THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.
ELEVENTH SUPPLEMENTAL
INDENTURE
Dated as of March 17,
2009
Supplementing the Indenture
dated as of June 15, 1995
ELEVENTH
SUPPLEMENTAL INDENTURE, dated as of the 17th day of March, 2009,
between SYSCO CORPORATION, a corporation organized and existing
under the laws of the State of Delaware (the
“Company”), and THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., a national banking association, as trustee (the
“Trustee”);
WHEREAS, the
Company has heretofore executed and delivered 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 the Trustee is the
successor trustee under the Original Indenture; 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, (vi) 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, (vii) a Seventh
Supplemental Indenture dated as of March 5, 2004 providing for
the issuance by the Company of $200,000,000 aggregate principal
amount of 4.60% Senior Notes due March 15, 2014,
(viii) an Eighth Supplemental Indenture dated as of
September 22, 2005 providing for the issuance by the Company
of $500,000,000 aggregate principal amount of 5.375% Senior Notes
due September 21, 2035, (ix) a Ninth Supplemental
Indenture dated as of February 12, 2008 providing for the
issuance by the Company of $250,000,000 aggregate principal amount
of 4.20% Senior Notes due February 12, 2013 and (x) a
Tenth Supplemental Indenture dated as of February 12, 2008
providing for the issuance by the Company of $500,000,000 aggregate
principal amount of 5.25% Senior Notes due February 12, 2018;
and
WHEREAS,
simultaneously herewith, the Company is executing and delivering to
the Trustee a Twelfth Supplemental Indenture dated as of
March 17, 2009 providing for the issuance by the Company of
$250,000,000 aggregate principal amount of 6.625% Senior Notes due
March 17, 2039; 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 and the Chief Financial
Officer of the Company has duly determined to make, execute and
deliver to the Trustee this Eleventh 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
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issue of, a
series of Securities under the Original Indenture in the aggregate
principal amount of $250,000,000; 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 Eleventh Supplemental
Indenture a valid, binding and legal agreement of the Company, have
been done;
NOW, THEREFORE,
THIS ELEVENTH 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 Eleventh 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:
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 Eleventh Supplemental Indenture shall,
unless the context otherwise requires, refer to this Eleventh
Supplemental Indenture.
TITLE AND TERMS OF
SECURITIES
2.1 Title of
the Securities . This Eleventh Supplemental Indenture hereby
establishes a series of Securities designated as the “5.375%
Senior Notes due March 17, 2019” 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 17, 2019 (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.
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2.3 Amount and
Denominations; Currency of Payment . The aggregate principal
amount in which the Notes may be issued under this Eleventh
Supplemental Indenture is limited to $250,000,000.
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 shall be
denominated in United States dollars in denominations of $2,000 and
integral multiples of $1,000.
2.4 Interest
and Interest Rates . Each Note shall bear interest at the rate
of 5.375% 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 17 and September 17, in each year (the
“Interest Payment Dates”), beginning September 17,
2009 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 . 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
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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 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 Original 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.
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.
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 40 basis
points.
As used in this
Section 2.8 only, the terms set forth below shall have the
following respective meanings:
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“
Business Day ” means any calendar day that is not a
Saturday, Sunday or legal holiday in New York, New York and on
which commercial banks are open for business in New York, New
York.
“
Comparable Treasury Issue ” means the United States
Treasury security or securities selected by the Quotation Agent as
having an actual or interpolated maturity comparable to the
remaining term of the Notes 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, (1) the average of the Reference Treasury
Dealer Quotations for such redemption date, after excluding the
highest and lowest such Reference Treasury Dealer Quotations, or
(2) if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such
quotations.
“Primary
Treasury Dealer” means a primary U.S. Government
securities dealer in New York City.
“
Quotation Agent ” means Goldman, Sachs & Co. or
its successor.
“
Reference Treasury Dealer ” means (1) each of
Goldman, Sachs & Co. and Banc of America Securities LLC,
or their respective affiliates which are Primary Treasury Dealers,
and their respective successors and (2) two other firms that
are Primary Treasury Dealers 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 Quotation ” means, with
respect to a particular Reference Treasury Dealer and a particular
redemption date, the average, as calculated 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 as of 3:30
p.m., New York City time, on the third Business Day preceding that
redemption date.
“
Treasury Rate ” means, with respect to any redemption
date, the rate per year equal to the semiannual equivalent yield to
maturity or interpolated (on a day count basis) of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
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.
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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 Change of
Control Repurchase Event . If a Change of Control Repurchase
Event (as defined below) occurs, unless the Company has exercised
its right to redeem the Notes as described above or has defeased
the Notes pursuant to Section 10.1 of the Original Indenture,
the Company will be required to make an irrevocable offer to each
Holder of Notes to repurchase all or any part (equal to or in
excess of $2,000 and in integral multiples of $1,000) of that
Holder’s Notes at a repurchase price in cash equal to 101% of
the aggregate principal amount of Notes repurchased plus accrued
and unpaid interest, if any, on the Notes repurchased to, but not
including, the date of repurchase. Within 30 days following a
Change of Control Repurchase Event or, at the Company’s
option, prior to a Change of Control (as defined below), but in
either case, after the public announcement of the Change of
Control, the Company will mail, or shall cause to be mailed, a
notice to each Holder, with a copy to the Trustee, describing the
transaction or transactions that constitute or may constitute the
Change of Control Repurchase Event, offering to repurchase Notes on
the payment date specified in the notice, which date will be no
earlier than 30 days and no later than 60 days from the
date such notice is mailed (the “Change of Control Payment
Date”), disclosing that any Note not tendered for repurchase
will continue to accrue interest, and specifying the procedures for
tendering Notes. The notice shall, if mailed prior to the date of
consummation of the Change of Control, state that the offer to
purchase is conditioned on a Change of Control Repurchase Event
occurring on or prior to the payment date specified in the notice.
The Company must comply with the requirements of Rule 14e-1
under the Exchange Act, and any other securities laws and
regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a
result of a Change of Control Repurchase Event. To the extent that
the provisions of any securities laws or regulations conflict with
the Change of Control Repurchase Event provisions of the Notes, the
Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached the obligations
of the Company under the Change of Control Repurchase Event
provisions of the Notes by virtue of such conflict.
On the repurchase
date following a Change of Control Repurchase Event, the Company
will be required, to the extent lawful, to: (i) accept for
payment all Notes or portions of Notes properly tendered pursuant
to the Change of Control Offer; (ii) deposit with the paying
agent an amount equal to the aggregate purchase price in respect of
all Notes or portions of Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the
Notes properly accepted, together with an officers’
certificate stating the aggregate principal amount of Notes being
purchased.
The paying agent
will promptly distribute to each Holder of Notes properly tendered
the purchase price for the Notes deposited by the Company. The
Company will execute, and the authenticating agent will promptly
authenticate and deliver (or cause to be transferred by book-entry)
to each Holder a new note equal in principal amount to any
unpurchased portion of any Notes surrendered provided that each new
Note will be in a principal amount of an integral multiple of
$1,000. The Company will not be required to make an offer to
repurchase the Notes upon a Change of Control Repurchase Event if a
third party makes such an offer in the manner,
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at the times
and otherwise in compliance with the requirements for an offer made
by the Company and such third party purchases all Notes properly
tendered and not withdrawn under its offer.
As used in this
Section 2.9, the terms set forth below shall have the
following respective meanings:
“ Below
Investment Grade Ratings Event ” means that on any day
during the period (the “ Trigger Period ”)
commencing 60 days prior to the first public announcement by
the Company of any Change of Control (or pending Change of Control)
and ending 60 days following consummation of such Change of
Control (which Trigger Period will be extended following
consummation of a Change of Control for up to an additional
60 days for so long as any of the Rating Agencies has publicly
announced that it is considering a possible ratings change), the
Notes cease to be rated Investment Grade by at least two of the
three Rating Agencies. Unless at least two of the three Rating
Agencies are providing a rating for the Notes at the commencement
of any Trigger Period, the Notes will be deemed to have ceased to
be rated Investment Grade by at least two of the three Rating
Agencies during that Trigger Period.
“ Change
of Control ” means the occurrence of any of the
following: (1) the consummation of any transaction (including,
without limitation, any merger or consolidation) the result of
which is that any “person” (as that term is used in
Section 13(d)(3) of the Exchange Act) (other than the Company
or one of its subsidiaries) becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of more than 50% of the Voting Stock of the
Company or other Voting Stock into which the Voting Stock of the
Company is reclassified, consolidated, exchanged or changed,
measured by voting power rather than number of shares; (2) the
Company consolidates with, or merges with or into, any Person (as
defined in the Original Indenture), or any Person consolidates
with, or merges with or into, the Company, in any such event
pursuant to a transaction in which any of the outstanding Voting
Stock of the Company or such other Person is converted into or
exchanged for cash, securities or other property, other than any
such transaction where the shares of the Voting Stock of the
Company outstanding immediately prior to such transaction
constitute, or are converted into or exchanged for, a majority of
the Voting Stock of the surviving Person immediately after giving
effect to such transaction; (3) the direct or indirect sale,
transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or more series of related
transactions, of all or substantially all of the consolidated
assets of the Company, including the assets of the subsidiaries of
the Company, taken as a whole, to one or more Persons (other than
the Company or one of its subsidiaries); (4) the first day on
which a majority of the members of the Board of Directors of the
Company is composed of members who are not Continuing Directors; or
(5) the adoption of a plan relating to the liquidation or
dissolution of the Company. Notwithstanding the foregoing, a
transaction will not be deemed to involve a Change of Control if
(1) the Company becomes a direct or indirect wholly owned
subsidiary of a holding company and (2)(A) the direct or indirect
holders of the Voting Stock of such holding company immediately
following that transaction are substantially the same as
the
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holders of the
Voting Stock of the Company immediately prior to that transaction
or (B) immediately following that transaction no person (other
than a holding company satisfying the requirements of this
sentence) is the beneficial owner, directly or indirectly, of more
than 50% of the Voting Stock of such holding
company.
“ Change
of Control Repurchase Event ” means the occurrence of
both a Change of Control and a Below Investment Grade Ratings
Event. Notwithstanding the foregoing, no Change of Control
Repurchase Event will be deemed to have occurred in connection with
any particular Change of Control unless and until such Change of
Control has actually been consummated.
“
Continuing Directors ” means, as of any date of
determination, any member of the Board of Directors (as defined in
the Original Indenture) who (1) was a member of the Board of
Directors of the Company on the date the Notes were issued or
(2) was nominated for election, elected or appointed to the
Board of Directors with the approval of a majority of the
Continuing Directors who were members of the Board of Directors at
the time of such nomination, election or appointment (either by a
specific vote or by approval of the proxy statement of the Company
in which such member was named as a nominee for election as a
director, without objection to such nomination).
“
Fitch ” means Fitch Inc., a subsidiary of Fimalac,
S.A., and its successors.
“
Investment Grade ” means a rating of Baa3 or higher by
Moody’s (or its equivalent under any successor rating
categories of Moody’s); a rating of BBB- or higher by S&P
(or its equivalent under any successor rating categories of
S&P); and a rating of BBB- or higher by Fitch (or its
equivalent under any successor rating categories of
Fitch).
“
Moody’s ” means Moody’s Investors Service,
Inc., and its successors.
“ Rating
Agency ” means each of Moody’s, S&P and Fitch;
provided, that if any of Moody’s, S&P and Fitch ceases to
provide rating services to issuers or investors, the Company may
appoint a replacement for such Rating Agency that is reasonably
acceptable to the Trustee.
“
S&P ” means Standard & Poor’s Ratings
Services, a division of McGraw-Hill, Inc., and its
successors.
“ Voting
Stock ” of any specified “person” (as that
term is used in Section 13(d)(3) of the Exchange Act) as of
any date means the capital stock of such person that is at the time
entitled to vote generally in the election of the board of
directors of such person.
2.10. Form and
Other Terms of the Notes . Attached hereto as Annex A is
a form of a Note denominated in United States dollars, which form
is hereby esta
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