1
================================================================================
SYSCO CORPORATION
AND
FIRST UNION NATIONAL BANK
(Formerly First Union National Bank of North Carolina)
Trustee
----------------------
FIFTH SUPPLEMENTAL INDENTURE
Dated as of July 27, 1998
----------------------
Supplementing the Indenture
dated as of June 15, 1995
================================================================================
2
FIFTH SUPPLEMENTAL INDENTURE, dated as of the 27th day of July, 1998,
between SYSCO CORPORATION, a corporation organized and existing under the laws
of the State of Delaware (the "Company"), and FIRST UNION NATIONAL BANK
(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 and (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, and (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; 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 Fifth Supplemental Indenture to the Original
Indenture as permitted by Sections 2.1, 2.3 and 8.1 of the Original Indenture in
order to establish the form or terms of, and to provide for the creation and
issue of, a series of Securities under the Original Indenture in the aggregate
principal amount of $225,000,000; 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 Fifth Supplemental Indenture a valid, binding and legal agreement of the
Company, have been done;
NOW, THEREFORE, THIS FIFTH SUPPLEMENTAL INDENTURE WITNESSETH that, in
order to establish the terms of a series of Securities, and for and in
consideration of the premises and of the covenants contained in the Original
Indenture and in this Fifth Supplemental Indenture and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, it is mutually covenanted and agreed as follows:
-1-
3
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 Fifth Supplemental Indenture shall, unless the context otherwise
requires, refer to this Fifth Supplemental Indenture.
ARTICLE II
TITLE AND TERMS OF SECURITIES
2.1 Title of the Securities. This Fifth Supplemental Indenture
hereby establishes a series of Securities designated as the "6.5% Debentures due
August 1, 2028" of the Company (collectively referred to herein as the
"Debentures"). For purposes of the Original Indenture, the Debentures shall
constitute a single series of Securities.
2.2 Term of the Debentures. The Debentures shall mature on
August 1, 2028 (the "Stated Maturity"). In the event that the Stated Maturity of
any Debenture 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 Debentures may be issued under this
Fifth Supplemental Indenture is limited to $225,000,000.
The Debentures 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 Depositary Trust Company, New York, New York ("DTC"). DTC shall
initially act as Depository for the Debentures.
The Debentures shall be denominated in United States dollars
in denominations of $1,000 and integral multiples of $1,000 in excess thereof.
2.4 Interest and Interest Rates. Each Debenture shall bear
interest at the rate of 6.5% per annum from the date of issue or from the most
recent Interest Payment Date (as defined below) to which interest on such
Debenture 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 Debenture is
-2-
4
registered at the close of business on the Regular Record Date (as defined
below) next preceding an Interest Payment Date. Notwithstanding the foregoing,
if a Debenture is originally issued after the Regular Record Date and before the
corresponding Interest Payment Date, the first payment of interest on the
Debenture shall be made on the next succeeding Interest Payment Date to the
Person in whose name that Debenture was registered on the Regular Record Date
with respect to such next succeeding Interest Payment Date. Interest on each
Debenture 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 Debenture shall be February 1 and
August 1 in each year (the "Interest Payment Dates"), beginning February 1, 1999
and the regular record dates shall be the January 15 and July 15 (the "Regular
Record Dates") preceding those Interest Payment Dates, respectively. Interest
shall also be payable at maturity of any Debenture.
If an Interest Payment Date with respect to the Debentures 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
Debentures 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 preceding paragraph, interest payments shall
be in the amount of interest accrued to, but excluding, the Interest Payment
Date.
2.6 Place of Payment, Transfer and Exchange. The Company authorizes and
appoints the Trustee as the sole paying agent (the "Paying Agent") with respect
to any Debentures 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
Debenture and interest thereon payable at maturity or upon redemption shall be
made in immediately available funds, 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 Debenture 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. Notwithstanding the foregoing, so long as
the Debentures are represented by a Registered Global Security, interest (other
than interest payable at maturity) shall be paid in immediately available funds
by wire transfer to the Depositary for such Debentures, 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 Debentures for payment. The Company hereby
acknowledges that any drop agent maintained will accept Debentures for
presentment, take payment instructions from the Holder and forward the
Debentures presented and any related payment instructions to the Paying Agent by
overnight courier, for next day delivery. Debentures 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 Debentures are delivered to the drop
agent.
-3-
5
The Company appoints the Trustee as the sole Security registrar with
respect to the Debentures, 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 Debentures 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 Debentures for registration of transfer or exchange. The Company
hereby acknowledges that any drop agent maintained by the Company will accept
Debentures for registration of transfer or exchange and forward those Debentures
to the Security registrar by overnight courier, for next day delivery.
Debentures accepted as set forth in the previous sentence shall be deemed to be
presented to the Security registrar on the Business Day next succeeding the day
that Debentures are delivered to the drop agent.
2.7 No Sinking Fund. The Debentures shall not be subject to any sinking
fund.
2.8 Redemption at Option of the Company. The Debentures are redeemable
in whole or in part at any time at the option of the Company, at a redemption
price equal to the greater of (i) 100% of the principal amount of the Debentures
being redeemed, plus accrued but unpaid interest thereon to the date of
redemption, or (ii) the sum of the present values of the remaining scheduled
payments of principal and interest thereon discounted to the redemption date on
a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate plus 12.5 basis points, plus accrued but unpaid interest
thereon to the date of redemption. If a redemption date does not fall on an
Interest Payment Date, then with respect to the interest payment immediately
succeeding the redemption date, only the unaccrued portion of such interest
payment as of the redemption date shall be included in any present value
calculation pursuant to clause (ii).
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Debentures to be redeemed that would be used, 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 the Debentures. "Independent Investment Banker" means one of
the Reference Treasury Dealers appointed by the Trustee after consultation with
the Company.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, (a) the average
of the Reference Treasury Dealer Quotations for such redemption date,
-4-
6
after excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or (b) if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such Quotations. "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 prices 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, New York time on the
third business day preceding such redemption date.
"Reference Treasury Dealer" means each of Merrill Lynch, Pierce Fenner
& Smith Incorporated, Chase Securities Inc. and Goldman, Sachs & Co., their
respective successors and any other primary U.S. Government securities dealer in
New York City (a "Primary Treasury Dealer") selected by the Company pursuant to
the terms of the Indenture in addition to, or in substitution for, any of such
firms; provided, however, that if any of the foregoing shall cease to be a
Primary Treasury Dealer, the Company shall substitute therefor another Primary
Treasury Dealer.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each holder of Debentures to be
redeemed.
2.9. Form and Other Terms of the Debentures. Attached hereto as Exhibit
A is a form of a Debenture denominated in United States dollars, which form is
hereby established as a form in which Debentures may be issued. In addition, any
Debenture may be issued in such other form as may be provided by, or not
inconsistent with, the terms of the Original Indenture and this Fifth
Supplemental Indenture.
ARTICLE III
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representation in respect of, and
shall not be responsible in any manner whatsoever for and in respect of, the
validity or sufficiency of this Fifth 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 Fifth Supplemental Indenture and
all its provisions shall be deemed a part of the Original Indenture in the
manner and to the extent herein and therein provided.
This Fifth Supplemental Indenture shall be governed by, and construed
in accordance with, the laws of the State of New York.
-5-
7
This Fifth Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
-6-
8
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
SYSCO CORPORATION
By:
--------------------------------------
Diane Day Sanders
Vice President and Treasurer
FIRST UNION NATIONAL BANK, as Trustee
By:
--------------------------------------
Karen Atkinson
Assistant Vice President
-7-