herein,
when executed by the Company and authenticated and delivered by the Trustee or
any Authenticating Agent and issued upon the terms and subject to the conditions
hereinafter and in the Original Indenture set forth against payment therefor,
the valid, binding and legal obligations of the Company and to make this Seventh
Supplemental Indenture a valid, binding and legal agreement of the Company, have
been done;
NOW, THEREFORE, THIS SEVENTH SUPPLEMENTAL INDENTURE WITNESSETH that, in
order to establish the terms of a series of Securities, and for and in
consideration of the premises and of the covenants contained in the Original
Indenture and in this Seventh 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:
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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 Seventh Supplemental Indenture shall, unless the context otherwise
requires, refer to this Seventh Supplemental Indenture.
ARTICLE II
TITLE AND TERMS OF SECURITIES
2.1 Title of the Securities. This Seventh Supplemental Indenture hereby
establishes a series of Securities designated as the "4.60% Senior Notes due
March 15, 2014" of the Company (collectively referred to herein as the "Notes").
For purposes of the Original Indenture, the Notes shall constitute a single
series of Securities.
2.2 Term of the Notes. The Notes shall mature on March 15, 2014 (the
"Stated Maturity"). In the event that the Stated Maturity of any Note is not a
Business Day, principal and interest payable at maturity shall be paid on the
next succeeding Business Day with the same effect as if that Business Day were
the Stated Maturity and no interest shall accrue or be payable for the period
from and after the Stated Maturity to the next succeeding Business Day.
2.3 Amount and Denominations; Currency of Payment. The aggregate principal
amount in which the Notes may be issued under this Seventh Supplemental
Indenture is limited to $200,000,000.
The Notes shall be issued in the form of one or more Registered Global
Securities in the name of Cede & Co., as registered owner and nominee for The
Depository Trust Company, New York, New York ("DTC"). DTC shall initially act as
Depositary for the Notes. The Notes that are initially issued for resale to
"qualified institutional buyers" ("QIBs") under Rule 144A of the Securities Act
of 1933, as amended (the "Securities Act"), shall be issued as one or more
permanent Registered Global Securities under the Indenture (each a "Rule 144A
Global Security"). The Notes that are initially issued for resale to non-U.S.
persons outside the United States in offshore transactions in reliance on
Regulation S under the Securities Act shall be issued as one or more permanent
Registered Global Securities under the Indenture (each a "Regulation S Global
Security").
The Notes shall be denominated in United States dollars in denominations
of $1,000 and integral multiples of $1,000.
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2.4 Interest and Interest Rates. Each Note shall bear interest at the rate
of 4.60% per annum from the date of issue or from the most recent Interest
Payment Date (as defined in Section 2.5 below) to which interest on such Note
has been paid or duly provided for, commencing with the Interest Payment Date
next succeeding the date of issue, until the principal thereof is paid or made
available for payment. Interest shall be payable to the Person in whose name a
Note is registered at the close of business on the Regular Record Date (as
defined in Section 2.5 below) next preceding an Interest Payment Date.
Notwithstanding the foregoing, if a Note is originally issued after the Regular
Record Date and before the corresponding Interest Payment Date, the first
payment of interest on the Note shall be made on the next succeeding Interest
Payment Date to the Person in whose name that Note was registered on the Regular
Record Date with respect to such next succeeding Interest Payment Date. Interest
on each Note shall be computed on the basis of a 360-day year comprising twelve
30-day months.
2.5 Interest Payments. The interest payment dates for each Note shall be
March 15 and September 15, in each year (the "Interest Payment Dates"),
beginning September 15, 2004 and the regular record dates shall be the March 1
and September 1 (the "Regular Record Dates") preceding those Interest Payment
Dates, respectively. Interest shall also be payable at maturity of any Note.
If an Interest Payment Date with respect to the Notes would otherwise fall
on a day that is not a Business Day, such Interest Payment Date shall be
postponed to the next succeeding Business Day with respect to the Notes and no
interest shall accrue or be payable on such next succeeding Business Day for the
period from and after such original Interest Payment Date to such next
succeeding Business Day.
Except as provided in the immediately preceding paragraph, interest
payments shall be in the amount of interest accrued to, but excluding, the
Interest Payment Date.
2.6 Place of Payment, Transfer and Exchange.
(i) Place of Payment. The Company authorizes and appoints the Trustee as
the sole paying agent (the "Paying Agent") with respect to any Notes represented
by Registered Global Securities, without prejudice to the Company's authority to
appoint additional paying agents from time to time pursuant to Section 3.4 of
the Original Indenture. Payments of principal on each Note and interest thereon
payable at maturity or upon redemption shall be made in immediately available
funds in such currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts, at the
request of the Holder, at the office or agency of the Paying Agent in New York,
New York or any other duly appointed Paying Agent, provided that the Note is
presented to the Paying Agent in time for the Paying Agent to make the payments
in immediately available funds in accordance with its normal procedures. So long
as any Notes are represented by a Registered Global Security, interest (other
than interest payable at maturity or upon redemption) shall be paid in
immediately available funds by wire transfer to the Depositary for such Notes,
on the written order of the Depositary. In addition, the Company may maintain a
drop agent, in such location or locations as the Company may select, to provide
the Holders with an office at which they may present the Notes for payment. The
Company hereby acknowledges that any drop agent maintained will
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accept Notes for presentment, take payment instructions from the Holder and
forward the Notes presented and any related payment instructions to the Paying
Agent by overnight courier, for next day delivery. Notes presented as set forth
in the previous sentence shall be deemed to be presented to the Paying Agent on
the Business Day next succeeding the day the Notes are delivered to the drop
agent. Payment of interest (other than interest payable in accordance with the
preceding provisions of this subsection (i)) will, subject to certain exceptions
provided in the Indenture, be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security register as of the
applicable Regular Record Date or, at the option of the Company, by wire
transfer to an account maintained by such Person with a bank located in the
United States.
(ii) Transfer and Exchange of Notes. The Company appoints the Trustee as
the sole Security registrar with respect to the Notes, without prejudice to the
Company's authority to appoint additional Security registrars from time to time
pursuant to Section 2.8 of the Original Indenture. The Notes may be presented by
the Holders thereof for registration of transfer or exchange at the office or
agency of the Security registrar or any successor or co-registrar in New York,
New York. In addition, the Company may maintain a drop agent, in such location
or locations as the Company may select, to provide the Holders with an office at
which they may present the Notes for registration of transfer or exchange. The
Company hereby acknowledges that any drop agent maintained by the Company will
accept Notes for registration of transfer or exchange and forward those Notes to
the Security registrar by overnight courier, for next day delivery. Notes
accepted as set forth in the immediately preceding sentence shall be deemed to
be presented to the Security registrar on the Business Day next succeeding the
day that Notes are delivered to the drop agent.
(iii) Transfer and Exchange of Notes in Definitive Form. In addition to
the requirements set forth in Section 2.8 of the Indenture, Notes in definitive
form that bear the Private Placement Legend (as defined in Section 2.10 below)
presented or surrendered for registration of transfer or exchange pursuant to
Section 2.8 of the Indenture shall be accompanied by the following additional
information and documents, as applicable, upon which the Security registrar may
conclusively rely:
(a) if such Notes are being delivered to the Security registrar by
a Holder for registration in the name of such Holder, without transfer, a
certification from such Holder to that effect (in substantially the form
of Annex B hereto);
(b) if such Notes are being transferred (1) to a QIB in accordance
with Rule 144A under the Securities Act or (2) pursuant to an exemption
from registration in accordance with Rule 144 under the Securities Act
(based upon an opinion of counsel if the Company or the Trustee so
requests) or (3) pursuant to an effective registration statement under the
Securities Act, a certification to that effect from such Holder (in
substantially the form of Annex B hereto);
(c) if such Notes are being transferred to an Institutional
Accredited Investor (as defined in Section 2.10 below) in accordance with
Regulation D under the Securities Act pursuant to a private placement
exemption from the registration requirements of the Securities Act, a
certification to that effect from such Holder (in substantially the form
of
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Annex B hereto) and a certification from the applicable transferee (in
substantially the form of Annex C hereto) and an opinion of counsel to
that effect if the Company or the Trustee so requests;
(d) if such Notes are being transferred pursuant to an exemption
from registration in accordance with Rule 903 or Rule 904 of Regulation S
under the Securities Act (i) prior to the end of the 40-day distribution
compliance period as defined in Regulation S which, in the case of the
Notes, ends April 14, 2004 (the "Restricted Period") or (ii) after the end
of the Restricted Period and the Note to be transferred is not a Note in
definitive form that has been sold to persons outside the United States
pursuant to Regulation S under the Securities Act (a "Regulation S Note"),
certifications to that effect from such Holder (in substantially the form
of Annexes B and D hereto) and an opinion of counsel to that effect if the
Company or the Trustee so requests; or
(e) if such Notes are being transferred in reliance on and in
compliance with another exemption from the registration requirements of
the Securities Act, a certification to that effect from such Holder (in
substantially the form of Annex B hereto) and an opinion of counsel to
that effect if the Company or the Trustee so requests.
(iv) Transfer and Exchange of Registered Global Securities. The transfer
and exchange of Registered Global Securities or beneficial interests therein
shall be effected through the Depositary, in accordance with Section 2.8 of the
Indenture, this Section 2.6 and Section 2.10 hereof (including the restrictions
on transfer set forth therein and herein) and the rules and procedures of the
Depositary therefor, which shall include restrictions on transfer comparable to
those set forth therein and herein to the extent required by the Securities Act.
(v) Transfer from Registered Global Security to Registered Global
Security. If a beneficial interest in a Rule 144A Global Security is transferred
or exchanged for a beneficial interest in a Regulation S Global Security or a
beneficial interest in a Regulation S Global Security is transferred or
exchanged for a beneficial interest in a Rule 144A Global Security, the Trustee
will (x) record a decrease in the principal amount of the Registered Global
Security being transferred or exchanged equal to the principal amount of such
transfer or exchange and (y) record a like increase in the principal amount of
the other Registered Global Security. Any beneficial interest in one Registered
Global Security that is transferred to a Person who takes delivery in the form
of an interest in another Registered Global Security, or exchanged for an
interest in another Registered Global Security, will, upon transfer or exchange,
cease to be an interest in such Registered Global Security and become an
interest in the other Registered Global Security and, accordingly, will
thereafter be subject to all transfer and exchange restrictions, if any, and
other procedures applicable to beneficial interests in such other Registered
Global Security for as long as it remains such an interest. Any person to whom a
beneficial interest is transferred in compliance with Regulation S under the
Securities Act shall take delivery in the form of an interest in a Regulation S
Global Security, and any person to whom a beneficial interest is transferred
other than in compliance with Regulation S under the Securities Act shall,
unless the Company determines otherwise, take delivery in the form of an
interest in a Rule 144A Global Security. If a Rule 144A Global Security or a
Regulation S Global Security to evidence all or a portion of the Notes has not
theretofore been issued, in the event of any transfer
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or exchange contemplated by the foregoing provisions, the Company will cause
such Registered Global Security to be issued and the Trustee will authenticate
such Registered Global Security.
2.7 No Sinking Fund. The Notes shall not be subject to any sinking fund.
2.8 Redemption at Option of the Company. The Notes are redeemable in whole
or in part at any time and from time to time prior to the Stated Maturity, at
the option of the Company, at a redemption price equal to the greater of the
following amounts, plus, in either case, accrued and unpaid interest on the
principal amount being redeemed to the date of redemption: (i) 100% of the
principal amount of the Notes being redeemed; or (ii) the sum of the present
values of the remaining scheduled payments of the principal of and interest on
the Notes to be redeemed (exclusive of interest accrued to the date of
redemption), discounted to the date of redemption on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 15 basis points.
As used in this Section 2.8 only, the terms set forth below shall have the
following respective meanings:
"Business Day" means any calendar day that is not a Saturday, Sunday
or legal holiday in New York, New York and on which commercial banks are
open for business in New York, New York.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a maturity comparable
to the remaining term of the Notes that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity to the
remaining term of such Notes.
"Comparable Treasury Price" means, with respect to any redemption
date, the average of two Reference Treasury Dealer Quotations for that
redemption date.
"Quotation Agent" means Goldman, Sachs & Co. or its successor.
"Reference Treasury Dealer" means each of (1) Goldman, Sachs & Co.
or its successor and (2) one other firm that is a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer") which the
Company specifies from time to time; provided, however, that if any of
them ceases to be a Primary Treasury Dealer, the Company will substitute
therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked price for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury Dealer
at 5:00 p.m., New York City time, on the third Business Day preceding that
redemption date.
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"Treasury Rate" means, with respect to any redemption date, the rate
per year equal to: (1) the yield, under the heading which represents the
average for the immediately preceding week, appearing in the most recently
published statistical release designated "H.15 (519)" or any successor
publication which is published weekly by the Board of Governors of the
Federal Reserve System and which establishes yields on actively traded
United States Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities," for the maturity corresponding to
the Comparable Treasury Issue; provided that, if no maturity is within
three months before or after the maturity date of the Notes, yields for
the two published maturities most closely corresponding to the Comparable
Treasury Issue shall be determined, and the Treasury Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding to the nearest month; or (2) if such release or any successor
release is not published during the week preceding the calculation date or
does not contain such yields, the rate per year equal to the semiannual
equivalent yield to maturity of the Comparable Treasury Issue, calculated
using a price for the Comparable Treasury Issue, expressed as a percentage
of its principal amount, equal to the Comparable Treasury Price for such
redemption date. The Treasury Rate will be calculated on the third
Business Day preceding the redemption date.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the date of redemption to each holder of Notes to be redeemed. If
fewer than all of the Notes are to be redeemed, the Trustee shall select, in
such manner as the Trustee shall deem appropriate and fair, the particular Notes
to be redeemed in whole or in part.
Unless the Company defaults in payment of the redemption price, on or
after the date of redemption, interest will cease to accrue on the Notes or
portions thereof called for redemption.
2.9. Form and Other Terms of the Notes. Attached hereto as Annex A is a
form of a Note denominated in United States dollars, which form is hereby
established as a form in which Notes may be issued. In addition, any Note may be
issued in such other form as may be provided by, or not inconsistent with, the
terms of the Original Indenture and this Seventh Supplemental Indenture.
2.10. Legends.
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(i) Each Registered Global Security shall bear the legends set forth in
the first two paragraphs on the face of the Form of Note.
(ii) Except as permitted by the following subsection (iii), (a) each Rule
144A Global Security evidencing the Notes and each Note in definitive form that
has been sold to a QIB under Rule 144A of the Securities Act (a "Rule 144A
Note") evidencing the Notes shall bear the following legend set forth below (the
"Private Placement Legend") on the face thereof and shall be subject to the
transfer restrictions set forth therein and (b) each Regulation S Global
Security evidencing the Notes and each Regulation S Note evidencing the Notes
shall bear the Private Placement Legend on the face thereof until the
termination of the Restricted Period and shall be subject to the transfer
restrictions set forth therein:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES
LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF THAT REGISTRATION OR UNLESS THE
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. BY ITS ACQUISITION HEREOF, THE HOLDER
(1) REPRESENTS THAT IT IS (A) A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A ("RULE 144A") UNDER THE SECURITIES ACT), (B) AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPHS
(a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT (AN
"INSTITUTIONAL ACCREDITED INVESTOR") THAT IS ACQUIRING THIS SECURITY FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED
INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF
NOT LESS THAN $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR
FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION HEREOF IN VIOLATION
OF THE SECURITIES ACT, (C) A PERSON THAT, AT THE TIME THE BUY ORDER FOR
THIS SECURITY WAS ORIGINATED, WAS OUTSIDE THE UNITED STATES AND WAS NOT A
U.S. PERSON (AND WAS NOT PURCHASING FOR THE ACCOUNT OR BENEFIT OF A U.S.
PERSON), OR (D) A PERSON THAT ACQUIRED THIS SECURITY PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, (2) AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
PRIOR TO (X) THE DATE THAT IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS
PERMITTED BY RULE 144(k) OF THE SECURITIES ACT) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE (AS DEFINED BELOW) AND THE LAST DATE ON WHICH SYSCO
CORPORATION OR ANY "AFFILIATE" (AS DEFINED IN RULE 144 UNDER THE
SECURITIES ACT) OF SYSCO CORPORATION WAS THE OWNER OF THIS SECURITY (OR
ANY PREDECESSOR OF THIS SECURITY) OR (Y) SUCH LATER DATE, IF ANY, AS MAY
BE REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION DATE"),
EXCEPT (A) TO SYSCO CORPORATION, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN
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DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO A NON-U.S.
PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE
IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF NOT LESS THAN $250,000,
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION HEREOF IN VIOLATION OF THE SECURITIES
ACT, (F) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (G)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES
TO COMPLIANCE WITH ANY APPLICABLE STATE OR OTHER SECURITIES LAWS, AND (3)
AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED
THAT (I) PRIOR TO ANY SALE OR TRANSFER A CERTIFICATE OF TRANSFER (THE FORM
OF WHICH MAY BE OBTAINED FROM THE TRUSTEE) IS COMPLETED BY THE TRANSFEREE
AND DELIVERED BY THE TRANSFEROR TO SYSCO CORPORATION AND THE TRUSTEE AND
(II) SYSCO CORPORATION AND THE TRUSTEE SHALL HAVE THE RIGHT PRIOR TO ANY
OFFER, SALE OR TRANSFER OF THIS SECURITY TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE
TRANSFER OF THE SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE 2(B) ABOVE OR
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE. AS USED HEREIN, THE TERMS "UNITED STATES," "OFFSHORE TRANSACTION,"
AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION
S UNDER THE SECURITIES ACT.
(iii) Upon the transfer, exchange or replacement of Notes not bearing the
Private Placement Legend, the Security registrar shall deliver Notes that do not
bear the Private Placement Legend. Upon the transfer, exchange or replacement of
Notes bearing the Private Placement Legend, the Security registrar shall deliver
only Notes that bear the Private Placement Legend, unless (i) the requested
transfer is after the relevant Resale Restriction Termination Date with respect
to such Notes, (ii) upon written request of the Company after there is delivered
to the Security registrar an opinion of counsel (which opinion and counsel must
be reasonably satisfactory to the Company and the Trustee) to the effect that
neither such legend nor the related
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restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act, (iii) with respect to a Regulation S Global
Security or a Regulation S Note, with the agreement of the Company on or after
the termination of the Restricted Period with respect to such Note, (iv) such
Notes are sold or exchanged pursuant to an effective registration statement
under the Securities Act or (v) such Notes are sold pursuant to Rule 144 under
the Securities Act and the requirements of the Indenture. In the case of any
Note in the form of a Registered Global Security that is transferred, exchanged
or replaced pursuant to subsection (iv) or (v) above, such Note shall not be
required to bear the Private Placement Legend only if all other interests in
such Registered Global Security have been or are concurrently being sold or
transferred pursuant to an effective registration statement under the Securities
Act or pursuant to Rule 144 under the Securities Act, but such Registered Global
Security shall continue to be subject to the provisions of Sections 2.8 of the
Indenture, and Sections 2.6 and 2.10 hereof.
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 Seventh Supplemental Indenture or the proper
authorization or the due execution hereof by the Company or for or in respect of
the recitals and statements contained herein, all of which recitals and
statements are made solely by the Company.
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 Seventh 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.
THIS SEVENTH SUPPLEMENTAL INDENTURE 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.
This Seventh Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Seventh
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/ Diane Day Sanders
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Diane Day Sanders
Senior Vice President of Finance
and Treasurer
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ R. Douglas Milner
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Name: R. Douglas Milner
Title: Vice President
Annex A
[FORM OF FACE OF SECURITY]
[Rule 144A Registered Global Security]
[Regulation S Registered Global Security]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY
(AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF THAT REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS (A) A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A ("RULE 144A") UNDER THE SECURITIES
ACT), (B) AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPHS (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT (AN
"INSTITUTIONAL ACCREDITED INVESTOR") THAT IS ACQUIRING THIS SECURITY FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH
CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF NOT LESS THAN $250,000,
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION HEREOF IN VIOLATION OF THE SECURITIES ACT, (C)
A PERSON THAT, AT THE TIME THE BUY ORDER FOR THIS SECURITY WAS ORIGINATED, WAS
OUTSIDE THE UNITED STATES AND WAS
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NOT A U.S. PERSON (AND WAS NOT PURCHASING FOR THE ACCOUNT OR BENEFIT OF A U.S.
PERSON), OR (D) A PERSON THAT ACQUIRED THIS SECURITY PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
(2) AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY PRIOR TO (X)
THE DATE THAT IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE
144(k) OF THE SECURITIES ACT) AFTER THE LATER OF THE ORIGINAL ISSUE DATE (AS
DEFINED BELOW) AND THE LAST DATE ON WHICH SYSCO CORPORATION OR ANY "AFFILIATE"
(AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF SYSCO CORPORATION WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) OR (Y) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION
TERMINATION DATE"), EXCEPT (A) TO SYSCO CORPORATION, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO A NON-U.S. PERSON IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT IS
ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER
INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF
THE SECURITIES OF NOT LESS THAN $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION HEREOF IN
VIOLATION OF THE SECURITIES ACT, (F) PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER
(IF AVAILABLE) OR (G) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES TO COMPLIANCE WITH ANY APPLICABLE STATE OR OTHER SECURITIES
LAWS, AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT
(I) PRIOR TO ANY SALE OR TRANSFER A CERTIFICATE OF TRANSFER (THE FORM OF WHICH
MAY BE OBTAINED FROM THE TRUSTEE) IS COMPLETED BY THE TRANSFEREE AND DELIVERED
BY THE TRANSFEROR TO SYSCO CORPORATION AND THE TRUSTEE AND (II) SYSCO
CORPORATION AND THE TRUSTEE SHALL HAVE THE RIGHT PRIOR TO ANY OFFER, SALE OR
TRANSFER OF THIS SECURITY TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS
LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE SECURITY
EVIDENCED HEREBY PURSUANT TO CLAUSE 2(B) ABOVE OR UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "UNITED
STATES," "OFFSHORE TRANSACTION," AND "U.S. PERSON" HAVE THE
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RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.]
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REGISTERED REGISTERED
SYSCO CORPORATION
4.60% Senior Note due March 15, 2014
No. _______ CUSIP: ___________
PRINCIPAL AMOUNT: $___________ AUTHENTICATION DATE: March 5, 2004
ORIGINAL ISSUE DATE: March 5, 2004 STATED MATURITY: March 15, 2014
INTEREST RATE: 4.60% per annum SUBJECT TO DEFEASANCE PURSUANT
TO SECTION 10.1 OF THE INDENTURE
REFERRED TO HEREIN
ISSUE PRICE (%): 99.943%
SYSCO Corporation, a corporation organized and existing under the
laws of the State of Delaware (herein called the "Company", which term includes
any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to CEDE & Co., or registered assigns, the
principal sum of ___________________________ ($___________) on March 15, 2014
(the "Stated Maturity") and to pay interest thereon at the rate of 4.60% per
annum, computed on the basis of a 360-day year comprising twelve 30-day months,
from March 5, 2004 (the "Original Issue Date") or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, on March 15
and September 15 in each year and at the Stated Maturity or upon redemption,
commencing with September 15, 2004, until the principal hereof is paid or made
available for payment. If an Interest Payment Date would otherwise fall on a day
that is not a Business Day, such Interest Payment Date shall be postponed to the
next succeeding Business Day and no interest shall accrue or be payable on such
next succeeding Business Day for the period from and after such original
Interest Payment Date to such next succeeding Business Day. Except as provided
in the immediately preceding sentence, interest payments shall be in the amount
of interest accrued to, but excluding, the Interest Payment Date.
The interest payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture referred to herein,
be paid to the Person in whose name this Note is registered at the close of
business on the Regular Record Date for such interest, which shall be March 1 or
September 1 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date.
Payments of principal on this Note and interest payable on this Note
at the Stated Maturity or upon redemption of this Note shall be made in
immediately available funds in such
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currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, at the request of the
Holder upon presentation and surrender of this Note, at the office or agency of
the Paying Agent in New York, New York or any other duly appointed Paying Agent,
provided that this Note is presented to the Paying Agent in time for the Paying
Agent to make payments in immediately available funds in accordance with its
normal procedures. So long as any Notes are represented by a Registered Global
Security, interest (other than interest payable at maturity or upon redemption)
shall be paid in immediately available funds by wire transfer to the Depositary
for such Notes, on the written order of the Depositary. In addition, the Company
may maintain a drop agent, in such location or locations as the Company may
select, to provide the Holders with an office at which they may present the
Notes for payment. Notes presented to a drop agent in accordance with the
provisions of the Indenture referred to herein shall be deemed to be presented
to the Paying Agent on the Business Day next succeeding the day the Notes are
delivered to the drop agent.
Payment of interest (other than interest payable in accordance with
the provisions of the immediately preceding paragraph) will, subject to certain
exceptions provided in the Indenture referred to herein, be made by check mailed
to the address of the Person entitled thereto as such address shall appear in
the Security register as of the applicable Regular Record Date or, at the option
of the Company, by wire transfer to an account maintained by such Person with a
bank located in the United States.
The Notes are redeemable in whole or in part at any time and from
time to time prior to the Stated Maturity, at the option of the Company, at a
redemption price equal to the greater of the following amounts, plus, in either
case, accrued and unpaid interest on the principal amount being redeemed to the
date of redemption: (1) 100% of the principal amount of the Notes being
redeemed; or (2) the sum of the present values of the remaining scheduled
payments of the principal of and interest on the Notes to be redeemed (exclusive
of interest accrued to the date of redemption), discounted to the date of
redemption on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Rate (as defined in the following paragraph) plus
15 basis points.
As used in this paragraph and in the immediately preceding paragraph
only, the terms set forth below shall have the following respective meanings:
"Business Day" means any calendar day that is not a Saturday, Sunday or
legal holiday in New York, New York or Houston, Texas and on which
commercial banks are open for business in New York, New York and Houston,
Texas.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the
remaining term of the Notes that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity to the
remaining term of such Notes.
"Comparable Treasury Price" means, with respect to any redemption date,
the average of two Reference Treasury Dealer Quotations for that
redemption date.
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"Quotation Agent" means Goldman, Sachs & Co. or its successor.
"Reference Treasury Dealer" means each of (1) Goldman, Sachs & Co. or its
successor and (2) one other firm that is a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer") which the
Company specifies from time to time; provided, however, that if any of
them ceases to be a Primary Treasury Dealer, the Company will substitute
therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked price for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury Dealer
at 5:00 p.m., New York City time, on the third Business Day preceding that
redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate per
year equal to: (1) the yield, under the heading which represents the
average for the immediately preceding week, appearing in the most recently
published statistical release designated "H.15 (519)" or any successor
publication which is published weekly by the Board of Governors of the
Federal Reserve System and which establishes yields on actively traded
United States Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities," for the maturity corresponding to
the Comparable Treasury Issue; provided that, if no maturity is within
three months before or after the maturity date of the Notes, yields for
the two published maturities most closely corresponding to the Comparable
Treasury Issue shall be determined, and the Treasury Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding to the nearest month; or (2) if such release or any successor
release is not published during the week preceding the calculation date or
does not contain such yields, the rate per year equal to the semiannual
equivalent yield to maturity of the Comparable Treasury Issue, calculated
using a price for the Comparable Treasury Issue, expressed as a percentage
of its principal amount, equal to the Comparable Treasury Price for such
redemption date. The Treasury Rate will be calculated on the third
Business Day preceding the redemption date.
Notice of any redemption will be mailed at least 30 days but not
more than 60 days before the date of redemption to each holder of Notes to be
redeemed. If fewer than all of the Notes are to be redeemed, the Trustee shall
select, in such manner as the Trustee shall deem appropriate and fair, the
particular Notes to be redeemed in whole or in part.
A-6
Unless the Company defaults in payment of the redemption price, on
or after the date of redemption, interest will cease to accrue on the Notes or
portions thereof called for redemption.
In the event of redemption of this Note in part only, a new Note or
Notes of like tenor and in an aggregate principal amount equal to the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
The Notes are not subject to any sinking fund.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this Note
shall not be entitled to any benefit under the Indenture referred to herein or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
SYSCO CORPORATION
[Seal]
By________________________________________
Diane Day Sanders
Senior Vice President of Finance
and Treasurer
Attest____________________________________
Ann F. Gullion
Assistant Secretary
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Date: March 5, 2004
This is one of the Securities referred to in the within-mentioned Indenture.
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Trustee
By________________________________________
Authorized Signatory
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[REVERSE OF NOTE]
SYSCO CORPORATION
4.60% Senior Note due March 15, 2014
This Note is one of a duly authorized issue of securities of the
Company (the "Securities"), issued and to be issued in one or more series under
an Indenture dated as of June 15, 1995 and executed and delivered by the Company
to Wachovia Bank, National Association (formerly First Union National Bank of
North Carolina), as trustee (herein called the "Trustee," which term includes
any successor trustee under the Indenture), as supplemented by a First
Supplemental Indenture dated as of June 27, 1995, a Second Supplemental
Indenture dated as of May 1, 1996, a Third Supplemental Indenture dated as of
April 25, 1997, a Fourth Supplemental Indenture dated as of April 25, 1997, a
Fifth Supplemental Indenture dated as of July 27, 1998, a Sixth Supplemental
Indenture dated as of April 5, 2002 and a Seventh Supplemental Indenture dated
as of March 5, 2004, all executed and delivered by the Company to the Trustee
(such Indenture, as supplemented by the First Supplemental Indenture, Second
Supplemental Indenture, Third Supplemental Indenture, Fourth Supplemental
Indenture, Fifth Supplemental Indenture, Sixth Supplemental Indenture and
Seventh Supplemental Indenture, is referred to herein as the "Indenture"), to
which Indenture reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Notes and of the terms upon which the Notes
are, and are to be, authenticated and delivered. The acceptance of this Note
shall be deemed to constitute the consent and agreement of the Holder hereof to
all the terms and conditions of the Indenture. This Note is a Security of the
series designated on the face hereof, limited in aggregate principal amount to
$200,000,000.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture. Events of Default are
defined in the Indenture and generally include: (i) default for 30 days in
payment of any interest on the Securities; (ii) default in any payment of
principal on any of the Securities when due and payable; (iii) failure on the
part of the Company duly to observe or perform any of the covenants or
agreements on the part of the Company in the Securities or in the Indenture
which shall not have been remedied within 90 days after written notice by the
Trustee or by the holders of at least 25% in aggregate principal amount of the
Outstanding Securities of all series affected thereby; or (iv) certain events
involving bankruptcy, insolvency or reorganization of the Company. If an Event
of Default occurs and is continuing, the Trustee or the Holders of at least 25%
in aggregate principal amount of the Securities of each such affected series of
then Outstanding Securities (voting as a single class) may declare the entire
principal of all Securities of all such affected series, and the interest
accrued thereon, if any, to be immediately due and payable, except that, in the
case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization of the Company, the principal and interest on the
Securities shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Securityholder.
Subject to certain limitations, the Holders of a majority in aggregate principal
amount of the Securities of each series affected (with all such series voting as
a single class) at the time Outstanding shall have the right to direct the
Trustee in its exercise of any trust or power conferred on the Trustee with
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respect to the Securities of such series by the Indenture, provided that the
Trustee may decline to follow any such direction if the Trustee determines the
action or proceeding so directed may not lawfully be taken or if the Trustee in
good faith shall determine that the action or proceeding so directed would
involve the Trustee in personal liability or if the Trustee in good faith shall
so determine that the actions or forbearances specified in or pursuant to such
direction would be unduly prejudicial to the interest of Holders of the
Securities of all series so affected not joining in the giving of said
direction. The Trustee may withhold from Holders notice of any continuing
default (except a default in payment of principal or interest) if it determines
that withholding notice is in their best interests. The Company must furnish an
annual compliance certificate to the Trustee.
The Indenture contains provisions permitting the Company and the
Trustee to modify the Indenture or any supplemental indenture without the
consent of the Holders for one or more of the following purposes (as more
particularly set forth in the Indenture): (1) to convey, transfer, assign,
mortgage or pledge any property or assets to the Trustee as security for the
Securities of one or more series; (2) to evidence the succession of another
entity to the Company; (3) to add to the covenants of the Company or add Events
of Default for the benefit of Holders; (4) to cure any ambiguity, to correct or
supplement any provision of the Indenture which may be defective or inconsistent
with any other provision of the Indenture, or to make any other provisions with
respect to matters or questions arising under the Indenture as shall not
adversely affect the interests of the Holders in any material respect; (5) to
establish the form or terms of Securities of any series as permitted by Sections
2.1 and 2.3 of the Indenture; and (6) to evidence the appointment of a successor
Trustee.
The Indenture also permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities then Outstanding of each series to
be affected (voting as a single class). The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the
Securities of all series at the time Outstanding with respect to which a default
or Event of Default shall have occurred and be continuing (voting as a single
class), on behalf of the Holders of all such Securities, to waive certain past
defaults and Events of Default under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Security issued upon the registration of transfer hereof or in exchange for or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
Without the consent of each Holder of each Note so effected, the
Company may not extend the final maturity of any Note, or reduce the rate (or
alter the method of computation) or interest thereon or extend the time for
payment thereof, or reduce (or alter the method of computation of) any amount
payable on redemption or repayment thereof or extend the time for payment
thereof, or make the principal thereof or interest thereon (including any amount
in respect of original issue discount) payable in any coin or currency other
than that provided in the Notes or in accordance with the terms thereof, or
reduce the amount that would be due and
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payable upon an acceleration of the maturity of any Note, or impair or affect
the right of any Holder to institute suit for the payment thereof.
A supplemental indenture that changes or eliminates any covenant or
other provision of the Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of Holders of Securities of such series, or of Coupons appertaining
to such Securities, with respect to such covenant provision, shall be deemed not
to affect the rights under the Indenture of Holders of Securities of any other
series or of the Coupons appertaining to such Securities.
As set forth in, and subject to the provisions of, the Indenture, no
Holder of any Note will have any right to institute any proceeding, judicial or
otherwise, with respect to the Indenture or for any remedy thereunder, unless
(1) such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to the Notes, (2) the Holders of not
less than 25% in aggregate principal amount of the Outstanding Notes shall have
made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, (3) the Trustee shall not have received
from the Holders of a majority in aggregate principal amount of the Outstanding
Notes a direction inconsistent with such request and (4) the Trustee shall have
failed to institute such proceeding within 60 days; provided, however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of or any interest on this Note on or
after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Note, as described on the face hereof, at the times, place and rate, and in the
coin or currency, herein prescribed.
The Notes are issuable only in fully registered form and are
represented either by one or more global certificates registered in the name of
a depositary or in the name of its nominee or by a certificate or certificates
registered in the name of the beneficial owner(s) of such Notes or its or their
nominee(s). The Notes are issuable in denominations of $1,000 and integral
multiples of $1,000 in excess thereof. As provided in the Indenture and subject
to certain limitations therein set forth, the Notes are exchangeable for a like
aggregate principal amount of Notes and of like tenor of any authorized
denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations set
forth in the Indenture or this Note, the transfer of this Note is registrable in
the Security register, upon surrender of this Note for registration of transfer
or exchange at the office or agency of the Security registrar or any successor
or co-registrar in New York, New York, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of like tenor, of authorized
denominations and for the same aggregate principal amount will be issued to the
designated transferee or transferees. The Company shall not be required to
exchange or register a transfer of (a) any Notes for a period of 15 days next
preceding the first mailing of notice of redemption of the Notes, or (b) the
Notes
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selected, called or being called for redemption, in whole or in part, except, in
the case of any Note to be redeemed in part, the portion thereof not so to be
redeemed.
In addition, the Company may maintain a drop agent, in such location
or locations as the Company may select, to provide the Holders with an office at
which they may present the Notes for registration of transfer or exchange. Notes
accepted as set forth in the immediately preceding sentence shall be deemed to
be presented to the Security registrar on the Business Day next succeeding the
day that Notes are delivered to the drop agent.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
By its acceptance of any Note bearing a legend restricting transfer,
each Holder of such Note acknowledges the restrictions on transfer of such Note
set forth in the Seventh Supplemental Indenture establishing the terms of the
Notes pursuant to the Indenture and in such legend and agrees that it will
transfer such Note only as provided in the Seventh Supplemental Indenture and
the Indenture.
Subject to the terms of the Indenture, prior to due presentment of
this Note for registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note is
overdue, and none of the Company, the Trustee or any such agent shall be
affected by notice to the contrary.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Note or of certain restrictive covenants and Events of
Default with respect to this Note, in each case upon compliance with certain
conditions set forth in the Indenture. The Indenture with respect to the Notes
shall be discharged and canceled upon the payment of all of the Notes and shall
be discharged except for certain obligations upon the irrevocable deposit with
the Trustee of any combination of funds and U.S. Government Obligations
sufficient for such payment.
In the case of any conflict between the provisions of this Note and
the Indenture, the provisions of the Indenture shall control.
THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY
PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD RESULT IN THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION.
All capitalized terms used but not defined in this Note which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture.
As provided in the Indenture, no recourse under or upon any
obligation, covenant or agreement contained in the Indenture, or in this Note,
or because of any indebtedness evidenced hereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
officer, director or employee, as such, of the Company or of any successor,
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either directly or through the Company or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being, by
acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
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FORM OF ASSIGNMENT
ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
Additional abbreviations may also be used though not in the above list.
__________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
________________________________
Please insert Social Security or
other identifying number of assignee
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF
ASSIGNEE
______________________________________
______________________________________
______________________________________
______________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing __________________________________, attorney to transfer said Note on
the books of the Company, with full power of substitution in the premises.
Dated:_____________________________
Notice: The signature(s) to this
assignment must correspond with the
name(s) as written on the face of
the within instrument in every
particular, without alteration or
enlargement, or any change
whatsoever.
A-14
SCHEDULE OF INCREASES OR DECREASES IN THE PRINCIPAL AMOUNT
OF THIS NOTE
The original principal amount of this Note is ______________ U.S.
Dollars ($__________). The following increases or decreases in the principal
amount of this Note have been made:
Amount of Amount of Principal amount Signature of
decrease in increase in of this authorized
Date of principal amount principal amount Note following signatory of
increase or of this of this such decrease Trustee or
decrease Note Note (or increase) Depository
- ----------- ---------------- ---------------- ---------------- ------------
A-15
Annex B
[FORM OF CERTIFICATE TO BE DELIVERED UPON
EXCHANGE OR TRANSFER OF NOTES]
Re: 4.60% Notes due March 15, 2014 of SYSCO Corporation (the "Notes")
This Certificate relates to $_____ principal amount of Notes held in
______ book-entry or ______ definitive form by _____________________ (the
"Transferor").
The Transferor has requested the Trustee by written order to
exchange or register the transfer of a Note or Notes or beneficial interests
therein (the "Transfer").
In connection with such request and in respect of each such Note or
beneficial interest therein, the Transferor does hereby certify that the
Transferor is familiar with the Indenture relating to the above-captioned Notes
and that the Transfer does not require registration under the Securities Act of
1933, as amended (the "Securities Act"), because:
Check One
[ ] (a) Such Note or beneficial interest is being acquired for the
Transferor's own account without transfer.
[ ] (b) Such Note or beneficial interest is being transferred (i) to
a "qualified institutional buyer" (as defined in Rule 144A under the Securities
Act), in accordance with Rule 144A under the Securities Act, that is purchasing
for its own account or for the account of another qualified institutional buyer,
in each case to whom notice is given that the Transfer is being made in reliance
on Rule 144A and the certificate attached hereto has been completed; or (ii) to
a non-U.S. person in an offshore transaction in accordance with Rule 903 or Rule
904 of Regulation S under the Securities Act (and in the case of clause (ii), a
certification in substantially the form of Annex D to the Supplemental Indenture
relating to the above-captioned Notes and an opinion of counsel to that effect
if the Company or the Trustee so requests are being furnished herewith).
[ ] (c) Such Note or a beneficial interest therein is being
transferred (i) pursuant to an exemption from registration under the Securities
Act provided by Rule 144 thereunder and an opinion of counsel to that effect if
the Company or the Trustee so requests is being furnished herewith, or (ii)
pursuant to an effective registration statement under the Securities Act.
[ ] (d) Such Note or beneficial interest is being transferred to an
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act that is acquiring such Note
or beneficial interest for its own account or for the account of another
institutional accredited investor, in each case in a minimum principal amount of
the Notes of not less than $250,000, for investment purposes and not with a view
to, or for offer or sale in connection with, any distribution thereof in
violation of the Securities Act, and a certification in substantially the form
of Annex C to the Supplemental
B-1
Indenture and an opinion of counsel to that effect if the Company or the Trustee
so requests are being furnished herewith.
[ ] (e) Such Note or beneficial interest is being transferred in
reliance on and in compliance with another exemption from the registration
requirements of the Securities Act and an opinion of counsel to that effect if
the Company or the Trustee so requests is being furnished herewith.
If none of the foregoing boxes is checked, the Trustee or other
registrar shall not be obligated to register the Note in the name of any Person
other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in the Indenture shall have been
satisfied.
Date:_________________________
______________________________
___________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
the within-mentioned instrument in
every particular, without
alteration or any change
whatsoever.
Signature Guarantee: _______________________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the 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 registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
TO BE COMPLETED BY PURCHASER IF (b) ABOVE IS CHECKED
AND TRANSFEROR IS RELYING ON SUBSECTION (i) THEREOF.
The undersigned represents and warrants that it is purchasing the
Note or a beneficial interest therein for its own account or an account with
respect to which it exercises sole investment discretion and that it and any
such account is a "qualified institutional buyer" within the meaning of Rule
144A under the Securities Act and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding SYSCO Corporation as the undersigned has requested pursuant to Rule
144A or has determined not to request such information and that it is aware that
the transferor is relying upon the undersigned's foregoing representations in
order to claim the exemption from registration provided by Rule 144A.
Dated:___________________________
______________________________________
To be executed by an executive officer
B-2
Annex C
[FORM OF LETTER TO BE DELIVERED BY
INSTITUTIONAL ACCREDITED INVESTORS ]
SYSCO Corporation
c/o Wachovia Bank, National Association
5847 San Felipe, Suite 1050
Houston, Texas 77057
Dear Sirs:
This certificate is delivered to request a transfer of $__________ principal
amount of the 4.60% Senior Notes Due March 15, 2014 (the "Notes") of SYSCO
Corporation (the "Company").
Upon transfer, the Notes would be registered in the name of the new beneficial
owner as follows:
Name:
Address:
Taxpayer ID Number:
The undersigned represents and warrants to you that:
(1) We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as
amended (the "Securities Act")) purchasing for our own account or for the
account of such an institutional "accredited investor" at least $250,000
principal amount of the Notes, and we are acquiring the Notes not with a view
to, or for offer or sale in connection with, any distribution in violation of
the Securities Act. We have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risk of our
investment in the Notes, and we invest in or purchase securities similar to the
Notes in the normal course of our business. We and any accounts for which we are
acting are each able to bear the economic risk of our or its investment.
(2) We understand and acknowledge that the Notes have not been
registered under the Securities Act or any other applicable securities law and,
unless so registered, may not be sold except as permitted in the following
sentence. We agree on our own behalf and on behalf of any investor account for
which we are purchasing Notes to offer, sell or otherwise transfer such Notes
prior to the date which is two years (or such shorter period of time as
permitted by Rule 144(k) under the Securities Act) after the later of the date
of original issue and the last date on which the Company or any affiliate of the
Company was the owner of such Notes (or any predecessor thereto) or such later
date, if any, as may be required by applicable law (the "Resale Restriction
Termination Date") only (a) to the Company, (b) pursuant to a registration
statement which has been declared effective under the Securities Act, (c) for so
long as the Notes are eligible for resale pursuant to Rule 144A, in a
transaction complying with the requirements of Rule 144A under the Securities
Act ("Rule 144A"), to a person we reasonably believe is a
C-1
qualified institutional buyer under Rule 144A (a "QIB"), that purchases for its
own account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) to a non-U.S. person in an
offshore transaction in accordance with Rule 903 or Rule 904 of Regulation S
under the Securities Act, (e) to an institutional "accredited investor" (within
the meaning Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) that is purchasing for its own account or for the account of such an
institutional "accredited investor" in each case in a minimum principal amount
of Notes of $250,000, for investment purposes and not with a view to, or for
offer or sale in connection with, any distribution thereof in violation of the
Securities Act, (f) pursuant to an exemption from the registration requirements
of the Securities Act provided by Rule 144 thereunder (if available) or (g)
pursuant to any other available exemption from the registration requirements of
the Securities Act, subject in each of the foregoing cases to any requirement of
law that the disposition of our property or the property of such investor
account or accounts be at all times within our or their control and in
compliance with any applicable state securities laws. The foregoing restrictions
on resale will not apply subsequent to the Resale Restriction Termination Date.
If any resale or other transfer of the Notes is proposed to be made pursuant to
clause (e) above prior to the Resale Restriction Termination Date, the
transferor shall deliver a letter from the transferee substantially in the form
of this letter to the Company and the Trustee, which shall provide, among other
things, that the transferee is an institutional "accredited investor" (within
the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act) that is acquiring such notes for investment purposes and not for
distribution in violation of the Securities Act. We acknowledge that the Company
and the Trustee reserve the right prior to any offer, sale or other transfer of
the Notes prior to the Resale Restriction Termination Date pursuant to clause
(d), (e), (f) or (g) above to require the delivery of an opinion of counsel,
certifications and/or other information satisfactory to the Company and the
Trustee.
(3) You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy of this letter to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered in this letter, and we agree to notify you promptly in
writing if any of our representations or warranties herein ceases to be accurate
and complete.
THIS LETTER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAWS TO THE EXTENT THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
Transferee:
By:____________________________
C-2
Annex D
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S]
__________________,_____
SYSCO Corporation
c/o Wachovia Bank, National Association, Trustee
5847 San Felipe, Suite 1050
Houston, Texas 77057
Re: SYSCO Corporation
4.60% Notes due March 15, 2014 (the "Notes")
Dear Sirs:
In connection with our proposed sale of U.S.$________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
- the offer of the Notes was not made to a person in the United
States;
- at the time the buy order was originated, the transferee was outside
the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United
States; or the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither we
nor any person acting on our behalf knows that the transaction was
prearranged with a buyer in the United States;
- no directed selling efforts have been made by us, or any person
acting on our behalf, in the United States in contravention of the
requirements of Rule 903(a) or Rule 904(a) of Regulation S under the
Securities Act, as applicable;
- the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
- if the proposed transfer is being made prior to the expiration of a
40-day "distribution compliance period" as defined in Regulation S
under the Securities Act, the transfer is being made (a) to a person
that is not a U.S. person or for the account or benefit of a person
that is not a U.S. person within the meaning of Regulation S under
the Securities Act; (b) to a "qualified institutional buyer" within
the meaning of Rule 144A under the Securities Act; or (c) to an
institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act.
D-1
You and SYSCO Corporation are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S under the Securities Act.
Very truly yours,
[Name of Transferor]
By:____________________________
Authorized Signatory
D-2