-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, R3F6xzeONw/9aHVTnmLxuqJnHGzfQ8mnHfANR5WwQpXpvyyYdLMiBR2FBlhsOge3 xNUh2AoozopYCmUMhZFw6A== 0000914062-02-000546.txt : 20020821 0000914062-02-000546.hdr.sgml : 20020821 20020821165502 ACCESSION NUMBER: 0000914062-02-000546 CONFORMED SUBMISSION TYPE: S-4 PUBLIC DOCUMENT COUNT: 12 FILED AS OF DATE: 20020821 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SYSCO INTERNATIONAL CO CENTRAL INDEX KEY: 0001181309 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-98489 FILM NUMBER: 02745048 BUSINESS ADDRESS: STREET 1: 1390 ENCLAVE PARKWAY CITY: HOUSTON STATE: TX ZIP: 77077-2099 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SYSCO CORP CENTRAL INDEX KEY: 0000096021 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-GROCERIES & RELATED PRODUCTS [5140] IRS NUMBER: 741648137 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-98489-01 FILM NUMBER: 02745049 BUSINESS ADDRESS: STREET 1: 1390 ENCLAVE PKWY CITY: HOUSTON STATE: TX ZIP: 77077 BUSINESS PHONE: 2815841390 S-4 1 syscos4802.txt FORM S-4 As filed with the Securities and Exchange Commission on August 21, 2002 Registration No. 333-_______ - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SYSCO INTERNATIONAL, CO. SYSCO CORPORATION (Exact names of co-registrants as specified in their charters) NOVA SCOTIA 5140 DELAWARE (State or other jurisdiction of (Primary Standard Industrial (State or other jurisdiction of incorporation or organization) Classification Code Number) incorporation or organization N/A 74-1648137 ---------------------------------- ---------------------------------- (I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
1390 Enclave Parkway Houston, Texas 77077-2099 (281) 584-1390 (Address, including zip code, telephone number, including area code, of registrant's principal executive offices) MICHAEL C. NICHOLS Vice President, General Counsel and Secretary 1390 Enclave Parkway Houston, Texas 77077-2099 (281) 584-1390 (Name, address, including zip code, and telephone number, including area code, of agent for service) COPIES TO: B. Joseph Alley, Jr., Esq. Arnall Golden Gregory LLP 2800 One Atlantic Center 1201 West Peachtree Street Atlanta, Georgia 30309-3450 (404) 873-8500 APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after this Registration Statement becomes effective. If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. [ ] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------------------ Proposed Maximum Proposed Maximum Title of Securities to be Amount to be Offering Price Aggregate Offering Amount of Registration Registered Registered Per Note(1) Price(1) Fee - ------------------------------------------------------------------------------------------------------------------------------ 6.10% Notes Due 2012(2) $200,000,000 100% $200,000,000 $18,400.00 - ------------------------------------------------------------------------------------------------------------------------------ Guarantees of 6.10% Notes Due 2012(2) (3) (3) (3) (3) - ------------------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(f) under the Securities Act of 1933, as amended. (2) The notes were issued by SYSCO International, Co. and are unconditionally guaranteed by SYSCO Corporation. (3) Pursuant to Rule 457(n) under the Securities Act, no separate fee is payable with respect to the guarantees of the notes. THE REGISTRANTS HEREBY AMEND THIS REGISTRATION ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. The information in this prospectus is not complete and may change. We may not consummate the exchange offer until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell or exchange these securities and it is not soliciting an offer to buy or exchange these securities in any state in which the offer or sale is not permitted. SUBJECT TO COMPLETION, DATED AUGUST 21, 2002 PROSPECTUS SYSCO INTERNATIONAL, CO. OFFER TO EXCHANGE $200,000,000 AGGREGATE PRINCIPAL AMOUNT OF 6.10% NOTES DUE 2012 FULLY AND UNCONDITIONALLY GUARANTEED BY SYSCO CORPORATION FOR SYSCO INTERNATIONAL, CO. $200,000,000 AGGREGATE PRINCIPAL AMOUNT OF 6.10% NOTES DUE 2012 FULLY AND UNCONDITIONALLY GUARANTEED BY SYSCO CORPORATION AND EACH REGISTERED UNDER THE SECURITIES ACT OF 1933 THE EXCHANGE OFFER o The exchange offer will expire at 5:00 p.m. New York City time, on _____, 2002, unless extended. o The exchange offer is not subject to any conditions other than that the exchange offer not violate applicable law or any applicable interpretation of the staff of the SEC. o We will exchange all old notes that are validly tendered and not validly withdrawn. o You may withdraw tenders of old notes at any time before the expiration of the exchange offer. o The terms of the new notes are substantially identical to the outstanding notes, except that the new notes and guarantees will be registered and certain transfer restrictions, registration rights and liquidated damages will not apply to the new notes. o We will not receive any proceeds from the exchange offer. o We do not intend to list the new notes on any national stock exchange or on Nasdaq. o Any old notes that are not validly tendered will remain outstanding and accrue interest but will remain subject to existing transfer restrictions. o The exchange of new notes for old notes will not be a taxable event for U.S. and Canadian income tax purposes. SEE "RISK FACTORS" BEGINNING ON PAGE 10 FOR A DISCUSSION OF THE FACTORS THAT YOU SHOULD CONSIDER IN CONNECTION WITH THE EXCHANGE OFFER AND AN EXCHANGE OF OLD NOTES FOR NEW NOTES. We are not asking you for a proxy, and you are requested not to send us a proxy. NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED THAT THIS PROSPECTUS IS ACCURATE OR COMPLETE OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this prospectus is _____, 2002. TABLE OF CONTENTS PAGE ---- Where You Can Find More Information.........................................1 Incorporation By Reference..................................................1 Forward-Looking Statements..................................................2 Summary.....................................................................3 Risk Factors...............................................................10 Use of Proceeds............................................................14 Ratio of Earnings To Fixed Charges.........................................14 Capitalization.............................................................15 Unaudited Condensed Consolidating Financial Information....................16 The Exchange Offer.........................................................21 Description of New Notes...................................................30 United States Federal and Canadian Income Tax Considerations...............43 Plan of Distribution.......................................................47 Legal Matters..............................................................49 Independent Auditors.......................................................49 In this prospectus, we refer to SYSCO Corporation and its subsidiaries and divisions as "SYSCO" and SYSCO International, Co. and subsidiaries as "SYSCO International," "we" or "us," unless we specifically state otherwise or the context indicates otherwise. References to the "old notes" mean the 6.10% notes due 2012 that we issued on May 23, 2002. References to the "new notes" mean the 6.10% notes due 2012 that we have registered under the Securities Act of 1933 and that we are offering in exchange for the old notes. Each broker-dealer that receives new notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of the new notes. The letter of transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act of 1933, which we refer to as the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of new notes received in exchange for old notes where the old notes were acquired by the broker-dealer as a result of market-making activities or other trading activities. We have agreed that, for a period of 180 days after the expiration of the exchange offer, we will make this prospectus available to any broker-dealer for use in connection with any such resale. See "Plan of Distribution." i WHERE YOU CAN FIND MORE INFORMATION SYSCO files annual, quarterly and current reports, proxy and information statements and other information with the Securities and Exchange Commission. You may read and copy any materials SYSCO files at the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information regarding the public reference room. SYSCO's SEC filings are also available to the public at the SEC's web site at http://www.sec.gov. We and SYSCO Corporation have also filed a registration statement with the SEC relating to the new notes described in this prospectus. This prospectus is part of the registration statement. You may obtain from the SEC a copy of the registration statement and exhibits that we and SYSCO filed with the SEC when we and SYSCO registered the new notes. The registration statement may contain additional information that may be important to you. You should rely only on the information contained or incorporated by reference in this prospectus. Neither we nor SYSCO have authorized anyone else to provide you with additional or different information. We are only offering to exchange the old notes for new notes in states where the offer is permitted. You should not assume that the information in this prospectus is accurate as of any date other than the date on the front of this document. INCORPORATION BY REFERENCE The SEC allows SYSCO to "incorporate by reference" information it files with the SEC, which means that SYSCO can disclose important information to you by referring you to those documents filed separately with the SEC. The information incorporated by reference is an important part of this prospectus, and information that SYSCO subsequently files with the SEC will automatically update and supercede information in this prospectus and in SYSCO's other filings with the SEC. SYSCO incorporates by reference the documents listed below, which SYSCO has already filed with the SEC, and any future filings SYSCO makes with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 (other than the Audit Committee Report, the Report of the Compensation Committee and the Performance Graph included in SYSCO's definitive proxy statement), until the later of the date on which we have completed the exchange offer or the end of the period during which this prospectus is available for use by participating broker-dealers and others with similar prospectus delivery requirements for use in connection with any resale of new notes: o SYSCO's annual report on Form 10-K for the fiscal year ended June 30, 2001; o SYSCO's quarterly reports on Form 10-Q for the quarters ended September 29, 2001, December 29, 2001 and March 30, 2002; and o SYSCO's current reports on Form 8-K filed on August 2, 2001, September 26, 2001, October 17, 2001, December 18, 2001, January 16, 2002, March 27, 2002, April 17, 2002, April 24, 2002, May 31, 2002 and July 31, 2002. You may request a copy of these filings, other than an exhibit to a filing, unless that exhibit is specifically incorporated by reference into the filing, at no cost, and a copy of the indenture and the registration rights agreement that we refer to in this prospectus by writing or calling us at the following address: SYSCO Corporation 1390 Enclave Parkway Houston, Texas 77077-2099 (281) 584-1390 Attention: Corporate Secretary To obtain timely delivery of this information, you must request it no later than five (5) business days before _____, 2002, the expiration date of the exchange offer. 1 FORWARD-LOOKING STATEMENTS This prospectus contains and incorporates by reference forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. You can identify SYSCO's and our forward-looking statements by words such as "estimate," "project," "predict," "believe," "expect," "anticipate," "plan," "forecast," "budget," "goal," "outlook" or other words that convey the uncertainty of future events or outcomes. These statements include statements about long-term debt to capitalization target ratios, anticipated capital expenditures and SYSCO's ability to meet future cash requirements and maintain liquidity. These statements are based on SYSCO's or our expectations and assumptions about future events at the time the statements were made and are subject to significant business, economic, competitive, regulatory and other risks, contingencies and uncertainties, many of which are beyond SYSCO's and our control, that could cause the actual results to differ materially from those contemplated in the forward-looking statements. In addition to the assumptions and other factors referred to specifically in connection with forward-looking statements, factors that could cause the actual results to differ materially include the factors described under the caption "Risk Factors" in this prospectus and other factors described in SYSCO's SEC filings incorporated by reference into this prospectus. In addition, SYSCO's ability to meet future cash requirements and maintain liquidity could be affected by conditions in the economy and the industry and internal factors such as the ability to control expenses. The ability to meet long-term debt to capitalization target ratios may also be affected by share repurchases, cash flow, acquisitions and internal growth. Should any risks and uncertainties develop into actual events, these developments could have material adverse effects on the business, financial condition and results of operations of SYSCO and its subsidiaries. For these reasons, we caution you not to place undue reliance on SYSCO's or our forward-looking statements. Neither we nor SYSCO undertake any obligation to update these forward-looking statements unless the securities laws require us to do so. 2 SUMMARY You should read the following summary together with the more detailed information included or incorporated by reference in this prospectus about us, SYSCO and this offering. SYSCO INTERNATIONAL, CO. SYSCO International, Co. is an unlimited liability company organized under the laws of the Province of Nova Scotia, Canada and a wholly owned subsidiary of SYSCO. SYSCO International, Co. is a holding company with no independent operations, sources of income or assets, other than equity interests in its subsidiaries. Through its wholly-owned subsidiaries, SYSCO International, Co. owns the SERCA foodservice distribution business, which was recently acquired, as discussed below. As of May 25, 2002, SYSCO International, Co. had outstanding Canadian (CAD) $79,800,000 ($50,761,000 at May 25, 2002 exchange rates) of short-term promissory notes issued pursuant to a commercial paper program and $200,000,000 principal amount of old notes. This commercial paper was issued primarily to finance the acquisition of SERCA and to provide working capital for some of SYSCO's Canadian operations. The old notes were issued to repay a portion of the commercial paper. Our principal offices are c/o SYSCO Corporation at 1390 Enclave Parkway, Houston, Texas 77077. SYSCO CORPORATION SYSCO Corporation, acting through its subsidiaries and divisions, is the largest North American distributor of food and related products to the foodservice or "food-prepared-away-from-home" industry. SYSCO provides its products and services to more than 400,000 customers, including: o restaurants; o healthcare and educational facilities; o lodging establishments; and o other foodservice customers. Since SYSCO's formation in 1969, its annual sales have grown from approximately $115 million to over $23 billion in fiscal 2002, both through internal expansion of existing operations and acquisitions of formerly independent companies. Through the date of this prospectus, SYSCO has acquired sixty-seven companies or divisions of companies. Food products distributed by SYSCO include: o a full line of frozen foods, such as meats, fully prepared entrees, fruits, vegetables and desserts; o a full line of canned and dry foods; o fresh meats, poultry and seafood; o imported specialties; o fresh produce; o dairy products; and o beverages. 3 SYSCO also supplies a wide variety of nonfood items, including: o paper products, such as disposable napkins, plates and cups; o tableware, such as china and silverware; o restaurant and kitchen equipment and supplies; o medical and surgical supplies; o cleaning supplies; and o personal care guest amenities, housekeeping supplies, room accessories and textiles to the lodging industry. SYSCO distributes both nationally branded merchandise and products packaged under its own proprietary brands. SYSCO is a Delaware corporation, with its principal executive offices located at 1390 Enclave Parkway, Houston, Texas 77077-2099. RECENT DEVELOPMENTS ACQUISITION OF THE SERCA FOODSERVICE BUSINESS Our wholly owned subsidiary recently purchased substantially all of the assets of the SERCA foodservice operations of Sobeys Inc., excluding its British Columbia operations, for approximately CAD$336,400,000 ($210,500,000 at March 30, 2002 exchange rates) and assumed certain liabilities of SERCA related to the assets acquired. SERCA is a foodservice and equipment distributor headquartered in Toronto, Ontario. The acquisition was funded in the fourth quarter of fiscal 2002 and will be reflected in the financial statements of SYSCO for the quarter ending June 29, 2002. ISSUANCE OF $200,000,000 OF SENIOR NOTES On April 5, 2002, SYSCO Corporation issued $200,000,000 principal amount of its 4.75% senior notes due July 30, 2005. The proceeds of that issuance were used to repay indebtedness incurred under SYSCO's commercial paper programs. 4 SUMMARY OF EXCHANGE OFFER The following summary is provided solely for your convenience. This summary is not intended to be complete. You should read the full text and more specific details contained in "The Exchange Offer" section of this prospectus. THE EXCHANGE OFFER We are offering to issue up to $200,000,000 aggregate principal amount of new notes in exchange for a like principal amount of old notes. This exchange offer will satisfy our obligations under the registration rights agreement that we entered into when we sold the old notes. We will issue the new notes on or promptly after the expiration date of the exchange offer. EXPIRATION DATE; The exchange offer will expire at 5:00 p.m., New York City TENDERS time, on _____, 2002, unless we extend it, in which case the expiration date will mean the latest date and time to which we extend the exchange offer. By tendering your old notes, you represent to us that: o you are not our or SYSCO's "affiliate," as defined in Rule 405 under the Securities Act; o any new notes you receive in the exchange offer are being acquired by you in the ordinary course of your business; o at the time of commencement of the exchange offer, neither you nor, to your knowledge, anyone receiving new notes from you, has any arrangement or understanding with any person to participate in the distribution, as defined in the Securities Act, of the new notes in violation of the Securities Act and you are not engaged in, and do not intend to engage in, the distribution of the new notes, as defined in the Securities Act; and o if you are a broker-dealer, you will receive the new notes for your own account in exchange for old notes that were acquired by you as a result of your market-making or other trading activities and you will deliver a prospectus in connection with any resale of the new notes you receive. For further information regarding resales of the new notes by participating broker-dealers, see the discussion below under the caption "Plan of Distribution." RESALE We believe that the new notes may be offered for resale, resold and otherwise transferred by you (unless you acquired the old notes to be exchanged directly from us) without compliance with the registration or prospectus delivery provisions of the Securities Act if: 5 o you are not our or SYSCO's "affiliate;" o you are acquiring the new notes in the ordinary course of your business; and o you are not participating, do not intend to participate, and have no arrangement or understanding with any person to participate, in a distribution of the new notes. Each participating broker-dealer that receives new notes for its own account under the exchange offer in exchange for old notes that were acquired by the broker-dealer as a result of market-making or other trading activity must acknowledge that it will deliver a prospectus in connection with any resale of the new notes. See "Plan of Distribution." Any holder of old notes who: o is our or SYSCO's "affiliate;" o acquired the old notes to be exchanged directly from us; o does not acquire new notes in the ordinary course of its business; or o exchanges old notes in the exchange offer with the intention to participate, or for the purpose of participating, in a distribution of new notes, must, in the absence of an exemption, comply with the registration and prospectus delivery requirements of the Securities Act in connection with the resale of the new notes. CONDITIONS TO The exchange offer is not subject to conditions other than EXCHANGE OFFER that: o it shall not violate applicable law or any applicable interpretation of the staff of the SEC; and o no governmental authority has suspended or threatened to suspend the registration of the exchange offer. The exchange offer is not conditioned upon any minimum principal amount of old notes being tendered for exchange. PROCEDURES FOR If you wish to tender your old notes for new notes pursuant TENDERING OLD to the exchange offer, you must transmit to Wachovia Bank, NOTES National Association, as exchange agent, on or before the expiration date, either: 6 o a properly completed and duly executed letter of transmittal, which accompanies this prospectus, or a facsimile of the letter of transmittal, together with your old notes and any other required documentation, to the exchange agent at its address listed in this prospectus and on the front cover of the letter of transmittal; or o a computer-generated agent's message transmitted through The Depository Trust Company's Automated Tender Offer Program system and received by the exchange agent and forming a part of a confirmation of book-entry transfer in which you acknowledge and agree to be bound by the terms of the letter of transmittal. If you cannot satisfy either of these procedures on or before the expiration date, then you should comply with the guaranteed delivery procedures described below. Do not send letters of transmittal or certificates representing old notes to us. SPECIAL PROCEDURES If you are a beneficial owner whose old notes are registered FOR BENEFICIAL in the name of a broker, dealer,commercial bank, trust OWNERS company or other nominee and you wish to tender your old notes in the exchange offer, you should contact the registered holder promptly and instruct the registered holder to tender on your behalf. If you wish to tender on your own behalf, you must obtain a properly completed bond power from the registered holder, before completing and executing the letter of transmittal and delivering your old notes. GUARANTEED DELIVERY If you wish to tender your old notes and time will not PROCEDURES permit the documents required by the letter of transmittal to reach the exchange agent before the expiration date, or the procedure for book-entry transfer cannot be completed before the expiration date, you must tender your old notes according to the guaranteed delivery procedure described in this prospectus under "The Exchange Offer - Procedures for Tendering Old Notes - Guaranteed Delivery Procedures." ACCEPTANCE OF OLD Subject to the satisfaction or waiver of the conditions to NOTES AND the exchange offer, we will accept for exchange any and all DELIVERY OF NEW old notes which are validly tendered in the exchange offer NOTES and not withdrawn before 5:00 p.m., New York City time, on the expiration date. We will issue and deliver the new notes on or promptly after the expiration date. 7 WITHDRAWAL RIGHTS You may withdraw the tender of your old notes at any time before 5:00 p.m., New York City time, on the expiration date, by complying with the procedures for withdrawal described in this prospectus under "The Exchange Offer - Withdrawal Rights." FEDERAL INCOME TAX The exchange of old notes will not be a taxable event for CONSIDERATIONS United States federal income tax purposes. For a discussion of the material federal income tax consequences relating to the exchange of old notes, see "United States Federal and Canadian Income Tax Considerations--United States Federal Income Tax Consequences." EXCHANGE AGENT Wachovia Bank, National Association, the trustee under the indenture governing the old notes, is serving as the exchange agent. The address and telephone and fax numbers of the exchange agent are set forth in "The Exchange Offer-Exchange Agent." CONSEQUENCES OF If you do not exchange your old notes for new notes, you FAILURE TO will continue to be subject to the restrictions on transfer EXCHANGE OLD provided in the old notes and in the indenture (which NOTES FOR NEW governs both the new notes and the old notes). In general, NOTES the old notes may not be offered or sold, unless registered under, pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. We do not currently plan to register the old notes under the Securities Act. Because we anticipate that most holders of old notes will elect to exchange their old notes, we expect that the liquidity of the markets, if any, for the old notes remaining outstanding after the completion of the exchange offer will be substantially limited. REGISTRATION RIGHTS The registration rights agreement entitles you to an AGREEMENT opportunity to exchange your old notes for new transferable notes with substantially the identical terms. The exchange offer satisfies this right. After the exchange offer is completed and you have had the opportunity to receive new notes, you will no longer be entitled to any exchange registration rights with respect to your old notes or to additional interest in respect of the old notes in the event certain requirements of the registration rights agreement are not satisfied. USE OF PROCEEDS Neither we nor SYSCO will receive any proceeds from the issuance of the new notes. 8 SUMMARY DESCRIPTION OF THE NEW NOTES The following summary description is not intended to be complete. You should read the full text and more specific details contained in the "Description of New Notes" section of this prospectus.
ISSUER SYSCO International, Co. THE NEW NOTES $200 million aggregate principal amount of 6.10% Notes due June 1, 2012. MATURITY DATE The new notes will mature on June 1, 2012, if not redeemed earlier. INTEREST PAYMENT Interest on the new notes is payable on June 1 and December 1 of each year, DATES commencing on December 1, 2002. OPTIONAL REDEMPTION The new notes may be redeemed by us at any time by paying the greater of principal and interest or a "make-whole amount." RANKING The new notes are unsecured obligations of SYSCO International, Co. and will rank equally with each other and with all other unsecured and unsubordinated debt of SYSCO International, Co. The new notes will be effectively subordinated to all existing and future indebtedness and other liabilities (excluding intercompany liabilities) of our subsidiaries. On May 25, 2002, our subsidiaries had aggregate liabilities (excluding intercompany liabilities) of approximately $159,370,000. See "Description of New Notes--General." GUARANTEES Our parent company, SYSCO Corporation, will fully and unconditionally guarantee the payment of all principal and interest under the new notes. SYSCO Corporation's guarantees of the new notes will rank equally with each other and with all other unsecured and unsubordinated debt of SYSCO Corporation, which totaled $1,186 million (including $253,188,000 of guarantees of SYSCO International, Co.'s and other subsidiaries' debt) as of May 25, 2002. SYSCO Corporation's guarantees will be effectively subordinated to all existing and future indebtedness and other liabilities (excluding intercompany liabilities) of SYSCO's subsidiaries. On May 25, 2002, SYSCO's subsidiaries had aggregate liabilities (excluding intercompany liabilities) of approximately $2,158 million. RESTRICTIVE COVENANTS The indenture governing the new notes will restrict our ability and the ability of SYSCO to create certain liens, enter into sale and leaseback transactions and merge or consolidate.
9 RISK FACTORS You should carefully consider the following risk factors and the other information included or incorporated by reference in this prospectus before deciding to tender your old notes in exchange for new notes pursuant to the exchange offer. RISKS RELATED TO THE NEW NOTES WE ARE A HOLDING COMPANY WITH NO INDEPENDENT OPERATIONS AND, ACCORDINGLY, WILL DEPEND ON THE CASH FLOW OF SYSCO AND SYSCO'S SUBSIDIARIES TO SATISFY OUR OBLIGATIONS UNDER THE NEW NOTES. We are a holding company with no independent operations, sources of income or assets, other than our equity interests in our subsidiaries. We will depend on payments on intercompany loans or dividends or other distributions from SYSCO's subsidiaries or payments to us by SYSCO to make payments on the new notes. Our subsidiaries and other affiliates to which we have made loans are separate legal entities that have no obligation to pay any amounts due pursuant to the new notes. We cannot assure you that the amounts we receive from SYSCO or its subsidiaries will be sufficient to enable us to service our obligations under the new notes. SYSCO'S SUBSTANTIAL INDEBTEDNESS COULD ADVERSELY AFFECT ITS FINANCIAL HEALTH AND PREVENT US FROM FULFILLING OUR OBLIGATIONS UNDER THE NEW NOTES. SYSCO has a significant amount of indebtedness. As of May 25, 2002, SYSCO had, on a consolidated basis, outstanding total debt of $1,239 million, and stockholders' equity of $2,153 million. SYSCO's ratio of earnings to fixed charges for the 39 weeks ended March 30, 2002 was 15.6x. SYSCO's substantial amount of debt could have important consequences for you. For example, it could: o make it more difficult for us to satisfy our obligations with respect to the new notes; o limit SYSCO's ability to obtain additional financing, if needed, for working capital, capital expenditures, acquisitions, debt service requirements or other purposes; o increase SYSCO's vulnerability to adverse economic and industry conditions; o limit SYSCO's flexibility in planning for, or reacting to, changes in its business and its industry; and o place SYSCO at a competitive disadvantage compared to its competitors that have less debt. THE NEW NOTES ARE EFFECTIVELY SUBORDINATED TO ANY EXISTING AND FUTURE INDEBTEDNESS OF OUR SUBSIDIARIES. The new notes are effectively subordinated to all existing and future indebtedness and other liabilities (excluding intercompany liabilities) of our subsidiaries. At May 25, 2002, our subsidiaries had aggregate liabilities (excluding intercompany liabilities) of approximately $159,370,000. The indenture does not limit our or our subsidiaries' ability to incur additional indebtedness. Any significant additional indebtedness incurred may adversely impact our ability to service our debt, including our obligations under the new notes. THE GUARANTEES ARE EFFECTIVELY SUBORDINATED TO ANY EXISTING AND FUTURE INDEBTEDNESS OF SYSCO CORPORATION'S SUBSIDIARIES. The guarantees are effectively subordinated to all existing and future indebtedness and other liabilities (excluding intercompany liabilities) of SYSCO's subsidiaries. At May 25, 2002, SYSCO's subsidiaries had aggregate liabilities of approximately $2,158 million. The indenture does not limit SYSCO's or its subsidiaries' ability to incur additional indebtedness. Any significant additional indebtedness incurred may adversely impact SYSCO's ability to service its debt, including its obligations under the guarantees. 10 IF YOU DO NOT EXCHANGE YOUR OLD NOTES FOR NEW NOTES, YOU WILL CONTINUE TO HAVE RESTRICTIONS ON YOUR ABILITY TO RESELL THEM. The old notes were not registered under the Securities Act or under the securities laws of any state and may not be resold, offered for resale, or otherwise transferred unless they are subsequently registered or resold pursuant to an exemption from the registration requirements of the Securities Act and applicable state securities laws. If you do not exchange your old notes for new notes pursuant to the exchange offer, you will not be able to resell, offer to resell, or otherwise transfer the old notes unless they are registered under the Securities Act or unless you resell them, offer to resell them or otherwise transfer them under an exemption from the registration requirements of, or in a transaction not subject to, the Securities Act. In addition, we will no longer be under an obligation to register the old notes under the Securities Act except in the limited circumstances provided in the registration rights agreement. IF AN ACTIVE TRADING MARKET DOES NOT DEVELOP FOR THE NEW NOTES, YOU MAY NOT BE ABLE TO RESELL. There is currently no established market for the new notes. We do not intend to list the new notes on any securities exchange. We cannot assure you that an active trading market for the new notes will develop. If a market for the new notes does develop, that market may cease to exist at any time. In addition, in any such market, the new notes could trade at prices that may be higher or lower than their principal amount. The liquidity of any market for the new notes will depend upon various factors, including: o the number of holders of the new notes; o the interest of securities dealers in making a market for the new notes; o the overall market for investment grade securities; o SYSCO's and our financial performance and prospects; and o the prospects for companies in our industry generally. In addition, the liquidity of the trading market in the new notes, and the market price quoted for the new notes, may be adversely affected by changes in the overall market for fixed income securities generally. As a result, an active trading market may not develop for the new notes. If no active trading market develops, you may not be able to resell your notes at their fair market value or at all. To the extent that old notes are surrendered and accepted in the exchange offer, the trading market for unsurrendered old notes and for surrendered-but-unaccepted old notes could be adversely affected due to the limited amount of old notes that are expected to remain outstanding following the exchange offer. Generally, when there are fewer outstanding securities of an issue, there is less demand to purchase that security, which results in a lower price for the security. Conversely, if many old notes are not surrendered, or are surrendered but unaccepted, the trading market for the new notes could be adversely affected. See "Plan of Distribution" and "The Exchange Offer" for further information regarding the distribution of the new notes and the consequences of failure to participate in the exchange offer. RISKS RELATED TO SYSCO'S BUSINESS SYSCO IS IN A LOW MARGIN BUSINESS, AND ITS PROFITABILITY MAY BE NEGATIVELY IMPACTED BY FOOD PRICE DEFLATION AND OTHER FACTORS. The foodservice distribution industry is characterized by relatively high inventory turnover with relatively low profit margins. SYSCO makes a significant portion of its sales at prices that are based on the cost of products it sells plus a percentage markup. As a result, SYSCO's profit levels may be negatively impacted during periods of food price deflation, even though its gross profit percentage may remain relatively constant. The foodservice industry is sensitive to national and regional economic conditions. SYSCO's operating results also are sensitive to, and may be adversely affected by, other factors, including difficulties with the collectability of accounts receivable, inventory control, competitive price pressures, severe weather conditions and unexpected increases 11 in fuel or other transportation-related costs. Although these factors have not had a material adverse impact on its past operations, SYSCO can provide no assurance that one or more of these factors will not adversely affect its future operating results. SYSCO'S SIGNIFICANT INDEBTEDNESS COULD INCREASE ITS VULNERABILITY TO COMPETITIVE PRESSURES, NEGATIVELY AFFECT ITS ABILITY TO EXPAND AND DECREASE THE MARKET VALUE OF ITS STOCK. At May 25, 2002, SYSCO had, on a consolidated basis, approximately $1,174 million of long-term indebtedness outstanding. Because historically a substantial part of SYSCO's growth has resulted from acquisitions and capital expansion, SYSCO's continued growth depends, in large part, on its ability to continue this expansion. As a result, SYSCO's inability to finance acquisitions and capital expenditures through borrowed funds could restrict its ability to expand. Moreover, any default under the documents governing SYSCO's indebtedness could have a significant adverse effect on the market value of its common stock, thereby constraining its ability to raise equity capital. Further, SYSCO's leveraged position may also increase its vulnerability to competitive pressures. BECAUSE IT SELLS FOOD PRODUCTS, SYSCO FACES THE RISK OF EXPOSURE TO PRODUCT LIABILITY CLAIMS. SYSCO, like any other seller of food, faces the risk of exposure to product liability claims in the event that the use of products sold by it causes injury or illness. With respect to product liability claims, SYSCO believes it has sufficient primary and excess umbrella liability insurance. However, this insurance may not continue to be available at a reasonable cost, or, if available, may not be adequate to cover all of SYSCO's liabilities. SYSCO generally seeks contractual indemnification and insurance coverage from parties supplying its products, but this indemnification or insurance coverage is limited, as a practical matter, to the creditworthiness of the indemnifying party and the policy limits of any insurance provided by suppliers. If SYSCO does not have adequate insurance or contractual indemnification available, product liability relating to defective products could materially reduce its net income and earnings per share. BECAUSE SYSCO HAS FEW LONG-TERM CONTRACTS WITH SUPPLIERS AND DOES NOT CONTROL THE ACTUAL PRODUCTION OF THE PRODUCTS IT SELLS, IT MAY BE UNABLE TO OBTAIN ADEQUATE SUPPLIES OF ITS PRODUCTS. SYSCO obtains substantially all of its foodservice products from third-party suppliers. For the most part, SYSCO does not have long-term contracts with its suppliers committing them to provide products to it. Although SYSCO's purchasing volume can provide leverage when dealing with suppliers, suppliers may not provide the foodservice products and supplies SYSCO needs in the quantities it requests. Because it does not control the actual production of the products it sells, SYSCO is also subject to delays caused by interruption in production based on conditions outside its control. These conditions include job actions or strikes by employees of suppliers, weather, crop conditions, transportation interruptions and natural disasters or other catastrophic events. SYSCO's inability to obtain adequate supplies of its foodservice products, as a result of any of the foregoing factors or otherwise, could mean that SYSCO could not fulfill its obligations to customers, and customers may turn to other distributors. IF SYSCO CANNOT RENEGOTIATE ITS UNION CONTRACTS, ITS PROFITABILITY MAY DECREASE BECAUSE OF WORK STOPPAGES. As of December 29, 2001, approximately 8,300 employees at 38 of SYSCO's operating companies were members of 47 different local unions associated with the International Brotherhood of Teamsters and other labor organizations. In fiscal 2003, 15 agreements covering approximately 2,400 employees will expire. Failure to effectively renegotiate these contracts could result in work stoppages. Although SYSCO has not experienced any significant labor disputes or work stoppages to date, and SYSCO believes it has satisfactory relationships with its unions, work stoppages due to failure to renegotiate union contracts, or otherwise, could have a material adverse effect on it. IF SYSCO CANNOT INTEGRATE ACQUIRED COMPANIES WITH ITS BUSINESS, ITS PROFITABILITY MAY DECREASE. If SYSCO is unable to integrate acquired businesses, including SERCA, successfully and realize anticipated economic, operational and other benefits in a timely manner, its profitability may decrease. Integration of an acquired business may be more difficult when it acquires a business in a market in which it has limited or no expertise, or with a corporate culture different from its own. If SYSCO is unable to integrate acquired businesses successfully, it may incur substantial costs and delays in increasing its customer base. In addition, the failure to integrate acquisitions successfully may divert SYSCO's management's attention from existing business and may damage its relationships with its key customers and suppliers. 12 OUR CONSOLIDATED FINANCIAL STATEMENTS INCORPORATED IN THIS PROSPECTUS BY REFERENCE WERE AUDITED BY ARTHUR ANDERSEN LLP, WHICH HAS BEEN FOUND GUILTY OF OBSTRUCTION OF JUSTICE AND MAY BE THE SUBJECT OF ADDITIONAL LITIGATION. Arthur Andersen LLP has been found guilty of obstruction of justice with respect to its activities in connection with Enron Corp. and may be the subject of additional litigation. Arthur Andersen LLP has also agreed to cease practicing before the SEC by August 31, 2002, unless the SEC deems another date appropriate. Arthur Andersen LLP may seek to have the conviction overturned, may dissolve or liquidate, may merge with or have its assets sold to a third party or may lose critical personnel. In the event that Arthur Andersen LLP dissolves, liquidates or does not otherwise continue in business, Arthur Andersen LLP may have insufficient assets to satisfy any claims that may be made by investors or by SYSCO with respect to this offering or the financial statements incorporated by reference in this prospectus and SYSCO's periodic reports under the Securities Exchange Act in reliance on Arthur Andersen LLP's reports. In addition, Arthur Andersen LLP has not consented to the incorporation by reference of their report dated August 1, 2001 in this prospectus, and SYSCO has dispensed with the requirement to file their consent in reliance upon Rule 437a of the Securities Act. Because Arthur Andersen LLP has not consented to the inclusion of their report in this prospectus, you will not be able to recover against Arthur Andersen LLP under Section 11 of the Securities Act for any untrue statements of a material fact contained in the financial statements audited by Arthur Andersen LLP or any omissions to state a material fact required to be stated therein. Therefore, your right of recovery under that section may be limited as a result of the lack of consent. 13 USE OF PROCEEDS This exchange offer is intended to satisfy our obligations under the registration rights agreement. Neither we nor SYSCO will receive any proceeds from the exchange offer. You will receive, in exchange for old notes tendered by you and accepted by us in the exchange offer, new notes in the same principal amount. The old notes surrendered in exchange for the new notes will be retired and cancelled and cannot be reissued. Accordingly, the issuance of the new notes will not result in any increase of our outstanding debt. We have agreed to pay the expenses of the exchange offer. RATIO OF EARNINGS TO FIXED CHARGES SYSCO's ratio of earnings to fixed charges for each of the periods indicated is as follows:
- --------------------------------------------------------------------------------------------------------------------------------- FISCAL YEAR ENDED 39-WEEKS ENDED --------------------------------------------------------------------- MARCH 30, JUNE 30, JULY 1, JULY 3, JUNE 27, JUNE 28, 2002 2001 2000 1999(1) 1998 1997 - ---------------------------------- ----------------- ----------- ---------- ---------- ---------- ----------- Ratio of earnings to fixed 15.6x 13.2x 10.8x 8.6x 9.4x 10.6x charges - ---------------------------------------------------------------------------------------------------------------------------------
(1) The fiscal year ended July 3, 1999 was a 53-week year. For the purpose of calculating this ratio, "earnings" consist of earnings before income taxes and fixed charges (exclusive of interest capitalized). "Fixed charges" consist of interest expense, capitalized interest and the estimated interest portion of rents. 14 CAPITALIZATION The following table sets forth SYSCO's consolidated capitalization as of March 30, 2002 on an actual basis and as adjusted to give effect to (i) the SERCA acquisition, (ii) the issuance by SYSCO in April 2002 of $200,000,000 aggregate principal amount of senior notes due 2005, (iii) the issuance of old notes and (iv) our application of the net proceeds from those issuances.
- ---------------------------------------------------------------------------------------------------------------------- AS OF MARCH 30, 2002 ----------------------------------- (UNAUDITED) (IN THOUSANDS) ACTUAL AS ADJUSTED - ---------------------------------------------------------------------------------------------------------------------- LONG-TERM DEBT: Senior notes, interest at 6.10%, maturing in fiscal 2012................ -- 199,360 Senior notes, interest at 4.75%, maturing in fiscal 2006................ -- 199,536 Revolving Loan Agreement and commercial paper, interest 99,869 -- averaging 1.8%, maturing July 7, 2003 ................................ Senior notes, interest at 6.5%, maturing in fiscal 2005................. 149,710 149,710 Senior notes, interest at 7.0%, maturing in fiscal 2006................. 200,000 200,000 Senior notes, interest at 7.25%, maturing in fiscal 2007................ 99,803 99,803 Debentures, interest at 7.16%, maturing in fiscal 2027.................. 50,000 50,000 Debentures, interest at 6.50%, maturing in fiscal 2029.................. 224,376 224,376 Industrial Revenue Bonds, mortgages and other debt, interest averaging 6.3%, maturing at various dates through fiscal 2026................... 53,277 53,277 ----------------- ----------------- Total long-term debt ................................................... $ 877,035 $ 1,176,062 SHAREHOLDERS' EQUITY: Preferred stock, $1 par value; 1,500,000 shares authorized; none issued.......................................................... -- -- Common stock, $1 par value; 1,000,000,000 shares authorized; 765,174,900 shares issued................................ 765,175 765,175 Paid-in capital........................................................ 213,748 213,748 Retained earnings...................................................... 2,722,739 2,722,739 Other comprehensive loss............................................... (5,624) (5,624) Less cost of treasury stock (101,484,766 shares)....................... (1,475,228) (1,475,228) ----------------- ----------------- Total shareholders' equity............................................. 2,220,810 2,220,810 ----------------- ----------------- TOTAL CAPITALIZATION...................................................... $ 3,097,845 $ 3,396,872 ================= ================= - ----------------------------------------------------------------------------------------------------------------------
15 UNAUDITED CONDENSED CONSOLIDATING FINANCIAL INFORMATION SYSCO International, Co. is an unlimited liability company organized under the laws of the Province of Nova Scotia, Canada and is a wholly owned subsidiary of SYSCO. On May 23, 2002, SYSCO International issued $200,000,000 of 6.10% notes due 2012. These notes are fully and unconditionally guaranteed by SYSCO. SYSCO International is a holding company with no significant sources of income or assets, other than its equity interests in its subsidiaries and interest income from loans made to its subsidiaries. The proceeds from the issuance of the notes were used to repay a portion of certain short-term promissory notes issued to fund the acquisition of SERCA. The following condensed consolidating financial information is unaudited and presents separately the financial position, results of operations and cash flows of the parent guarantor (SYSCO), the subsidiary issuer (SYSCO International), all other non-guarantor subsidiaries of SYSCO on a combined basis and eliminating entries for the periods presented. SYSCO International was formed on February 19, 2002.
- ------------------------------------------------------------------------------------------------------------------------------------ CONDENSED CONSOLIDATING BALANCE SHEET AS OF MARCH 30, 2002 OTHER SYSCO NON-GUARANTOR CONSOLIDATED (in thousands) SYSCO INTERNATIONAL SUBSIDIARIES ELIMINATIONS TOTALS - ------------------------------------------------------------------------------------------------------------------------------------ Current Assets $ 521,571 $ 15,676 $ 2,680,610 $ - $ 3,217,857 Investment in Subsidiaries 5,081,609 203,456 0 (5,285,065) - Plant and equipment, net 251,226 1,395,239 - 1,646,465 Other assets 201,731 8 760,925 - 962,664 ------------- --------------- --------------- -------------- ------------- Total assets $ 6,056,137 $ 219,140 $ 4,836,774 $ (5,285,065) $ 5,826,986 ------------- --------------- --------------- -------------- ------------- Current Liabilities 729,768 243,311 1,327,893 - 2,300,972 Intercompany Receivables (Payables) 2,175,335 (24,154) (2,151,181) - - Long Term Debt 830,822 46,213 - 877,035 Other Liabilities 99,402 328,767 - 428,169 Shareholders' Equity 2,220,810 (16) 5,285,081 (5,285,065) 2,220,810 ------------- --------------- --------------- -------------- ------------- Total Liabilities and Shareholders' Equity $ 6,056,137 $ 219,141 $ 4,836,773 $ (5,285,065) $ 5,826,096 ------------- --------------- --------------- -------------- -------------
- ------------------------------------------------------------------------------------------------------------------------------------ CONDENSED CONSOLIDATING BALANCE SHEET AS OF JUNE 30, 2001 OTHER SYSCO NON-GUARANTOR CONSOLIDATED (in thousands) SYSCO INTERNATIONAL SUBSIDIARIES ELIMINATIONS TOTALS - ------------------------------------------------------------------------------------------------------------------------------------ Current Assets $ 565,023 $ - $ 2,392,329 $ - $ 2,957,352 Investment in Subsidiaries 4,505,917 - - (4,505,917) - Plant and equipment, net 249,656 - 1,267,122 - 1,516,778 Other assets 203,228 - 757,247 - 960,475 ------------- --------------- --------------- -------------- ------------- Total assets $ 5,523,824 $ - $ 4,416,698 $ (4,505,917) $ 5,434,605 ------------- --------------- --------------- -------------- ------------- Current Liabilities 749,103 - 1,353,861 - 2,102,964 Intercompany Receivables (Payables) 1,683,993 - (1,683,993) - - Long Term Debt 909,679 - 51,742 - 961,421 Other Liabilities 80,514 - 189,171 - 269,685 Shareholders' Equity 2,100,535 - 4,505,917 (4,505,917) 2,100,535 ------------- --------------- --------------- -------------- ------------- Total Liabilities and Shareholders' Equity $ 5,523,824 $ - $ 4,416,698 $ (4,505,917) $ 5,434,605 ------------- --------------- --------------- -------------- -------------
16
- ------------------------------------------------------------------------------------------------------------------------------------ CONDENSED CONSOLIDATING BALANCE SHEET AS OF JULY 1, 2000 OTHER SYSCO NON-GUARANTOR CONSOLIDATED (in thousands) SYSCO INTERNATIONAL SUBSIDIARIES ELIMINATIONS TOTALS - ------------------------------------------------------------------------------------------------------------------------------------ Current Assets $ 524,785 $ - $ 2,180,410 $ - $ 2,705,195 Investment in Subsidiaries 3,745,297 - - (3,745,297) - Plant and equipment, net 196,716 - 1,143,510 - 1,340,226 Other assets 211,715 - 535,748 - 747,463 ------------- --------------- --------------- -------------- ------------- Total assets $ 4,678,513 - 3,859,668 (3,745,297) 4,792,884 ------------- --------------- --------------- -------------- ------------- Current Liabilities 647,654 - 1,154,194 - 1,801,848 Intercompany Receivables (Payables) 1,288,288 - (1,288,288) - - Long Term Debt 978,705 - 44,937 - 1,023,642 Other Liabilities 42,282 - 203,528 - 245,810 Shareholders' Equity 1,721,584 - 3,745,297 (3,745,297) 1,721,584 ------------- --------------- --------------- -------------- ------------- Total Liabilities and Shareholders' Equity $ 4,678,513 $ - $ 3,859,668 $ (3,745,297) $ 4,792,884 ------------- --------------- --------------- -------------- -------------
- ------------------------------------------------------------------------------------------------------------------------------------ CONDENSED CONSOLIDATING RESULTS OF OPERATIONS FOR THE NINE MONTHS ENDED MARCH 30, 2002 OTHER SYSCO NON-GUARANTOR CONSOLIDATED (in thousands) SYSCO INTERNATIONAL SUBSIDIARIES ELIMINATIONS TOTALS - ------------------------------------------------------------------------------------------------------------------------------------ Sales $ 2,313,384 $ - $ 14,726,584 $ - $ 17,039,968 Cost of Sales 1,806,806 - 11,868,525 - 13,675,331 Operating expenses 410,438 - 2,142,041 - 2,552,479 Interest expenses 202,477 27 (155,809) - 46,695 Other, net 33 - (1,969) - (1,936) ------------- --------------- --------------- -------------- ------------- Total costs and expenses $ 2,419,754 $ 27 $ 13,852,788 $ - $ 16,272,569 ------------- --------------- --------------- -------------- ------------- Earnings before income taxes (106,370) (27) 873,796 - 767,399 Income taxes provision (benefit) (40,686) (10) 334,226 293,530 Equity in earnings of subsidiaries 539,553 0 0 (539,553) - ------------- --------------- --------------- -------------- ------------- Net Earnings $ 473,869 $ (17) $ 539,570 $ (539,553) $ 473,869 ------------- --------------- --------------- -------------- -------------
- ------------------------------------------------------------------------------------------------------------------------------------ CONDENSED CONSOLIDATING RESULTS OF OPERATIONS FOR THE NINE MONTHS ENDED MARCH 31, 2001 OTHER SYSCO NON-GUARANTOR CONSOLIDATED (in thousands) SYSCO INTERNATIONAL SUBSIDIARIES ELIMINATIONS TOTALS - ------------------------------------------------------------------------------------------------------------------------------------ Sales $ 2,192,500 $ - $ 13,802,700 $ - $ 15,995,200 Cost of Sales 1,718,800 - 11,156,000 - 12,874,800 Operating expenses 411,694 - 1,971,633 - 2,383,327 Interest expenses 171,688 - (117,755) - 53,933 Other, net 440 - (1,906) - (1,466) ------------- --------------- --------------- -------------- ------------- Total costs and expenses $ 2,302,622 $ - $ 13,007,972 $ - $ 15,310,594 ------------- --------------- --------------- -------------- ------------- Earnings before income taxes (110,122) - 794,728 - 684,606 Income taxes provision (benefit) (42,122) - 303,984 261,862 Equity in earnings of subsidiaries 490,744 - - (490,744) - ------------- --------------- --------------- -------------- ------------- Net Earnings $ 422,744 $ - $ 490,744 $ (490,744) $ 422,744 ------------- --------------- --------------- -------------- -------------
17
- ------------------------------------------------------------------------------------------------------------------------------------ CONDENSED CONSOLIDATING RESULTS OF OPERATIONS FOR THE YEAR ENDED JUNE 30, 2001 OTHER SYSCO NON-GUARANTOR CONSOLIDATED (in thousands) SYSCO INTERNATIONAL SUBSIDIARIES ELIMINATIONS TOTALS - ------------------------------------------------------------------------------------------------------------------------------------ Sales $ 2,987,807 $ - $ 18,796,690 $ - $ 21,784,497 Cost of Sales 2,339,835 - 15,173,303 - 17,513,138 Operating expenses 536,595 - 2,696,232 - 3,232,827 Interest expenses 233,603 - (161,827) - 71,776 Other, net 1,285 - (1,184) - 101 ------------- --------------- --------------- -------------- ------------- Total costs and expenses $ 3,111,318 $ - $ 17,706,524 $ - $ 20,817,842 ------------- --------------- --------------- -------------- ------------- Earnings before income taxes (123,511) - 1,090,166 - 966,655 Income taxes provision (benefit) (47,243) - 416,989 - 369,746 Equity in earnings of subsidiaries 673,177 - - (673,177) - ------------- --------------- --------------- -------------- ------------- Net Earnings $ 596,909 $ - $ 673,177 $ (673,177) $ 596,909 ------------- --------------- --------------- -------------- -------------
- ------------------------------------------------------------------------------------------------------------------------------------ CONDENSED CONSOLIDATING RESULTS OF OPERATIONS FOR THE YEAR ENDED JULY 1, 2000 OTHER SYSCO NON-GUARANTOR CONSOLIDATED (in thousands) SYSCO INTERNATIONAL SUBSIDIARIES ELIMINATIONS TOTALS - ------------------------------------------------------------------------------------------------------------------------------------ Sales $ 2,789,342 $ - $ 16,513,926 $ - $ 19,303,268 Cost of Sales 2,203,919 - 13,445,632 - 15,649,551 Operating expenses 491,874 - 2,351,881 - 2,843,755 Interest expenses 178,318 - (107,486) - 70,832 Other, net 835 - 687 - 1,522 ------------- --------------- --------------- -------------- ------------- Total costs and expenses $ 2,874,946 $ - $ 15,690,714 $ - $ 18,565,660 ------------- --------------- --------------- -------------- ------------- Earnings before income taxes (85,604) - 823,212 - 737,608 Income taxes provision (benefit) (32,958) - 316,937 - 283,979 Equity in earnings of subsidiaries 506,275 - - (506,275) - Cumulative effect of accounting change (8,041) (8,041) ------------- --------------- --------------- -------------- ------------- Net Earnings $ 445,588 $ $ 506,275 $ (506,275) $ 445,588 ------------- --------------- --------------- -------------- -------------
- ------------------------------------------------------------------------------------------------------------------------------------ CONDENSED CONSOLIDATING RESULTS OF OPERATIONS FOR THE YEAR ENDED JULY 3, 1999 OTHER SYSCO NON-GUARANTOR CONSOLIDATED (in thousands) SYSCO INTERNATIONAL SUBSIDIARIES ELIMINATIONS TOTALS - ------------------------------------------------------------------------------------------------------------------------------------ Sales $ 2,614,740 $ - $ 14,808,075 $ - $ 17,422,815 Cost of Sales 2,073,098 - 12,134,762 - 14,207,860 Operating expenses 431,393 - 2,115,873 - 2,547,266 Interest expenses 181,288 - (108,449) - 72,839 Other, net 207 - 756 - 963 ------------- --------------- --------------- -------------- ------------- Total costs and expenses $ 2,685,986 $ - $ 14,142,942 $ - $ 16,828,928 ------------- --------------- --------------- -------------- ------------- Earnings before income taxes (71,246) - 665,133 - 593,887 Income taxes provision (benefit) (27,786) - 259,402 - 231,616 Equity in earnings of subsidiaries 405,731 - - (405,731) - ------------- --------------- --------------- -------------- ------------- Net Earnings $ 362,271 $ - $ 405,731 $ (405,731) $ 362,271 ------------- --------------- --------------- -------------- -------------
18
- ------------------------------------------------------------------------------------------------------------------------------------ CONDENSED CONSOLIDATING CASH FLOWS FOR THE NINE MONTHS ENDED MARCH 30, 2002 OTHER SYSCO NON-GUARANTOR CONSOLIDATED (in thousands) SYSCO INTERNATIONAL SUBSIDIARIES ELIMINATIONS TOTALS - ------------------------------------------------------------------------------------------------------------------------------------ Net cash provided by (used for): Operating activities $ (13,765) $ (26) $ 758,107 $ - $ 744,316 Investing activities (47,854) - (265,663) - (313,517) Financing activities (427,850) 243,311 (35,920) - (220,459) Intercompany activity 492,970 (227,609) (265,361) - - ------------- --------------- --------------- -------------- ------------- Net increase in cash $ 3,501 $ 15,676 $ 191,163 $ - $ 210,340 ------------- --------------- --------------- -------------- ------------- Cash at the beginning of the period 39,832 - 95,911 - 135,743 ------------- --------------- --------------- -------------- ------------- Cash at the end of the period $ 43,333 $ 15,676 $ 287,074 $ - $ 346,083 ------------- --------------- --------------- -------------- -------------
- ------------------------------------------------------------------------------------------------------------------------------------ CONDENSED CONSOLIDATING CASH FLOWS FOR THE NINE MONTHS ENDED MARCH 31, 2001 OTHER SYSCO NON-GUARANTOR CONSOLIDATED (in thousands) SYSCO INTERNATIONAL SUBSIDIARIES ELIMINATIONS TOTALS - ------------------------------------------------------------------------------------------------------------------------------------ Net cash provided by (used for): Operating activities $ 36,124 $ - $ 570,985 $ - $ 607,109 Investing activities (65,248) - (182,240) - (247,488) Financing activities (366,999) - (37,670) - (404,669) Intercompany activity 362,449 - (362,449) - - ------------- --------------- --------------- -------------- ------------- Net decrease in cash $ (33,674) $ - $ (11,374) $ - $ (45,048) ------------- --------------- --------------- -------------- ------------- Cash at the beginning of the period 60,472 - 98,656 - 159,128 ------------- --------------- --------------- -------------- ------------- Cash at the end of the period $ 26,798 $ - $ 87,282 $ - $ 114,080 ------------- --------------- --------------- -------------- -------------
- ------------------------------------------------------------------------------------------------------------------------------------ CONDENSED CONSOLIDATING CASH FLOWS FOR THE YEAR ENDED JUNE 30, 2001 OTHER SYSCO NON-GUARANTOR CONSOLIDATED (in thousands) SYSCO INTERNATIONAL SUBSIDIARIES ELIMINATIONS TOTALS - ------------------------------------------------------------------------------------------------------------------------------------ Net cash provided by (used for): Operating activities $ 21,952 $ - $ 933,272 $ - $ 955,224 Investing activities (96,319) - (242,432) - (338,751) Financing activities (601,623) - (38,235) - (639,858) Intercompany activity 655,350 - (655,350) - - ------------- --------------- --------------- -------------- ------------- Net decrease in cash $ (20,640) $ - $ (2,745) $ - $ (23,385) ------------- --------------- --------------- -------------- ------------- Cash at the beginning of the period 60,472 - 98,656 - 159,128 ------------- --------------- --------------- -------------- ------------- Cash at the end of the period $ 39,832 $ - $ 95,911 $ - $ 135,743 ------------- --------------- --------------- -------------- -------------
19
- ------------------------------------------------------------------------------------------------------------------------------------ CONDENSED CONSOLIDATING CASH FLOWS FOR THE YEAR ENDED JULY 1, 2000 OTHER SYSCO NON-GUARANTOR CONSOLIDATED (in thousands) SYSCO INTERNATIONAL SUBSIDIARIES ELIMINATIONS TOTALS - ------------------------------------------------------------------------------------------------------------------------------------ Net cash provided by (used for): Operating activities $ 12,697 $ - $ 696,029 $ - $ 708,726 Investing activities (243,316) - (216,076) - (459,392) Financing activities (228,972) - (10,537) - (239,509) Intercompany activity 462,302 - (462,302) - - ------------- --------------- --------------- -------------- ------------- Net increase in cash $ 2,711 $ - $ 7,114 $ - $ 9,825 ------------- --------------- --------------- -------------- ------------- Cash at the beginning of the period 57,761 - 91,542 - 149,303 ------------- --------------- --------------- -------------- ------------- Cash at the end of the period $ 60,472 $ - $ 98,656 $ - $ 159,128 ------------- --------------- --------------- -------------- -------------
- ------------------------------------------------------------------------------------------------------------------------------------ CONDENSED CONSOLIDATING CASH FLOWS FOR THE YEAR ENDED JULY 3, 1999 OTHER SYSCO NON-GUARANTOR CONSOLIDATED (in thousands) SYSCO INTERNATIONAL SUBSIDIARIES ELIMINATIONS TOTALS - ------------------------------------------------------------------------------------------------------------------------------------ Net cash provided by (used for): Operating activities $ 58,006 $ - $ 527,297 $ - $ 585,303 Investing activities (11,251) - (250,484) - (261,735) Financing activities (267,618) - (16,935) - (284,553) Intercompany activity 260,358 - (260,358) - - ------------- --------------- --------------- -------------- ------------- Net increase (decrease) in cash $ 39,495 $ - $ (480) $ - $ 39,015 ------------- --------------- --------------- -------------- ------------- Cash at the beginning of the period 18,266 - 92,022 - 110,288 ------------- --------------- --------------- -------------- ------------- Cash at the end of the period $ 57,761 $ - $ 91,542 $ - $ 149,303 ------------- --------------- --------------- -------------- -------------
20 THE EXCHANGE OFFER PURPOSE AND EFFECT OF THE EXCHANGE OFFER We sold the old notes on May 23, 2002, pursuant to a purchase agreement, which we refer to in this prospectus as the purchase agreement, dated as of May 20, 2002, among us, SYSCO and JP Morgan Securities, Inc. on its own behalf and as representative of the initial purchasers of the old notes. These initial purchasers subsequently sold some or all of the old notes to: o "qualified institutional buyers," as defined in Rule 144A under the Securities Act, in reliance on Rule 144A, and to o persons in offshore transactions in reliance on Regulation S under the Securities Act. As a condition to the initial sale of the old notes, we and the initial purchasers entered into a registration rights agreement dated as of May 23, 2002. Pursuant to the registration rights agreement, we agreed to: o file a registration statement under the Securities Act with respect to the new notes with the SEC by August 21, 2002; and o use our reasonable best efforts to cause the registration statement to become effective under the Securities Act on or before November 19, 2002. We agreed to issue and exchange the new notes for all old notes validly tendered and not validly withdrawn before the expiration of the exchange offer. A copy of the registration rights agreement has been filed as an exhibit to the registration statement which includes this prospectus. The registration statement is intended to satisfy some of our obligations under the registration rights agreement and the purchase agreement. The term "holder" with respect to the exchange offer means any person in whose name old notes are registered on the trustee's books or any other person who has obtained a properly completed bond power from the registered holder, or any person whose old notes are held of record by The Depository Trust Company, which we refer to as the Depositary or DTC, who desires to deliver the old note by book-entry transfer at DTC. RESALE OF THE NEW NOTES We believe that you will be allowed to resell the new notes to the public without registration under the Securities Act, and without delivering a prospectus that satisfies the requirements of Section 10 of the Securities Act, if you can make the representations set forth below under "The Exchange Offer--Procedures for Tendering Old Notes." However, if you intend to participate in a distribution of the new notes, you acquired the old notes to be exchanged directly from us or you are an "affiliate" of us as defined in Rule 405 of the Securities Act, you must comply with the registration requirements of the Securities Act and deliver a prospectus, containing, among other information, the information pertaining to selling shareholders required by Items 507 and 508 of Regulation S-K under the Securities Act unless an exemption from registration is otherwise available to you. You have to represent to us in the letter of transmittal accompanying this prospectus that you meet the conditions exempting you from these registration requirements. We base our view on interpretations by the staff of the SEC in no-action letters issued to other issuers in exchange offers like ours. However, we have not asked the SEC to consider this particular exchange offer in the context of a no-action letter. Therefore, you cannot be sure that the SEC will treat it in the same way it has treated other exchange offers in the past. A broker-dealer may only participate in the exchange offer if it has bought old notes for market-making or other trading activities. Such a participating broker-dealer has to deliver a prospectus in order to resell any new notes it receives for its own account in the exchange. This prospectus may be used by such a participating broker-dealer to resell any of its new notes. We have agreed in the registration rights agreement to send this prospectus to any broker-dealer that requests copies for a period of up to 180 days after the expiration of the exchange offer. See "Plan of Distribution" for more information regarding broker-dealers. 21 The exchange offer is not being made to, nor will we accept surrenders for exchange from, holders of old notes in any jurisdiction in which this exchange offer or the acceptance of the exchange offer would not be in compliance with the securities or blue sky laws. TERMS OF THE EXCHANGE OFFER General. Based on the terms and conditions set forth in this prospectus and in the letter of transmittal, we will accept any and all old notes validly tendered and not validly withdrawn before the expiration date. Subject to the minimum denomination requirements of the new notes, we will issue $1,000 principal amount of new notes in exchange for each $1,000 principal amount of outstanding old notes validly tendered pursuant to the exchange offer and not validly withdrawn before the expiration date. Holders may tender some or all of their old notes pursuant to the exchange offer. However, old notes may be tendered only in amounts that are integral multiples of $1,000 principal amount. The form and terms of the new notes are the same as the form and terms of the old notes except that: o the new notes will be registered under the Securities Act and, therefore, the new notes will not bear legends restricting the transfer of the new notes, and o holders of the new notes will not be entitled to any of the exchange registration rights of holders of old notes under the registration rights agreement, which rights will terminate upon the completion of the exchange offer. The new notes of a particular series will evidence the same indebtedness as the old notes of that same series, which they replace, and will be issued under, and be entitled to the benefits of, the same indenture that governs the old notes. As a result, both the new notes of a particular series and the old notes of that same series will be treated as a single series of debt securities under the indenture. The exchange offer does not depend on any minimum aggregate principal amount of old notes being surrendered for exchange. As of the date of this prospectus, $200,000,000 in aggregate principal amount of the old notes is outstanding, all of which is registered in the name of Cede & Co., as nominee for DTC. Solely for reasons of administration, we have fixed the close of business on _________, 2002 as the record date for the exchange offer for purposes of determining the persons to whom we will initially mail this prospectus and the letter of transmittal. There will be no fixed record date for determining holders of the old notes entitled to participate in this exchange offer. As a holder of old notes, you do not have any appraisal or dissenters' rights or any other right to seek monetary damages in court under the Delaware General Corporation Law, the laws of the province of Nova Scotia, Canada or the indenture governing the notes. We intend to conduct the exchange offer in accordance with the provisions of the registration rights agreement, the applicable requirements of the Exchange Act, and the related rules and regulations of the SEC. Old notes that are not surrendered for exchange in the exchange offer will remain outstanding and interest on these notes will continue to accrue. We will be deemed to have accepted validly surrendered old notes if and when we give oral or written notice of our acceptance to Wachovia Bank, National Association, which is acting as the exchange agent. The exchange agent will act as agent for the tendering holders of old notes for the purpose of receiving the new notes from us. If you surrender old notes in the exchange offer, you will not be required to pay brokerage commissions or fees. In addition, subject to the instructions in the letter of transmittal, you will not have to pay transfer taxes for the exchange of old notes. We will pay all charges and expenses in connection with the exchange offer, other than certain applicable taxes described under "--Fees and Expenses." EXPIRATION DATE; EXTENSIONS; AMENDMENTS The "expiration date" means 5:00 p.m., New York City time, on _____, 2002, unless we extend the exchange offer, in which case the expiration date will be the latest date and time to which we extend the exchange offer. In order to extend the exchange offer, we will: 22 o notify the exchange agent of any extension by oral or written communication; and o issue a press release or other public announcement, which will report the approximate dollar amount of old notes deposited, before 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date. During any extension of the exchange offer, all old notes previously surrendered and not withdrawn will remain subject to the exchange offer. We reserve the right: o to delay accepting any old notes; o to amend the terms of the exchange offer in any manner; o to extend the exchange offer; or o if, in the opinion of our counsel, the consummation of the exchange offer would violate any law or interpretation of the staff of the SEC, to terminate or amend the exchange offer by giving oral or written notice to the exchange agent. Any delay in acceptance, extension, termination, or amendment will be followed as soon as practicable by a press release or other public announcement. If we amend the exchange offer in a manner that we determine constitutes a material change, we will promptly disclose that amendment by means of a prospectus supplement that will be distributed to the registered holders of the old notes, and we will extend the exchange offer for a period of time that we will determine, depending upon the significance of the amendment and the manner of disclosure to the registered holders, if the exchange offer would have otherwise expired. We will have no obligation to publish, advertise, or otherwise communicate any public announcement that we may choose to make, other than by making a timely release to an appropriate news agency. In all cases, issuance of the new notes for old notes that are accepted for exchange will be made only after timely receipt by the exchange agent of a properly completed and duly executed letter of transmittal or a book-entry confirmation with an agent's message, in each case, with all other required documents. However, we reserve the absolute right to waive any conditions of the exchange offer or any defects or irregularities in the surrender of old notes. If we do not accept any surrendered old notes for any reason set forth in the terms and conditions of the exchange offer or if you submit old notes for a greater principal amount than you want to exchange, we will return the unaccepted or non-exchanged old notes to you, or substitute old notes evidencing the unaccepted or non-exchanged portion, as appropriate. See "--Return of Old Notes." INTEREST ON THE NEW NOTES The new notes will accrue cash interest on the same terms as the old notes, i.e., at the rate of 6.10% per year (using a 360-day year consisting of twelve 30-day months), payable semi-annually in arrears on June 1 and December 1 of each year. Old notes accepted for exchange will not receive accrued interest at the time of exchange. However, each new note will bear interest: o from the later of (1) the last interest payment date on which interest was paid on the old note surrendered in exchange for the new note or (2) if the old note is exchanged for the new note on a date after the record date for an interest payment date to occur on or after the date of the exchange and as to which that interest will be paid, the date of that interest payment date; or o if no interest has been paid on the old note, from May 23, 2002. PROCEDURES FOR TENDERING OLD NOTES If you wish to surrender old notes you must: 23 o complete and sign the letter of transmittal or send a timely confirmation of a book-entry transfer of old notes to the exchange agent; o have the signatures on the letter of transmittal guaranteed if required by the letter of transmittal; and o mail or deliver the required documents to the exchange agent at its address set forth in the letter of transmittal for receipt before the expiration date. In addition, either: o certificates for old notes must be received by the exchange agent along with the letter of transmittal; o a timely confirmation of a book-entry transfer of old notes into the exchange agent's account at DTC, pursuant to the procedure for book-entry transfer described below, must be received by the exchange agent before the expiration date; or o you must comply with the procedures described below under "--Guaranteed Delivery Procedures." If you do not withdraw your surrender of old notes before the expiration date, it will indicate an agreement between you and us that you have agreed to surrender the old notes, in accordance with the terms and conditions in the letter of transmittal. The method of delivery of old notes, the letter of transmittal, and all other required documents to the exchange agent is at your election and risk. Instead of delivery by mail, we recommend that you use an overnight or hand delivery service, properly insured, with return receipt requested. In all cases, you should allow sufficient time to assure delivery to the exchange agent before the expiration date. Do not send any letter of transmittal or old notes to us. You may request that your broker, dealer, commercial bank, trust company, or nominee effect the above transactions for you. If you are a beneficial owner of the old notes and you hold those notes through a broker, dealer, commercial bank, trust company, or other nominee and you want to surrender your old notes, you should contact that intermediary promptly and instruct it to surrender the old notes on your behalf. Generally, an eligible institution must guarantee signatures on a letter of transmittal unless: o you tender your old notes as the registered holder, which term includes any participant in DTC whose name appears on a security listing as the owner of old notes, and the new notes issued in exchange for your old notes are to be issued in your name and delivered to you at your registered address appearing on the security register for the old notes; or o you surrender your old notes for the account of an eligible institution. An "eligible institution" is: o a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc.; o a commercial bank or trust company having an office or correspondent in the United States; or o an "eligible guarantor institution" as defined by Rule 17Ad-15 under the Exchange Act. In each instance, the entity must be a member of one of the signature guarantee programs identified in the letter of transmittal. If the new notes or unexchanged old notes are to be delivered to an address other than that of the registered holder appearing on the security register for the old notes, an eligible institution must guarantee the signature in the letter of transmittal. 24 Your surrender will be deemed to have been received as of the date when: o the exchange agent receives a properly completed and signed letter of transmittal accompanied by the old notes, or a confirmation of book-entry transfer of the old notes into the exchange agent's account at DTC with an agent's message; or o the exchange agent receives a notice of guaranteed delivery from an eligible institution. Issuances of new notes in exchange for old notes surrendered pursuant to a notice of guaranteed delivery or letter to similar effect by an eligible institution will be made only against submission of a duly signed letter of transmittal, and any other required documents, and deposit of the surrendered old notes, or confirmation of a book-entry transfer of the old notes into the exchange agent's account at DTC pursuant to the book-entry procedures described below. We will make the determination regarding all questions relating to the validity, form, eligibility, including time of receipt, acceptance, and withdrawal of surrendered old notes, and our determination will be final and binding on all parties. We reserve the absolute right to reject any and all old notes improperly surrendered. We will not accept any old notes if our acceptance of them would, in the opinion of our counsel, be unlawful. We also reserve the absolute right to waive any defects, irregularities, or conditions of surrender as to any particular old note. Our interpretation of the terms and conditions of the exchange offer, including the instructions in the letter of transmittal, will be final and binding on all parties. Unless waived, you must cure any defects or irregularities in connection with surrenders of old notes within the time we determine. Although we currently intend to notify holders of defects or irregularities in connection with surrenders of old notes, neither we, the exchange agent, nor anyone else will incur any liability for failure to give that notice. Surrenders of old notes will not be deemed to have been made until any defects or irregularities have been cured or waived. We have no current plan to acquire any old notes that are not surrendered in the exchange offer or to file a registration statement to permit resales of any old notes that are not surrendered pursuant to the exchange offer. We reserve the right in our sole discretion to purchase or make offers for any old notes that remain outstanding after the expiration date. To the extent permitted by law, we also reserve the right to purchase old notes in the open market, in privately negotiated transactions, or otherwise. The terms of any future purchases or offers could differ from the terms of the exchange offer. Pursuant to the letter of transmittal, if you elect to surrender old notes in exchange for new notes, you must exchange, assign, and transfer the old notes to us and irrevocably constitute and appoint the exchange agent as your true and lawful agent and attorney-in-fact with respect to the surrendered old notes, with full power of substitution, among other things, to cause the old notes to be assigned, transferred, and exchanged. By executing the letter of transmittal, you make the representations and warranties set forth below to us. By executing the letter of transmittal you also promise, on our request, to execute and deliver any additional documents that we consider necessary to complete the transactions described in the letter of transmittal. By executing the letter of transmittal and surrendering old notes in the exchange offer, you will be representing to us that, among other things, o you have full power and authority to tender, exchange, assign, and transfer the old notes surrendered; o we will acquire good title to the old notes being surrendered, free and clear of all security interests, liens, restrictions, charges, encumbrances, conditional sale agreements, or other obligations relating to their sale or transfer, and not subject to any adverse claim when we accept the old notes; o you are acquiring the new notes in the ordinary course of your business; o you are not engaging in and do not intend to engage in a distribution of the new notes; o you have no arrangement or understanding with any person to participate in the distribution of the new notes; 25 o you acknowledge and agree that if you are a broker-dealer registered under the Exchange Act or you are participating in the exchange offer for the purpose of distributing the new notes, you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale of the new notes, and that you cannot rely on the position of the SEC's staff set forth in their no-action letters; o you understand that a secondary resale transaction described above and any resales of new notes obtained by you in exchange for old notes acquired by you directly from us should be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K of the SEC; and o you are not an "affiliate," as defined in Rule 405 under the Securities Act, of us or SYSCO, or, if you are an "affiliate," that you will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable. If you are a broker-dealer and you will receive new notes for your own account in exchange for old notes that you acquired as a result of market-making activities or other trading activities, you will be required to acknowledge in the letter of transmittal that you will deliver a prospectus in connection with any resale of the new notes. See "Plan of Distribution." Participation in the exchange offer is voluntary. You are urged to consult your financial and tax advisors in making your decision on whether to participate in the exchange offer. RETURN OF OLD NOTES If any old notes are not accepted for any reason described in this prospectus, or if old notes are withdrawn or are submitted for a greater principal amount than you want to exchange, the exchange agent will return the unaccepted, withdrawn, or non-exchanged old notes to you or, in the case of old notes surrendered by book-entry transfer, into an account for your benefit at DTC, unless otherwise provided in the letter of transmittal. The old notes will be credited to an account maintained with DTC as promptly as practicable. BOOK ENTRY TRANSFER The exchange agent will make a request to establish an account with respect to the old notes at DTC for purposes of the exchange offer within two business days after the date of this prospectus. Any financial institution that is a participant in DTC's system may make book-entry delivery of old notes by causing DTC to transfer the old notes into the exchange agent's account at DTC in accordance with DTC's procedures for transfer. To effectively tender notes through DTC, the financial institution that is a participant in DTC will electronically transmit its acceptance through the Automatic Transfer Offer Program. DTC will then edit and verify the acceptance and send an agent's message to the exchange agent for its acceptance. An agent's message is a message transmitted by DTC to the exchange agent stating that DTC has received an express acknowledgment from the participant in DTC tendering the old notes that the participant has received and agrees to be bound by the terms of the letter of transmittal, and that we may enforce this agreement against the participant. A delivery of old notes through a book-entry transfer into the exchange agent's account at DTC will only be effective if an agent's message or the letter of transmittal with any required signature guarantees and any other required documents is transmitted to and received by the exchange agent at its address set forth in the letter of transmittal for receipt before the expiration date unless the guaranteed delivery procedures described below are complied with. Delivery of documents to DTC does not constitute delivery to the exchange agent. GUARANTEED DELIVERY PROCEDURES If you wish to surrender your old notes and (1) your old notes are not immediately available so that you can meet the expiration date deadline, (2) you cannot deliver your old notes or other required documents to the exchange agent before the expiration date, or (3) the procedure for book-entry transfer cannot be completed on a timely basis, you may nonetheless participate in the exchange offer if: 26 o you surrender your old notes through an eligible institution; o before the expiration date, the exchange agent receives from the eligible institution a properly completed and duly executed notice of guaranteed delivery substantially in the form provided by us, by mail or hand delivery, showing the name and address of the holder, the name(s) in which the old notes are registered, the certificate number(s) of the old notes, if applicable, and the principal amount of old notes surrendered; the notice of guaranteed delivery must state that the surrender is being made by the notice of guaranteed delivery and must guarantee that, within three New York Stock Exchange trading days after the expiration date, the letter of transmittal, together with the certificate(s) representing the old notes, in proper form for transfer, or a book-entry confirmation with an agent's message, as the case may be, and any other required documents, will be delivered by the eligible institution to the exchange agent; and o the properly executed letter of transmittal, as well as the certificate(s) representing all surrendered old notes, in proper form for transfer, or a book-entry confirmation, as the case may be, and all other documents required by the letter of transmittal are received by the exchange agent within three New York Stock Exchange trading days after the expiration date. Unless old notes are surrendered by the above-described method and deposited with the exchange agent within the time period set forth above, we may, at our option, reject the surrender. The exchange agent will send you a notice of guaranteed delivery upon your request if you want to surrender your old notes according to the guaranteed delivery procedures described above. WITHDRAWAL OF TENDERS OF OLD NOTES You may withdraw your surrender of old notes at any time before the expiration date. To withdraw old notes surrendered in the exchange offer, the exchange agent must receive a written notice of withdrawal at its address set forth below before the expiration date. Any notice of withdrawal must: o specify the name of the person having deposited the old notes to be withdrawn; o identify the old notes to be withdrawn, including the certificate number or numbers, if applicable, and principal amount of the old notes; o contain a statement that the holder is withdrawing the election to have the old notes exchanged; o be signed by the holder in the same manner as the original signature on the letter of transmittal used to surrender the old notes; and o specify the name in which any old notes are to be registered, if different from that of the registered holder of the old notes and, unless the old notes were tendered for the account of an eligible institution, the signatures on the notice of withdrawal must be guaranteed by an eligible institution. If old notes have been surrendered pursuant to the procedure for book-entry transfer, any notice of withdrawal must specify the name and number of the account at DTC. We, in our sole discretion, will make the final determination on all questions regarding the validity, form, eligibility, and time of receipt of notices of withdrawal, and our determination will bind all parties. Any old notes withdrawn will be deemed not to have been validly surrendered for purposes of the exchange offer and no new notes will be issued in exchange unless the old notes so withdrawn are validly surrendered again. Properly withdrawn old notes may be surrendered again by following one of the procedures described above under "--Procedures for Tendering Old Notes" at any time before the expiration date. Any old notes that are not accepted for exchange will be returned at no cost to the holder or, in the case of old notes surrendered by book-entry transfer, into an account for your benefit at DTC pursuant to the book-entry transfer procedures described above, as soon as practicable after withdrawal, rejection of surrender or termination of the exchange offer. 27 ADDITIONAL OBLIGATIONS We may be required, under certain circumstances, to file a shelf registration statement. See "Description of New Notes -- Registration Rights Agreement and Exchange Offer." In any event, we are under a continuing obligation, for a period of up to 180 days after the SEC declares the registration statement of which this prospectus is a part effective, to keep the registration statement effective and to provide copies of the latest version of this prospectus to any broker-dealer that requests copies for use in a resale, subject to our ability to suspend the effectiveness of any registration statement as described under "Description of New Notes -- Registration Rights Agreement and Exchange Offer" below. CONDITIONS OF THE EXCHANGE OFFER Notwithstanding any other term of the exchange offer, or any extension of the exchange offer, we do not have to accept for exchange, or exchange new notes for, any old notes, and we may terminate the exchange offer before acceptance of the old notes, if: o any statute, rule, or regulation has been enacted or any action has been taken by any court or governmental authority that, in our reasonable judgment, seeks to or would prohibit, restrict, or otherwise render consummation of the exchange offer illegal, or o any change, or any development that would cause a change, in our business or financial affairs has occurred that, in our sole judgment, might materially impair our ability to proceed with the exchange offer or a change that would materially impair the contemplated benefits to us of the exchange offer, or o a change occurs in the current interpretations by the staff of the SEC that, in our reasonable judgment, might materially impair our ability to proceed with the exchange offer. If we, in our sole discretion, determine that any of the above conditions are not satisfied, we may: o refuse to accept any old notes and return all surrendered old notes to the surrendering holders; o extend the exchange offer and retain all old notes surrendered before the expiration date, subject to the holders' right to withdraw the surrender of the old notes; or o waive any unsatisfied conditions regarding the exchange offer and accept all properly surrendered old notes that have not been withdrawn. If this waiver constitutes a material change to the exchange offer, we will promptly disclose the waiver by means of a prospectus supplement that will be distributed to the registered holders of the old notes, and we will extend the exchange offer for a period of time that we will determine, depending upon the significance of the waiver and the manner of disclosure to the registered holders, if the exchange offer would have otherwise expired. EXCHANGE AGENT We have appointed Wachovia Bank, National Association as exchange agent for the exchange offer. Questions and requests for assistance, requests for additional copies of this prospectus or of the letter of transmittal and requests for notices of guaranteed delivery should be directed to the exchange agent at the following address: By Mail, Hand or Overnight Courier: Wachovia Bank Customer Information Center Corporate Trust Operations - NC1153 1525 West W. T. Harris Blvd. - 3C3 Charlotte, N.C. 28262-1153 Attention: Marsha Rice 28 To Confirm by Telephone: (704) 590-7413 For information with respect to the exchange offer, call Investor Relations Department of the Exchange Agent: (704) 590-7413 FEES AND EXPENSES We will bear the expenses of soliciting tenders. The principal solicitation is being made by mail; however, additional solicitation may be made by facsimile, telephone, or in person by our officers and regular employees or by officers and employees of our affiliates. No additional compensation will be paid to any officers and employees who engage in soliciting tenders. We have not retained any dealer-manager or other soliciting agent for the exchange offer and will not make any payments to brokers, dealers, or others soliciting acceptance of the exchange offer. We will, however, pay the exchange agent reasonable and customary fees for its services and will reimburse it for related, reasonable out-of-pocket expenses. We may also reimburse brokerage houses and other custodians, nominees, and fiduciaries for reasonable out-of-pocket expenses they incur in forwarding copies of this prospectus, the letter of transmittal and related documents. We will pay all expenses incurred in connection with the performance of our obligations in the exchange offer, including registration fees, fees and expenses of the exchange agent, the transfer agent and registrar, and printing costs, among others. We will pay all transfer taxes, if any, applicable to the exchange of the old notes. If, however, new notes, or old notes for principal amounts not surrendered or accepted for exchange, are to be delivered to, or are to be issued in the name of, any person other than the registered holder of the old notes surrendered, or if a transfer tax is imposed for any reason other than the exchange, then the amount of any transfer taxes will be payable by the person surrendering the old notes. If you do not submit satisfactory evidence of payment of those taxes or exemption from payment of those taxes with the letter of transmittal, the amount of those transfer taxes will be billed directly to you. CONSEQUENCES OF FAILURE TO EXCHANGE Old notes that are not exchanged will remain "restricted securities" within the meaning of Rule 144(a)(3) of the Securities Act. Accordingly, they may not be offered, sold, pledged or otherwise transferred except: o to us or SYSCO or to any of SYSCO's subsidiaries; o inside the United States to a qualified institutional buyer in compliance with Rule 144A under the Securities Act; o inside the United States to an institutional accredited investor purchasing for its own account or the account of an institutional accredited investor, if such transfer is in respect of an aggregate principal amount of old notes at the time of transfer of not less than $250,000; o outside the United States in compliance with Rule 904 of Regulation S under the Securities Act; o pursuant to any other available exemption from registration under the Securities Act; or o pursuant to an effective registration statement under the Securities Act. The liquidity of the old notes could be adversely affected by the exchange offer. See "Risk Factors--Risk Factors Relating to the New Notes-- If an active trading market does not develop for the new notes, you may not be able to resell." 29 ACCOUNTING TREATMENT For accounting purposes, we will recognize no gain or loss as a result of the exchange offer. We will amortize the expenses of the exchange offer and the unamortized expenses related to the issuance of the old notes over the remaining term of the new notes. DESCRIPTION OF NEW NOTES In this "Description of New Notes," (1) all references to "we" or "us" mean SYSCO International, Co. only and do not include its subsidiaries, (2) all references to "SYSCO" mean SYSCO Corporation only and do not include its subsidiaries, and (3) all references to the "notes" are references to both the old notes and the new notes. GENERAL The form and terms of the new notes and the old notes are identical in all material respects, except that transfer restrictions and registration rights applicable to the old notes do not apply to the new notes. The old notes were, and the new notes will be, issued under the indenture dated as of May 23, 2002, which is a contract among us, SYSCO, as guarantor, and Wachovia Bank, National Association, as trustee. The trustee's main role is to enforce the rights of the holders of the notes against us if we default. We describe some limitations on the extent to which the trustee acts on behalf of the holders of the notes under "--Events of Default--Remedies if an Event of Default Occurs." The trustee will also act as registrar, paying agent and authenticating agent and perform administrative duties for us, such as sending out interest payments and notices under the indenture. The following description of the provisions of the indenture is only a summary. This summary is not complete. We recommend that you read the entire indenture carefully before investing in the new notes. You can obtain a copy of the indenture by following the directions under the caption "Where You Can Find More Information" on page 1 of this prospectus. After the completion of the exchange offer (see "--Registration and Exchange Offer"), the Trust Indenture Act of 1939 will apply to the indenture. We refer you to the Trust Indenture Act for additional terms and definitions that will apply to the indenture at that time. PRINCIPAL, MATURITY AND INTEREST The new notes will be a new series of debt securities under the indenture. The amount of debt securities we can issue under the indenture is unlimited. We issued the old notes in an initial aggregate principal amount of $200,000,000. However, we may issue additional notes from the series of new notes offered by this prospectus and other debt without the consent of the holders of the existing notes and without notifying those holders. Any such additional notes from the same series as the new notes offered by this prospectus will have the same ranking, interest rate, maturity date, redemption rights and other terms as the new notes offered by this prospectus. Any such additional notes, together with the new notes offered by this prospectus and any unexchanged old notes, will constitute a single series of debt securities under the indenture. The new notes will be issued in principal amounts of $1,000 and any integral multiple thereof. The new notes will mature on June 1, 2012. Interest will accrue on the new notes from the issue date of the new notes at a rate equal to 6.10% per year. We will pay interest on the new notes on June 1 and December 1 of each year, beginning on December 1, 2002. The new notes will not be entitled to any sinking fund. We will make all payments on the new notes without withholding or deducting any taxes or other governmental charges imposed by a United States or Canadian jurisdiction, unless we are required to do so by applicable law. If, however, we are so required, we will not pay any additional, or gross up, amounts with respect to the withholding or deduction. 30 RANKING The new notes are not secured by any of our property or assets. The new notes will be our senior unsecured obligations and will rank equally with our existing and future senior unsecured debt and effectively will be junior to our existing and future senior secured debt. The new notes will be effectively subordinated to all existing and future indebtedness and other liabilities (excluding intercompany liabilities) of our subsidiaries. On May 25, 2002, our subsidiaries had aggregate liabilities (excluding intercompany liabilities) of approximately $159,370,000. SYSCO'S GUARANTEES SYSCO will unconditionally and irrevocably guarantee the payment of all principal and interest on the new notes. SYSCO's guarantees of the new notes will not be secured by any of its property or assets. SYSCO's guarantees of the notes will be senior unsecured obligations of SYSCO and will rank equally with all its existing and future senior unsecured debt and effectively junior to any senior secured debt it issues in the future. As of May 25, 2002, SYSCO had no senior secured debt and had senior unsecured debt totaling $1,186 million (including $253,188,000 of guarantees). SYSCO's guarantees will be effectively subordinated to all existing and future indebtedness and other liabilities (excluding intercompany liabilities) of SYSCO's subsidiaries. On May 25, 2002, SYSCO's subsidiaries had aggregate liabilities (excluding intercompany liabilities) of approximately $2,158 million. In general, the guarantees provide that if we fail to pay any interest payment or the principal of the new notes when due and payable, SYSCO will, without any action by the trustee or any holder of the new notes, pay the amount of the interest payment or the principal then due. The guarantees will not require holders of the new notes to take any action or institute any proceeding against us in order to demand or receive payments under the guarantees. Although, upon making any such payment, SYSCO will be subrogated to the rights of those holders against us for any payment of interest or principal we fail to make, SYSCO will not be entitled to make a claim against us with respect to those rights until the notes have been paid in full. OPTIONAL REDEMPTION We may redeem some or all of the notes at any time. If we choose to redeem any notes prior to maturity, we will pay 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 redemption date: o 100% of the principal amount of the notes being redeemed; or o the sum of the present values of the remaining scheduled payments of the principal of and interest on the notes being redeemed (exclusive of interest accrued to the redemption date), discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate referred to below plus 15 basis points. If we choose to redeem any notes, we will mail a notice of redemption not less than 30 days and not more than 60 days before the redemption date to each holder of the notes to be redeemed at its registered address. If we are redeeming less than all the notes, the trustee will select the particular notes or portions of notes to be redeemed by lot or pro rata or by another method the trustee deems fair and appropriate. Unless we default in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the notes or portions of notes called for redemption. For purposes of calculating the redemption price in connection with the redemption of the notes on any redemption date, the following terms have the meanings set forth below: "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 new 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 new notes. 31 "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 J. P. Morgan Securities Inc. or its successor. "Reference Treasury Dealer" means each of (1) J.P. Morgan Securities Inc. or its successors and (2) one other firm that is a primary U.S. Government securities dealer in New York City (a "Primary Treasury Dealer") which we specify from time to time; provided, however, that, if either of them ceases to be a Primary Treasury Dealer, we 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. All determinations made by the trustee with respect to determining the redemption price will be final and binding on all parties, absent manifest error. RESTRICTIVE COVENANTS OF SYSCO For the benefit of the noteholders, SYSCO will agree to the following restrictive covenants in the indenture in its capacity as guarantor. We define some of the terms we use in the next two subsections below under "Definitions for Restrictive Covenants. " Limitations on Liens. Neither SYSCO nor any of its Subsidiaries, as defined below, will issue, incur, create, assume or guarantee any debt for borrowed money secured by a mortgage, security interest, pledge, lien, charge or other encumbrance ("mortgage") upon any Principal Property, as defined below, or upon any shares of stock or indebtedness of any Subsidiary that owns or leases a Principal Property (whether such Principal Property, shares or indebtedness now exists or is now owed or is hereafter created or acquired) without in any such case effectively providing concurrently that the notes (together with, if SYSCO shall so determine, any other indebtedness of or guaranteed by SYSCO or such Subsidiary ranking equally with the notes) shall be secured equally and ratably with (or, at the option of SYSCO, prior to) such secured debt. The foregoing restriction, however, will not apply to each of the following: o mortgages on property, shares of stock or indebtedness or other assets of any corporation existing at the time such corporation becomes a Subsidiary, provided that such mortgages or liens are not incurred in anticipation of such corporation's becoming a Subsidiary, o mortgages on property, shares of stock or indebtedness or other assets existing at the time of acquisition by SYSCO or a Subsidiary or mortgages to secure the payment of all or any part of the purchase price thereof, or mortgages on property, shares of stock or indebtedness or other assets to secure any debt incurred prior to, at 32 the time of, or within 180 days after, the latest of the acquisition thereof or, in the case of property, the completion of construction, the completion of improvements or the commencement of substantial commercial operation of such property for the purpose of financing all or any part of the purchase price thereof, such construction or the making of such improvements, o mortgages to secure indebtedness owing to SYSCO or to a Subsidiary, o mortgages existing at the date of the initial issuance of the notes, o mortgages on property of a person existing at the time that person is merged into or consolidated with SYSCO or a Subsidiary or at the time of a sale, lease or other disposition of the properties of a person as an entirety or substantially as an entirety to SYSCO or a Subsidiary, provided that such mortgage was not incurred in anticipation of such merger or consolidation or sale, lease or other disposition, o mortgages in favor of the United States of America or any of its states, territories or possessions (or the District of Columbia), or any department, agency, instrumentality or political subdivision of the United States of America or any of its states, territories or possessions (or the District of Columbia), to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of constructing or improving the property subject to such mortgages, or o extensions, renewals or replacements of any mortgage referred to in the list above, provided that the principal amount of indebtedness secured thereby shall not exceed the principal amount of the indebtedness being extended, renewed or replaced. Notwithstanding the restrictions outlined above, SYSCO or any Subsidiary may issue, incur, create, assume or guarantee debt secured by a mortgage which would otherwise be subject to those restrictions, without equally and ratably securing the notes, provided that after giving effect to the debt secured by a mortgage, the aggregate amount of all debt so secured by mortgages (not including mortgages described as being permitted under the bullet points listed above) does not exceed 20% of SYSCO's Consolidated Net Tangible Assets. Limitations on Sale and Lease-Back Transactions. Neither SYSCO nor any of its Subsidiaries will enter into any Sale and Lease-Back Transaction, as defined below, with respect to any Principal Property, other than a transaction involving a lease for a term of not more than three years or any such transaction between the Company and a Subsidiary or between Subsidiaries, unless: o SYSCO or such Subsidiary would be entitled to incur indebtedness secured by a mortgage on the Principal Property involved in that transaction at least equal in amount to the Attributable Debt, as defined below, with respect to that Sale and Lease-Back Transaction, without equally and ratably securing the notes pursuant to the limitation on liens covenant described above, or o the proceeds of that transaction are at least equal to the fair market value of the affected Principal Property (as determined in good faith by SYSCO's Board of Directors) and SYSCO applies an amount equal to the greater of the net proceeds of that sale or the Attributable Debt with respect to that Sale and Lease-Back Transaction within 180 days of that sale to either, or a combination of: o the retirement, other than any mandatory retirement, mandatory prepayment or sinking fund payment or by payment at maturity, of debt for borrowed money of SYSCO or a Subsidiary, other than debt that is subordinated to the notes or debt owed to SYSCO or a Subsidiary, that matures more than 12 months after its creation, or o the purchase, construction or development of other comparable property. Corporate Existence. Except as otherwise provided in the indenture, SYSCO will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the corporate existence of each of its Subsidiaries, including us, and all rights and franchises of SYSCO and its Subsidiaries. However, SYSCO will not be required to preserve the corporate existence of any Subsidiary or any right or franchise if SYSCO determines that the preservation of that Subsidiary, right or franchise is no longer desirable in the conduct of business of SYSCO and its Subsidiaries taken as a whole and 33 that the loss of that Subsidiary, right or franchise would not have a material adverse effect on the business, prospects, assets or financial condition of SYSCO and its Subsidiaries taken as a whole and would not have a material adverse effect on the payment and performance of our obligations under the notes and the indenture or SYSCO's obligations under the guarantees. DEFINITIONS FOR RESTRICTIVE COVENANTS "Attributable Debt" with regard to a Sale and Lease-Back Transaction with respect to any property means, at the time of determination, the lesser of: (1) the fair market value of that property, as determined in good faith by SYSCO's Board of Directors; or (2) the present value of the total net amount of rent required to be paid under the lease during the remaining term thereof, including any period for which the lease has been extended, discounted at the rate of interest set forth or implicit in the terms of the lease compounded semiannually, or if not practicable to determine that rate, the Composite Rate. In the case of any lease which is terminable by the lessee upon the payment of a penalty, such net amount shall be the lesser of the net amount determined assuming termination upon the first date such lease may be terminated, in which case the net amount shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated or the net amount determined assuming no such termination. "Composite Rate" means, at any time, the rate of interest, per annum, compounded semiannually, equal to the sum of the rates of interest borne by each series of notes outstanding under the indenture multiplied, in the case of each series of notes, by the percentage of the aggregate principal amount of all the notes then outstanding represented by that series of notes. "Consolidated Net Tangible Assets" means, as of any particular time, the aggregate amount of assets, less applicable reserves and other properly deductible items, after deducting therefrom all current liabilities, except for current maturities of long-term debt and of obligations under capital leases, and all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other intangible assets, to the extent included in said aggregate amount of assets, all as set forth on the most recent consolidated balance sheet of SYSCO and its consolidated subsidiaries and computed in accordance with generally accepted accounting principles. "Principal Property" means the land, improvements, buildings and fixtures (including any leasehold interest therein) constituting the principal corporate office, any manufacturing plant, any manufacturing, distribution or research facility or any self-serve center, in each case, whether now owned or hereafter acquired, which is owned or leased by SYSCO or any Subsidiary and is located within the United States of America or Canada unless the Board of Directors of SYSCO has determined in good faith that such office, plant facility or center is not of material importance to the total business conducted by SYSCO and its Subsidiaries taken as a whole. With respect to any Sale and Lease-Back Transaction or series of related Sale and Lease-Back Transactions, the determination of whether any property is a Principal Property shall be determined by reference to all properties affected by such transaction or series of transactions. "Sale and Lease-Back Transaction" means any arrangement with any person providing for the leasing by SYSCO or any Subsidiary of any Principal Property, which property has been or is to be sold or transferred by SYSCO or such Subsidiary to such person. "Subsidiary" means any corporation of which outstanding voting stock having the power to elect a majority of the board of directors of such corporation is at the time owned, directly or indirectly, by SYSCO or by one or more other Subsidiaries, or by SYSCO and one or more other Subsidiaries. For the purposes of this definition, "voting stock" means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. MERGER, CONSOLIDATION AND SALE OF ASSETS In the indenture, SYSCO has agreed not to consolidate with or merge into any other person or sell, lease, convey, transfer, or otherwise dispose of all or substantially all of its assets to any person, unless: o the continuing entity following the transaction is either SYSCO or a company organized and validly existing under the laws of the United States, any State thereof or the District of Columbia that expressly 34 assumes by a supplemental indenture the performance of the guarantees and SYSCO's covenants and obligations under the indenture and the notes, o immediately after giving effect to the transaction, no default or event of default under the notes shall have occurred and be continuing or would result from the transaction, and o SYSCO delivers an officers' certificate and an opinion of counsel to the trustee, each stating that the transaction and any supplemental indenture comply with the indenture. We may assign our rights and obligations under the indenture and the notes to: o a person with which SYSCO consolidates, merges or which it acquires or to which it transfers its assets, o SYSCO, or o another SYSCO subsidiary. In such case, our successor will assume our payment, covenant and other obligations under the indenture. In the case of any assignment to a person other than SYSCO, the covenants of SYSCO under the indenture will remain in effect following the assignment, and SYSCO will execute a new guarantee agreement containing substantially the same covenants. If we assign our rights and obligations under the indenture to SYSCO, then the SYSCO guarantees will no longer apply to the notes, but SYSCO's other covenants and obligations will continue to apply for the benefit of holders of the notes. REPORTS We and SYSCO have agreed to deliver to the trustee within 15 days after SYSCO is required to file with the SEC, copies of the annual reports and other information documents and reports which SYSCO is required to file with the SEC. EVENTS OF DEFAULT The term "event of default" means any of the following: o we default in the payment of any interest on any of the notes and that default continues for 30 days, o we default in the payment of any principal on any of the notes, either at maturity, or upon any redemption, by declaration or otherwise, o we or SYSCO default in the observance or performance of any other covenant or agreement applicable to the notes or in the indenture for a period of 90 days after written notice of that default is delivered to us or SYSCO by the trustee or by holders of at least 25% in aggregate principal amount of the outstanding securities of all series issued under the indenture that are affected by that default, o SYSCO repudiates its obligations under its guarantees of the notes or the guarantees become unenforceable or invalid or are no longer in full force and effect, o either we or SYSCO file for bankruptcy or certain other events of bankruptcy, insolvency or reorganization occur, or o any other event of default provided for in a supplemental indenture for the notes. Remedies if an Event of Default Occurs. If an event of default has occurred and, where applicable, has not been cured, either the trustee or the holders of not less than 25% of the aggregate principal amount of the notes outstanding may declare the entire principal amount of all the notes to be due and immediately payable. If an event of default occurs because of certain events in bankruptcy, 35 insolvency or reorganization, the principal amount of all notes will be automatically accelerated, without any action by the trustee or any holder. A declaration of acceleration of maturity may be canceled by the holders of at least a majority in principal amount of the notes. Except in cases of default, where the trustee has some special duties, the trustee is not required to take any action under the indenture at the request of any holders unless the holders offer the trustee protection from expenses and liability satisfactory to the trustee, which is called an indemnity. If reasonable indemnity is provided, the holders of a majority of the principal amount of the outstanding notes may direct the time, method and place of conducting any proceeding for any remedy available to the trustee. These majority holders may also direct the trustee in performing any other action under the indenture. Before a holder of notes may bypass the trustee and bring a lawsuit or other formal legal action or take other steps to enforce that holder's rights or protect its interests relating to the notes, the following must occur: o that holder must give the trustee written notice that an event of default has occurred and is continuing; o the holders of not less than 25% in principal amount of all outstanding notes must make a written request that the trustee take action because of the default and must offer reasonable indemnity to the trustee against the costs and other liabilities of taking that action; o the holders of a majority in principal amount of all outstanding notes must not have given the trustee any direction inconsistent with that request; and o the trustee must have not taken action for 60 days after the receipt of the above notice, request and offer of indemnity. Holders are, however, entitled at any time to bring a lawsuit for the payment of principal and interest due on their notes on or after its due date. We will furnish to the trustee every year a written statement regarding our performance of our obligations under the indenture and any default in such performance. MODIFICATION AND WAIVER With the agreement of SYSCO and the trustee, we can modify and amend the indenture with the consent of the holders of a majority of the principal amount of the outstanding notes. However, we may not, without the consent of each holder of notes to be affected: o reduce the amount of notes whose holders must consent to an amendment, supplement or waiver, o reduce the rate of or change the time for payment of interest on the notes, o reduce the principal of or premium, if any, on or any mandatory sinking fund payment with respect to the notes or change the stated maturity date of the notes or reduce the amount of the principal that would be due and payable upon a declaration of acceleration of the notes, o reduce the premium, if any, payable upon redemption of the notes or change the time at which the notes may or shall be redeemed, o change the currency in which interest is payable on the notes, o impair the right of any holder to sue for enforcement of any payment of principal of or premium, if any, or interest on the notes, o make any change in the percentage of principal amount of notes necessary to waive compliance with specified provisions of the indenture, 36 o waive the continuing default or event of default in the payment of principal or premium, if any, or interest on the notes, or o modify the obligations of SYSCO under the guarantee in a maner adverse to holders of the notes. We and the trustee may also modify and amend the indenture without the consent of the holders of the notes in limited circumstances, such as clarifications and changes that would not adversely affect holders of the notes. The holders of a majority of the principal amount of the outstanding notes may wiave our and SYSCO's compliance with the restrictive covenants in the indenture. The holders of at least a majority in aggregate principal amount of the securities of all series at the time outstanding under the indenture may, on behalf of all holders of those securities (including the holders of the notes), waive any past default or event of default under the indenture, except: o a default in the payment of principal of, premium, if any, or interest on the notes; and o a default in respect of a covenant or provision of the indenture that cannot be modified or amended without the consent of the holder of each outstanding note affected. We generally will be entitled to set any day as a record date for the purpose of determining the holders of outstanding notes that are entitled to vote or take other action under the indenture in accordance with applicable laws. If we or the trustee set a record date for a vote or other action to be taken by holders of the notes, that vote or action may be taken only by persons who are holders of outstanding securities of the notes on the record date and must be taken within 90 days following the record date. You should consult your bank or broker for informatin on how approval may be granted or denied if we seek to change the indenture or the notes or request a waiver. DEFEASANCE Full Defeasance. If there is a change in U.S. federal tax law, as described below, we can fully defease the notes, which means the notes will be deemed paid and discharged and the provisions of the indenture relating to the notes and the guarantees (subject to some exceptions outlined below) will cease to be of any further effect. In order to fully defease the notes in these circumstances, we must put in place the following arrangements for repayment of the notes and certain other conditions the indenture specifies must be satisfied: o we or SYSCO must irrevocably deposit or cause to be deposited with the trustee as trust funds in trust, for the purpose of making the following payments, cash, U.S. government obligations or a combination of cash and U.S. government obligations that will generate sufficient cash to make principal and interest payments on the notes on each date that a principal or interest payment is due, o no event of default shall have occurred and be continuing, o there must be a change in current U.S. federal tax law or a U.S. Internal Revenue Service ruling, in either case to the effect that the holders of the notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to U.S. federal income tax on the same amount, in the same manner and at the same times as would have been the case if that deposit and discharge had not occurred, and o we or SYSCO must deliver to the trustee a legal opinion of our counsel confirming the tax law change described above. If we fully defease the notes, as described above, holders of the notes would have to rely solely on the trust deposit for payment on the notes. Holders could not look to us or SYSCO for payment in the event of a shortfall. If we fully defease the notes, we will remain obligated under the indenture to: o register the transfer or exchange of notes, 37 o abide by our obligations and duties with respect to the trustee, o replace mutilated, defaced, destroyed, lost or stolen notes, and o maintain paying agencies and hold moneys for payment in trust. Covenant Defeasance. Under current U.S. federal tax law, we can make the same type of deposit described above and be released and have SYSCO and its other subsidiaries released from some of the restrictive covenants in the indenture, but we would remain obligated to make payments on the notes and SYSCO would remain obligated under the guarantees. This release is called covenant defeasance. If we effect covenant defeasance of the notes, holders would lose the protection of those restrictive covenants but would gain the protection of having money and securities set aside in trust to repay the notes. In addition, holders of the notes could look to us for repayment of the notes (and to SYSCO under the guarantees) if there were a shortfall in the trust deposit. In addition to making the same type of deposit described above and meeting certain other conditions the indenture specifies, in order for us to effect covenant defeasance, we must deliver to the trustee a legal opinion of our counsel confirming that, under current U.S. federal income tax law, holders of the notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred. If we effect covenant defeasance of the notes, the following provisions of the indenture and the notes would no longer apply: o the promises regarding the conduct of the business of SYSCO and its subsidiaries described above under "--Restrictive Covenants of SYSCO;" o the obligations described above under"--Reports;" and o the conditions that would apply if either we or SYSCO merge or engage in similar transactions, as described above under "--Merger, Consolidation and Sale of Assets." THE TRUSTEE The trustee's current address is 5847 San Felipe, Suite 1050, Houston, Texas 77057, Attn: Corporate Trust Administration Department. The trustee is one of a number of banks with which SYSCO maintains ordinary banking relationships. In addition, an affiliate of the trustee was an initial purchaser of the notes. The indenture provides that, except during the continuance of an event of default, the trustee will perform only such duties as are specifically set forth in the indenture. During the existence of an event of default, the trustee must exercise such rights and powers vested in it as a prudent person would exercise under the circumstances in the conduct of such person's own affairs. The indenture and provisions of the Trust Indenture Act incorporated by reference in the indenture contain limitations on the rights of the trustee, should it become our creditor, to obtain payment of claims in certain cases or to liquidate certain property received by it in respect of any such claim as security or otherwise. The trustee is permitted to engage in other transactions with us or any of our affiliates. If the trustee acquires any conflicting interest, as defined in the indenture or in the Trust Indenture Act, it must eliminate that conflict or resign. GOVERNING LAW The indenture, the notes and the guarantees will be governed by and construed in accordance with the laws of the State of New York. 38 REGISTRATION RIGHTS AGREEMENT AND EXCHANGE OFFER As a condition to the initial sale of the notes, we, SYSCO and the initial purchasers entered into a registration rights agreement. Under this agreement, we and SYSCO agreed to: o file with the SEC, on or prior to 90 days following the date we issued the old notes, a registration statement under the Securities Act of 1933 with regard to an offer to exchange the old notes for new notes; and o use our reasonable best efforts and act in accordance with applicable laws to cause the registration statement for the new notes to become effective under the Securities Act as soon as practicable, but not later than 180 days after the sale of the old notes. We have satisfied those obligations. We and SYSCO have also agreed that the exchange offer will be open for a period of at least 20 business days and will be completed within 210 days following the date we issued the old notes. During this period, we will exchange the new notes for all old notes properly surrendered and not withdrawn before the last day of this period. We have also agreed, if requested by the initial purchasers or by certain broker/dealers who hold notes for their own accounts, to include in the registration statement a prospectus for use in any resales by such broker/dealers and to keep the registration statement effective for up to 180 days after the last old notes are accepted for exchange. Each holder of the old notes, other than certain specified holders, who wishes to accept the exchange offer will be required to make certain representations, including representations that: o any new notes to be received by the holder will be acquired in the ordinary course of its business; o at the time of the commencement of the exchange offer, the holder has no arrangement or understanding with any person to participate in the distribution (with the meaning of the Securities Act of 1933) of the new notes; o the holder did not acquire the old notes to be exchanged directly from us, SYSCO or our affiliate of SYSCO; o the holder is not our or SYSCO's "affiliate" (as defined in Rule 405 under the Securities Act of 1933); and o the holder is not acting on behalf of any person who could not truthfully make all the foregoing representations. If: o SEC interpretations are changed before we complete the exchange offer such that the new notes received by each holder, except for certain restricted holders, are not or would not be transferable without restriction, o the exchange offer has not been completed within 210 days after the sale of the old notes, o the exchange offer has been completed and subject to certain conditions the registration rights agreement specifies, a registration statement must be filed and a prospectus must be delivered by certain of the initial purchasers in connection with the offering or sale of the new notes or o any applicable law or interpretation does not allow any holder to participate in the exchange offer, we will file a shelf registration statement for resale of the new notes within 45 days of that obligation arising. We will use our reasonable best efforts in accordance with applicable laws to cause the shelf registration statement to become effective no later than 90 days after the obligation to file arises and to keep the registration effective for up to two years. We will provide the applicable holders with copies of the prospectus, notify them when the resale registration for the new 39 notes has become effective and take other actions reasonably required to permit unrestricted sales of the new notes by those holders who satisfy various conditions relating to the provision of information in connection with the shelf registration statement. If the holder is not a broker-dealer, it will be required to represent that it is not engaged in, and does not intend to engage in, the distribution of the new notes and that the old notes to be exchanged for new notes were acquired as a result of market-making activities or other trading activities. It will also be required to acknowledge that it will deliver a prospectus in connection with any resale of its new notes. A registration default will exist if any of the following situations occurs: o we do not complete the exchange offer within 210 days after the initial issuance of the old notes, or o any registration statement required under the registration rights agreement is filed and declared effective but we later withdraw it or the SEC issues an effective stop order suspending its effectiveness, except as specifically permitted in the registration rights agreement, without being succeeded immediately by an additional registration statement filed and declared effective. During any period of registration default, in addition to the interest we normally pay on the notes, we will pay additional interest on any registrable notes. Additional interest will accrue at an annual rate of 0. 25% per annum during the first 90 days during which a default has occurred and is continuing, and 0. 50% per annum for the remaining period during which a default has occurred and is continuing. Additional interest will not exceed 0. 50% per annum at any time. As soon as we cure all registration defaults, the interest rate on the notes will revert to its original level. This description of the registration rights agreement is a summary only. The summary is not complete. We recommend that you read the entire registration rights agreement carefully before exchanging old notes. You can obtain a copy of the registration rights agreement by following the directions under the caption "Where You Can Find More Information" on page 1 of this prospectus. BOOK-ENTRY DELIVERY AND SETTLEMENT THE GLOBAL NOTES We will issue the new notes in the form of one or more global notes in fully registered form. The global notes will be deposited with or on behalf of The Depository Trust Company ("DTC") and registered in the name of Cede & Co., as nominee of DTC, or another nominee of DTC or will remain in the custody of the trustee in accordance with the FAST Balance Certificate Agreement between DTC and the trustee. You may hold beneficial interests in the global note directly through DTC if you have an account at DTC, or indirectly through organizations that have accounts at DTC. What is a Global Security? A global security, such as a global note, is a special type of security held in the form of a certificate by a depositary for the investors in a particular issue of securities. The aggregate principal amount of the global security equals the sum of the principal amounts of the issue of securities it represents. The depositary or its nominee is the sole legal holder of the global security. The beneficial interests of investors in the issue of securities are represented in book-entry form in the computerized records of the depositary. If investors want to purchase securities represented by a global security, they must do so through brokers, banks or other financial institutions that have an account with the depositary. Special Investor Considerations for Global Securities. Because you, as an investor, will not be a registered legal holder of a global note, your rights relating to a global note will be governed by the account rules of your bank or broker and of the depositary, DTC, as well as general laws relating to securities transfers. We will not recognize a typical investor as a legal owner of the notes for any purpose under the indenture or the notes and instead will deal only with the trustee and DTC, the depositary that is the registered legal holder of the global notes. You should be aware that as long as the new notes are issued only in the form of global securities: 40 o You cannot have any of the new notes registered in your own name. o You cannot receive physical certificates for your interest in the new notes. o You will not be a registered legal holder of any of the new notes and must look to your own bank or broker for payments on the new notes and protection of your legal rights relating to the new notes. o You may not be able to sell interests in any of the new notes to some insurance companies and other institutions that are required by law to own their securities in the form of physical certificates. o As an owner of beneficial interests in the global note, you may not be able to pledge your interests to anyone who does not have an account with DTC, or to otherwise take actions in respect of your interests, because you cannot obtain physical certificates representing those interests. o DTC's policies will govern payments of principal and interest, transfers, exchanges and other matters relating to your interest in a global note. We and the trustee have no responsibility for any aspect of DTC's actions or for its records of ownership interests in the global note. Also, we and the paying agent do not supervise DTC in any way. o DTC will require that interests in the global note be purchased or sold within its system using same-day funds. Description of DTC. DTC has advised us as follows: o DTC is a limited-purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code and a "clearing agency" registered under Section 17A of the Securities Exchange Act of 1934. o DTC holds securities that its participants ("direct participants") deposit with DTC and facilitates the settlement among direct participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book entry changes in direct participants' accounts, thereby eliminating the need for physical movement of securities certificates. o Direct participants include securities brokers and dealers, banks, trust companies, clearing corporations and other organizations. o DTC is owned by a number of its direct participants and by the New York Stock Exchange, Inc., the American Stock Exchange LLC and the National Association of Securities Dealers, Inc. o Access to the DTC system is also available to others such as securities brokers and dealers, banks and trust companies that clear through or maintain a custodial relationship with a direct participant, either directly or indirectly. o The rules applicable to DTC and its direct and indirect participants are on file with the SEC. The descriptions of the operations and procedures of DTC in this prospectus are provided solely as a matter of convenience. These operations and procedures are solely within the control of DTC and are subject to change by them from time to time. Neither we, SYSCO, nor the trustee takes any responsibility for these operations or procedures, and you are urged to contact DTC, or its participants directly to discuss these matters. CERTIFICATED NOTES In a few special situations described in the next paragraph, a global note will terminate and interests in it will be exchanged for physical certificates representing the notes previously included within the global note. After that exchange, the choice of whether to hold the notes directly or in "street name" (in computerized book-entry form) will be up to you. You must consult your own 41 bank or broker to find out how to have your interests in the notes transferred to your own name if we complete such an exchange and you wish to be a direct legal holder of the notes. We will issue certificated notes to each person that DTC identifies as the beneficial owner of the notes represented by the global notes upon surrender by DTC of the global notes if either: o DTC notifies us and the trustee that DTC is unwilling, unable or no longer qualified to continue acting as the depositary for the global note, or it has ceased to be a clearing agency registered under the Securities Exchange Act at a time when it is required to be so registered, and we do not appoint a successor depositary within 90 days of that notice; o an event of default with respect to the notes represented by the global notes has occurred and is continuing, as described under "--Events of Default," and DTC requests the issuance of certificated notes; or o we notify the trustee that we have elected to cause the issuance of certificated notes under the indenture. None of SYSCO, the trustee or us will be liable for any delay by DTC, its nominee or any DTC participant or indirect participant in identifying the owners of security entitlements in any related notes. We, SYSCO and the trustee may conclusively rely on, and will be protected in relying on, instructions from DTC or its nominee for all purposes, including with respect to the registration and delivery, and the respective principal amounts, of the notes to be issued. We would issue certificated notes in the following manner: o in fully registered form; o without interest coupons; and o in denominations of multiples of $1,000. PAYMENTS ON THE NEW NOTES Global Notes. Payments on the new notes represented by the global notes will be made to DTC or its nominee, as the case may be, as the registered owner thereof. We expect that DTC or its nominee, upon receipt of any payment on the new notes represented by a global note, will credit participants' accounts with payments in amounts proportionate to their respective beneficial interests in the global note as shown in the records of DTC or its nominee. We also expect that payments by participants to owners of beneficial interests in the global note held through those participants will be governed by standing instructions and customary practice as is now the case with securities held for the accounts of customers registered in the names of nominees for those customers. The participants will be responsible for those payments. Under the terms of the indenture, we, SYSCO, as guarantor of the notes, the trustee and any paying agent we appoint may treat the persons in whose names the new notes, including the global notes, are registered as the owners thereof for the purpose of receiving payment thereon and for any and all other purposes whatsoever. Neither we, SYSCO nor the trustee will have any responsibility or liability for any aspect of DTC's, or its participants' or account holders' records relating to, or payments made on account of, beneficial ownership interests in the global note (including payments of principal and interest) or for maintaining, supervising or reviewing any records of those organizations relating to the new notes. Holders of the new notes in "street name" and other owners of beneficial interests in a global note should consult their banks or brokers for information on how they will receive payments. Certificated New Notes. Payment of the principal of certificated new notes, if any are issued, will be made at the office of the paying agent. Payment of the interest on certificated new notes will be paid by check mailed to you, if you are a registered holder of certificated notes. At the request of a registered holder of more than $1,000,000 principal amount of certificated notes, payments of principal or interest may be made to that holder by wire transfer. 42 CLEARANCE AND SETTLEMENT PROCEDURES Principal and interest payments with respect to the new notes will be made in immediately available funds. Global Notes. Secondary market trading between DTC participants will occur in the ordinary way in accordance with DTC rules and will be settled in immediately available funds. Certificated Notes. Certificated new notes, if any are issued, may be presented for registration of transfer or exchange at the corporate trust office of the trustee in The City of New York, which we have appointed as the security registrar and transfer agent for the new notes. UNITED STATES FEDERAL AND CANADIAN INCOME TAX CONSIDERATIONS The following summaries are of a general nature only and are not intended to be and should not be construed as legal or tax advice to any prospective holders of new notes, and no representations with respect to the tax consequences to any particular holder of new notes are made hereby. Accordingly, prospective holders of new notes should consult with, and rely upon, their own tax advisors for advice with respect to the tax consequences to them of the exchange of old notes for new notes in light of their own particular circumstances, including any consequences arising under federal, state, provincial and local tax laws of the United States, Canada and any other taxing jurisdiction. UNITED STATES FEDERAL INCOME TAX CONSEQUENCES The following is a general discussion of certain of the U.S. federal income tax consequences of the exchange of old notes for new notes and the ownership and disposition of new notes. This discussion applies only to beneficial owners of old notes that purchased the old notes at their "issue price" on the issue date in connection with the issue of the old notes and who exchange such old notes for new notes in this exchange offer. Except where noted, this discussion deals only with old notes held as capital assets and does not apply to holders that are subject to special tax rules. For example, this discussion does not address: o tax consequences to holders who may be subject to special tax treatment, such as dealers in securities or currencies, financial institutions, tax-exempt entities, traders in securities that elect to use a mark-to-market method of accounting, corporations that accumulate earnings to avoid federal income tax, insurance companies, or, in some cases, an expatriate of the United States or a nonresident alien individual who has made a valid election to be treated as a United States resident; o tax consequences to persons holding notes as part of a hedging, integrated, constructive sale or conversion transaction or a straddle; o tax consequences to U.S. holders of notes whose "functional currency" is not the U.S. dollar; o alternative minimum tax consequences; or o any state or local tax consequences. The discussion below is based upon the provisions of the Internal Revenue Code, existing and proposed regulations promulgated thereunder, and published rulings and judicial decisions, all as of the date of this prospectus. Those authorities may be changed, perhaps retroactively, in which case U.S. federal income tax consequences may be different from those discussed below. You should consult your own tax advisors concerning the U.S. federal income tax consequences to you of the exchange of old notes for new notes, the ownership and disposition of new notes and any consequences arising under the tax laws of any state, local or other jurisdiction. 43 CONSEQUENCES TO UNITED STATES HOLDERS The following discussion summarizes certain U.S. federal tax consequences that will apply to you if you are a United States holder of old notes. "United States holder" means a beneficial owner of an old note who: o a citizen or resident of the United States; o a corporation or partnership created or organized in or under the laws of the United States or any political subdivision of the United States; o an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or o a trust that (1) is subject to the primary supervision of a court within the United States and the control of one or more U.S. persons or (2) has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person. The Exchange. The exchange of old notes for new notes should not be treated as an exchange for United States federal income tax purposes. Therefore, a new note should be treated as a continuation of the corresponding old note and, as a result, an exchanging United States holder should not recognize any gain or loss on the exchange, and its holding period and basis in the new note would be the same as in the old note. Payments of Interest. Interest on a new note will generally be taxable to you as ordinary income at the time it is paid or accrued in accordance with your method of accounting for U.S. federal income tax purposes. The notes will be treated as indebtedness of a U.S. obligor for U.S. federal income tax purposes and, as a result, interest on the notes generally will be treated as U.S. source income. Nonetheless, in the case of a United States holder that is entitled to benefits under the Canada-United States Tax Convention, as currently in effect, interest income on the notes may, subject to certain restrictions and limitations, be treated as foreign source income for purposes of claiming a U.S. foreign tax credit for certain Canadian income taxes, if any, imposed on the holder. Sale, Exchange and Retirement of Notes. In general, your tax basis in a new note will be equal to your tax basis in the old note, reduced by any cash payments on that note other than stated interest. Upon the sale, exchange, retirement or other disposition of a note, you generally will recognize gain or loss equal to the difference between the amount you realize upon the sale, exchange, retirement or other disposition (less an amount equal to any accrued stated interest that you did not previously include in income, which will be taxable as ordinary income) and your adjusted tax basis in the note. That gain or loss will be capital gain or loss and generally will be a U.S. source gain or loss unless it is attributable to an office or other fixed place of business maintained by you outside the United States and certain other conditions are met. Capital gains of individuals derived in respect of capital assets held for more than one year may be eligible for reduced rates of taxation. The deductibility of capital losses is subject to limitations. Market Discount. The market discount provisions of the Internal Revenue Code may apply to a purchaser of the new notes. For this purpose, the market discount on a note generally will equal the amount, if any, by which the stated redemption price at maturity of the note immediately after its acquisition, other than at original issue, exceeds the U.S. holder's adjusted tax basis in the note. Subject to a limited exception, these provisions generally require a U.S. holder who acquires a note at a market discount to treat as ordinary income any gain recognized on the disposition of that note to the extent of the accrued market discount on that note at the time of maturity or disposition, unless the U.S. holder elects to include accrued market discount in income over the life of the note. This election to include market discount in income over the life of the note, once made, applies to all market discount obligations acquired on or after the first taxable year to which the election applies and may not be revoked without the consent of the IRS. In general, market discount will be treated as accruing on a straight-line basis over the remaining term of the note at the time of acquisition, or, at the election of the U.S. holder, under a constant yield method. If an election is made to accrue market discount under a constant yield method, it will apply only to the note with respect to which it is made, and may not be revoked. A U.S. holder who acquires a note at a market discount and who does not elect to include accrued market discount in income over the life of the note may be required to defer the deduction of a portion of the interest on any 44 indebtedness incurred or maintained to purchase or carry the note until maturity or until the note is disposed of in a taxable transaction. Amortizable Premium. In general, if you acquire a note for a premium over its stated principal amount, plus accrued interest, such excess will constitute bond premium. A U.S. holder generally may elect to amortize the premium over the remaining term of the note under a constant-yield method, with a corresponding decrease in tax basis. Such amortized premium is treated as an offset to interest income on the note and not as a separate deduction. The election to amortize premium on a constant yield method, once made, applies to all debt obligations held or subsequently acquired by the electing U.S. holder on or after the first day of the first taxable year to which the election applies and may not be revoked without the consent of the IRS. If the U.S. holder does not elect to amortize bond premium, that premium will decrease the gain or increase the loss otherwise recognized on disposition of a new note. Information Reporting and Backup Withholding. In general, information reporting requirements will apply to certain payments of principal and interest on the new notes and to the proceeds of sale of the new notes unless you are an exempt recipient (such as a corporation). A backup withholding tax at a rate equal to the fourth lowest income tax rate applicable for individuals (which, under current law, is 30% for 2002 and 2003, 29% for 2004 and 2005, 28% for 2006 and thereafter) will apply to such payments if you fail to provide a correct taxpayer identification number, certified under penalties of perjury, or certification of exempt status, or if you are notified by the Internal Revenue Service that you have failed to report all interest and dividends required to be shown on your U.S. federal income tax returns. Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against your U.S. federal income tax liability provided the required information is timely furnished to the IRS. CONSEQUENCES TO NON-UNITED STATES HOLDERS The following is a discussion of certain of the U.S. federal income and estate tax consequences that generally will apply to you if you are a non-United States holder of new notes. A non-United States holder is a beneficial owner of new notes other than a United States holder. U.S. Federal Withholding Tax. The 30% U.S. federal withholding tax will not apply to any payment to you of interest on the new notes, provided that: o you do not actually or constructively own 10% or more of the total combined voting power of all classes of SYSCO voting stock within the meaning of Section 871(h)(3) of the Internal Revenue Code and related U.S. Treasury regulations; o you are not a controlled foreign corporation that is related, directly or indirectly, to SYSCO through stock ownership and you are not a bank that received the notes on an extension of credit entered into in the ordinary course of your trade or business; and o either (1) you provide your name and address on an IRS Form W-8BEN, and certify, under penalty of perjury, that you are not a U.S. person or (2) you hold your new notes through certain foreign intermediaries and you satisfy the certification requirements of applicable U.S. Treasury regulations. If you do not satisfy the requirements described above, payments of interest made to you will be subject to the 30% U.S. federal withholding tax, unless you provide us with a properly executed (1) IRS Form W-8BEN (or successor form) claiming an exemption from or reduction in the rate of withholding under an applicable tax treaty (in which case interest on the new notes will be subject to U.S. federal withholding tax at the applicable treaty rate) or (2) IRS Form W-8ECI (or successor form) stating that interest paid on the new notes is not subject to withholding tax because it is effectively connected with your conduct of a trade or business in the United States. The 30% U.S. federal withholding tax generally will not apply to any payment of principal or any gain that you realize on the sale, exchange, retirement or other disposition of the new notes. U.S. Federal Estate Tax. Your estate will not be subject to U.S. federal estate tax on the new notes beneficially owned by you at the time of your death, provided that, at the time of your death (1) you do not own, within the meaning of the Internal Revenue Code and the U.S. Treasury regulations, 10% or more of the total combined voting power of all classes of SYSCO voting stock, and (2) 45 interest on the new notes would not have been effectively connected with the conduct by you of a trade or business in the United States. U.S. Federal Income Tax. If you are engaged in a trade or business in the United States and interest on any new note is effectively connected with the conduct of that trade or business, you will be subject to U.S. federal income tax on that interest on a net income basis (although generally exempt from the 30% withholding tax) in the same manner as if you were a U.S. person as defined under the Internal Revenue Code. In addition, if you are a foreign corporation, you may also be subject to a branch profits tax equal to 30% (or lower applicable treaty rate) of your earnings and profits for the taxable year, subject to adjustments, that are effectively connected with the conduct by you of a trade or business in the United States. For this purpose, interest on new notes will be included in your earnings and profits. Any gain or income realized on the disposition of a new note generally will not be subject to U.S. federal income tax unless (1) that gain or income is effectively connected with the conduct of a trade or business in the United States by you, or (2) in the case of gain, you are an individual who is present in the United States for 183 days or more in the taxable year of that disposition and certain other conditions are met. Information Reporting and Backup Withholding. Under U.S. Treasury regulations that became effective for payments made on or after January 1, 2001, backup withholding and information reporting will not apply to payments that we make or any of our paying agents (in its capacity as such) makes to you if you have provided the required certification that you are a non-United States holder and provided that neither we nor any of our paying agents has actual knowledge that you are a United States holder (as described above). In addition, you will not be subject to backup withholding and information reporting with respect to the proceeds of the sale of a new note within the United States or conducted through certain U. S. -related financial intermediaries, if the payor receives the statement described above and does not have actual knowledge that you are a U.S. person, as defined under the Internal Revenue Code, or you otherwise establish an exemption. Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against your U.S. federal income tax liability provided the required information is timely furnished to the IRS. CANADIAN FEDERAL INCOME TAX CONSIDERATIONS General. This summary is of the principal Canadian federal income tax considerations under the Income Tax Act (Canada) and the Income Tax Regulations (which we refer to in this section as the Act and the Regulations, respectively) in effect on the date hereof generally applicable to a beneficial owner of old notes who exchanges such old notes for new notes, a Holder, pursuant to the exchange offer and who, for the purposes of the Act: o deals with us at arm's-length; o is neither resident nor deemed to be resident in Canada at any time; and o holds the notes as capital property and does not use or hold and is not deemed to use or hold the notes in a business that the Holder carries on, or is deemed to carry on, in Canada at any time. For purposes of the Income Tax Act (Canada), related persons (as defined therein) are deemed not to deal at arm's length, and it is a question of fact whether persons not related to each other deal at arm's length. Special rules that are not discussed in this summary may apply to a Holder that is an insurer carrying on business in Canada and in a country other than Canada. This summary is not applicable to a Holder that is a "financial institution," as defined by the Act for purposes of certain rules applicable to income, gain or loss arising from "mark-to-market property. " We have based this summary on the current provisions of the Act and the Regulations, all specific proposals to amend the Act and Regulations publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date of this prospectus and the current published administrative practices and policies of the Canada Customs and Revenue Agency. This summary assumes that the Act and the Regulations will be amended in accordance with the proposals as so announced, although no assurance of that can be given. 46 This summary is not exhaustive of all possible Canadian federal income tax considerations, and except for the proposed amendments, does not take into account or anticipate any changes in law whether by judicial, governmental or legislative decision or action, nor does it take into account tax legislation or considerations of any province or territory of Canada or any jurisdiction other than Canada. The provisions of provincial income tax legislation vary from province to province in Canada and in some cases differ from federal income tax legislation. This summary is of a general nature only and is not intended to be, and should not be interpreted as, legal or tax advice to any particular Holder. Accordingly, holders of old notes considering exchanging their old notes for new notes are urged to consult their own tax advisors as to the particular tax consequences to them of participating in the exchange offer. Canadian Withholding Tax. Subject to the exception in the next paragraph, any amount paid or credited, or deemed to be paid or credited, by a resident of Canada as, on account or in lieu of payment of, or in satisfaction of interest to non-residents of Canada (other than certain persons carrying on business in Canada, to the extent provided in the Act and the Regulations) generally will be subject to a 25% non-resident withholding tax. The rate of such tax may be reduced through the application of international tax treaties or conventions to which Canada is a party, usually to a rate of 10% or 15%. Generally, interest (other than certain interest described in the Act) payable by a corporation resident in Canada to non-residents of Canada who deal at arm's-length with that corporation on an obligation where the evidence of indebtedness was issued by that corporation after June 23, 1975 is exempt from such withholding tax if under the terms of the obligation or any related agreement, the corporation may not under any circumstances be obliged to pay more than 25% of the principal amount of the obligation (or the aggregate principal amount of a number of obligations, identical in all respects but for their separate principal amounts, that comprise a single debt issue of obligations) within five years from the date of its issue except: o in the event of a failure or default under such terms or agreement; o if the terms of the obligation or such agreement become unlawful or are changed by legislation or by a court, statutory board or commission; o if such a non-resident person exercises a right under the terms of the obligation or such agreement to convert the obligation into, or exchange the obligation for, a "prescribed security" under the Act and the Regulations for this purpose; or o in the event of the death of the holder of the obligation. For purposes of the Act and the Regulations, we are treated as a corporation resident in Canada. We believe that interest (including any make-whole premium deemed to be interest) paid or credited (or deemed to be paid or credited for purposes of the Act) on a new note to a Holder will be exempt from Canadian withholding tax. In addition, no other taxes on income including taxable capital gains will be payable by a Holder in respect of the acquisition, ownership or disposition of a new note. The exchange of old notes for new notes will not result in any Canadian federal income tax consequences to a Holder. PLAN OF DISTRIBUTION We are not using any underwriters for this exchange offer. Each broker-dealer that receives new notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of the new notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of any new notes received in exchange for new notes acquired by the broker-dealer as a result of market-making or other trading activities. For a period of up to 180 days after the expiration of the exchange offer, we will promptly send additional copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer that requests these documents. In addition, during this 180-day period, all dealers effecting transactions in the new notes may be required to deliver a prospectus. 47 We will not receive any proceeds from any sale of new notes by broker-dealers or any other persons. New notes received by broker-dealers for their own account pursuant to the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the notes, or a combination of these methods of resale, at market prices prevailing at the time of resale, at prices related to the prevailing market prices or negotiated prices. Any resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any broker-dealer and/or the purchasers of any new notes. Any broker-dealer that resells new notes that were received by it for its own account pursuant to the exchange offer and any broker-dealer that participates in a distribution of notes may be deemed to be an "underwriter" within the meaning of the Securities Act, and any profit resulting from these resales of new notes and any commissions or concessions received by any of these persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. We have agreed to pay all expenses incident to the exchange offer other than commissions or concessions of any brokers or dealers and will indemnify the holders of the old notes, including any broker-dealers, against certain liabilities, including liabilities under the Securities Act. 48 LEGAL MATTERS The validity of the new notes will be passed upon for us by Arnall Golden Gregory LLP, Atlanta, Georgia, SYSCO's outside counsel, and Stewart McKelvey Stirling Scales LLP, our special Canadian counsel. Jonathan Golden, the sole shareholder of a professional corporation which is a partner of Arnall Golden Gregory LLP, is one of SYSCO's directors. Attorneys with the firm Arnall Golden Gregory LLP own an aggregate of approximately 170,000 shares of SYSCO common stock. INDEPENDENT AUDITORS The audited consolidated financial statements of SYSCO and its subsidiaries included in SYSCO's annual report on Form 10-K for the fiscal year ended June 30, 2001, incorporated by reference in this prospectus have been audited by Arthur Andersen LLP, independent public accountants, as stated in their report with respect thereto. With respect to the unaudited interim financial information of SYSCO and its subsidiaries included in SYSCO's quarterly reports on Form 10-Q for the quarters ended September 29, 2001 and December 29, 2001 incorporated herein by reference, Arthur Andersen LLP has applied limited procedures in accordance with professional standards for a review of that information. However, their separate report thereon states that they did not audit and they do not express an opinion on that interim financial information. Accordingly, the degree of reliance on their report on that information should be restricted in light of the limited nature of the review procedures applied. On March 27, 2002, SYSCO dismissed Arthur Andersen LLP as its independent public accountants and engaged Ernst & Young LLP as SYSCO's independent public accountants for the fiscal year ending June 29, 2002. Arthur Andersen LLP has not consented to the incorporation by reference of their report dated August 1, 2001 in this prospectus, and SYSCO has dispensed with the requirement to file their consent in reliance upon Rule 437a of the Securities Act of 1933. Because Arthur Andersen LLP has not consented to the inclusion of their report in this prospectus, you will not be able to recover against Arthur Andersen LLP under Section 11 of the Securities Act for any untrue statements of a material fact contained in the financial statements audited by Arthur Andersen LLP or any omissions to state a material fact required to be stated therein. Therefore, your right of recovery under that section may be limited as a result of the lack of consent. With respect to the unaudited interim financial information of SYSCO and its subsidiaries included in SYSCO's quarterly report on Form 10-Q for the quarter ended March 30, 2002 incorporated herein by reference, Ernst & Young LLP has applied limited procedures in accordance with professional standards for a review of that information. However, their separate report, included in SYSCO's quarterly report on Form 10-Q for the quarter ended March 30, 2002 and incorporated by reference, states that they did not audit and they do not express an opinion on that interim financial information. Accordingly, the degree of reliance on their report on that information should be restricted considering the limited nature of the review procedures applied. The independent auditors are not subject to the liability provisions of Section 11 of the Securities Act for their reports on the unaudited interim financial information because those reports are not "reports" or a "part" of the registration statement prepared or certified by the auditors within the meaning of Sections 7 and 11 of the Securities Act. 49 No dealer, salesperson, or other individual has been authorized to give any information or to make any representation not contained in this prospectus and, if given or made, such information or representations must not be relied upon as having been authorized by us. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any of the securities offered hereby in any jurisdiction to any person to whom it is unlawful to make an offer in those jurisdictions. Neither the delivery of this prospectus nor any sale made hereunder will, under any circumstances, create any implication that the information in this prospectus is correct as of any time subsequent to the date of this prospectus or that there has been no change in the affairs of SYSCO or SYSCO International, Co. since that date. SYSCO INTERNATIONAL, CO. OFFER TO EXCHANGE 6.10% NOTES DUE 2012 UNCONDITIONALLY GUARANTEED BY SYSCO CORPORATION AUGUST ___, 2002 50 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 20. INDEMNIFICATION OF OFFICERS AND DIRECTORS Section 145 of the Delaware General Corporation Law and the Restated Certificate of Incorporation, as amended, and the Amended and Restated By-laws of SYSCO contain provisions covering indemnification of corporate directors and officers against certain liabilities and expenses incurred as a result of proceedings involving such persons in their capacities as directors and officers, including proceedings under the Securities Act and the Exchange Act. SYSCO has entered into indemnity contracts and provides indemnity insurance pursuant to which officers and directors are indemnified and insured against liability or loss under certain circumstances which may include liability or related loss under the Securities Act and the Exchange Act. ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES (a) Exhibits Description -------- ----------- 1.1* Purchase Agreement dated as of May 20, 2002 between SYSCO International, Co., SYSCO Corporation and the several purchasers named in Schedule I thereto. 4.1* Indenture, including form of note, dated May 23, 2002, between SYSCO International, Co., SYSCO Corporation and Wachovia Bank, National Association, as trustee. 4.2* Registration Rights Agreement dated May 23, 2002 between SYSCO International, Co., SYSCO Corporation and the several initial purchasers named therein. 5.1* Opinion of Arnall Golden Gregory LLP. 5.2* Opinion of Stewart McKelvey Stirling Scales. 15.1* Letter re unaudited financial statements. 23.1* Consent of Arnall Golden Gregory LLP (included in the opinion filed as Exhibit 5.1 to this Registration Statement). 24.1* Powers of Attorney (included in the signature page of this Registration Statement). 25.1* Statement of Eligibility of Trustee on Form T-1. 99.1* Letter of Transmittal for old 6.10% notes due 2012. 99.2* Notice of Guaranteed Delivery for old 6.10% notes due 2012. 99.3* Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. 99.4* Form of Letter to Clients. - --------------------- *Filed herewith II-1 (b) Financial Statement Schedules -- None (c) Report, Opinion or Appraisal - Not applicable ITEM 22. UNDERTAKINGS (a) The undersigned Registrant hereby undertakes as follows: 1. To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. 2. That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 4. That prior to any public reoffering of the securities registered hereunder through the use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the Registrant undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form. 5. That every prospectus (i) that is filed pursuant to the immediately preceding paragraph, or (ii) that purports to meet the requirements of Section 10(a)(3) of the Securities Act of 1933 and is used in connection with an offering of securities subject to Rule 415, will be filed as part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for the purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 6. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the II-2 Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. 7. That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (b) The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first-class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request. (c) The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston and State of Texas, on the 21st day of August, 2002. SYSCO CORPORATION By: /s/Charles H. Cotros ------------------------------------- Charles H. Cotros Chairman and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Each person whose signature appears below hereby constitutes and appoints Charles H. Cotros, John K. Stubblefield, Jr. and Richard J. Schnieders, or any one of them, as such person's true and lawful attorney-in-fact and agent with full power of substitution for such person and in such person's name, place and stead, in any and all capacities, to sign and to file with the Securities and Exchange Commission, any and all amendments and post-effective amendments to this Registration Statement, with exhibits thereto and other documents in connection therewith, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or any substitute therefor, may lawfully do or cause to be done by virtue thereof.
SIGNATURE TITLE DATE /s/Charles H. Cotros Chairman, Chief Executive Officer and Director August 21, 2002 - -------------------------------------------- (principal executive officer) Charles H. Cotros /s/John K. Stubblefield, Jr. Executive Vice President, Finance and August 21, 2002 - -------------------------------------------- Administration John K. Stubblefield, Jr. (principal financial and accounting officer) /s/John W. Anderson Director August 21, 2002 - -------------------------------------------- John W. Anderson /s/Colin G. Campbell Director August 21, 2002 - -------------------------------------------- Colin G. Campbell /s/Judith B. Craven Director August 21, 2002 - -------------------------------------------- Judith B. Craven /s/Jonathan Golden Director August 21, 2002 - -------------------------------------------- Jonathan Golden /s/Thomas E. Lankford Director August 21, 2002 - -------------------------------------------- Thomas E. Lankford /s/Richard G. Merrill Director August 21, 2002 - -------------------------------------------- Richard G. Merrill /s/Frank H. Richardson Director August 21, 2002 - -------------------------------------------- Frank H. Richardson /s/Richard J. Schnieders Director August 21, 2002 - -------------------------------------------- Richard J. Schnieders /s/Phyllis S. Sewell Director August 21, 2002 - -------------------------------------------- Phyllis S. Sewell /s/Jackie M. Ward Director August 21, 2002 - -------------------------------------------- Jackie M. Ward
SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston and State of Texas, on the 21st day of August, 2002. SYSCO International, Co. By: /s/ Michael C. Nichols ------------------------------------------ Michael C. Nichols President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Each person whose signature appears below hereby constitutes and appoints Michael C. Nichols and Kent R. Berke, or any one of them, as such person's true and lawful attorney-in-fact and agent with full power of substitution for such person and in such person's name, place and stead, in any and all capacities, to sign and to file with the Securities and Exchange Commission, any and all amendments and post-effective amendments to this Registration Statement, with exhibits thereto and other documents in connection therewith, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or any substitute therefor, may lawfully do or cause to be done by virtue thereof.
SIGNATURE TITLE DATE /s/Michael C. Nichols President and Director August 21, 2002 - -------------------------------------------- (principal executive officer) Michael C. Nichols /s/Diane Day Sanders Treasurer and Director August 21, 2002 - -------------------------------------------- (principal financial and accounting officer) Diane Day Sanders. /s/Kent R. Berke Director August 21, 2002 - -------------------------------------------- Kent R. Berke
EXHIBIT INDEX Exhibits Description - -------- ----------- 1.1* Purchase Agreement dated as of May 20, 2002 between SYSCO International, Co., SYSCO Corporation and the several purchasers named in Schedule I thereto. 4.1* Indenture, including form of note, dated May 23, 2002, between SYSCO International, Co., SYSCO Corporation and Wachovia Bank, National Association, as trustee. 4.2* Registration Rights Agreement dated May 23, 2002 between SYSCO International, Co., SYSCO Corporation and the several initial purchasers named therein. 5.1* Opinion of Arnall Golden Gregory LLP. 5.2* Opinion of Stewart McKelvey Stirling Scales. 15.1* Letter re unaudited financial statements. 23.1* Consent of Arnall Golden Gregory LLP (included in the opinion filed as Exhibit 5.1 to this Registration Statement). 24.1* Powers of Attorney (included in the signature page of this Registration Statement). 25.1* Statement of Eligibility of Trustee on Form T-1. 99.1* Letter of Transmittal for old 6.10% notes due 2012. 99.2* Notice of Guaranteed Delivery for old 6.10% notes due 2012. 99.3* Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. 99.4* Form of Letter to Clients. - --------------------- *Filed herewith II-6 1476730 EX-1.1 3 syscos4802ex11.txt PURCHASE AGREEMENT EXHIBIT 1.1 $ 200,000,000 SYSCO INTERNATIONAL, CO. 6.10% SENIOR NOTES DUE 2012 GUARANTEED BY SYSCO CORPORATION Purchase Agreement May 20, 2002 J.P. Morgan Securities Inc. As Representative of the several Initial Purchasers listed in Schedule 1 hereto c/o J.P. Morgan Securities Inc. 270 Park Avenue New York, New York 10017 Ladies and Gentlemen: SYSCO International, Co., an unlimited liability company organized under the laws of Nova Scotia, Canada (the "Company"), proposes to issue and sell to the several Initial Purchasers listed in Schedule 1 hereto (the "Initial Purchasers"), for whom you are acting as representative (the "Representative"), $200,000,000 principal amount of its 6.10% Senior Notes due 2012 (the "Securities"). The Securities will be issued pursuant to an Indenture to be dated as of May 23, 2002 among the Company, SYSCO Corporation, a Delaware corporation of which the Company is a wholly owned subsidiary (the "Guarantor"), and Wachovia Bank, National Association, as trustee (the "Trustee"), and will be guaranteed on a senior unsecured basis as to the payment of principal, premium, if any, and interest by the Guarantor (the "Guarantees"). The Securities will be sold to the Initial Purchasers without being registered under the Securities Act of 1933, as amended (the "Securities Act"), in reliance upon an exemption therefrom. The Company and the Guarantor have prepared a preliminary offering memorandum dated May 20, 2002 (the "Preliminary Offering Memorandum") and will prepare an offering memorandum dated the date hereof (the "Offering Memorandum") setting forth information concerning the Company, the Guarantor and the Securities. Copies of the Preliminary Offering Memorandum have been, and copies of the Offering Memorandum will be, delivered by the Company and the Guarantor to the Initial Purchasers pursuant to the terms of this Agreement. The Company and the Guarantor hereby confirm that they have authorized the use of the Preliminary Offering Memorandum and the Offering Memorandum in connection with the offering and resale of the Securities by the Initial Purchasers in the manner contemplated by this Agreement. References herein to the Preliminary Offering Memorandum and the Offering Memorandum shall be deemed to refer to and include any document incorporated by reference therein. Holders of the Securities (including the Initial Purchasers and their direct and indirect transferees) will be entitled to the benefits of a Registration Rights Agreement, to be dated the Closing Date (as defined below) and substantially in the form attached hereto as Exhibit A (the "Registration Rights Agreement"), pursuant to which the Company and the Guarantor will agree to file one or more registration statements with the Securities and Exchange Commission (the "Commission") providing for the registration under the Securities Act of the Securities or the Exchange Securities referred to (and as defined) in the Registration Rights Agreement. The Company and the Guarantor hereby confirm their agreement with the several Initial Purchasers concerning the purchase and resale of the Securities, as follows: 1. Purchase and Resale of the Securities. (a) The Company agrees to issue and sell the Securities to the several Initial Purchasers (and the Guarantor agrees to issue the Guarantees) as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the principal amount of Securities set forth opposite such Initial Purchaser's name in Schedule 1 hereto at a price equal to 99.03% of the principal amount thereof plus accrued interest, if any, from May 23, 2002 to the Closing Date. The Company will not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein. (b) The Company understands that the Initial Purchasers intend to offer the Securities for resale on the terms set forth in the Offering Memorandum. Each Initial Purchaser, severally and not jointly, represents, warrants and agrees that: (i) it is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act (a "QIB") and an accredited investor within the meaning of Rule 501(a) under the Securities Act; (ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and (iii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities as part of their initial offering except: 2 (A) within the United States to persons whom it reasonably believes to be QIBs in transactions pursuant to Rule 144A under the Securities Act ("Rule 144A") and in connection with each such sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is aware that such sale is being made in reliance on Rule 144A; or (B) in accordance with the restrictions set forth in Annex A hereto. (c) Each Initial Purchaser acknowledges and agrees that the Company and the Guarantor and, for purposes of the opinions to be delivered to the Initial Purchasers pursuant to Sections 5(g), 5(h) and 5(i), counsel for the Company, counsel for the Guarantor and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchasers, and compliance by the Initial Purchasers with their agreements, contained in paragraph (b) above (including Annex A hereto), and each Initial Purchaser hereby consents to such reliance. (d) The Company acknowledges and agrees that the Initial Purchasers may offer and sell Securities to or through any affiliate of an Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser. 2. Payment and Delivery. (a) Payment for and delivery of the Securities will be made in New York, New York at 10:00 A.M., New York City time, on May 23, 2002, or at such other time on the same or such other date, not later than the fifth business day thereafter, as the Representative and the Company may agree upon in writing. The time and date of such payment and delivery is referred to herein as the "Closing Date". (b) Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Company to the Representative against delivery to the nominee of The Depository Trust Company, for the account of the Initial Purchasers, of one or more global notes representing the Securities (collectively, the "Global Note"), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Company. The Global Note will be made available for inspection by the Representative not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date. 3. Representations and Warranties of the Company and the Guarantor. The Company and the Guarantor jointly and severally represent and warrant to each Initial Purchaser that: (a) Offering Memorandum. The Preliminary Offering Memorandum, as of its date, did not, and the Offering Memorandum, in the form first used by the Initial Purchasers to confirm sales of the Securities and on the Closing Date, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of 3 the circumstances under which they were made, not misleading; provided that the Company and the Guarantor make no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Initial Purchaser furnished to the Company and the Guarantor in writing by such Initial Purchaser through the Representative expressly for use in the Preliminary Offering Memorandum and the Offering Memorandum. No forward-looking statement (within the meaning of Section 27A of the Securities Act or Section 21E of the Securities and Exchange Act of 1934, as amended (the "Exchange Act")) contained in the Preliminary Offering Memorandum and the Offering Memorandum has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith. (b) Incorporated Documents. The documents incorporated by reference in the Preliminary Offering Memorandum and the Offering Memorandum, when filed with the Commission, conformed or will conform, as the case may be, in all material respects to the applicable requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (c) No Material Adverse Change. Except in each case as disclosed in the Preliminary Offering Memorandum and the Offering Memorandum, since the date of the most recent financial statements of the Guarantor included or incorporated by reference in the Preliminary Offering Memorandum and the Offering Memorandum: (i) there has not occurred any material adverse change, or any development involving a prospective material adverse change, in the business, properties, management, condition (financial or otherwise), results of operations or business prospects of the Guarantor and its subsidiaries, taken as a whole, (ii) neither the Guarantor nor any of its subsidiaries (including the Company) has entered into any transaction or agreement that is material to the Guarantor and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Guarantor and its subsidiaries, taken as a whole; and (iii) neither the Guarantor nor any of its subsidiaries (including the Company) has sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority. (d) Organization and Good Standing. The Guarantor, the Company and each of the Guarantor's other subsidiaries have been duly organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified or have such power or authority would not, individually or in the aggregate, have a material adverse effect on the business, properties, management, condition (financial or otherwise), results of operations or 4 business prospects of the Guarantor and its subsidiaries taken as a whole or on the performance by the Company or the Guarantor of their respective obligations under any of this Agreement, the Securities and the Guarantees (a "Material Adverse Effect"). The Guarantor does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in Schedule 2 to this Agreement. (e) Capitalization. Each of the Company and the Guarantor has an authorized capitalization as set forth in the Preliminary Offering Memorandum and the Offering Memorandum under the heading "Capitalization." All the outstanding shares of capital stock of the Guarantor have been duly and validly authorized and issued and are fully paid and non-assessable. All the outstanding shares of capital stock or other equity interests of the Company and each other subsidiary of the Guarantor have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Guarantor (except, in the case of any foreign subsidiary, for directors' qualifying shares ), free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party. (f) Financial Statements; Independent Accountants. The consolidated financial statements included or incorporated by reference in the Preliminary Offering Memorandum and the Offering Memorandum present fairly, in all material respects, the consolidated financial position of the Guarantor and its subsidiaries as of the dates indicated and the consolidated results of their operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods covered thereby, except as indicated in the notes thereto; and the other financial information included or incorporated by reference in the Preliminary Offering Memorandum and the Offering Memorandum has been derived from the accounting records of the Guarantor and its subsidiaries and presents fairly, in all material respects, the information shown thereby. Arthur Andersen LLP, who have certified certain financial statements of the Guarantor and its subsidiaries, and Ernst & Young LLP, who the Guarantor has recently retained as independent public accountants, are each independent public accountants with respect to the Guarantor and its subsidiaries within the meaning of Rule 101 of the Code of Professional Conduct of the American Institute of Certified Public Accountants and its interpretations and rulings thereunder. (g) No Violation or Default. Neither the Guarantor nor any of its subsidiaries (including the Company) is (i) in violation of its charter, by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Guarantor or any of its subsidiaries (including the Company) is a party or by which any of them is bound or to which any of their respective properties or assets are subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or 5 governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such defaults or violations that would not, individually or in the aggregate, have a Material Adverse Effect. (h) Licenses and Permits. The Guarantor and its subsidiaries (including the Company) possess all licenses, franchises, certificates, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities ("Permits") that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Preliminary Offering Memorandum and the Offering Memorandum, except where the failure to possess or make the same would not, individually or in the aggregate, have a Material Adverse Effect. Except as described in the Preliminary Offering Memorandum and the Offering Memorandum, the Guarantor and its subsidiaries (including the Company) have fulfilled and performed all their obligations with respect to such Permits, and no event has occurred that allows, or after notice or lapse of time, or both, would allow, revocation or termination thereof or result in any other impairment of the rights of the holder of any such Permit, except for any such failures to fulfill and perform or such revocations, terminations or impairments that would not, individually or in the aggregate, have a Material Adverse Effect. Except as described in the Preliminary Offering Memorandum and the Offering Memorandum, neither the Guarantor nor any of its subsidiaries (including the Company) has received notice of any revocation or modification of any such Permit or has any reason to believe that any such Permit will not be renewed in the ordinary course, except for any such revocations, modifications or nonrenewals as would not, individually or in the aggregate, have Material Adverse Effect. (i) Legal Proceedings. Except as described in the Preliminary Offering Memorandum and the Offering Memorandum, there are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Guarantor or any subsidiary of the Guarantor (including the Company) is or may be a party or to which any property of the Guarantor or any subsidiary of the Guarantor (including the Company) is or may be the subject that, individually or in the aggregate, if determined adversely to the Guarantor or any of its subsidiaries (including the Company), would have a Material Adverse Effect; and to the best knowledge of the Company and the Guarantor, no such investigations, actions, suits or proceedings are threatened or contemplated by any governmental or regulatory authority or threatened by others. (j) No Labor Disputes. No labor disturbance by or dispute with employees of the Guarantor or any of its subsidiaries (including the Company) exists or, to the best knowledge of the Company and the Guarantor, is contemplated or threatened, except for any such disturbances or disputes as would not, individually or in the aggregate, have Material Adverse Effect. (k) Taxes. Each of the Guarantor and its subsidiaries (including the Company) has filed all federal, state, local and foreign tax returns required to be filed through the date hereof or has obtained extensions thereof, and has paid all taxes shown on such returns and all assessments received by it to the 6 extent that the same have become due or is contesting such taxes in good faith by appropriate proceedings. (l) Compliance with ERISA. The Guarantor and its subsidiaries (including the Company) are in compliance in all material respects with all presently applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder ("ERISA"). To the extent applicable, no "reportable event" (as defined in ERISA) has occurred with respect to any "pension plan" (as defined in ERISA) for which the Guarantor or any of its subsidiaries (including the Company) would have any liability. Neither the Guarantor nor any of its subsidiaries (including the Company) has incurred or expects to incur any material liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended, including the regulations and published interpretations thereunder (collectively, the "Code"); and each "pension plan" for which the Guarantor or any of its subsidiaries (including the Company) would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification. (m) Environmental Matters. There has been no storage, disposal, generation, manufacture, refinement, transportation, handling or treatment of solid wastes, hazardous wastes or hazardous substances by the Guarantor or any of its subsidiaries (including the Company) (or, to the knowledge of any of them, any of their predecessors in interest) at, upon or from any of the property now or previously owned or leased by any of them in violation of any applicable law, ordinance, rule, regulation, order, judgment, decree or permit or which would require remedial actions under any applicable law, ordinance, rule, regulation, order, judgment, decree or permit, except for any such violations or remedial actions as would not, individually or in the aggregate, have a Material Adverse Effect. There has been no spill, discharge, leak, emission, injection, escape, dumping or release of any kind onto any such property or into the environment surrounding any such property of any solid wastes, hazardous wastes or hazardous substances due to or caused by the Guarantor or any of its subsidiaries (including the Company) or with respect to which any of them has knowledge, except for any such spills, discharges, leakages, emissions, injections, escapes, dumpings or releases as would not, individually or in the aggregate, have a Material Adverse Effect. As used in this Section 3(m), the terms "solid wastes," "hazardous wastes" and "hazardous substances" shall have the meanings specified in any applicable local, state, federal and foreign laws or regulations with respect to human health and safety, pollution or environmental protection. (n) Intellectual Property. The Guarantor and its subsidiaries (including the Company) own or possess adequate rights to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) that are material to the Guarantor and its subsidiaries taken as a whole necessary for the conduct of their respective businesses; and the conduct of their respective businesses will not conflict in 7 any material respect with any such rights of others, and the Guarantor and its subsidiaries (including the Company) have not received any notice of any claim of infringement of or conflict with any such rights of others, except for any such claims as would not, individually or in the aggregate, have a Material Adverse Effect. (o) Insurance. The Guarantor and its subsidiaries (including the Company) have insurance covering their respective properties, operations, personnel and businesses, including business interruption, which insurance is in amounts and insures against such losses and risks as are adequate to protect the Guarantor and its subsidiaries (including the Company) and their respective businesses; and neither the Guarantor nor any of its subsidiaries (including the Company) has (i) received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance or (ii) any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage at reasonable cost from similar insurers as may be necessary to continue its business. (p) Due Authorization. The Company and the Guarantor have full right, power and authority to execute and deliver this Agreement, the Securities, the Indenture (including the Guarantees set forth therein), the Exchange Securities and the Registration Rights Agreement (collectively, the "Transaction Documents") and to perform their respective obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken. (q) The Indenture. The Indenture has been duly authorized by the Company and the Guarantor and, when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a valid and legally binding agreement of the Company and the Guarantor, enforceable against the Company and the Guarantor in accordance with its terms, except as that enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or transfer or other laws affecting the enforcement of creditors' rights generally and (ii) general principles of equity (collectively, the "Enforceability Exceptions"); and, on the Closing Date, the Indenture will comply in all material respects with the requirements of the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the rules and regulations of the Commission applicable to an indenture that is qualified thereunder. The Indenture conforms in all material respects to the description thereof contained in the Preliminary Offering Memorandum and the Offering Memorandum. (r) The Securities and the Guarantees. The Securities have been duly authorized by the Company and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture, 8 subject to the Enforceability Exceptions; and the Guarantees have been duly authorized by the Guarantor and, when the Securities have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be valid and legally binding obligations of the Guarantor, enforceable against the Guarantor in accordance with their terms and entitled to the benefits of the Indenture, subject to the Enforceability Exceptions. The Securities and the Guarantees conform in all material respects to the descriptions thereof contained in the Preliminary Offering Memorandum and the Offering Memorandum. (s) The Exchange Securities. On the Closing Date, the Exchange Securities (including the related guarantees) will have been duly authorized by the Company and the Guarantor and, when duly executed, authenticated, issued and delivered as contemplated by the Registration Rights Agreement, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company, as issuer, and the Guarantor, as guarantor, enforceable against the Company and the Guarantor in accordance with their terms and entitled to the benefits of the Indenture, subject to the Enforceability Exceptions. (t) Purchase and Registration Rights Agreements. This Agreement has been duly authorized, executed and delivered by the Company and the Guarantor; and the Registration Rights Agreement has been duly authorized by the Company and the Guarantor and, when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a valid and legally binding agreement of the Company and the Guarantor, enforceable against the Company and the Guarantor in accordance with its terms, subject to the Enforceability Exceptions, and except that rights to indemnity and contribution thereunder may be limited by applicable law and public policy. Each of this Agreement and the Registration Rights Agreement conforms in all material respects to the description thereof contained in the Preliminary Offering Memorandum and the Offering Memorandum. (u) No Conflicts with Existing Instruments; No Consents Required. The execution, delivery and performance by each of the Company and the Guarantor of each Transaction Document to which it is a party, the issuance and sale of the Securities (including the Guarantees) and compliance by the Company and the Guarantor with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Guarantor or any of its subsidiaries (including the Company) pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which any of them is a party or by which any of them is bound or to which any of their respective properties or assets is subject, (ii) result in any violation of the provisions of the charter, by-laws or similar organizational documents of the Guarantor or any of its subsidiaries (including the Company) or (iii) result in the violation of any law or statute or any judgment, order or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of 9 clauses (i) and (iii) above, for any such conflict, breach or violation that would not, individually or in the aggregate, have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by each of the Company and the Guarantor of each Transaction Document to which it is a party, the issuance and sale of the Securities (including the Guarantees) and compliance by the Company and the Guarantor with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents, except for such consents, approvals, authorizations, orders and registrations or qualifications as may be required (i) under applicable state securities laws in connection with the purchase and resale of the Securities by the Initial Purchasers and (ii) with respect to the Exchange Securities (including the related guarantees) under the Securities Act and applicable state securities laws as contemplated by the Registration Rights Agreement. (v) Rule 144A Eligibility. On the Closing Date, the Securities will not be of the same class as securities listed on a national securities exchange registered under Section 6 of the Exchange Act or quoted in an automated inter-dealer quotation system; and each of the Preliminary Offering Memorandum and the Offering Memorandum, as of its respective date, contains or will contain all the information that, if requested by a prospective purchaser of the Securities, would be required to be provided to such prospective purchaser pursuant to Rule 144A(d)(4) under the Securities Act. (w) Securities Law Exemptions. Assuming the accuracy of the representations and warranties of the Initial Purchasers contained in Section 1(b) (including Annex A hereto) and their compliance with their agreements set forth therein and except as contemplated by the Registration Rights Agreement, it is not necessary, in connection with the issuance and sale of the Securities to the Initial Purchasers and the offer, resale and delivery of the Securities by the Initial Purchasers in the manner contemplated by this Agreement and the Offering Memorandum, to register the Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act. None of the Company, the Guarantor or any of their affiliates (as defined in Rule 501(b) of Regulation D) has, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Securities Act), that is or will be integrated with the sale of the Securities in a manner that would require registration of the offering of the Securities hereunder pursuant to the Securities Act. None of the Company, the Guarantor or any of their affiliates or any other person acting on its or their behalf (other than the Initial Purchasers, as to which no representation is made) has (i) solicited offers for, or offered or sold, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act or (ii) engaged in any directed selling efforts within the meaning of Regulation S under the Securities Act ("Regulation S") within the United States, and all such persons have complied with the offering restrictions requirement of Regulation S. 10 (x) No Stabilization. Neither the Company nor the Guarantor has taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities. (y) Investment Company Act. Neither the Guarantor nor any of its subsidiaries (including the Company) is, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Preliminary Offering Memorandum and the Offering Memorandum none of them will be, an "investment company" or an entity "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively, the "Investment Company Act"). (z) No Other Registration Rights; No Broker's Fees. There are no contracts, agreements or understandings between the Company or the Guarantor and any other person granting such person the right to require the Company or the Guarantor to include any securities in the securities to be registered pursuant to any registration statement to be filed under the Registration Rights Agreement. Neither the Guarantor nor any of its subsidiaries (including the Company) is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against any of them or any Initial Purchaser for a brokerage commission, finder's fee or like payment in connection with the offering and sale of the Securities. 4. Further Agreements of the Company and the Guarantor. The Company and the Guarantor jointly and severally covenant and agree with each Initial Purchaser that: (a) Delivery of Copies. The Company and the Guarantor will deliver to the Initial Purchasers as many copies of the Preliminary Offering Memorandum and the Offering Memorandum (including all amendments and supplements thereto) as the Representative may reasonably request. (b) Amendments or Supplements. At any time prior to the completion of the initial offering of the Securities, before making or distributing any amendment or supplement to the Preliminary Offering Memorandum or the Offering Memorandum or filing with the Commission any document that will be incorporated by reference therein, the Company and the Guarantor will furnish to the Representative and counsel for the Initial Purchasers a copy of the proposed amendment or supplement or document to be incorporated by reference therein for review, and will not distribute any such proposed amendment or supplement or file any such document with the Commission to which the Representative reasonably objects. (c) Notice to the Representative. The Company and the Guarantor will advise the Representative promptly, and confirm such advice in writing, (i) of the issuance by any governmental or regulatory authority of any order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum or the initiation or threatening of any proceeding for that purpose; (ii) of the occurrence of any event at any time prior to the completion of the initial offering of the Securities as a result of which the Offering Memorandum as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements 11 therein, in the light of the circumstances existing when the Offering Memorandum is delivered to a purchaser, not misleading; and (iii) of the receipt by the Company or the Guarantor of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company and the Guarantor will use their reasonable best efforts to prevent the issuance of any such order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum or suspending any such qualification of the Securities and, if issued, will use their reasonable best efforts to obtain as soon as possible the withdrawal thereof. (d) Ongoing Compliance of the Offering Memorandum. If at any time prior to the completion of the initial offering of the Securities (i) any event shall occur or condition shall exist as a result of which it is necessary to amend or supplement the Offering Memorandum in order to make the statements therein, in the light of the circumstances existing when the Offering Memorandum is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Offering Memorandum to comply with any applicable law or any applicable rule, regulation or order of any governmental or regulating authority, the Company and the Guarantor will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to paragraph (b) above, furnish to the Initial Purchasers such amendments or supplements to the Offering Memorandum (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in the Offering Memorandum as so amended or supplemented (or including such document to be incorporated by reference therein) will not, in the light of the circumstances existing when the Offering Memorandum is delivered to a purchaser, be misleading or so that the Offering Memorandum will comply with law. (e) Blue Sky Compliance. The Company and the Guarantor will cooperate with the Initial Purchasers to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representative shall reasonably request and will continue such qualifications in effect so long as may be reasonably required for the offering and resale of the Securities; provided that neither the Company nor the Guarantor shall be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not already so subject. (f) Clear Market. During the period from the date hereof through and including the Closing Date, the Company and the Guarantor will not, without the prior written consent of the Representative, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company or the Guarantor and having a term of more than one year. 12 (g) Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities as described in the Preliminary Offering Memorandum and the Offering Memorandum. (h) Supplying Information. While the Securities remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, the Company and the Guarantor will, during any period in which the Company or the Guarantor is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon the request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. (i) DTC. The Company and the Guarantor will assist the Initial Purchasers in arranging for the Securities to be eligible for clearance and settlement through The Depository Trust Company ("DTC"), the Euroclear System ("Euroclear") and Clearstream Banking, societe anonyme ("Clearstream"). (j) No Resales by the Company and the Guarantor. Until the issuance of the Exchange Securities, the Company and the Guarantor will not, and will not permit any of their affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been acquired by any of them, except for Securities purchased by the Company, the Guarantor or any of their affiliates and resold in a transaction registered under the Securities Act. (k) No Integration. None of the Company, the Guarantor or any of their affiliates (as defined in Rule 501(b) of Regulation D) will, directly or through any agent, sell, offer for sale, solicit offers to buy or otherwise negotiate in respect of, any security (as defined in the Securities Act), that is or will be integrated with the sale of the Securities in a manner that would require registration of the Securities under the Securities Act. (l) No General Solicitation or Directed Selling Efforts. None of the Company, the Guarantor or any of their affiliates or any other person acting on its or their behalf (other than the Initial Purchasers, as to which no covenant is given) will (i) solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act or (ii) engage in any directed selling efforts within the meaning of Regulation S within the United States, and all such persons will comply with the offering restrictions requirement of Regulation S. (m) No Stabilization. Neither the Company nor the Guarantor will take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities. 13 5. Conditions of Initial Purchasers' Obligations. The obligation of each Initial Purchaser to purchase Securities on the Closing Date as provided herein is subject to the performance by the Company and the Guarantor of their respective obligations hereunder and to the following additional conditions: (a) Representations and Warranties. The representations and warranties of the Company and the Guarantor contained herein shall be true and correct on the date hereof and on and as of the Closing Date; the statements of the Company, the Guarantor and their respective officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date; and the Company and the Guarantor shall have complied with all agreements and all conditions to be performed or satisfied on their part hereunder at or prior to the Closing Date. (b) No Downgrading. Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock issued or guaranteed by the Company or the Guarantor by any "nationally recognized statistical rating organization," as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review (other than an announcement with positive implications of a possible upgrading) its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Company or the Guarantor. (c) No Material Adverse Change. Subsequent to the execution and delivery of this Agreement, no event or condition of a type described in Section 3(c) hereof shall have occurred or shall exist, which event or condition is not described in the Offering Memorandum (excluding any amendment or supplement thereto or any document filed with the Commission after the date hereof and incorporated by reference therein) and the effect of which in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement and the Offering Memorandum (excluding any amendment or supplement thereto or any document filed with the Commission after the date hereof and incorporated by reference therein). (d) Guarantor Officer's Certificate. The Representative shall have received on and as of the Closing Date a certificate of an executive officer of the Guarantor who has specific knowledge of the Guarantor's financial matters and is satisfactory to the Representative (i) confirming that such officer has carefully reviewed the Offering Memorandum and, to the best knowledge of such officer, the representation set forth in Section 3(a) hereof is true and correct with respect to the Guarantor and (ii) to the effect set forth in paragraphs (a) through (c) above. (e) Company Officer's Certificate. The Representative shall have received on and as of the Closing Date a certificate of an executive officer of the Company who has specific knowledge of the Company's financial matters and is satisfactory to the Representative (i) confirming that such officer has carefully reviewed the Offering Memorandum and, to the best knowledge of such 14 officer, the representation set forth in Section 3(a) hereof is true and correct with respect to the Company and (ii) to the effect set forth in paragraphs (a) through (c) above. (f) Comfort Letters. On the date of this Agreement, Arthur Andersen LLP, and on the date of this Agreement and on the Closing Date, Ernst & Young LLP, shall have furnished to the Representative, at the request of the Company and the Guarantor, letters, dated the respective dates of delivery thereof and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type customarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Preliminary Offering Memorandum and the Offering Memorandum. (g) Opinion of Counsel for the Guarantor. Arnall Golden Gregory, LLP, counsel for the Guarantor, shall have furnished to the Representative, at the request of the Guarantor, their written opinion, dated the Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Representative, substantially to the effect set forth in Annex B hereto. (h) Opinion of Counsel for the Company. Stewart McKelvey Stirling Scales, Canadian counsel for the Company, shall have furnished to the Representative, at the request of the Company and the Guarantor, their written opinion, dated the Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Representative, substantially to the effect set forth in Annex C hereto. (i) Opinion of Counsel for the Initial Purchasers. The Representative shall have received on and as of the Closing Date an opinion of Baker Botts L.L.P., counsel for the Initial Purchasers, with respect to such matters as the Representative may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters. (j) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities or the issuance of the Guarantees; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or the issuance of the Guarantees. (k) Good Standing. The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company, the Guarantor and their significant subsidiaries in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Representative may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions. 15 (l) Registration Rights Agreement. The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement that shall have been executed and delivered by duly authorized officers of the Company and the Guarantor. (m) DTC, Euroclear and Clearstream. The Securities shall be eligible for clearance and settlement through DTC, Euroclear and Clearstream. (n) Additional Documents. On or prior to the Closing Date, the Company and the Guarantor shall have furnished to the Representative such further certificates and documents as the Representative may reasonably request. All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to the Representative. 6. Indemnification and Contribution. (a) Indemnification of the Initial Purchasers. The Company and the Guarantor jointly and severally agree to indemnify and hold harmless each Initial Purchaser, its affiliates and each person, if any, who controls such Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted), joint or several, caused by any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum or the Offering Memorandum (or any amendment or supplement thereto), or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Initial Purchaser furnished to the Company and the Guarantor in writing by such Initial Purchaser through the Representative expressly for use therein; provided, that with respect to any such untrue statement in or omission from the Preliminary Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall not inure to the benefit of any Initial Purchaser to the extent that the sale to the person asserting any such loss, claim, damage or liability was an initial resale by such Initial Purchaser and any such loss, claim, damage or liability of or with respect to such Initial Purchaser results from the fact that both (i) a copy of the Offering Memorandum (excluding any documents incorporated by reference therein) was not sent or given to such person at or prior to the written confirmation of the sale of such Securities to such person and (ii) the untrue statement in or omission from such Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of non-compliance by the Company and the Guarantor with the provisions of Section 4 hereof. 16 (b) Indemnification of the Company and the Guarantor. Each Initial Purchaser agrees, severally and not jointly, to indemnify and hold harmless the Company, the Guarantor and each person, if any, who controls the Company or the Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities caused by any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Initial Purchaser furnished to the Company and the Guarantor in writing by such Initial Purchaser through the Representative expressly for use in the Preliminary Offering Memorandum and the Offering Memorandum (or any amendment or supplement thereto). (c) Notice and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the "Indemnified Person") shall promptly notify the person against whom such indemnification may be sought (the "Indemnifying Person") in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under this Section 6 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under this Section 6. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 6 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such counsel related to such proceeding. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm for any Initial Purchaser, its affiliates and any control persons of such Initial Purchaser shall be designated in writing by J.P. Morgan Securities Inc. and any such separate firm for the Company, the Guarantor and any control persons of the Company and the Guarantor shall be designated in writing by the Guarantor. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any 17 settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes a full and unconditional release of such Indemnified Person from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person. (d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantor on the one hand and the Initial Purchasers on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company and the Guarantor on the one hand and the Initial Purchasers on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantor on the one hand and the Initial Purchasers on the other shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses other than discounts and commissions received by the Initial Purchasers) received by the Company from the sale of the Securities and the total discounts and commissions received by the Initial Purchasers in connection therewith, as provided in this Agreement, bear to the aggregate offering price of the Securities. The relative fault of the Company and the Guarantor on the one hand and the Initial Purchasers on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Guarantor or by the Initial Purchasers and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. 18 (e) Limitation on Liability. The Company, the Guarantor and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 6, in no event shall an Initial Purchaser be required to contribute any amount in excess of the amount by which the total discounts and commissions received by such Initial Purchaser with respect to the offering of the Securities exceeds the amount of any damages that such Initial Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Initial Purchasers' obligations to contribute pursuant to this Section 6 are several in proportion to their respective purchase obligations hereunder and not joint. (f) Non-Exclusive Remedies. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity. 7. Termination. This Agreement may be terminated in the absolute discretion of the Representative, by notice to the Company and the Guarantor, if after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on the New York Stock Exchange or the over-the-counter market; (ii) trading of any securities issued or guaranteed by the Company or the Guarantor shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States shall have occurred; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that in the judgment of the Representative is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement and the Offering Memorandum (excluding any amendment or supplement thereto or any document filed with the Commission after the date hereof and incorporated by reference therein). 8. Defaulting Initial Purchaser. (a) If, on the Closing Date, any Initial Purchaser defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting Initial Purchasers may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Company and the Guarantor on the terms contained in this Agreement. If, within 36 hours after any such default by any Initial Purchaser, the non-defaulting Initial Purchasers do not arrange for the purchase of such 19 Securities, then the Company and the Guarantor shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Initial Purchasers to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting Initial Purchaser, either the non-defaulting Initial Purchasers or the Company and the Guarantor may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Company and the Guarantor or counsel for the Initial Purchasers may be necessary in the Offering Memorandum or in any other document or arrangement, and the Company and the Guarantor agree to promptly prepare any amendment or supplement to the Offering Memorandum that effects any such changes. As used in this Agreement, the term "Initial Purchaser" includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 8, purchases Securities that a defaulting Initial Purchaser agreed but failed to purchase. (b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Initial Purchaser or Initial Purchasers by the non-defaulting Initial Purchasers and the Company and the Guarantor as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Company and the Guarantor shall have the right to require each non-defaulting Initial Purchaser to purchase the principal amount of Securities that such Initial Purchaser agreed to purchase hereunder plus such Initial Purchaser's pro rata share (based on the principal amount of Securities that such Initial Purchaser agreed to purchase hereunder) of the Securities of such defaulting Initial Purchaser or Initial Purchasers for which such arrangements have not been made. (c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Initial Purchaser or Initial Purchasers by the non-defaulting Initial Purchasers and the Company and the Guarantor as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the Company and the Guarantor shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Initial Purchasers, the Company or the Guarantor, except that the Company and the Guarantor will continue to be liable for the payment of expenses as set forth in Section 9 hereof and except that the provisions of Section 6 hereof shall not terminate and shall remain in effect. (d) Nothing contained herein shall relieve a defaulting Initial Purchaser of any liability it may have to the Company, the Guarantor or any non-defaulting Initial Purchaser for damages caused by its default. 9. Payment of Expenses. (a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company and the Guarantor jointly and severally agree to pay or cause to be paid all costs and expenses incident to the performance of their respective obligations 20 hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Securities and any taxes payable in that connection; (ii) the costs incident to the preparation and printing of the Preliminary Offering Memorandum and the Offering Memorandum (including any amendment or supplement thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv) the fees and expenses of the Company's and the Guarantor's counsel and independent accountants; (v) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the Securities under the laws of such jurisdictions as the Representative reasonably may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for the Initial Purchasers); (vi) any fees charged by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee and any paying agent (including related fees and expenses of any counsel to such parties); (viii) all expenses and application fees incurred in connection with the approval of the Securities for delivery and settlement through DTC, Euroclear and Clearstream; and (ix) all expenses incurred by the Company and the Guarantor in connection with any "road show" presentation to potential investors. (b) If (i) the Company for any reason fails to tender the Securities for delivery to the Initial Purchasers or (ii) the Initial Purchasers terminate this Agreement or decline to purchase the Securities for any reason permitted under this Agreement other than the termination of this Agreement pursuant to Section 7(i), (iii) or (iv), the Company and the Guarantor jointly and severally agree to reimburse the Initial Purchasers for all out-of-pocket costs and expenses (including the fees and expenses of their counsel) reasonably incurred by the Initial Purchasers in connection with this Agreement and the offering contemplated hereby. 10. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the Company, the Guarantor and any controlling persons referred to herein, the Initial Purchasers, their respective affiliates and any controlling persons referred to herein, and their respective successors. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Initial Purchaser shall be deemed to be a successor merely by reason of such purchase. 11. Survival. The respective indemnities, rights of contribution, representations, warranties and agreements of the Company, the Guarantor and the Initial Purchasers contained in this Agreement or made by or on behalf of the Company, the Guarantor or the Initial Purchasers pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Company, the Guarantor or the Initial Purchasers. 21 12. Initial Purchasers' Information. The Company, the Guarantor and the Initial Purchasers acknowledge and agree that the only information relating to any Initial Purchaser that has been furnished to the Company and the Guarantor in writing by any Initial Purchaser through the Representative expressly for use in the Preliminary Offering Memorandum and the Offering Memorandum (or any amendment or supplement thereto) consists of the following in the Offering Memorandum: [the third paragraph of text under the heading "Plan of Distribution," concerning the terms of the offering by the Initial Purchasers, the fourth and fifth sentences of the tenth paragraph of text under the heading "Plan of Distribution," concerning market making by the Initial Purchasers, the eleventh paragraph of text under the "Plan of Distribution," concerning over-allotment, stabilization and short positions created by the Initial Purchasers, and the twelfth paragraph of text under the "Plan of Distribution," concerning the Internet offering by the Initial Purchasers.] 13. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term "affiliate" has the meaning set forth in Rule 405 under the Securities Act; (b) the term "business day" means any day other than a day on which banks are permitted or required to be closed in New York City; (c) the term "subsidiary" has the meaning set forth in Rule 405 under the Securities Act; and (d) the term "significant subsidiary" has the meaning set forth in Rule 1-02 of Regulation S-X under the Exchange Act. 14. Miscellaneous. (a) Authority of the Representative. Any action by the Initial Purchasers hereunder may be taken by J.P. Morgan Securities Inc. on behalf of the Initial Purchasers, and any such action taken by J.P. Morgan Securities Inc. shall be binding upon the Initial Purchasers. (b) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Initial Purchasers shall be given to the Representative c/o J.P. Morgan Securities Inc., 270 Park Avenue, New York, New York 10017 (fax: 212/834-6702); Attention: Transaction Execution Group. Notices to the Company and the Guarantor shall be given to them at SYSCO Corporation, 1390 Enclave Parkway, Houston, Texas 77077-2099, (fax: 281/584-2524); Attention: General Counsel. (c) Governing Law; Jurisdiction; Service of Process. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to any principles of conflicts of laws that would result in the application of the laws of any other jurisdiction. Each of the Company and the Guarantor hereby submits to the non-exclusive jurisdiction of the federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated thereby. The Company has appointed CT Corporation System, 111 Eighth Avenue, New York, New York 10011 as its Authorized Agent (the "Authorized Agent") upon whom process may be served in any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated thereby that may be instituted in any federal or state court in the Borough of 22 Manhattan in The City of New York by any Initial Purchaser or by any person who controls any Initial Purchaser, and agrees that service of process upon such agent, and written notice of said service to the Company by the person serving the same to the address provided in Section 14(b), shall be deemed in every respect effective service of process upon the Company in any such suit or proceeding. The Company further agrees to take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect for a period of ten years from the date of this Agreement. If for any reason CT Corporation System shall cease to be available to act as such authorized agent for the Company, the Company agrees to designate a new agent in the State of New York on the terms and for the purpose of this Section 14(c) reasonably satisfactory to J.P. Morgan Securities Inc. Each of the Company and the Guarantor irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may have to laying of venue in respect of any action, suit or proceeding arising out of or in connection with this Agreement or the transactions contemplated hereby to which it is a party brought in any federal or state court located in the State of New York and hereby agrees not to plead or claim in any such court that any such action, suit or proceeding has been brought in an inconvenient forum. Each of the Company and the Guarantor also waives, to the fullest extent permitted by law, all right to trial by jury in any claim or counterclaim (whether based upon contract, tort or otherwise) in any way arising out of or relating to this Agreement. (d) Counterparts. This Agreement may be signed in any number of counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument. (e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto. (f) Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement. 23 If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below. Very truly yours, SYSCO INTERNATIONAL, CO. By: /s/ Diane Day Sanders ----------------------------------------- Name: Diane Day Sanders Title: Treasurer SYSCO CORPORATION By: /s/ Diane Day Sanders ------------------------------------------ Name: Diane Day Sanders Title: Vice President & Treasurer ACCEPTED: May 20, 2002 J.P. MORGAN SECURITIES INC. For itself and on behalf of the several Initial Purchasers listed in Schedule 1 hereto. By /s/ Maria Sramek --------------------------------- Name: Maria Sramek Title: Vice President 24 Schedule 1
Initial Purchaser Principal Amount ----------------- -------------------------- J.P. Morgan Securities Inc. $ 100,000,000 TD Securities (USA) Inc. 38,460,000 First Union Securities, Inc. 19,240,000 Banc of America Securities LLC 11,540,000 Wells Fargo Brokerage Services, LLC 11,540,000 Merrill Lynch, Pierce, Fenner & Smith Incorporated 7,700,000 SunTrust Capital Markets, Inc. 5,760,000 Tokyo-Mitsubishi International plc 5,760,000 -------------------------- Total $ 200,000,000
ANNEX A Restrictions on Offers and Sales Outside the United States ---------------------------------------------------------- In connection with offers and sales of Securities outside the United States: (a) Each Initial Purchaser acknowledges that the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act. (b) Each Initial Purchaser, severally and not jointly, represents, warrants and agrees that: (i) Such Initial Purchaser has offered and sold the Securities, and will offer and sell the Securities, (A) as part of the distribution of the Securities at any time and (B) otherwise until 40 days after the later of the commencement of the offering of the Securities and the Closing Date, only in accordance with Regulation S under the Securities Act ("Regulation S") or Rule 144A or any other available exemption from registration under the Securities Act. (ii) None of such Initial Purchaser or any of its affiliates or any other person acting on its or their behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S. (iii) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, such Initial Purchaser will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchases Securities from it during the distribution compliance period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933, as amended (the "Securities Act"), and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S." (iv) Such Initial Purchaser has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company and the Guarantor. A-1 Terms used in paragraph (a) and this paragraph (b) and not otherwise defined in this Agreement have the meanings given to them by Regulation S. (c) Each Initial Purchaser, severally and not jointly, represents, warrants and agrees that (i) it has not offered or sold and prior to the date six months after the Closing Date will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (ii) it has complied and will comply with all applicable provisions of the Financial Services and Markets Act 2000 with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom; and (iii) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity, within the meaning of section 21 of the Financial Services and Markets Act 2000, received by it in connection with the issue or sale of any Securities in circumstances which section 21(1) of the Financial Services and Markets Act 2000 does not apply to the Company. (d) Each Initial Purchaser acknowledges that no action has been or will be taken by the Company and the Guarantor that would permit a public offering of the Securities, or possession or distribution of the Preliminary Offering Memorandum, the Offering Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required. A-2 ANNEX B [Form of Opinion of Counsel for the Guarantor] May 23, 2002 J.P. Morgan Securities Inc. As Representative of the Several Initial Purchasers c/o J.P. Morgan Securities Inc. 270 Park Avenue New York, New York 10017 Ladies and Gentlemen: We are furnishing this opinion letter to you at the request of SYSCO Corporation, a Delaware corporation (the "Guarantor"), under Section 5(g) of the Purchase Agreement dated May 20, 2002 (the "Purchase Agreement") by and among SYSCO International, Co., an unlimited liability company organized under the laws of Nova Scotia, Canada and a direct, wholly owned subsidiary of the Guarantor (the "Company"), the Guarantor and the several Initial Purchasers listed in Schedule 1 thereto (the "Initial Purchasers"), relating to the issuance and sale by the Company to the Initial Purchasers of $200,000,000 aggregate principal amount of 6.10% Senior Notes due 2012 (the "Securities"), which will be guaranteed on a senior unsecured basis as to the payment of principal, premium, if any, and interest by the Guarantor (the "Guarantees"). The Company will issue the Securities and the Guarantor will issue the Guarantees under an Indenture dated as of May 23, 2002 (the "Indenture") among the Company, the Guarantor and Wachovia Bank, National Association, as trustee (the "Trustee"), and as described in the Offering Memorandum dated May 20, 2002 prepared by the Company and the Guarantor in connection with the offering of the Securities and the Guarantees (the "Offering Memorandum"). Capitalized terms used herein and not otherwise defined herein have the respective meanings given to them in the Purchase Agreement. We have examined the originals, or copies certified or otherwise identified, of the restated certificate of incorporation and amended and restated bylaws, each as amended to date, of the Guarantor (the "Charter Documents"), the Offering Memorandum, the Purchase Agreement, the Registration Rights Agreement dated May 23, 2002 among the Company, the Guarantor and the Initial Purchasers relating to the Securities (the "Registration Rights Agreement"), the Indenture, the Securities, corporate records of the Guarantor and its subsidiaries, including minute books the Guarantor has furnished to us, certificates of public officials and of representatives of the Guarantor, statutes and other instruments and documents, as a basis for the opinions we hereinafter express. In giving these opinions, we have relied on certificates of officers of the Guarantor and of public officials with respect to the accuracy of the factual matters those certificates cover or contain, and we have assumed that all signatures on documents we have examined are genuine, all documents B-1 submitted to us as originals are authentic, all documents submitted to us as certified or photostatic copies conform to the original copies of those documents and those original copies are authentic. In giving this opinion, we have also relied on the following assumptions: A. Each of the individuals executing the Purchase Agreement, the Registration Rights Agreement, the Indenture (including the Guarantees) and the Securities (collectively, the "Transaction Documents") has requisite legal capacity and all the signatures on the Transaction Documents are genuine. B. The execution and delivery of each and all of the Transaction Documents are free from any form of fraud, misrepresentation, mistake of fact, duress or criminal activity, none of which has occurred insofar as we are aware. C. The Indenture has been duly authorized, executed and delivered by the Trustee to the extent required and constitutes the legal, valid and binding obligation of the Trustee enforceable against it in accordance with its terms, and the Trustee has all requisite corporate power and authority to perform its obligations under the Indenture, and to enforce the Indenture. D. The Trustee has all requisite governmental certifications of authority, licenses, permits, consents, qualifications and documents, if any, to perform its obligations under the Indenture, and to enforce the Indenture. E. The issuance of the Securities, execution and delivery of the Indenture and the Securities and the issuance of the Exchange Securities have been duly authorized by the Company, and no consent, approval, authorization, order, registration or qualification of or with Canadian federal court or provincial court in the Province of Nova Scotia or governmental or regulatory authority having jurisdiction in the Province of Nova Scotia is required for the issuance of the Exchange Securities. We have made no investigation of the facts or law underlying the foregoing assumptions, and you have not requested us to do so, but we wish to advise you that nothing has come to our attention which would provide us with actual knowledge that we are not justified in making such assumptions. On the basis of the foregoing and subject to the assumptions, limitations and qualifications we set forth herein, we are of the following opinions: 1. The Guarantor has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, has all corporate power and authority necessary to own or hold its properties and to conduct the business in which it is engaged, as described in the Offering Memorandum, and is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a material adverse effect on the business, properties, management, condition (financial or B-2 otherwise), results of operations or business prospects of the Guarantor and its subsidiaries taken as a whole or on the performance by the Company or the Guarantor of their respective obligations under any of the Purchase Agreement, the Securities and the Guarantees (a "Material Adverse Effect"). 2. The authorized capital stock of the Guarantor is comprised of 1,000,000,000 shares of common stock, par value $1.00 per share ("Common Stock"), and 1,500,000 shares of preferred stock, par value $1.00 per share ("Preferred Stock"). No shares of Preferred Stock have been issued. All the issued and outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable. 3. To our knowledge, except as described in the Offering Memorandum, there are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Guarantor or any of its subsidiaries is or may be a party or to which any property of the Guarantor or any of its subsidiaries is or may be the subject that, individually or in the aggregate, if determined adversely to the Guarantor or any of its subsidiaries, would have a Material Adverse Effect; and to our knowledge, no such investigations, actions, suits or proceedings are threatened or contemplated by any governmental or regulatory authority or threatened by others. 4. The Guarantor has all requisite corporate power and authority to execute and deliver each of the Transaction Documents to which it is a party and to perform its obligations thereunder; and all action required to be taken on the part of the Guarantor for the due and proper authorization, execution and delivery of each Transaction Document to which it is a party and the consummation of the transactions contemplated thereby has been duly and validly taken. 5. The Indenture has been duly authorized, executed and delivered by the Guarantor and constitutes a valid and legally binding agreement of the Guarantor, enforceable against the Company and the Guarantor in accordance with its terms. The Indenture (a) complies in all material respects with the requirements of the Trust Indenture Act of 1939 and the rules and regulations of the Securities and Exchange Commission (the "Commission") applicable to an indenture that is qualified thereunder and (b) conforms in all material respects to the description thereof contained in the Offering Memorandum. 6. The Securities, when duly authenticated as provided in the Indenture and paid for as provided in the Purchase Agreement, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture. The Guarantees have been duly authorized by the Guarantor and, when the Securities have been duly executed, authenticated, issued and delivered in accordance with the Indenture and paid for as provided in the Purchase Agreement, will be valid and legally binding obligations of the Guarantor, enforceable against the Guarantor in accordance B-3 with their terms and entitled to the benefits of the Indenture. The Securities and the Guarantees conform in all material respects to the descriptions thereof contained in the Offering Memorandum. 7. The Exchange Securities, when duly executed, authenticated, issued and delivered as contemplated by the Registration Rights Agreement and in accordance with the Indenture, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture. The guarantees related to the Exchange Securities have been duly authorized by the Guarantor and, when the Exchange Securities are duly executed, authenticated, issued and delivered as contemplated by the Registration Rights Agreement and in accordance with the Indenture, the related guarantees will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Guarantor, enforceable against the Guarantor in accordance with their terms and entitled to the benefits of the Indenture. 8. The Purchase Agreement has been duly authorized, executed and delivered by the Guarantor. The Purchase Agreement conforms in all material respects to the description thereof contained in the Offering Memorandum. 9. The Registration Rights Agreement has been duly authorized, executed and delivered by the Guarantor and constitutes a valid and legally binding agreement of the Guarantor and the Company, enforceable against the Guarantor and the Company in accordance with its terms. The Registration Rights Agreement conforms in all material respects to the description thereof contained in the Offering Memorandum. 10. The execution, delivery and performance by the Guarantor of each Transaction Document to which it is a party, the issuance of the Guarantees and compliance by the Guarantor with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents will not (a) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Guarantor or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument (i) to which any of them is a party or by which any of them is bound or to which any of their respective properties or assets are subject and (ii) that has been filed with the Commission as an exhibit to any document that has been incorporated by reference into the Offering Memorandum, (b) result in any violation of the provisions of the Charter Documents of the Guarantor or (c) result in the violation of the laws of the State of New York, the General Corporation Law of the State of Delaware or the federal laws of the United States. 11. Assuming the accuracy of the representations and warranties of the Initial Purchasers contained in the Purchase Agreement and their compliance with their agreements set forth in the Purchase Agreement, no consent, approval, authorization, order, registration or qualification of or with any United States federal or state court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Guarantor of each Transaction Document to which it is a party, the issuance of the Guarantees and B-4 compliance by the Guarantor with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents, except for such consents, approvals, authorizations, orders and registrations or qualifications as may be required (a) under applicable state securities laws in connection with the purchase and resale of the Securities by the Initial Purchasers and (b) with respect to the Exchange Securities (including the related guarantees) under the Securities Act of 1933 and applicable state securities laws as contemplated by the Registration Rights Agreement. 12. The descriptions in the Offering Memorandum of statutes, legal, governmental and regulatory proceedings and con-tracts and other documents are accurate in all material respects; and the statements in (a) the Offering Memorandum under the headings "Description of Notes," "United States Federal and Canadian Income Tax Considerations -- United States Federal Income Tax Consequences," "-- Consequences to United States Holders," "--Consequences to Non-United States Holders" and "Plan of Distribution," (b) "Item 3 -- Legal Proceedings" of Part I of the Guarantor's annual report on Form 10-K for the year ended June 30, 2001, which is incorporated by reference in the Offering Memorandum, and (c) "Item 1 -- Legal Proceedings" of Part II of the Guarantor's quarterly reports on Form 10-Q filed since such annual report, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters described therein in all material respects. 13. The documents incorporated by reference in the Offering Memorandum (other than the financial statements and other accounting and financial information contained therein, as to which we have not been asked to comment), when filed with the Commission, conformed in all material respects to the applicable requirements of the Securities Exchange Act of 1934. 14. Neither the Guarantor nor any of its subsidiaries is, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Offering Memorandum none of them will be, an "investment company" or an entity "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940. 15. Neither the issuance, sale and delivery of the Securities nor the application of the proceeds thereof by the Company as described in the Offering Memorandum will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors. 16. Assuming the accuracy of the representations and warranties of the Initial Purchasers contained in the Purchase Agreement and their compliance with their agreements set forth in the Purchase Agreement and except as contemplated by the Registration Rights Agreement, it is not necessary, in connection with the issuance and sale of the Securities to the Initial Purchasers and the offer, resale and delivery of the Securities by the Initial Purchasers in the manner B-5 contemplated by the Purchase Agreement and the Offering Memorandum, to register the Securities under the Securities Act of 1933 or to qualify the Indenture under the Trust Indenture Act of 1939. 17. To our knowledge, there are no contracts, agreements or understandings between the Company or the Guarantor and any other person granting such person the right to require the Company or the Guarantor to include the offering of any securities of the Company or the Guarantor in the offering registered pursuant to the registration statement to be filed in accordance with the Registration Rights Agreement. 18. To our knowledge, all the outstanding shares of capital stock or other equity interests of each subsidiary of the Guarantor have been duly and validly authorized and issued, are fully paid and nonassessable and, to our knowledge, are owned by the Guarantor directly or indirectly through one or more subsidiaries (except, in the case of any foreign subsidiary, for directors' qualifying shares), free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party. 19. To our knowledge, neither the Guarantor nor any of its subsidiaries is (a) in violation of its charter, by-laws or similar organizational documents, (b) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Guarantor or any of its subsidiaries is a party or by which any of them is bound or to which any of their respective properties or assets are subject or (c) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (b) and (c) above, for any such defaults or violations that would not, individually or in the aggregate, have a Material Adverse Effect. 20. To our knowledge, the Guarantor and its subsidiaries possess all licenses, franchises, certificates, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities ("Permits") that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Offering Memorandum, except where the failure to possess or make the same would not, individually or in the aggregate, have a Material Adverse Effect. To our knowledge, except as described in the Offering Memorandum, the Guarantor and its subsidiaries have fulfilled and performed all their obligations with respect to such Permits, and no event has occurred that allows, or after notice or lapse of time, or both, would allow, revocation or termination thereof or result in any other impairment of the rights of the holder of any such Permit, except for any such failures to fulfill and perform or such revocations, terminations or impairments that would not, individually or in the aggregate, have a Material Adverse Effect. We have participated in conferences with officers and other representatives of the Guarantor, representatives of the independent public accountants of the Guarantor and your representatives at which the contents of the Offering B-6 Memorandum and related matters were discussed. Although we have not undertaken to determine independently, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Offering Memorandum (except to the extent set forth in paragraph 13 above), we advise you that, on the basis of the foregoing, no facts have come to our attention that lead us to believe that the Offering Memorandum (other than (a) the financial statements and schedules (including the notes thereto and the auditor's reports thereon) incorporated by reference therein or omitted therefrom and (b) the other accounting and financial information contained or incorporated by reference therein or omitted therefrom, as to which we have not been asked to comment), as of its issue date or the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Our opinions expressed in Paragraphs 5, 6, 7 and 9 hereinabove are expressly subject to the following exceptions and qualifications in addition to other exceptions and qualifications set forth elsewhere herein: (a) The effect of bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights and remedies of creditors. This includes the effect of the Federal Bankruptcy Code in its entirety, including matters of contract rejection, fraudulent conveyance and obligation, turn-over, preference, equitable subordination, automatic stay, conversion of a non-recourse obligation into a recourse obligation, and substantive consolidation. This also includes laws regarding fraudulent transfers, obligations and conveyances, and state receivership laws. (b) The effect of general principles of equity, whether applied by a court of law or equity. (c) With respect to the Indenture, the possible unenforceability of provisions that waivers or consents by a party may not be given effect unless in writing or in compliance with particular requirements or that a person's course of dealing, course of performance, or the like or failure or delay in taking actions may not constitute a waiver of related rights or provisions or that one or more waivers may not under certain circumstances constitute a waiver of other matters of the same kind. (d) The effect of course of dealing, course of performance, or the like, in modifying the terms of the Indenture or the respective rights or obligations of the parties thereunder. (e) The extent to which any right of indemnification and contribution provided under the Indenture or the Registration Rights Agreement may be treated as being unenforceable under general principles of law or equity. (f) To the extent that the validity, binding effect or enforceability of the Indenture, the Securities or the Registration Rights Agreement or any provisions contained therein depends upon the application of governing state law in a jurisdiction or jurisdictions other than the jurisdiction whose law is the B-7 governing law, regardless of whether the same has been enacted in the jurisdiction(s) where the rights or remedies provided by governing state law are asserted, we do not opine that a court in any such other jurisdiction would apply governing state law to such terms or provisions. (g) A judgment rendered by a court of competent jurisdiction outside the state whose law is the governing law may not be enforceable in such state if such judgment is deemed to contravene the public policy of such state. In this letter, references to federal statutes include all amendments thereto and all rules and regulations of the Commission thereunder, in each case as in effect on the date hereof. In this letter, phrases such as "to our knowledge," "known to us" and those with equivalent wording refer to the awareness of information by the lawyers of this Firm who have prepared or signed this letter or been actively involved in assisting and advising the Guarantor in connection with the preparation of the Offering Memorandum and the execution and delivery of the Purchase Agreement, without any independent investigation by any lawyer of this Firm. Except as otherwise expressly stated above, we limit our opinions in this letter in all respects to matters of the laws of the States of New York and Georgia and the General Corporation Law of the State of Delaware. We are furnishing this letter to you solely for your use in connection with the transactions consummated on the date hereof under the Purchase Agreement and may not be relied on by any other person or for any other purpose. This letter speaks as of the date hereof, and we disclaim any obligation to update it or advise you of any change in any matter set forth herein. Very truly yours, ARNALL GOLDEN GREGORY LLP B-8 ANNEX C [Form of Opinion of Counsel for the Company ] May 23, 2002 J.P. MORGAN SECURITIES INC., as Representative of the Several Initial Purchasers c/o J.P. Morgan Securities Inc. 270 Park Avenue New York, New York 10017 Ladies and Gentlemen: We are furnishing this opinion letter to you at the request of SYSCO International, Co., an unlimited company (often referred to as an "unlimited liability company") incorporated under the laws of the Province of Nova Scotia (the "COMPANY"), under Section 5(h) of the Purchase Agreement dated May 20, 2002 (the "PURCHASE Agreement") by and among the Company, SYSCO Corporation, a Delaware corporation (the "GUARANTOR"), and the several Initial Purchasers listed in Schedule 1 thereto (the "INITIAL PURCHASERS"), relating to the issuance and sale by the Company to the Initial Purchasers of $200,000,000 aggregate principal amount of 6.10% Senior Notes due 2012 (the "SECURITIES"), which will be guaranteed on a senior unsecured basis as to the payment of principal, premium, if any, and interest by the Guarantor (the "GUARANTEES"). The Company will issue the Securities and the Guarantor will issue the Guarantees under an Indenture dated as of May 23, 2002 (the "INDENTURE") among the Company, the Guarantor and Wachovia Bank, National Association, as trustee (the "TRUSTEE"), and as described in the Offering Memorandum dated May 20, 2002 prepared by the Company and the Guarantor in connection with the offering of the Securities and the Guarantees (including the documents incorporated by reference therein, the "OFFERING MEMORANDUM"). We have examined the originals, or copies certified or otherwise identified, of: (a) the corporate records of the Company, being the minute books the Company maintained by us, and including the memorandum of association and articles of association of the Company as contained therein; (b) the Offering Memorandum other than the documents incorporated by reference therein; (c) the Purchase Agreement; (d) the Registration Rights Agreement dated May 23, 2002 among the Company, the Guarantor and the Initial Purchasers relating to the Securities (the "REGISTRATION RIGHTS AGREEMENT"); (e) the Indenture (being, collectively with the Purchase Agreement, the Registration Right Agreement and the Securities, the "Transaction Documents"); C-1 (f) the forms of the Securities and the Exchange Securities (as defined in the Purchase Agreement); (g) certificates of public officials, statutes and other instruments and documents; (h) a certificate of status pertaining to the Company issued on behalf of the Registrar of Joint Stock Companies for the Province of Nova Scotia, dated May _____, 2002; (i) resolutions of the directors of the Company dated May _____, 2002 authorizing the execution and delivery of the Transaction Documents, the offering and issuance of the Securities and the Exchange Securities and the issuance of the Offering Memorandum by the Company; and (j) a certificate of an officer of the Company dated the date hereof (the "Officer's Certificate"). We have also examined the originals or copies, certified or otherwise identified to our satisfaction, of such public and corporate records, certificates, instruments and other documents and have considered such questions of law as we have deemed necessary as a basis for the opinions hereinafter expressed. In stating our opinions, we have assumed: a. the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as notarial, certified, telecopies, conformed or reproduction copies thereof and the authenticity of the originals of such documents; b. the completeness and accuracy of all statements of fact set forth in official public records and certificates and other documents supplied by public officials; c. the completeness and accuracy of all statements of fact set forth in the Officer's Certificate; d. that the constating documents and corporate resolutions in the minute book of the Company reviewed by us above remain unamended and complete; and e. that each of the Transaction Documents (other than the Securities) has been signed by ____________________ as _________________ of the Company and physically delivered by the Company to the other parties thereto or their lawful representatives and that no such delivery was subject to any condition or escrow which has not been satisfied. C-2 We express no opinion as to the application of the securities laws of the Province of Nova Scotia to the offering of the Securities or the Exchange Securities. The opinions hereinafter expressed are limited to the federal laws of Canada and the laws of the Province of Nova Scotia as of the date of this opinion letter and we express no opinion as to the laws of any other jurisdiction. On the basis of the foregoing and subject to the assumptions, limitations and qualifications we set forth herein, we are of the following opinions: 1. The Company has been duly organized and is validly existing and in good standing as to the payment of annual fees and filing of annual returns as an unlimited company under the laws of the Province of Nova Scotia, Canada and has all power and authority necessary to own or hold its properties and to conduct the business, in each case as described in the Offering Memorandum. 2. The Company has an authorized capital consisting of 10,000,000 common shares without nominal or par value. All the outstanding shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are registered on the books of the Company in the name of the Guarantor. 3. The Company has all requisite corporate power and authority to execute and deliver each of the Transaction Documents and to perform its obligations thereunder; and all action required to be taken on the part of the Company for the due and proper authorization, execution and delivery of each Transaction Document and the consummation of the transactions contemplated thereby has been duly and validly taken. 4. The Indenture and the Securities have been duly authorized, executed and delivered by the Company. 5. The issuance of the Exchange Securities (as defined in the Purchase Agreement) to be issued and delivered in the manner provided for in the Indenture in exchange for the Securities has been duly authorized by the Company, and no consent, approval, authorization, order, registration or qualification of or with Canadian federal court or provincial court in the Province of Nova Scotia or governmental or regulatory authority having jurisdiction in the Province of Nova Scotia is required for the issuance of the Exchange Securities. 6. The Purchase Agreement has been duly authorized, executed and delivered by the Company. 7. The Registration Rights Agreement has been duly authorized, executed and delivered by the Company. 8. The execution, delivery and performance by the Company of each Transaction Document, the issuance and sale of the Securities and compliance by the Company with the terms thereof and the consummation of the transactions C-3 contemplated by the Transaction Documents will not (a) conflict with or result in any violation of the provisions of the memorandum of association or articles of association of the Company or (b) conflict with or result in the violation of any law, statute or regulation of the Province of Nova Scotia or any federal Canadian law, statute or regulation applicable therein. 9. No consent, approval, authorization, order, registration or qualification of or with any Canadian federal court or provincial court in the Province of Nova Scotia or governmental or regulatory authority having jurisdiction in the Province of Nova Scotia is required for the execution, delivery and performance by the Company of any of the Transaction Documents, the issuance and sale of the Securities and compliance by the Company with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents. 10. The descriptions in the Offering Memorandum of Canadian federal or Nova Scotia provincial statutes and the statements in the Offering Memorandum under the headings "Description of Notes" and "United States Federal and Canadian Income Tax Considerations - Canadian Federal Income Tax Considerations," to the extent that they constitute summaries of matters of law or regulation of the Province of Nova Scotia or of Canada applicable in the Province of Nova Scotia or legal conclusions with respect to such laws, fairly summarize the matters described therein in all material respects. 11. A court of competent jurisdiction in the Province of Nova Scotia would give effect to the choice of New York law as chosen by the parties as the proper law governing each of the Transaction Documents provided that such choice of law is bona fide (in the sense that it was not made solely with a view to avoiding the consequences of the laws of any other jurisdiction) and provided that such choice of law is not contrary to public policy, as that term is understood under the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein. Based solely on our review of the Transaction Documents and the Offering Memorandum but without having any knowledge of New York law we have no reason to believe that a court of competent jurisdiction in the Province of Nova Scotia would refuse to apply New York law to the Transaction Documents. 12. Insofar as such submission is enforceable under the laws governing such submission, the submission by the Company to the non-exclusive jurisdiction of the federal and state courts in the State of New York is a valid submission to the jurisdiction of such court and would be upheld by a Nova Scotia court. 13. If the provisions of any or all of the Transaction Documents were sought to be enforced in the Province of Nova Scotia in accordance with the laws applicable thereto, as chosen by the parties, namely, New York law, a court of competent jurisdiction in the Province of Nova Scotia would, subject to paragraph 11 above, and to the extent specifically pleaded and proved as a fact by expert evidence, recognize the choice of New York law and apply such law to all issues that, under the conflict of laws rules of the Province of Nova Scotia, are to be determined in accordance with the proper or governing law of a contract, provided that the application of such C-4 choice of law is not contrary to public policy as that term is understood under the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein; and further provided that, such court will not apply those laws of New York which a court of the Province of Nova Scotia would characterize as revenue, expropriatory or penal or the application of which would be inconsistent with public policy, as such term is applied by such court and, in matters of procedure (as that term is understood under the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein), the laws of the Province of Nova Scotia will be applied including the Limitation of Actions Act (Nova Scotia), and a court of competent jurisdiction in the Province of Nova Scotia will retain discretion to decline to hear such action and apply such law if: (a) it is contrary to public policy (as that term is understood under the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein) for such court to do so; (b) it is not the proper forum to hear such an action; or (c) concurrent proceedings are being brought elsewhere. Based solely on our review of the Transaction Documents and the Offering Memorandum but without having any knowledge of New York law, we have no reason to believe that a court of competent jurisdiction in the Province of Nova Scotia would refuse to enforce the Transaction Documents insofar as the same may be enforceable in accordance with New York law. 14. The laws of the Province of Nova Scotia permit an action to be brought in a court of competent jurisdiction in the Province of Nova Scotia to enforce any final and conclusive judgment in personam for a definite sum of money of any federal or state court located in the Borough of Manhattan in the City of New York (a "NEW YORK COURT") respecting the enforcement of the provisions of any of the Transaction Documents that is not impeachable as void or voidable under the internal laws of the State of New York if: (a) the court rendering such judgment had jurisdiction over the judgment debtor, as recognized by the courts of the Province of Nova Scotia (and an enforceable submission under the terms of the Transaction Documents to the jurisdiction of the New York Court will ordinarily be sufficient for this purpose), and the judgment debtor was properly served in the action leading to such judgment; (b) such judgment was not obtained by fraud or in a manner contrary to natural justice and the enforcement thereof would not be inconsistent with public policy, as that term is understood under the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein, or contrary to any order made by the Attorney General of Canada under the Foreign Extraterritorial Measures Act (Canada) or by the Competition Tribunal under the Competition Act (Canada); C-5 (c) the enforcement of such judgment does not constitute, directly or indirectly, the enforcement of foreign revenue, expropriation or penal laws or other laws of a public law nature; (d) there has been no prior judgment in another court between the same parties concerning the same issues as are dealt with in the judgment to be enforced in the Province of Nova Scotia; and (e) the action to enforce such judgment is commenced within the applicable limitation periods. Absent procedural concerns or concerns respecting particular laws of the State of New York, we would not foresee a court of competent jurisdiction in the Province of Nova Scotia, on public policy grounds, refusing to enforce a final and conclusive judgment in personam of a New York Court for a definite sum of money with respect to a matter under any of the Transaction Documents where a substantially similar judgment would have been granted by the Nova Scotia court had such matter been within the jurisdiction of the Nova Scotia court and properly come before it. We have no knowledge of New York law or New York procedure but are not aware of any general public policy concerns with respect thereto having been raised by any Nova Scotia court. 15. In determining whether or not to enforce a final and conclusive judgment in personam for a definite sum of money of a New York Court as described in paragraph 14, a court of competent jurisdiction in the Province of Nova Scotia would not refuse to recognize the jurisdiction of the court rendering such judgment on the basis of process having been served on an agent designated by the Company for such purpose under the Purchase Agreement where such designation is enforceable against the Company under the laws governing such designation and is not otherwise impeachable * . 16. To ensure the legality, validity, enforceability or admissibility into evidence in a legal or administrative proceeding in the Province of Nova Scotia of any of the Transaction Documents, it is not necessary that any of the Transaction Documents, on or before the Closing Date (as defined in the Purchase Agreement), be filed or recorded with any court or other authority in Nova Scotia or that any registration tax, stamp duty or similar tax be paid in Nova Scotia on or in respect of any of the Transaction Documents. We are furnishing this letter to you solely for your use in connection with the transactions consummated on the date hereof under the Purchase Agreement and may not be relied on by any other person or for any other purpose. This letter speaks as of the date hereof, and we disclaim any obligation to update it or advise you of any change in any matter set forth herein. Very truly yours, STEWART MCKELVEY STIRLING SCALES C-6 Exhibit A [Form of Registration Rights Agreement] REGISTRATION RIGHTS AGREEMENT This REGISTRATION RIGHTS AGREEMENT dated May 23, 2002 (this "Agreement") is entered into by and among SYSCO International, Co., an unlimited liability company organized under the laws of Nova Scotia, Canada (the "Company"), SYSCO Corporation, a Delaware corporation of which the Company is a wholly owned subsidiary (the "Guarantor"), and J.P. Morgan Securities Inc., TD Securities (USA) Inc., First Union Securities, Inc., Banc of America Securities LLC, Wells Fargo Brokerage Services, LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, SunTrust Capital Markets, Inc., and Tokyo-Mitsubishi International plc (the "Initial Purchasers"). The Company, the Guarantor and the Initial Purchasers are parties to the Purchase Agreement dated May 20, 2002 (the "Purchase Agreement"), which provides for the sale by the Company to the Initial Purchasers of $200,000,000 aggregate principal amount of the Company's 6.10% Senior Notes due 2012 (the "Securities"), which will be guaranteed on a senior unsecured basis as to the payment of principal, premium, if any, and interest by the Guarantor. As an inducement to the Initial Purchasers to enter into the Purchase Agreement, the Company and the Guarantor have agreed to provide to the Initial Purchasers and their direct and indirect transferees the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the closing under the Purchase Agreement. In consideration of the foregoing, the parties hereto agree as follows: 1. Definitions. As used in this Agreement, the following terms shall have the following respective meanings: "Business Day" shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed. "Closing Date" shall mean the Closing Date as defined in the Purchase Agreement. "Company" shall have the meaning set forth in the preamble to this Agreement and shall also include the Company's successors. "Consummated" shall mean, for purposes of this Agreement and the Exchange Offer, upon the latest to occur of (i) the effectiveness under the Securities Act of the Exchange Offer Registration Statement, (ii) the maintenance of such Registration Statement continuously effective and the keeping of the Exchange Offer open for a period not less than the minimum period required pursuant to Section 2(a) hereof and (iii) the delivery by the Company to the registrar under the Indenture of Exchange Securities in the same aggregate principal amount as the aggregate principal amount of Registrable Securities that were tendered by Holders thereof pursuant to the Exchange Offer. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from time to time. "Exchange Dates" shall have the meaning set forth in Section 2(a)(ii) hereof. "Exchange Offer" shall mean the exchange offer by the Company and the Guarantor of Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof. "Exchange Offer Registration" shall mean a registration under the Securities Act effected pursuant to Section 2(a) hereof. "Exchange Offer Registration Statement" shall mean an exchange offer registration statement on Form S-4 (or, if applicable, on another appropriate form) and all amendments and supplements to such registration statement, in each case including the Prospectus contained therein, all exhibits thereto and any document incorporated by reference therein. "Exchange Securities" shall mean senior notes issued by the Company and guaranteed by the Guarantor under the Indenture containing terms identical to the Securities (except that the Exchange Securities will not be subject to restrictions on transfer or to any increase in annual interest rate for failure to comply with this Agreement) and to be offered to Holders of Securities in exchange for Securities pursuant to the Exchange Offer. "Guarantor" shall have the meaning set forth in the preamble to this Agreement and shall also include the Guarantor's successors. "Holders" shall mean the Initial Purchasers, for so long as they own any Registrable Securities, and each of their successors, assigns and direct and indirect transferees who acquire Registrable Securities from time to time; provided that for purposes of Sections 7 and 9 of this Agreement, the term "Holders" shall include Participating Broker-Dealers. "Initial Purchasers" shall have the meaning set forth in the preamble to this Agreement. "Indenture" shall mean the Indenture relating to the Securities dated as of May 23, 2002 among the Company, the Guarantor and Wachovia Bank, National Association, as trustee, and as the same may be amended from time to time in accordance with the terms thereof. 2 "Majority Holders" shall mean the Holders of a majority of the aggregate principal amount of outstanding Registrable Securities; provided that whenever the consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder, Registrable Securities owned directly or indirectly by the Company or any of its affiliates shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage or amount. "NASD" shall mean the National Association of Securities Dealers, Inc. "Participating Broker-Dealers" shall have the meaning set forth in Section 7(a) hereof. "Person" shall mean an individual, partnership, limited liability company, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof. "Purchase Agreement" shall have the meaning set forth in the preamble to this Agreement. "Prospectus" shall mean the prospectus included in a Registration Statement, including any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus supplement, including a prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other amendments and supplements to such prospectus, and in each case including any document incorporated by reference therein. "Registrable Securities" shall mean the Securities; provided that the Securities shall cease to be Registrable Securities when: (i) a Registration Statement with respect to such Securities has been declared effective under the Securities Act and such Securities have been exchanged or disposed of pursuant to such Registration Statement; (ii) such Securities are eligible to be sold pursuant to Rule 144(k) (or any similar provision then in force, but not Rule 144A) under the Securities Act; or (iii) such Securities cease to be outstanding. "Registration Expenses" shall mean any and all expenses incident to performance of or compliance by the Company and the Guarantor with the terms of this Agreement, including without limitation: (i) all SEC, stock exchange or NASD registration and filing fees, (ii) all fees and expenses incurred in connection with compliance with state securities or blue sky laws (including reasonable fees and disbursements of counsel for any Underwriters or Holders in connection with blue sky qualification of any Exchange Securities or Registrable Securities), (iii) all expenses of any Persons in preparing or assisting in preparing, word processing, printing and distributing any Registration Statement, any Prospectus and any amendments or supplements thereto, any underwriting agreements, securities sales agreements or other similar agreements and any other documents relating to the performance of and compliance with this Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating 3 to the qualification of the Indenture under applicable securities laws, (vi) the fees and disbursements of the Trustee and its counsel, (vii) the fees and disbursements of counsel for the Company and the Guarantor and, in the case of a Shelf Registration Statement, the fees and disbursements of one counsel for the Holders (which counsel shall be selected by the Majority Holders and which counsel may also be counsel for the Initial Purchasers) and (viii) the fees and disbursements of the independent public accountants of the Company and the Guarantor, including the expenses of any special audits or "comfort" letters required by or incident to the performance of and compliance with this Agreement, but excluding fees and expenses of counsel to the Underwriters (other than fees and expenses set forth in clause (ii) above) or the Holders and underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of Registrable Securities by a Holder. "Registration Statement" shall mean any registration statement of the Company and the Guarantor that covers any of the Exchange Securities or Registrable Securities pursuant to the provisions of this Agreement and all amendments and supplements to any such registration statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and any document incorporated by reference therein. "SEC" shall mean the U.S. Securities and Exchange Commission. "Securities" shall have the meaning set forth in the preamble to this Agreement. "Securities Act" shall mean the Securities Act of 1933, as amended from time to time. "Shelf Registration" shall mean a registration effected pursuant to Section 2(b) hereof. "Shelf Registration Statement" shall mean a "shelf" registration statement of the Company and the Guarantor that covers all the Registrable Securities (but no other securities unless approved by the Holders whose Registrable Securities are to be covered by such Shelf Registration Statement) on an appropriate form under Rule 415 under the Securities Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and any document incorporated by reference therein. 4 "Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as amended from time to time. "Trustee" shall mean the trustee with respect to the Securities under the Indenture. "Underwriter" shall have the meaning set forth in Section 5 hereof. "Underwritten Offering" shall mean an offering in which Registrable Securities are sold to an Underwriter for reoffering to the public. 2. Registration Under the Securities Act. (a) Registered Exchange Offer. Except as set forth in Section 2(b), the Company and the Guarantor agree to file under the Securities Act, as soon as practicable but in no event later than 90 days after the Closing Date an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities. The Company and the Guarantor agree to use their best efforts to cause the Exchange Offer Registration Statement to be declared effective by the SEC under the Securities Act as soon as practicable, but no later than 180 days after the Closing Date. The Company and the Guarantor further agree to use their best efforts to cause the Exchange Offer to be Consummated promptly, but no later than 210 days after the Closing Date, hold the Exchange Offer open for at least 20 Business Days and exchange Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. The Company and the Guarantor shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law: (i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange; (ii) the dates of acceptance for exchange (which shall begin no sooner than 20 Business Days after the date such notice is mailed) (the "Exchange Dates"); (iii)that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement; (iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the appropriate letters of transmittal, to the 5 institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, prior to the close of business on the last Exchange Date; and (v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing its election to have such Securities exchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantor that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an "affiliate" (within the meaning of Rule 405 under Securities Act) of the Company or the Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantor shall: (i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and (ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantor shall use their best efforts to Consummate the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange Act and all other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate any applicable law or applicable interpretations of the Staff of the SEC. 6 (b) Shelf Registration. In the event that (i) on or prior to the time the Exchange Offer is Consummated, the Company or the Guarantor determines that existing SEC interpretations are changed such that the Exchange Securities received by Holders in the Exchange Offer are not or would not be, upon receipt, transferable by each such Holder without restriction under the Securities Act, (ii) the Exchange Offer has not been Consummated within 210 days following the Closing Date, (iii) the Exchange Offer has been Consummated and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities (other than Registrable Securities held by Holders described in Section 7), or (iv) any applicable law or interpretations do not permit any Holder to Participate in the Exchange Offer, the Company and the Guarantor shall, in lieu of (or, in the case of clause (iii) of this sentence, in addition to) conducting the Exchange Offer contemplated by Section 2(a), file as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantor, as the case may be, but no later than 45 days after the time such obligation to file arises, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and use their best efforts to have such Shelf Registration Statement declared effective by the SEC under the Securities Act no later than 90 days after such Shelf Registration Statement is filed and to keep such Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) under the Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by such Shelf Registration Statement have been sold pursuant to such Shelf Registration Statement. The Company and the Guarantor further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, to take any action reasonably necessary to enable such Holder to use the Prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such Holder as a selling securityholder in the Shelf Registration Statement, and to use their best efforts to cause any such amendment to be declared effective by the SEC under the Securities Act and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantor agree to furnish to the Holders copies of any such supplement or amendment promptly after its being used or filed with the SEC. (c) Registration Expenses. The Company and the Guarantor shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b) hereof. Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement. 7 3. Additional Interest. (a) In the event that (i) the Company and the Guarantor have not filed the Exchange Offer Registration Statement or Shelf Registration Statement with the SEC on or before the date on which such Registration Statement is required to be so filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Offer Registration Statement or Shelf Registration Statement has not been declared effective by the SEC under the Securities Act on or before the date on which such Registration Statement is required to be declared effective under the Securities Act pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been Consummated within 210 days after the Closing Date or (iv) the Exchange Offer Registration Statement or Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective by the SEC under the Securities Act but shall thereafter either be withdrawn by the Company or the Guarantor or shall become subject to an effective stop order issued pursuant to Section 8(d) of the Securities Act suspending the effectiveness of such Registration Statement (except as specifically permitted herein) without being succeeded immediately by a post-effective amendment to such Registration Statement or an additional Registration Statement filed and declared effective by the SEC under the Securities Act (each such event referred to in clauses (i) through (iv) is referred to herein as a "Registration Default" and each period during which a Registration Default has occurred and is continuing until the Securities become freely tradable under the Securities Act is referred to herein as, a "Registration Default Period"), then the interest rate on the Registrable Securities will be increased by 0.25% per annum during the first 90 days of the Registration Default Period, and by 0.50% per annum thereafter for the remaining portion of the Registration Default Period. The interest rate will not at any time be increased by more than 0.50% per annum. In addition, the interest rate on the Registrable Securities will revert to the interest rate prior to any increase pursuant to this Section 3(a) at such time as all Registration Defaults are cured. (b) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantor acknowledge that any failure by the Company or the Guarantor to comply with their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantor's obligations under Section 2(a) and Section 2(b) hereof. 8 4. Registration Procedures. In connection with their obligations pursuant to Section 2(a) and Section 2(b) hereof, the Company and the Guarantor shall as expeditiously as possible: (a) prepare and file with the SEC a Registration Statement on the appropriate form under the Securities Act, which form (i) shall be selected by the Company and the Guarantor, (ii) shall, in the case of a Shelf Registration, be available for the sale of the Registrable Securities by the selling Holders thereof and (iii) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required under the Securities Act and the rules and regulations of the SEC thereunder to be filed therewith; and use their best efforts to cause such Registration Statement to become effective and remain effective for the applicable period in accordance with Section 2 hereof; (b) a reasonable time prior to the filing with the SEC of any Registration Statement, any Prospectus, any amendment to a Registration Statement or amendment or supplement to a Prospectus or of any document that is to be incorporated by reference into a Registration Statement or a Prospectus after initial filing of a Registration Statement, provide copies of such document to the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, to the Holders and their counsel) and make such of the representatives of the Company and the Guarantor as shall be reasonably requested by the Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the Holders or their counsel) available for discussion of such document; and the Company and the Guarantor will not, at any time after the initial filing with the SEC of a Registration Statement, file with the SEC any Prospectus, any amendment of or supplement to a Registration Statement or a Prospectus, or any document that is to be incorporated by reference into a Registration Statement or a Prospectus, of which the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, the Holders and their counsel) shall not have previously been advised and furnished a copy or to which the Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the Holders or their counsel) shall reasonably object; (c) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities, to counsel for the Initial Purchasers, to counsel for such Holders and to each Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge, as many copies of each Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto as they may reasonably request, in order to facilitate the sale or other disposition of the Registrable Securities thereunder; and the Company and the Guarantor consent to the use of such Prospectus and any amendment or supplement thereto in accordance with applicable law by each of the selling Holders and any such Underwriters in connection with the offering and sale of the Registrable Securities covered by and in the manner described in such Prospectus or any amendment or supplement thereto; 9 (d) in the case of a Shelf Registration, furnish to each Holder, without charge, at least one conformed copy of each Registration Statement and any post-effective amendment thereto (without any documents incorporated therein by reference or exhibits thereto, unless requested); (e) prior to the filing of any document that is to be incorporated by reference into a Registration Statement or a related Prospectus, provide copies of such document to the selling Holders and to the Underwriters, if any, make the Company's representatives available for discussion of such document and other customary due diligence matters, and include such information in such document prior to the filing thereof as such selling Holders or Underwriters, if any, reasonably may request, in each case during the period a Registration Statement is effective and prospectus delivery requirements with respect to any offers or sales thereunder are applicable; (f) prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement effective for the applicable period in accordance with Section 2 hereof and cause each Prospectus to be supplemented by any required prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act; and keep each Prospectus current during the period described in Section 4(3) of and Rule 174 under the Securities Act that is applicable to transactions by brokers or dealers with respect to the Registrable Securities or Exchange Securities; (g) upon the occurrence of any event contemplated by Section 4(h)(v) hereof, use their best efforts to prepare and file with the SEC a supplement or post-effective amendment to a Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities, such Prospectus will conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the SEC and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Company and the Guarantor shall notify the Holders to suspend the use of the Prospectus as promptly as practicable after the occurrence of such an event until the Company and the Guarantor have amended or supplemented the Prospectus to correct such misstatement or omission; (h) notify each Holder, counsel for such Holders and counsel for the Initial Purchasers promptly and, if requested by any such Holder or counsel, confirm such advice in writing (i) when a Registration Statement has become effective and when any post-effective amendment thereto has been filed and becomes effective, (ii) of any request by the SEC or any state securities 10 authority for amendments and supplements to a Registration Statement or a related Prospectus or for additional information after the Registration Statement has become effective, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if, between the effective date of a Registration Statement and the closing of any sale of securities covered thereby, the representations and warranties of the Company or the Guarantor contained in this Agreement, any underwriting agreement, securities sales agreement or other similar agreement, if any, relating to an offering of such securities cease to be true and correct or if the Company or the Guarantor receives any notification with respect to the suspension of the qualification of such securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, (v) if at any time when a Prospectus is required to be delivered under the Securities Act, that such Registration Statement, Prospectus, Prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the SEC thereunder or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (vi) of any determination by the Company or the Guarantor that a post-effective amendment to a Registration Statement would be appropriate; (i) use their best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement at the earliest possible moment and provide immediate notice to each Holder of the withdrawal of any such order; (j) in the case of a Shelf Registration, use their best efforts to: (A) register or qualify the Registrable Securities under all applicable state securities or blue sky laws of such jurisdictions as any Holder of Registrable Securities covered by a Shelf Registration Statement or any Underwriter shall reasonably request in writing by the time the applicable Shelf Registration Statement is declared effective by the SEC; cooperate with the Holders in connection with any filings required to be made with the NASD (including retaining any "qualified independent underwriter" that is required to be retained in accordance with the rules and regulations of the NASD); (B) keep such registrations or qualifications in effect and comply with such laws so as to permit the continuance of offers, sales and dealings therein in such jurisdictions during the period the Shelf Registration Statement is required to remain effective under Section 2(b) above and for so long as may be necessary to enable any such Holder or Underwriter to complete its distribution of Securities pursuant to such Shelf Registration Statement; and (C) do any and all other acts and things that may be reasonably necessary or advisable to enable each Holder to complete the disposition in each such jurisdiction of the Registrable 11 Securities owned by such Holder; provided that neither the Company nor the Guarantor shall be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not already so subject; (k) use their best efforts to obtain the consent or approval of each governmental agency or authority, whether federal, state or local, which may be required to effect the Exchange Offer Registration, the Exchange Offer or the Shelf Registration, as the case may be, or the offering or sale in connection therewith or to enable the Holders to offer, or to consummate the disposition of, their Registrable Securities or Participating Broker-Dealers to offer and sell Exchange Securities; (l) cause the Indenture to be qualified under the Trust Indenture Act in connection with the registration of the Exchange Securities or Registrable Securities, as the case may be; cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of the Trust Indenture Act; and execute, and use their best efforts to cause the Trustee to execute, all documents as may be required to effect such changes and all other forms and documents required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner; (m) in the case of a Shelf Registration, make available for inspection by a representative of the Holders of the Registrable Securities (an "Inspector"), any Underwriter participating in any disposition pursuant to such Shelf Registration Statement, and attorneys and accountants designated by the Holders, at reasonable times and in a reasonable manner, all pertinent financial and other records, documents and properties of the Company and the Guarantor, and cause the respective officers, directors and employees of the Company and the Guarantor to supply all information reasonably requested by any such Inspector, Underwriter, attorney or accountant in connection with a Shelf Registration Statement; provided that each such party shall agree to maintain in confidence and not to disclose to any other person any information or records reasonably designated by the Company or the Guarantor as being confidential, until such time as (A) such information becomes a matter of public record (whether by virtue of its inclusion in such Registration Statement or otherwise), or (B) such person shall be required so to disclose such information pursuant to a subpoena or order of any court or arbitrator or governmental or regulatory authority (subject to the requirements of such order, and only after such person shall have given the Company prompt prior written notice of such requirement), or (C) such information is required to be set forth in such Shelf Registration Statement or the Prospectus included therein or in an amendment to such Shelf 12 Registration Statement or an amendment or supplement to such Prospectus in order that such Shelf Registration Statement, Prospectus, amendment or supplement, as the case may be, complies with applicable requirements of the federal securities laws and the rules and regulations of the SEC and does not contain an untrue statement of a material fact or omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; (n) in the case of a Shelf Registration, cooperate with the selling Holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends and enable such Registrable Securities to be issued in such denominations and registered in such names (consistent with the applicable provisions of the Indenture) as the selling Holders may reasonably request at least one Business Day prior to the closing of any sale of Registrable Securities; (o) obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the case may be, not later than the effective date of a Registration Statement; (p) comply with all applicable rules and regulations of the SEC, and make generally available to holders of Securities as soon as practicable but no later than eighteen months after the effective date of a Registration Statement, an earnings statement of the Guarantor and its subsidiaries complying with Section 11(a) of the Securities Act (including, at the option of the Guarantor, Rule 158 thereunder). (q) in the case of a Shelf Registration, use their best efforts to cause all Registrable Securities to be listed on any securities exchange or any automated quotation system on which similar securities issued or guaranteed by the Company or the Guarantor are then listed if requested by the Majority Holders, to the extent such Registrable Securities satisfy applicable listing requirements; (r) in the case of a Shelf Registration, if requested by any Holder of Registrable Securities covered by a Shelf Registration Statement, promptly incorporate in a Prospectus supplement or post-effective amendment such information with respect to such Holder as such Holder reasonably requests to be included therein; and make all required filings of such Prospectus supplement or such post-effective amendment promptly after the Company has received notification of the matters to be incorporated in such filing; and (s) in the case of a Shelf Registration, enter into such customary agreements and take all such other actions in connection therewith (including those requested by the Holders of a majority in principal amount of the Registrable Securities being sold) in order to expedite or facilitate the disposition of such Registrable Securities, including, but not limited to, customary agreements relating to an Underwritten Offering, and in such connection: 13 (i) to the extent possible, make such representations and warranties to the Holders and any Underwriters of such Registrable Securities with respect to the business of the Company and its subsidiaries, the Registration Statement, Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings and confirm the same if and when requested; (ii) obtain opinions of counsel to the Company and the Guarantors (which counsel and opinions, in form, scope and substance, shall be reasonably satisfactory to the Holders and such Underwriters and their respective counsel) addressed to each selling Holder and Underwriter of Registrable Securities, covering the matters customarily covered in opinions requested in underwritten offerings; (iii) obtain "comfort" letters from the independent certified public accountants of the Company and the Guarantor (and, if necessary, any other certified public accountant of any subsidiary of the Company or the Guarantor, or of any business acquired by the Company or the Guarantor for which financial statements and financial data are or are required to be included or incorporated by reference in the Registration Statement) addressed to each selling Holder and Underwriter of Registrable Securities, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters in connection with underwritten offerings; and (iv) deliver such documents and certificates as may be reasonably requested by the Holders of a majority in principal amount of the Registrable Securities being sold or the Underwriters, and which are customarily delivered in underwritten offerings, to evidence the continued validity of the representations and warranties of the Company and the Guarantor made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in an underwriting agreement. In the case of a Shelf Registration Statement, the Company may require each Holder to furnish to the Company such information regarding such Holder and the proposed disposition by such Holder of Registrable Securities as the Company and the Guarantor may from time to time reasonably request in writing. Each Holder agrees by acquisition of the Registrable Securities to furnish promptly to the Company all information required to be disclosed in the Shelf Registration Statement in order to make the information previously furnished to the Company by such Holder for that purpose not materially misleading or necessary to cause the Shelf Registration Statement not to omit a material fact with respect to such Holder that is necessary in order to make the statements therein with respect to such Holder not misleading. 14 In the case of a Shelf Registration Statement, each Holder agrees by acquisition of the Registrable Securities that, upon receipt of any notice from the Company and the Guarantor of the happening of any event of the kind described in Section 4(h)(iii) or 4(h)(v) hereof, such Holder will forthwith discontinue disposition of Registrable Securities pursuant to a Registration Statement until such Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 4(g) hereof and, if so directed by the Company and the Guarantor, such Holder will deliver to the Company and the Guarantor all copies in its possession, other than permanent file copies then in such Holder's possession, of the Prospectus covering such Registrable Securities that is current at the time of receipt of such notice. If the Company and the Guarantor shall give any such notice to suspend the disposition of Registrable Securities pursuant to a Registration Statement, the Company and the Guarantor shall extend the period during which the Registration Statement shall be maintained effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such notice to and including the date when the Holders shall have received copies of the supplemented or amended Prospectus necessary to resume such dispositions. The Company and the Guarantor may give any such notice only twice during any 365-day period and each such suspension shall not extend for a period of more than 45 days. 5. Underwritten Registrations. (a) Selection of Underwriters. The Holders of Registrable Securities covered by a Shelf Registration Statement who desire to do so may sell such Registrable Securities in an Underwritten Offering. In any such Underwritten Offering, the investment banker or investment bankers and manager or managers (the "Underwriters") that will administer the offering will be selected by the Holders of a majority in principal amount of the Registrable Securities to be included in such offering. (b) Participation by Holders. No Holder may participate in any Underwritten Offering hereunder unless such Holder (i) agrees to sell his Registrable Securities on the basis provided in any underwriting arrangements approved by the Holders of a majority in principal amount of the Registrable Securities to be included in such offering and (ii) completes and executes all questionnaires, powers of attorney, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements. 6. Rule 144. The Company covenants to the Holders that, in the event the Exchange Offer is not completed within one year of the Closing Date, the Company shall disseminate the information required to be disseminated by Rule 144(c) adopted by the SEC under the Securities Act, to the extent such information is reasonably available for such dissemination, and shall take such further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell Registrable Securities without registration 15 under the Securities Act within the limitations of the exemption provided by Rule 144 under the Securities Act, as such Rule may be amended from time to time, or any similar or successor rule or regulation hereafter adopted by the SEC. Upon the request of any Holder in connection with that Holder's sale pursuant to Rule 144, the Company shall deliver to such Holder a written statement as to whether it has complied with such requirements. 7. Participation of Broker-Dealers in Exchange Offer. The Company and the Guarantor shall indicate in a "Plan of Distribution" section contained in the Exchange Offer Registration Statement that any broker-dealer who holds Registrable Securities that it acquired for its own account as a result of market-making activities or other trading activities (other than Registrable Securities acquired directly from the Company) (a "Participating Broker-Dealer") may exchange such Registrable Securities pursuant to the Exchange Offer; however, a Participating Broker-Dealer may be deemed to be an "underwriter" within the meaning of the Securities Act and must, therefore, deliver a prospectus meeting the requirements of the Act in connection with any resales of the Exchange Securities received by a Participating Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may be satisfied by the delivery by a Participating Broker-Dealer of the Prospectus contained in the Exchange Offer Registration Statement. Such "Plan of Distribution" section shall also contain all other information with respect to such resales by Participating Broker-Dealers that the SEC may require in order to permit such resales pursuant thereto, but such "Plan of Distribution" shall not name any Participating Broker-Dealer or disclose the amount of Exchange Securities held by any Participating Broker-Dealer except to the extent required by the SEC. In light of the above, and notwithstanding the other provisions of this Agreement, the Company and the Guarantor agree (i) to include in the Exchange Offer Registration Statement a Prospectus for use in any resales by any Participating Broker-Dealer and (ii) to keep such Exchange Offer Registration Statement effective for a period of up to 180 days after the last Exchange Date (as such period may be extended pursuant to the penultimate paragraph of Section 4 of this Agreement), if requested by the Initial Purchasers or by one or more Participating Broker-Dealers. The Company and the Guarantor shall provide sufficient copies of the latest version of such Prospectus to Participating Broker-Dealers promptly upon request at any time during such 180 day period in order to facilitate such resales. (b) The Initial Purchasers shall have no liability to the Company, the Guarantor or any Holder with respect to any request that they may make pursuant to Section 7(a) above, except for any such liability they may have pursuant to Section 9. 8. Representations and Warranties. The Company and the Guarantor jointly and severally represent and warrant to, and agree with, each Initial Purchaser and each of the Holders that: 16 (a) Each Registration Statement and each Prospectus furnished pursuant to Section 2(a) or Section 2(b) hereof and any further amendments or supplements to any such Registration Statement or Prospectus, when it becomes effective or is filed with the SEC, as the case may be, and, in the case of an Underwritten Offering, at the time of the closing under the underwriting agreement relating thereto, will conform in all material respects to the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the SEC thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at all times subsequent to the time that such Registration Statement has become effective under the Securities Act when a prospectus would be required to be delivered under the Securities Act, other than from (i) such time as a notice has been given to Holders pursuant to Section 4(h)(v) hereof until (ii) such time as the Company furnishes an amended or supplemented prospectus pursuant to Section 4(g) hereof, each such Registration Statement, and each Prospectus furnished pursuant to Section 2(a) or Section 2(b) hereof, as then amended or supplemented, will conform in all material respects to the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the SEC thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by a Holder or by any Underwriter expressly for use therein. (b) Any documents incorporated by reference in any Prospectus referred to in Section 8(a) hereof, when they become or became effective or are or were filed with the SEC, as the case may be, will conform or conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and none of such documents will contain or contained an untrue statement of a material fact or will omit or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by a Holder or by any Underwriter expressly for use therein. (c) The compliance by the Company and the Guarantor with all of the provisions of this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Guarantor or any subsidiary of the Guarantor (including the Company) pursuant to, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Guarantor or any subsidiary of the Guarantor (including the Company) is a party or by which the Guarantor or any subsidiary of the Guarantor (including the Company) is bound or to which any of the property or assets of the Guarantor or any subsidiary of the Guarantor (including the Company) is subject, nor will such action result in any violation of the provisions of the charter, by-laws or similar organizational documents of the Guarantor or any subsidiary of the Guarantor (including the Company), or 17 result in the violation of any law or statute or any judgement, order or regulation of any court or arbitrator or governmental or regulatory authority; and no consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the compliance by the Company and the Guarantor with all of the provisions of this Agreement and the consummation by the Company and the Guarantor of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations, orders and registrations or qualifications as may be required (i) under applicable state securities laws, in connection with the purchase and resale of the Securities by the Initial Purchasers and (ii) with respect to the Exchange Securities(including the related guarantee) under the Securities Act and applicable state securities laws as contemplated by this Agreement. (d) This Agreement has been duly authorized, executed and delivered by each of the Company and the Guarantor. 9. Indemnification and Contribution. (a) Indemnification of the Initial Purchasers and Holders. The Company and the Guarantor jointly and severally agree to indemnify and hold harmless each Initial Purchaser and each other Holder, their respective affiliates and each Person, if any, who controls any Initial Purchaser or any other Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, reasonable legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted), joint or several, caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or any Prospectus, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, except insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to (i) any Initial Purchaser furnished to the Company and the Guarantor in writing through J.P. Morgan Securities Inc. expressly for use therein or (ii) any selling Holder furnished to the Company and the Guarantor in writing by such Holder expressly for use therein. In connection with any Underwritten Offering permitted by Section 5, the Company and the Guarantor will also indemnify the Underwriters, if any, and their respective affiliates and each Person who controls such Persons (within the meaning of the Securities Act and the Exchange Act) to the same extent as provided above with respect to the indemnification of the Holders, if requested in connection with any Registration Statement. 18 (b) Indemnification of the Company and the Guarantor. Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company, the Guarantor, the Initial Purchasers and the other selling Holders, their respective affiliates, the directors of the Company and the Guarantor, each officer of the Company and the Guarantor who signed the Registration Statement and each Person, if any, who controls the Company, the Guarantor, any Initial Purchaser and any other selling Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities caused by any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Holder furnished to the Company in writing by such Holder expressly for use in any Registration Statement and any Prospectus. (c) Notice and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any Person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such Person (the "Indemnified Person") shall promptly notify the Person against whom such indemnification may be sought (the "Indemnifying Person") in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under this Section 9 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under this Section 9. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 9 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such counsel related to such proceeding. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying 19 Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm (x) for any Initial Purchaser, its affiliates and any control Persons of such Initial Purchaser shall be designated in writing by J.P. Morgan Securities Inc., (y) for any other Holder, its affiliates and any control Persons of such Holder shall be designated in writing by the Majority Holders and (z) in all other cases shall be designated in writing by the Guarantor. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (A) includes a full and unconditional release of such Indemnified Person from all liability on claims that are the subject matter of such proceeding and (B) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person. (d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantor from the offering of the Securities and the Exchange Securities, on the one hand, and by the Holders from receiving Securities or Exchange Securities registered under the Securities Act, on the other hand, or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company and the Guarantor on the one hand and the Holders on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable 20 considerations. The relative fault of the Company and the Guarantor on the one hand and the Holders on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Guarantor or by the Holders and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. (e) Limitation on Liability. The Company, the Guarantor and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 9, in no event shall a Holder be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities or Exchange Securities sold by such Holder exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. (f) Non-Exclusive Remedies. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity. (g) Survival. The indemnity and contribution provisions contained in this Section 9 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Initial Purchasers or any other Holder, their respective affiliates or any Person controlling any Initial Purchaser or any other Holder, or by or on behalf of the Company or the Guarantor, their respective affiliates or the officers or directors of or any Person controlling the Company or the Guarantor, (iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities pursuant to a Shelf Registration Statement. 10. General. (a) No Inconsistent Agreements. The Company and the Guarantor represent, warrant and agree that (i) the rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of any other outstanding securities issued or guaranteed by the Company 21 or the Guarantor under any other agreement and (ii) neither the Company nor the Guarantor has entered into, or on or after the date of this Agreement will enter into, any agreement that is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. (b) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the Company and the Guarantor have obtained the written consent of Holders of at least a majority in aggregate principal amount of the outstanding Registrable Securities affected by such amendment, modification, supplement, waiver or consent; provided that no amendment, modification, supplement, waiver or consent to any departure from the provisions of Section 9 hereof shall be effective as against any Holder unless consented to in writing by such Holder. (c) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, telex, telecopier or any courier guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such Holder to the Company by means of a notice given in accordance with the provisions of this Section 10(c), which address initially is, with respect to the Initial Purchasers, the address set forth in Section 14(b) of the Purchase Agreement; and (ii) if to the Company and the Guarantor, initially at the Guarantor's address set forth in Section 14(b) of the Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 10(c). All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if telecopied; and on the next Business Day if timely delivered to an air courier guaranteeing overnight delivery. Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee, at the address specified in the Indenture. (d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders; provided that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms of the Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire Registrable Securities in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all the terms of this Agreement, and by taking and holding such 22 Registrable Securities such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and such Person shall be entitled to receive the benefits hereof. No Initial Purchaser (in its capacity as an Initial Purchaser) shall have any liability or obligation to the Company or the Guarantor with respect to any failure by a Holder (other than such Initial Purchaser) to comply with, or any breach by any Holder (other than such Initial Purchaser) of, any of the obligations of such Holder under this Agreement. (e) Purchases and Sales of Securities. The Company and the Guarantor shall not, and shall use their best efforts to cause their affiliates (as defined in Rule 405 under the Securities Act) not to, purchase and then resell or otherwise transfer any Registrable Securities. (f) Third Party Beneficiaries. Each Holder shall be a third party beneficiary to the agreements made hereunder between the Company and the Guarantor, on the one hand, and the Initial Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights or the rights of other Holders hereunder. (g) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. (h) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (i) Governing Law; Jurisdiction; Service of Process. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to any principles of conflicts of laws that would result in the application of the laws of any other jurisdiction. Each of the Company and the Guarantor hereby submits to the non-exclusive jurisdiction of the federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated thereby. The Company has appointed CT Corporation System, 111 Eighth Avenue, New York, New York 10011 as its Authorized Agent (the "Authorized Agent") upon whom process may be served in any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated thereby that may be instituted in any federal or state court in the Borough of Manhattan in The City of New York by any Initial Purchaser or any other Holder or by any Person who controls any Initial Purchaser or any other Holder, and agrees that service of process upon such agent, and written notice of said service to the Company by the person serving the same to the address referred to in Section 10(c), shall be deemed in every respect effective service of process upon the Company in any such suit or proceeding. The Company further agrees to take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect for a period of ten years from the date of this Agreement. If for any reason CT Corporation System shall 23 cease to be available to act as such authorized agent for the Company, the Company agrees to designate a new agent in the State of New York on the terms and for the purpose of this Section 10(i) reasonably satisfactory to J.P. Morgan Securities Inc. Each of the Company and the Guarantor irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may have to laying of venue in respect of any action, suit or proceeding arising out of or in connection with this Agreement or the transactions contemplated hereby to which it is a party brought in any federal or state court located in the State of New York and hereby agrees not to plead or claim in any such court that any such action, suit or proceeding has been brought in an inconvenient forum. Each of the Company and the Guarantor also waives, to the fullest extent permitted by law, all right to trial by jury in any claim or counterclaim (whether based upon contract, tort or otherwise) in any way arising out of or relating to this Agreement. (j) Miscellaneous. This Agreement contains the entire agreement between the parties relating to the subject matter hereof and supersedes all oral statements and prior writings with respect thereto. Section headings herein are for convenience only and are not a part of this Agreement. If any term, provision, covenant or restriction contained in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable or against public policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated. The Company, the Guarantor and the Initial Purchasers shall endeavor in good faith negotiations to replace any invalid, void or unenforceable provision with a valid provision the economic effect of which comes as close as possible to that of the invalid, void or unenforceable provision. 24 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. SYSCO INTERNATIONAL, CO. By: /s/ Diane Day Sanders ----------------------------------------- Diane Day Sanders Treasurer SYSCO CORPORATION By: /s/ Diane Day Sanders ------------------------------------------ Diane Day Sanders Vice President and Treasurer Confirmed and accepted as of the date first above written: J.P. MORGAN SECURITIES INC. For itself and on behalf of the several Initial Purchasers By /s/ Maria Sramek --------------------------------- Name: Maria Sramek Title: Vice President 25 1501330 EX-4.1 4 syscos4802ex41.txt INDENTURE EXHIBIT 4.1 SYSCO INTERNATIONAL, CO., as Issuer SYSCO CORPORATION, as Guarantor AND WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee INDENTURE DATED AS OF MAY 23, 2002 SYSCO INTERNATIONAL, CO. SYSCO CORPORATION RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND INDENTURE, DATED AS OF MAY 23, 2002 --------------------
Section of Trust Indenture Section(s) of Act of 1939 Indenture Sect. 310 (a)(1)....................................................................... 6.9 (a)(2)....................................................................... 6.9 (a)(3)....................................................................... Not Applicable (a)(4)....................................................................... Not Applicable (a)(5)....................................................................... 6.9 (b).......................................................................... 6.9, 6.10 Sect. 311 (a).......................................................................... 6.6 (b).......................................................................... 6.6 (c).......................................................................... Not Applicable Sect. 312 (a).......................................................................... 4.1 (b).......................................................................... 4.1 (c).......................................................................... 4.1 Sect. 313 (a).......................................................................... 4.3 (b).......................................................................... 4.3 (c).......................................................................... 4.3 (d).......................................................................... 4.3 Sect. 314 (a).......................................................................... 3.5, 4.2 (b).......................................................................... Not Applicable (c)(1)....................................................................... 11.5 (c)(2)....................................................................... 11.5 (c)(3)....................................................................... Not Applicable (d).......................................................................... Not Applicable (e).......................................................................... 1.1 ("Officer Certificate"); 11.5 Sect. 315 (a).......................................................................... 6.1(b) (b).......................................................................... 5.11 (c).......................................................................... 6.1 (d).......................................................................... 6.1 (d)(1)....................................................................... 6.1 (d)(2)....................................................................... 6.1 (d)(3)....................................................................... 6.1 (e).......................................................................... 6.10 Sect. 316 (a)(1)(A).................................................................... 5.9 (a)(1)(B).................................................................... 5.10 (a)(2)....................................................................... Not Applicable (a)(last sentence)........................................................... 7.4 (b).......................................................................... 5.7 Sect. 317 (a)(1)....................................................................... 5.4 (a)(2)....................................................................... 5.2 (b).......................................................................... 3.4 Sect. 318 (a).......................................................................... 11.7 - ------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. i TABLE OF CONTENTS
PAGE ---- ARTICLE I DEFINITIONS........................................................................1 1.1 Certain Terms Defined..............................................................1 ARTICLE II SECURITIES.........................................................................9 2.1 Forms Generally....................................................................9 2.2 Form of Trustee's Certificate of Authentication...................................11 2.3 Amount Unlimited; Issuable in Series..............................................11 2.4 Authentication and Delivery of Securities.........................................14 2.5 Execution of Securities...........................................................16 2.6 Certificate of Authentication.....................................................17 2.7 Denomination and Date of Securities; Payments of Interest.........................17 2.8 Registration, Transfer and Exchange...............................................18 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.........................21 2.10 Cancellation of Securities; Destruction Thereof...................................22 2.11 Temporary Securities..............................................................22 2.12 CUSIP Numbers.....................................................................23 2.13 Certain Restrictive Legends.......................................................23 2.14 Transfer Restrictions and Other Transfer Provisions...............................25 ARTICLE III CERTAIN COVENANTS OF THE ISSUER AND THE GUARANTOR................................31 3.1 Payment of Principal and Interest.................................................31 3.2 Offices for Payments, etc.........................................................31 3.3 Appointment to Fill a Vacancy in Office of Trustee................................32 3.4 Paying Agents.....................................................................32 3.5 Written Statement to Trustee......................................................33 3.6 Luxembourg Publications...........................................................33 3.7 Certain Covenants Applicable to the Securities; Limitations on Liens..............33 3.8 Limitations on Sale and Lease-Back Transactions...................................35 3.9 Corporate Existence...............................................................35 3.10 Waiver of Stay, Extension or Usury Laws...........................................35 ARTICLE IV SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER, GUARANTOR AND THE TRUSTEE.......................................................................36 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of Securityholders...................................................................36 4.2 Reports by the Issuer and the Guarantor...........................................36 4.3 Reports by the Trustee............................................................36 ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT...................37 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default.............37 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt....................39 ii 5.3 Application of Proceeds...........................................................41 5.4 Suits for Enforcement.............................................................42 5.5 Restoration of Rights on Abandonment of Proceedings...............................42 5.6 Limitations on Suits by Securityholders...........................................42 5.7 Unconditional Right of Securityholder to Institute Certain Suits..................43 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default...........43 5.9 Control by Holders of Securities..................................................43 5.10 Waiver of Past Defaults...........................................................44 5.11 Trustee to Give Notice of Default, But May Withhold in Certain Circumstances......44 5.12 Right of Court to Require Filing of Undertaking to Pay Costs.....................45 ARTICLE VI CONCERNING THE TRUSTEE............................................................45 6.1 Duties and Responsibilities of the Trustee; Prior to Default......................45 6.2 Certain Rights of the Trustee.....................................................46 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof...............................................................48 6.4 Trustee and Agents May Hold Securities or Coupons, Collections, etc...............48 6.5 Moneys Held by Trustee............................................................48 6.6 Compensation and Indemnification of Trustee and Its Prior Claim...................48 6.7 Right of Trustee to Rely on Officers' Certificate, etc............................49 6.8 Indentures Not Creating Potential Conflicting Interests for the Trustee...........49 6.9 Persons Eligible for Appointment as Trustee.......................................49 6.10 Resignation and Removal; Appointment of Successor Trustee.........................49 6.11 Acceptance of Appointment by Successor Trustee....................................51 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee............52 6.13 Appointment of Authenticating Agent...............................................53 ARTICLE VII CONCERNING THE SECURITYHOLDERS...................................................54 7.1 Evidence of Action Taken by Securityholders.......................................54 7.2 Proof of Execution of Instruments and of Holding of Securities....................54 7.3 Holders to be Treated as Owners...................................................55 7.4 Securities Owned by Issuer Deemed Not Outstanding.................................56 7.5 Right of Revocation of Action Taken...............................................56 7.6 Record Date for Consents and Waivers..............................................56 ARTICLE VIII SUPPLEMENTAL INDENTURES.........................................................57 8.1 Supplemental Indentures Without Consent of Securityholders........................57 8.2 Supplemental Indentures With Consent of Securityholders...........................58 8.3 Effect of Supplemental Indenture..................................................60 8.4 Documents to Be Given to Trustee..................................................60 8.5 Notation on Securities in Respect of Supplemental Indentures......................60 ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE.........................................60 9.1 Limitations on Mergers and Consolidations of the Guarantor........................60 9.2 Successor Person Substituted......................................................61 9.3 Assignment by and Substitution of the Issuer......................................61 iii ARTICLE X SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS........................61 10.1 Satisfaction and Discharge of Indenture...........................................61 10.2 Application by Trustee of Funds Deposited for Payment of Securities...............66 10.3 Repayment of Moneys Held by Paying Agent..........................................66 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years.........66 10.5 Indemnity for U.S. Government Obligations.........................................66 ARTICLE XI MISCELLANEOUS PROVISIONS..........................................................67 11.1 Incorporators, Stockholders, Officers, Directors and Employees of Issuer and Guarantor Exempt from Individual Liability........................................67 11.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities and Coupons............................................................67 11.3 Successors and Assigns of Issuer and Guarantor Bound by Indenture...............67 11.4 Notices and Demands on Issuer, Guarantor, Trustee and Holders of Securities and Coupons.......................................................................67 11.5 Officers' Certificates and Opinions of Counsel; Statements to Be Contained Therein...........................................................................68 11.6 Payments Due on Saturdays, Sundays and Holidays...................................69 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act...................69 11.8 New York Law to Govern; Jurisdiction; Service of Process..........................69 11.9 Counterparts......................................................................70 11.10 Effect of Headings................................................................70 11.11 Securities in a Foreign Currency or in ECU........................................70 11.12 Judgment Currency.................................................................71 ARTICLE XII REDEMPTION OF SECURITIES AND SINKING FUNDS.......................................71 12.1 Applicability of Article..........................................................71 12.2 Notice of Redemption; Partial Redemptions.........................................71 12.3 Payment of Securities Called for Redemption.......................................73 12.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption.....74 12.5 Mandatory and Optional Sinking Funds..............................................74 ARTICLE XIII GUARANTEES......................................................................76 13.1 Guarantees........................................................................76 13.2 Proceedings Against the Guarantor.................................................78 13.3 Guarantees for Benefit of Holders.................................................78 13.4 Severability......................................................................79
EXHIBITS Exhibit A - Form of Global Security Exhibit B - Form of Certificate of Beneficial Ownership Exhibit C - Form of Regulation S Certificate Exhibit D - Form of Institutional Accredited Investor Certificate iv THIS INDENTURE, dated as of May 23, 2002 between SYSCO INTERNATIONAL, CO., an unlimited liability company organized under the laws of the Province of Nova Scotia, Canada (the "Issuer"), SYSCO CORPORATION, a Delaware corporation (the "Guarantor"), and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as trustee (the "Trustee"). W I T N E S S E T H: WHEREAS, the Issuer has duly authorized the issue from time to time of its notes or other evidences of indebtedness to be issued in one or more series (the "Securities") up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of this Indenture; WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to provide, among other things, for the authentication, delivery and administration of the Securities; WHEREAS, the Guarantor has duly authorized the execution and delivery of this Indenture to provide for the Guarantees; and WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according to its terms have been done; NOW, THEREFORE: In consideration of the premises and the purchases of the Securities by the holders thereof, the Issuer, the Guarantor and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective holders from time to time of the Securities and of the coupons, if any, appertaining thereto as follows: ARTICLE I DEFINITIONS 1.1 Certain Terms Defined. The following terms (except as otherwise expressly provided or unless the context otherwise clearly requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section. All other terms used in this Indenture that are defined in the Trust Indenture Act or are defined therein by reference to the Securities Act (except as herein otherwise expressly provided or unless the context otherwise requires) shall have the meanings assigned to such terms in the Trust Indenture Act and in the Securities Act as in force at the date of this Indenture. For the purpose of any computation hereunder, all accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with generally accepted accounting principles, and the term "generally accepted accounting principles" means such accounting principles as are generally accepted in the United States at the time of such computation. The words "herein," "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. Whenever the context so requires, the singular number includes the plural and vice versa, and a reference to one gender includes the other gender and the neuter. "Agent Members" has the meaning given such term in Section 2.8. "Attributable Debt" with regard to a Sale and Lease-Back Transaction with respect to any property means, at the time of determination, the lesser of: (a) the fair market value of such property (as determined in good faith by the Board of Directors of the Guarantor); or (b) the present value of the total net amount of rent required to be paid under such lease during the remaining term thereof (including any period for which such lease has been extended), discounted at the rate of interest set forth or implicit in the terms of such lease (or, if not practicable to determine such rate, the Composite Rate) compounded semi-annually. In the case of any lease which is terminable by the lessee upon the payment of a penalty, such net amount shall be the lesser of the net amount determined assuming termination upon the first date such lease may be terminated (in which case the net amount shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated) or the net amount determined assuming no such termination. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, "control" (including, with correlative meanings, the terms "controlling," "controlled by" and "under common control with"), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. "Authenticating Agent" shall have the meaning set forth in Section 6.13. "Authorized Newspaper" means a newspaper (which, in the case of The City of New York, will, if practicable, be The Wall Street Journal (Eastern Edition), in the case of the United Kingdom, will, if practicable, be The Financial Times (London Edition) and, in the case of Luxembourg, will, if practicable, be The Luxemburger Wort) published in an official language of the country of publication customarily published at least once a day for at least five days in each calendar week and of general circulation in The City of New York, the United Kingdom or in Luxembourg, as applicable. If it shall be impractical in the opinion of the Trustee to make any publication of any notice required hereby in an Authorized Newspaper, any publication or other notice in lieu thereof which is made or given with the approval of the Trustee shall constitute a sufficient publication of such notice. "Board of Directors," when used with reference to the Issuer or the Guarantor, means the Board of Directors of the Issuer or the Guarantor, as the case may be, or any committee thereof duly authorized, with respect to any particular matter, to act by or on behalf of the Board of Directors of the Issuer or the Guarantor, as the case may be. "Board Resolution," when used with reference to the Issuer or the Guarantor, means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Issuer or the Guarantor, as the case may be, to have 2 been duly adopted by the Board of Directors of the Issuer or the Guarantor, as the case may be, and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Business Day" means, with respect to any Security, a day that in the city of the principal Corporate Trust Office of the Trustee and in the city (or in any of the cities, if more than one) in which amounts are payable, as specified in the form of such Security, is neither a Saturday, Sunday or a legal holiday nor a day on which banking institutions are authorized or required by law or regulation to close. "Clearstream" means Clearstream Banking, societe anonyme, and its successors. "Commission" means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the execution and delivery of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date. "Composite Rate" means, at any time, the rate of interest, per annum, compounded semiannually, equal to the sum of the rates of interest borne by each of the Securities Outstanding hereunder (as specified on the face of each of the Securities, provided, that, in the case of the Securities with variable rates of interest, the interest rate to be used in calculating the Composite Rate shall be the interest rate applicable to such Securities at the beginning of the year in which the Composite Rate is being determined and, provided, further, that, in the case of Securities which do not bear interest, the interest rate to be used in calculating the Composite Rate shall be a rate equal to the yield to maturity on such Securities, calculated at the time of issuance of such Securities) multiplied, in the case of each of the Securities, by the percentage of the aggregate principal amount of all of the Securities then Outstanding represented by such Security. For the purposes of this calculation, the aggregate principal amounts of Outstanding Securities that are denominated in a foreign currency, shall be calculated in the manner set forth in Section 11.11. "Consolidated Net Tangible Assets" means, as of any particular time, the aggregate amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom: (a) all current liabilities, except for current maturities of long-term debt and of obligations under capital leases; and (b) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other intangible assets, to the extent included in said aggregate amount of assets, all as set forth on the most recent consolidated balance sheet of the Guarantor and its consolidated subsidiaries and computed in accordance with generally accepted accounting principles. "Corporate Trust Office" means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time, be principally administered which office is, at the date as of which this Indenture is dated, located in Houston, Texas. Where the terms of this Indenture refer to performance in New York, New York, the address of such office are as follows: 3 Wachovia Bank 12 East 49th Street, 37th Floor New York, New York 10017 "Coupon" means any interest coupon appertaining to a Security. "Depositary" means, with respect to the Securities of any series issuable or issued in the form of one or more Registered Global Securities, the Person designated as Depositary by the Issuer pursuant to Section 2.3 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Depositary" shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, "Depositary" as used with respect to the Securities of any such series shall mean the Depositary with respect to the Registered Global Securities of that series. "Dollar" or "$" means the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts. "ECU" means the European Currency Unit as defined and revised from time to time by the Council of European Communities. "Euroclear" means Euroclear Bank S.A./N.V., and its successors or assigns, as operator of the Euroclear System. "Event of Default" means any event or condition specified as such in Section 5.1. "Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended. "Exchange Note" shall have the meaning set forth in Section 2.1. "Foreign Currency" means a currency issued by the government of a country other than the United States of America. "Guarantees" shall mean the guarantees of the Issuer's obligations under the Securities by the Guarantor as provided in Article XIII. "Guarantor" means the Person named as the "Guarantor" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Guarantor" shall mean such successor Person. "Holder," "Holder of Securities," "Securityholder" or other similar terms mean (a) in the case of any Registered Security, the person in whose name such Security is registered in the security register kept by the Issuer for that purpose in accordance with the terms hereof, and (b) in the case of any Unregistered Security, the bearer of such Security, or any Coupon appertaining thereto, as the case may be. "Indebtedness" shall have the meaning set forth in Section 5.1. 4 "Indenture" means this instrument as originally executed and delivered or, if amended or supplemented as herein provided, as so amended or supplemented or both, and shall include the forms and terms of particular series of Securities established as contemplated hereunder. "Initial Notes" means the first series of Securities issued as of the date of this Indenture. "Initial Purchasers" means the initial purchasers named in the Purchase Agreement dated May 20, 2002 relating to the sale of the Initial Notes. "Institutional Accredited Investor" means an institution that is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act. "interest," whenever used with reference to the Securities or any Security or portion thereof, shall be deemed to include interest payable after maturity and any additional amount payable in connection with those Securities or that Security or portion thereof, as the case may be, as established with respect to those Securities pursuant to the provisions of Section 2.3. "Issuer" means Sysco International, Co., an unlimited liability company organized under the laws of the Province of Nova Scotia, Canada and, subject to Article IX, its successors and assigns. "Issuer Order" means a written statement, request or order of the Issuer signed in its name by two officers of the Issuer, and, in the case of an Issuer Order pursuant to Section 2.4, 8.1 or 8.2, signed in the name of the Guarantor by one officer of the Guarantor, and delivered to the Trustee. "Judgment Currency" shall have the meaning set forth in Section 11.12. "Non-U.S. Person" means a Person who is not a U.S. person, as defined in Regulation S. "Officer" means, with respect to any Person, the Chairman or Vice Chairman of the Board of Directors, the President, any Vice President or the Treasurer of such Person. "Officers' Certificate" means a certificate signed by two officers of the Issuer, and, in the case of an Officers' Certificate referred to in Section 2.1, 2.3, 2.4 or 8.4, signed by one Officer of the Guarantor, and delivered to the Trustee. Each such certificate shall comply with Section 314 of the Trust Indenture Act and include the statements provided for in Section 11.5. "Offshore Global Security" means a Temporary Offshore Global Security or a Permanent Offshore Global Security. 5 "Opinion of Counsel" means an opinion in writing signed by the General Counsel of the Issuer or the Guarantor or by such other legal counsel who may be an employee of or counsel to the Issuer and who shall be satisfactory to the Trustee. Each such opinion shall comply with section 314 of the Trust Indenture Act and include the statements provided for in Section 11.5. "Original Issue Date" of any Security (or portion thereof) means the earlier of (a) the date of such Security or (b) the date of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution. "Original Issue Discount Security" means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity thereat pursuant to Section 5.1. "Outstanding" when used with reference to Securities, shall, subject to the provisions of Section 7.4, mean, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation; (b) Securities, or portions thereof, for the payment or redemption of which moneys or U.S. Government Obligations in the necessary amount (as provided for in Section 10.1) shall have been deposited in trust with the Trustee or with any paying agent (other than the Issuer) or shall have been set aside, segregated and held in trust by the Issuer for the Holders of such Securities (if the Issuer shall act as its own paying agent), provided that if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as herein provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities which shall have been paid or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.9 (except with respect to any such Security as to which proof satisfactory to the Trustee is presented that such Security is held by a person in whose hands such Security is a legal, valid and binding obligation of the Issuer). In determining whether the Holders of the requisite principal amount of Outstanding Securities of any or all series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 5.1. "Periodic Offering" means an offering of Securities of a series from time to time, the specific terms of which Securities, including, without limitation, the rate or rates of interest, if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any, with respect thereto, are to be determined by the Issuer or its agents upon the issuance of such Securities. 6 "Permanent Offshore Global Security" shall have the meaning set forth in Section 2.1. "Person" means any individual, corporation, limited liability company, unlimited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "principal" whenever used with reference to the Securities or any Security or any portion thereof, shall be deemed to include "and premium, if any," unless otherwise indicated by the context. "Principal Property" means the land, improvements, buildings and fixtures (including any leasehold interest therein) constituting the principal corporate office, any manufacturing plant, any manufacturing, distribution or research facility or self-serve center (in each case, whether now owned or hereafter acquired) which is owned or leased by the Guarantor or any Subsidiary and is located within the United States of America or Canada unless the Board of Directors of the Guarantor has determined in good faith that such office, plant, facility or center is not of material importance to the total business conducted by the Guarantor and its Subsidiaries taken as a whole. With respect to any Sale and Lease-Back Transaction or series of related Sale and Lease-Back Transactions, the determination of whether any property is a Principal Property shall be determined by reference to all properties affected by such transaction or series of transactions. "Private Placement Legend" shall have the meaning set forth in Section 2.13. "QIB" or "Qualified Institutional Buyer" means a "qualified institutional buyer," as that term is defined in Rule 144A under the Securities Act. "record date" shall have the meaning set forth in Section 2.7. "Registered Global Security" means a Security, including any Offshore Global Security, evidencing all or a part of a series of Registered Securities, issued to the Depositary for such series in accordance with Section 2.4, and bearing the legend prescribed in Section 2.4. "Registered Security" means any Security registered on the Security register of the Issuer. "Registration Rights Agreement" means the Registration Rights Agreement dated as of May 23, 2002 among the Issuer, the Guarantor and the Initial Purchasers party thereto, as such agreement may be amended from time to time. "Regulation S" means Regulation S under the Securities Act. "Resale Restriction Termination Date" means, with respect to any Security, the date that is two years (or such other period as may hereafter be provided under Rule 144(k) under the Securities Act or any successor provision thereto as permitting the resale by non-affiliates of Restricted Securities without restriction) after the later of the original issue date in respect of such 7 Security or the last date on which the Issuer or any Affiliate of the Issuer was the owner of such Security. "Required Currency" shall have the meaning set forth in Section 11.12. "Responsible Officer" when used with respect to the Trustee means the chairman of the board of directors, any vice chairman of the board of directors, the chairman of the trust committee, the chairman of the executive committee, any vice chairman of the executive committee, the president, any vice president, (whether or not designated by numbers or words added before or after the title "vice president"), the cashier, the secretary, the treasurer, any trust officer, any assistant trust officer, any assistant vice president, any assistant cashier, any assistant secretary, any assistant treasurer, or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject. "Restricted Period" means the 40-day distribution compliance period as defined in Regulation S which, in the case of the Initial Notes, ends July 2, 2002. "Restricted Security" has the meaning assigned to such term in Rule 144(a)(3) under the Securities Act; provided, however, that the Trustee shall be entitled to receive, at its request, and conclusively rely on an Opinion of Counsel with respect to whether any Security constitutes a Restricted Security. "Rule 144A Security" means Securities purchased from the Issuer by a dealer for resale to investors pursuant to Rule 144A of the Securities Act. "Sale and Lease-Back Transaction" means any arrangement with any Person providing for the leasing by the Guarantor or any Subsidiary of any Principal Property which property has been or is to be sold or transferred by the Guarantor or such Subsidiary to such Person. "Securities Act" means the U.S. Securities Act of 1933, as amended. "Security" or "Securities" has the meaning stated in the first recital of this Indenture, or, as the case may be, Securities that have been authenticated and delivered under this Indenture. "Subsidiary" means any corporation of which outstanding voting stock having the power to elect a majority of the board of directors of such corporation is at the time owned, directly or indirectly, by the Guarantor, or by one or more other Subsidiaries, or by the Guarantor and one or more other Subsidiaries. For the purposes of this definition, "voting stock" means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. "Temporary Offshore Global Security" shall have the meaning set forth in Section 2.1. 8 "Trust Indenture Act" (except as otherwise provided in Sections 8.1 and 8.2) means the U.S. Trust Indenture Act of 1939, as amended. "Trustee" means the Person identified as "Trustee" in the first paragraph hereof and, subject to the provisions of Article VI, shall also include any agent of such trustee and any successor trustee. "Trustee" shall also mean or include each Person who is then a trustee hereunder and if at any time there is more than one such Person, "Trustee" as used with respect to the Securities of any series shall mean the trustee with respect to the Securities of such series. "Unregistered Security" means any Security other than a Registered Security. "U.S. Government Obligations" shall have the meaning set forth in Section 10.1(a). "Yield to Maturity" means the yield to maturity (i) on a series of Securities or (ii) if the Securities of a series are issuable from time to time, on a Security of such series, calculated at the time of issuance of such series in the case of clause (i) or at the time of issuance of such Security of such series in the case of clause (ii), or, if applicable, at the most recent redetermination of interest on such series or on such Security, and calculated in accordance with the constant interest method or such other accepted financial practice as is specified in the terms of such Security. ARTICLE II SECURITIES 2.1 Forms Generally. The Securities of each series and the Coupons, if any, to be attached thereto shall be substantially in such form (not inconsistent with this Indenture) as shall be established by or pursuant to one or more Board Resolutions of the Issuer (and to the extent established pursuant to rather than set forth in a Board Resolution of the Issuer, in an Officers' Certificate detailing such establishment) or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto, or with any rules of any securities exchange or to conform to general usage, all as may be determined by the officers executing such Securities and Coupons, if any, as evidenced by their execution of such Securities and Coupons. The definitive Securities and Coupons, if any, shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities and Coupons, if any, as evidenced by their execution of such Securities and Coupons, if any. Rule 144A Securities shall (i) be issued initially in the form of one or more Registered Global Securities in substantially the form set forth in Exhibit A, (ii) contain the legends set forth in Section 2.13 and (iii) be registered in the name of the nominee of the Depositary, deposited with the Trustee, as custodian for the Depositary or its nominee, duly executed by the Issuer and the Guarantor and authenticated by the Trustee as provided in this Article. 9 Securities offered and sold in offshore transactions in reliance on Regulation S under the Securities Act shall (i) be issued initially in the form of one or more temporary Registered Global Securities in substantially the form set forth in Exhibit A, (ii) contain each of the legends set forth in Section 2.13 and (iii) be registered in the name of the nominee of the Depositary, deposited with the Trustee, as custodian for the Depositary or its nominee, duly executed by the Issuer and the Guarantor and authenticated by the Trustee as hereinafter provided (a "Temporary Offshore Global Security"). At any time following termination of the Restricted Period, upon receipt by the Trustee and the Issuer of a certificate substantially in the form set forth in Exhibit B hereto, one or more permanent Registered Global Securities substantially in the form of Exhibit A hereto and containing the legend set forth in Section 2.13(c) (a "Permanent Offshore Global Security"), duly executed by the Issuer and the Guarantor and authenticated by the Trustee as hereinafter provided shall be deposited with the Trustee, as custodian for the Depositary, and the registrar shall reflect on its books and records the date and a decrease in the principal amount of the Temporary Offshore Global Security in an amount equal to the principal amount of the beneficial interest in the Temporary Offshore Global Security transferred. Prior to the termination of the Restricted Period and receipt of the certificate referred to above, beneficial interests in a Temporary Offshore Global Security may be held only through Euroclear or Clearstream. The aggregate principal amount of any Offshore Global Security may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the nominee of the Depositary for the Offshore Global Security. No Permanent Offshore Global Securities may be issued until expiration of the applicable Restricted Period and receipt by the Issuer and the Trustee from the (x) proposed transferor of a certificate substantially in the form set forth in Exhibit C or (y) holder of a beneficial interest being exchanged, of certification that such holder is a non-U.S. person (within the meaning of Regulation S under the Securities Act) or a U.S. person who acquired such interest in a transaction exempt from the registration requirements of the Securities Act. Securities offered and sold in reliance on any exemption under the Securities Act other than Regulation S and Rule 144A thereunder shall be issued in the form of permanent certificated Securities substantially in the form set forth in Exhibit A and shall contain the private placement legend as set forth in Section 2.13. Any debt securities of the Issuer issued pursuant to this Indenture in exchange for, and in an aggregate principal amount at stated maturity equal to, the Initial Notes, in compliance with the terms of the Registration Rights Agreement and containing terms substantially identical to the Initial Notes (except that (i) such Securities shall not contain terms with respect to transfer restrictions and shall be registered under the Securities Act and (ii) certain provisions relating to liquidated damages thereon shall be eliminated) (each, an "Exchange Note") shall be issued substantially in the form set forth in Exhibit A and in the form of one or more Registered Global Securities. 10 2.2 Form of Trustee's Certificate of Authentication. The Trustee's certificate of authentication on all Securities shall be in substantially the following form: "This is one of the Securities referred to in the within-mentioned Indenture. WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee Dated: By: --------------------- --------------------------------------------- Authorized Signatory" If at any time there shall be an Authenticating Agent appointed with respect to any series of Securities, then the Authenticating Agent's certificate of authentication to be borne by the Securities of each such series shall be substantially as follows: "This is one of the Securities referred to in the within-mentioned Indenture. WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee By: ---------------------------------------------- Authorized Officer" 2.3 Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series and each such series shall rank equally and pari passu with all other unsecured and unsubordinated debt of the Issuer. There shall be established by or pursuant to one or more Board Resolutions of the Issuer (and to the extent established pursuant to rather than set forth in a Board Resolution of the Issuer, in an Officers' Certificate detailing such establishment) or in one or more indentures supplemental hereto, prior to the initial issuance of Securities of any series, (1) the designation of the Securities of the series, which shall distinguish the Securities of the series from the Securities of all other series; (2) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3); 11 (3) if other than Dollars, the coin or currency or units thereof in which the Securities of that series are denominated (including, but not limited to, any Foreign Currency or ECU); (4) the date or dates on which the principal of the Securities of the series is payable; (5) the rate or rates at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, on which such interest shall be payable and (in the case of Registered Securities) on which a record shall be taken for the determination of Holders to whom interest is payable and/or the method by which such rate or rates or date or dates shall be determined; (6) the method by which amounts payable in respect of principal, premium, if any, or interest, if any, on such Securities may be calculated, and any currencies, commodities or indices, or value, rate or price, relevant to such calculation; (7) the place or places where the principal of and any interest on Securities of the series shall be payable (if other than as provided in Section 3.2); (8) the right, if any, of the Issuer to redeem or cause to be redeemed Securities of the series, in whole or in part, at its option and the period or periods within which, the price or prices (and/or method by which such price or prices shall be determined) at which, and any terms and conditions upon which, and the manner in which (if different from the provision of Article XII hereof) Securities of the series may be so redeemed, pursuant to any sinking fund or otherwise; (9) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the series, in whole or in part, pursuant to any mandatory redemption, sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices (and/or the method by which such price or prices shall be determined) at which, the period or periods within which, and any terms and conditions upon which, and the manner in which (if different from the provisions of Article XII hereof) Securities of the series shall be redeemed, purchased or repaid pursuant to such obligation; (10) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be issuable; (11) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof; (12) if other than the coin or currency or units thereof in which the Securities of that series are denominated, the coin or currency or units thereof in which payment of the principal of or interest on the Securities of such series shall be payable; 12 (13) if the principal of or interest on the Securities of such series are to be payable, at the election of the Issuer or a Holder thereof, in a coin or currency or units thereof other than that in which the Securities are denominated, the period or periods within which, and the terms and conditions upon which, such election may be made; (14) if the amount of payments of principal of and/or interest on the Securities of the series may be determined with reference to the value or price of any one or more commodities, currencies or indices, the manner in which such amounts will be determined; (15) whether the Securities of the series will be issuable as Registered Securities (and if so, whether such Securities will be issuable as Registered Global Securities) or Unregistered Securities (with or without Coupons), or any combination of the foregoing, any restrictions applicable to the offer, sale or delivery of Unregistered Securities or the payment of interest thereon and, if other than as provided in Section 2.8, the terms upon which Unregistered Securities of any series may be exchanged for Registered Securities of such series and vice versa; (16) whether and under what circumstances the Issuer will pay additional amounts on the Securities of the series in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Issuer will have the option to redeem such Securities rather than pay such additional amounts; (17) if the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates, documents or conditions; (18) any trustees, depositaries, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the Securities of such series; (19) any other events of default or covenants not set forth herein with respect to the Securities of such series; (20) the terms and conditions upon which and the manner in which Securities of the series may be defeased or discharged if different from the provisions set forth under the defeasance provision herein; (21) offices at which presentations and demands may be made and notices may be served, if other than the Corporate Trust Office of the Trustee; 13 (22) if the Securities of the series are to be offered and sold in reliance on Rule 144A under the Securities Act and entitled to the benefit of Section 4.2(b); and (23) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture). All Securities of any one series and Coupons, if any, appertaining thereto, shall be substantially identical, except in the case of Registered Securities as to denomination and except as may otherwise be provided by or pursuant to the Board Resolution or Officers' Certificate referred to above or as set forth in any such indenture supplemental hereto. All Securities of any one series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to such Board Resolution, such Officers' Certificate or in any such indenture supplemental hereto. 2.4 Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer and the Guarantor, to the Trustee for authentication together with the applicable documents referred to below in this Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent, which instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (b), (c) and (d) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, unless and until such documents have been superseded or revoked: (a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, provided that, with respect to Securities of a series subject to a Periodic Offering, (i) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (ii) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (iii) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (iv) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which oral instructions shall be promptly confirmed in writing; 14 (b) any Board Resolution, Officers' Certificate and/or executed supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established; (c) an Officers' Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and (d) at the option of the Issuer, either an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on an Opinion of Counsel, substantially to the effect that: (1) the forms and terms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture; (2) when the Securities and Coupons, if any, have been executed by the Issuer and the Guarantor and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and paid for by the purchasers thereof, they will be entitled to the benefits of this Indenture, will have been duly issued under this Indenture and will be valid and binding obligations of the Issuer, and the related Guarantees will be valid and binding obligations of the Guarantor, enforceable against the Issuer and the Guarantor, respectively, in accordance with their respective terms; and (3) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of the certificate of incorporation or bylaws of the Issuer or any agreement or other instrument binding upon the Issuer or, to the best of such counsel's knowledge, but without any independent investigation, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Such counsel may rely, as to all matters except those governed by the Federal law of the United States, upon opinions of 15 other counsel (copies of which shall be delivered to the Trustee), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer and the Guarantor shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all or a portion of the Securities of such series issued and not yet canceled or exchanged, (ii) shall be registered in the name of the Depositary for such Registered Global Security or Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary's instructions and (iv) shall bear a legend substantially to the following effect: 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. Each Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Exchange Act and any other applicable law or regulation. 2.5 Execution of Securities. The Securities and, if applicable, each Coupon appertaining thereto shall be signed on behalf of the Issuer by an officer of the Issuer and on behalf of the Guarantor, by an officer of the Guarantor, under their respective corporate seals (except in the case of Coupons) which may, but need not, be attested. Such signatures may be the manual or facsimile signatures of the present or any future such officers. The seal may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Securities. Typographical and other minor errors or defects in 16 any such reproduction of the seal or any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee. In case any officer of the Issuer or of the Guarantor, as the case may be, who shall have signed any of the Securities or Coupons, if any, shall cease to be such officer before the Security or Coupon so signed (or the Security to which the Coupon so signed appertains) shall be authenticated and delivered by the Trustee or disposed of by the Issuer, such Security or Coupon nevertheless may be authenticated and delivered or disposed of as though the person who signed such Security or Coupon had not ceased to be such officer of the Issuer or of the Guarantor, as the case may be; and any Security or Coupon may be signed on behalf of the Issuer or of the Guarantor, as the case may be, by such persons as, at the actual date of the execution of such Security or Coupon, shall be the proper officers of the Issuer or of the Guarantor, as the case may be, although at the date of the execution and delivery of this Indenture any such person was not such an officer. 2.6 Certificate of Authentication. Except as provided in Section 6.13 hereof, only such Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, executed by the Trustee by the manual signature of one of its authorized officers, shall be entitled to the benefits of this Indenture and the related Guarantees or be valid or obligatory for any purpose. No Coupon shall be entitled to the benefits of this Indenture and the related Guarantees or shall be valid and obligatory for any purpose until the certificate of authentication on the Security to which such Coupon appertains shall have been duly executed by the Trustee. The execution of such certificate by the Trustee upon any Security executed by the Issuer and by the Guarantor shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture and the related Guarantees. 2.7 Denomination and Date of Securities; Payments of Interest. The Securities of each series shall be issuable as Registered Securities or Unregistered Securities in denominations as shall be specified pursuant to Section 2.3 or, if not so established, in denominations of $1,000 and any integral multiple thereof. The Securities of each series shall be numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the officers of the Issuer executing the same may determine with the approval of the Trustee, as evidenced by the execution and authentication thereof. Each Registered Security shall be dated the date of its authentication. Each Unregistered Security shall be dated as specified pursuant to Section 2.3. The Securities of each series shall bear interest, if any, from the date, and such interest shall be payable on the dates, established as contemplated by Section 2.3. The Person in whose name any Registered Security of any series is registered at the close of business on any record date applicable to such series with respect to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest payment date notwithstanding any transfer or exchange of such Registered Security subsequent to the record date and prior to such interest payment date, except in the case of any such transfer or exchange if and to the extent the Issuer shall default in the payment of the interest due on such interest payment date for such series, in which case such defaulted interest shall be paid by the Issuer or the Guarantor to the Persons in whose names Outstanding Registered Securities for such series are registered at the close of business on a subsequent record date (which shall be not less than five Business Days prior to the date of payment of 17 such defaulted interest) established by notice given by mail by or on behalf of the Issuer or the Guarantor to the Holders of Registered Securities not less than 15 days preceding such subsequent record date. The term "record date" as used with respect to any interest payment date (except a date for payment of defaulted interest) for the Securities of any series shall mean the date specified as such in the terms of the Registered Securities of such series, or, if no such date is so specified, if such interest payment date is the first day of a calendar month, the fifteenth day of the next preceding calendar month or, if such interest payment date is the fifteenth day of a calendar month, the first day of such calendar month, whether or not such record date is a Business Day. 2.8 Registration, Transfer and Exchange. (a) General Procedures. The Issuer will keep at each office or agency to be maintained for the purpose as provided in Section 3.2 for each series of Securities a register or registers in which, subject to such reasonable regulations as it may prescribe, it will provide for the registration of Registered Securities of such series and the registration of transfer of Registered Securities of such series. Such register shall be in written form in the English language or in any other form capable of being converted into such form within a reasonable time. At all reasonable times such register or registers shall be open for inspection by the Trustee. Upon due presentation for registration of transfer of any Registered Security of any series at any such office or agency to be maintained for the purpose as provided in Section 3.2, the Issuer and the Guarantor shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Registered Security or Registered Securities of the same series, of like tenor, in authorized denominations for a like aggregate principal amount. Unregistered Securities (except for any temporary global Unregistered Securities) and Coupons (except for Coupons attached to any temporary global Unregistered Securities) shall be transferable by delivery. At the option of the Holder thereof, any Security may be exchanged as provided below for a Security of the same series, in authorized denominations, of like tenor and in an equal aggregate principal amount upon surrender of such Security at an office or agency to be maintained for such purpose in accordance with Section 3.2 or as specified pursuant to Section 2.3, and the Issuer and the Guarantor shall execute, and the Trustee shall authenticate and deliver in exchange therefor, the Security or Securities which the Holder making the exchange shall be entitled to receive bearing a number or other distinguishing symbol not contemporaneously outstanding. Subject to the foregoing, (i) a Registered Security of any series (other than a Registered Global Security, except as set forth below) may be exchanged for a Registered Security or Securities of the same series; (ii) if the Securities of any Series are issued in both registered and unregistered form, except as otherwise specified pursuant to Section 2.3, an Unregistered Security may be exchanged for a Registered Security or Securities of the same series, but a Registered Security may not be exchanged for an Unregistered Security or Securities; and (iii) if Unregistered 18 Securities of any series are issued in more than one authorized denomination, except as otherwise specified pursuant to Section 2.3, any such Unregistered Security may be exchanged for an Unregistered Security or Securities of the same series; provided that in connection with the surrender of any Unregistered Securities that have Coupons attached, all unmatured Coupons and all matured Coupons in default must be surrendered with the Securities being exchanged. All Registered Securities presented for registration of transfer, exchange, redemption, repurchase or payment shall (if so required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder or his attorney duly authorized in writing. The Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any exchange or registration of transfer of Securities. No service charge shall be made for any such transaction. The Issuer shall not be required to exchange or register a transfer of (a) any Securities of any series for a period of 15 days next preceding the first mailing of notice of redemption of Securities of such series to be redeemed or (b) any Securities selected, called or being called for redemption, in whole or in part, except, in the case of any Security to be redeemed in part, the portion thereof not so to be redeemed. (b) Book-entry Provisions for Global Securities. Notwithstanding any other provision of this Section 2.8, unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Registered Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary. Neither the Issuer, the Guarantor, the Trustee, nor any of their agents shall have any responsibility or liability for any aspect of the records relating to, or payments made on account of beneficial ownership interests of, a Registered Global Security, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Members of, or participants in, the Depositary ("Agent Members") shall have no rights under this Indenture with respect to any Registered Global Security, and the Depositary may be treated by the Issuer, the Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee as the absolute owner of such Registered Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Guarantor, the Trustee or any agent of the Issuer, the Guarantor or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a beneficial owner of any Security. The Holder of a Registered Global Security may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action which 19 a Holder is entitled to take under this Indenture or the Securities. Interests of beneficial owners in a Registered Global Security may be transferred in accordance with the applicable rules and procedures of the Depositary and the provisions of this Section. If at any time the Depositary for any Registered Securities of a series represented by one or more Registered Global Securities notifies the Issuer that it is unwilling or unable to continue as Depositary for such Registered Securities or if at any time the Depositary for such Registered Securities shall no longer be eligible under Section 2.4, the Issuer shall appoint a successor Depositary eligible under Section 2.4 with respect to such Registered Securities. If a successor Depositary eligible under Section 2.4 for such Registered Securities is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such ineligibility, the Issuer's election pursuant to Section 2.3 that such Registered Securities be represented by one or more Registered Global Securities shall no longer be effective and the Issuer and the Guarantor will execute, and the Trustee, upon receipt of an Officers' Certificate for the authentication and delivery of definitive Securities of such series, will authenticate and deliver, Securities of such series in definitive registered form without Coupons, in any authorized denominations, of like tenor, in an aggregate principal amount equal to the principal amount of the Registered Global Security or Securities representing such Registered Securities in exchange for such Registered Global Security or Securities. The Issuer may at any time and in its sole discretion determine that the Registered Securities of any series issued in the form of one or more Registered Global Securities shall no longer be represented by a Registered Global Security or Securities. In such event the Issuer and the Guarantor will execute, and the Trustee, upon receipt of an Officers' Certificate for the authentication and delivery of definitive Securities of such series, will authenticate and deliver, Securities of such series in definitive registered form without Coupons, in any authorized denominations, of like tenor, in an aggregate principal amount equal to the principal amount of the Registered Global Security or Securities representing such Registered Securities, in exchange for such Registered Global Security or Securities. If specified by the Issuer pursuant to Section 2.3 with respect to Securities represented by a Registered Global Security, the Depositary for such Registered Global Security may surrender such Registered Global Security in exchange in whole or in part for Securities of the same series in definitive registered form on such terms as are acceptable to the Issuer and such Depositary. Thereupon, the Issuer and the Guarantor shall execute, and the Trustee shall authenticate and deliver, without service charge, (i) to the Person specified by such Depositary a new Registered Security or Securities of the same series, of any authorized denominations as requested by such Person, of like tenor, in an aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Registered Global Security; and (ii) to such Depositary a new Registered Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Registered Global Security and the aggregate principal amount of Registered Securities authenticated and delivered pursuant to clause (i) above. 20 Upon the exchange of a Registered Global Security for Securities in definitive registered form without coupons, of like tenor, in authorized denominations, such Registered Global Security shall be canceled by the Trustee or an agent of the Issuer or the Trustee. Securities in definitive registered form without coupons issued in exchange for a Registered Global Security pursuant to this Section 2.8 shall be registered in such names and in such authorized denominations as the Depositary for such Registered Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee or such agent shall deliver such Securities to or as directed by the Persons in whose names such Securities are so registered. All Securities issued upon any transfer or exchange of Securities shall be valid obligations of the Issuer and, in the case of the Guarantees, of the Guarantor, evidencing the same debt, and entitled to the same benefits under this Indenture and the Guarantees, as the Securities surrendered upon such transfer or exchange. Notwithstanding anything herein or in the terms of any series of Securities to the contrary, none of the Issuer, the Trustee or any agent of the Issuer or the Trustee (any of which, other than the Issuer, shall rely on an Officers' Certificate and an Opinion of Counsel) shall be required to exchange any Unregistered Security for any Outstanding Registered Security if such exchange would result in adverse tax consequences to the Issuer (such as, for example, the inability of the Issuer to deduct from its income, as computed for tax purposes, the interest payable on the Unregistered Securities) under then applicable tax laws. 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any temporary or definitive Security or any Coupon appertaining to any Security shall become mutilated, defaced or be destroyed, lost or stolen, in the discretion of the Issuer and the Guarantor, the Issuer and the Guarantor may execute, and upon the written request of any officer of the Issuer, the Trustee shall authenticate and deliver a new Security of the same series, of like tenor, bearing a number or other distinguishing symbol not contemporaneously outstanding, in exchange and substitution for the mutilated or defaced Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen with Coupons corresponding to the Coupons appertaining to the Securities so mutilated, defaced, destroyed, lost or stolen, or in exchange or substitution for the Security to which such mutilated, defaced, destroyed, lost or stolen Coupon appertained, with Coupons appertaining thereto corresponding to the Coupons so mutilated, defaced, destroyed, lost or stolen. In every case the applicant for a substitute Security or Coupon shall furnish to the Issuer and the Guarantor and to the Trustee and any agent of the Issuer and the Guarantor or the Trustee such security or indemnity as may be required by them to indemnify and defend and to save each of them harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security or Coupon and of the ownership thereof and in the case of mutilation or defacement shall surrender the Security and related Coupons to the Trustee or such agent. Upon the issuance of any substitute Security or Coupon, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) or its agent connected therewith. In case 21 any Security or Coupon which has matured or is about to mature or has been called for redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may instead of issuing a substitute Security, pay or authorize the payment of the same or the relevant Coupon (without surrender thereof except in the case of a mutilated or defaced Security or Coupon), if the applicant for such payment shall furnish to the Issuer and the Guarantor and to the Trustee and any agent of the Issuer and the Guarantor or the Trustee such security or indemnity as any of them may require to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Issuer and the Guarantor and the Trustee and any agent of the Issuer and the Guarantor or the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security or Coupon and of the ownership thereof. Every substitute Security or Coupon of any series issued pursuant to the provisions of this Section by virtue of the fact that any such Security or Coupon is destroyed, lost or stolen shall constitute an additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen Security or Coupon shall be at any time enforceable by anyone and shall be entitled to all the benefits of (but shall be subject to all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other Securities or Coupons of such series duly authenticated and delivered hereunder. All Securities and Coupons shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen Securities and Coupons and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender. 2.10 Cancellation of Securities; Destruction Thereof. All Securities and Coupons surrendered for payment, repurchase, redemption, registration of transfer or exchange, or for credit against any payment in respect of a sinking or analogous fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee or any agent of the Trustee, shall be delivered to the Trustee or its agent for cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no Securities or Coupons shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee or its agent shall destroy cancelled Securities and Coupons held by it and deliver a certificate of destruction to the Issuer upon written request. If the Issuer or its agent shall acquire any of the Securities or Coupons, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities or Coupons unless and until the same are delivered to the Trustee or its agent for cancellation. 2.11 Temporary Securities. Pending the preparation of definitive Securities for any series, the Issuer and the Guarantor may execute and the Trustee shall authenticate and deliver temporary Securities for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form satisfactory to the Trustee). Temporary Securities of any series shall be issuable as Registered Securities without coupons, or as Unregistered Securities with or without coupons attached thereto, of any authorized denomination, and substantially in the form of the definitive Securities of such series but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Issuer with the concurrence of the Trustee as evidenced by the execution and authentication thereof. Temporary Securities may contain such references to any provisions of this Indenture as may be appropriate. Every temporary Security shall be executed by the Issuer and the Guarantor and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive 22 Securities. Without unreasonable delay, the Issuer and the Guarantor shall execute and shall furnish definitive Securities of such series and thereupon temporary Securities of such series may be surrendered in exchange therefor without charge, in the case of Registered Securities, at each office or agency to be maintained by the Issuer for that purpose pursuant to Section 3.2 and, in the case of Unregistered Securities, at any office or agency maintained by the Issuer for such purpose as specified pursuant to Section 2.3, and the Trustee shall authenticate and deliver in exchange for such temporary Securities of such series an equal aggregate principal amount of definitive Securities of the same series having authorized denominations and, in the case of Unregistered Securities, having attached thereto any appropriate Coupons. Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of such series, unless otherwise established pursuant to Section 2.3. The provisions of this Section are subject to any restrictions or limitations that may be established with respect to the Securities of any series pursuant to Section 2.3 (including any provision that Unregistered Securities of such series initially be issued in the form of a single global Unregistered Security to be delivered to a depositary or an agency located outside the United States and the procedures pursuant to which definitive or global Unregistered Securities of such series would be issued in exchange for such temporary global Unregistered Security). 2.12 CUSIP Numbers. The Issuer in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such notice of redemption shall not be affected by any defect in or omission of such numbers. 2.13 Certain Restrictive Legends. (a) Private Placement Legend. Except as set forth in Section 2.14(i), unless and until an Initial Note is (i) sold pursuant to an effective registration statement, whether pursuant to the Registration Rights Agreement or otherwise or (ii) exchanged for an Exchange Note in an exchange offer pursuant to an effective exchange offer registration statement pursuant to the Registration Rights Agreement, (A) any Registered Global Security representing such Initial Note or any definitive certificated Security representing such Initial Note shall bear the following legend set forth below (the "Private Placement Legend") on the face thereof and (B) any Offshore Global Security representing such Initial Note shall bear the Private Placement Legend on the face thereof until the termination of the Restricted Period and receipt by the Issuer and the Trustee of a certificate substantially in the form provided in Exhibit B with respect to the entire principal amount of such Temporary Offshore Global Security: THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE 23 OR OTHER JURISDICTION. 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 SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF OR THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY: (A) TO THE ISSUER OR THE GUARANTOR, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR 24 (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. (b) Effect of Private Placement Legend. By its acceptance of any Security bearing the Private Placement Legend, each Holder of such Security acknowledges the restrictions on transfer of such Security set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Security only as provided in this Indenture. (c) Regulation S Legend. Each Temporary Offshore Global Security shall bear the following legend on the face thereof: THIS NOTE IS A TEMPORARY GLOBAL SECURITY. PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD APPLICABLE HERETO, BENEFICIAL INTERESTS HEREIN MAY NOT BE HELD BY ANY PERSON OTHER THAN (1) A NON-U.S. PERSON OR (2) A U.S. PERSON WHO PURCHASED SUCH INTEREST IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), PURSUANT TO RULE 144A THEREUNDER. BENEFICIAL INTERESTS HEREIN ARE NOT EXCHANGEABLE FOR PHYSICAL NOTES OTHER THAN A PERMANENT GLOBAL NOTE IN ACCORDANCE WITH THE TERMS OF THE INDENTURE. TERMS IN THIS LEGEND ARE USED AS USED IN REGULATION S UNDER THE SECURITIES ACT. 2.14 Transfer Restrictions and Other Transfer Provisions. The provisions of this Section 2.14 shall apply to all transfers involving any physical notes and any beneficial interest in any Registered Global Security. A Security that is a Restricted Security may not be transferred other than as provided in this Section 2.14. A beneficial interest in a Registered Global Security that is a Restricted Security may not be exchanged for a beneficial interest in another Registered Global Security other than through a transfer in compliance with this Section 2.14. Unless and until an Initial Note is sold pursuant to an effective registration statement, whether pursuant to the Registration Rights Agreement or otherwise, or is exchanged for an Exchange Note in the exchange offer contemplated by the Registration Rights Agreement pursuant to an effective registration statement, or the Resale Restriction Termination Date has occurred with respect to such Initial Note and such Initial Note is not then held by an Affiliate of the Issuer, the following provisions shall apply with respect to such Initial Note: 25 (a) Transfers to Non-QIB Institutional Accredited Investors. With respect to the registration of any proposed transfer of a Security that is a Restricted Security to any Institutional Accredited Investor that is not a QIB, (i) the registrar shall register such transfer (A) if it complies with all other applicable requirements of this Indenture; (B) the proposed transferee has delivered to the registrar a certificate substantially in the form of Exhibit D, and such transfer is in respect of an aggregate principal amount of Securities of not less than $250,000; and (C) if the proposed transferor is an Agent Member or is acting through an Agent Member holding a beneficial interest in a Registered Global Security, upon receipt by the registrar of written instructions given in accordance with the Depositary's and the registrar's procedures; and (ii) the registrar shall (A) reflect on its books and records (and make a notation on the relevant Registered Global Security of) the date and a decrease in the principal amount of the relevant Registered Global Security in an amount equal to the principal amount of the beneficial interest in the relevant Registered Global Security to be transferred or (B) cancel the physical note so transferred and deliver to the transferee one or more physical notes of like tenor and aggregate principal amount. Each of the Issuer, the Guarantor and the Trustee may require additional opinions, certifications or other evidence as may be reasonably required to confirm that any such proposed transfer is being made in compliance with the Securities Act and applicable state securities laws. (b) Transfers to QIBs. With respect to the registration of any proposed transfer of a Security that is a Restricted Security to a QIB, (i) the registrar shall register such transfer (A) if it complies with all other applicable requirements of this Indenture; (B) the proposed transferor has checked the box provided for on the form of such Security stating, or has otherwise certified to the Issuer and the registrar in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee who has signed the certification provided for on the form of such Security stating, or has otherwise certified to the Issuer and the registrar in writing, that it is purchasing such Security 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 QIB within the meaning of Rule 144A, 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 the Issuer as it 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 its foregoing representations in order to claim the exemption from registration provided by Rule 144A; and 26 (C) if the proposed transferor or transferee is an Agent Member or is acting through an Agent Member, upon receipt by the registrar of written instructions given in accordance with the Depositary's and the registrar's procedures; and (ii) the registrar shall (A) cancel the physical note so transferred or (B) reflect on its books and records (and make a notation on the relevant Registered Global Security of) the date and a decrease in the principal amount of the transferor Registered Global Security, as the case may be, and the registrar shall (x) reflect on its books and records (and make a notation on the relevant Registered Global Security of) the date and an increase in the principal amount of the transferee Registered Global Security or (y) deliver to the transferee one or more physical notes of like tenor and aggregate principal amount. Each of the Issuer, the Guarantor and the Trustee may require additional opinions, certifications or other evidence as may be reasonably required to confirm that any such proposed transfer is being made in compliance with the Securities Act and applicable state securities laws. (c) Transfers of Interests in the Temporary Offshore Global Securities. With respect to the registration of any proposed transfer of interests in any Temporary Offshore Global Security, (i) the registrar shall register the transfer of any interest in such Security only (A) if the proposed transferee is a Non-U.S. Person and the proposed transferor has delivered to the registrar a certificate substantially in the form of Exhibit C hereto and proposes to take delivery in the form of an interest in the Temporary Offshore Global Security; or (B) if the proposed transferee is a QIB and the proposed transferor has checked the box provided for on the form of the Security stating, or has otherwise certified to the Issuer and the registrar in writing, that the sale has been made in compliance with provisions of Rule 144A to a transferee who has signed the certification provided for on the form of the Security stating, or has otherwise advised the Issuer and the registrar in writing, that it is purchasing the Security 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 QIB within the meaning of Rule 144A, 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 the Issuer as it 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 its foregoing representations in order to claim the exemption from registration provided by Rule 144A; and 27 (C) upon receipt by the registrar of written instructions given in accordance with the Depositary's and the registrar's procedures; and (ii) the registrar shall reflect on its books and records (and make a notation on the relevant Registered Global Security of) the date and an increase in the principal amount of the transferee Registered Global Security, in an amount equal to the principal amount of the Temporary Offshore Global Security to be transferred, and the registrar shall reflect on its books and records (and make a notation on the relevant Registered Global Security of) the date and a decrease in the principal amount of the transferor Temporary Offshore Global Security. Each of the Issuer, the Guarantor and the Trustee may require additional opinions, certifications or other evidence as may be reasonably required to confirm that any such proposed transfer is being made in compliance with the Securities Act and applicable state securities laws. (d) Transfers to Non-U.S. Persons. With respect to the registration of any proposed transfer of a Security that is a Restricted Security to a Non-U.S. Person (except for any transfer of a Temporary Offshore Global Security referred to above) (i) the registrar shall register such transfer: (A) if it complies with all other applicable requirements of this Indenture; (B) if the proposed transfer is to be made prior to the end of the Restricted Period, upon receipt of a certificate substantially in the form of Exhibit C hereto from the proposed transferor; (C) if the proposed transfer is to be made after the end of the Restricted Period and the Security to be transferred is a U.S. certificated note or an interest in a U.S. Registered Global Security, only upon receipt of a certificate substantially in the form of Exhibit C from the proposed transferor; and (D) if the proposed transferor or transferee is an Agent Member or is acting through an Agent Member, upon receipt by the registrar of written instructions in accordance with the Depositary's and the registrar's procedures; and (ii) the registrar shall (A) reflect on its books and records (and make a notation on the relevant Registered Global Security of) the date and a decrease in the principal amount of the transferor Registered Global Security in an amount equal to the principal amount to be transferred or (B) cancel the physical notes so transferred, as the case may be, and the registrar shall (x) reflect on its books and records (and make a notation on the relevant Registered Global Security of) the date and an increase in the principal amount of the transferee Offshore Global Security or (y) deliver to the transferee one or more physical notes of like tenor and aggregate principal amount. 28 Each of the Issuer, the Guarantor and the Trustee may require additional opinions, certifications or other evidence as may be reasonably required to confirm that any such proposed transfer is being made in compliance with the Securities Act and applicable state securities laws. (e) Transfers pursuant to Rule 144. With respect to the registration of any proposed transfer of a Security that is a Restricted Security pursuant to the exemption from registration under the Securities Act provided by Rule 144 thereunder, (i) the registrar shall register such transfer (A) if it complies with all other requirements of this Indenture; (B) if such transfer is being made by a proposed transferor who has checked the box provided for on the form of such Security stating, or has otherwise certified to the Issuer and the registrar in writing, that the sale has been made in compliance with the provisions of Rule 144; and (C) if the proposed transferor or transferee is an Agent Member or is acting through an Agent Member, upon receipt by the registrar of written instructions given in accordance with the Depositary's and the registrar's procedures; and (ii) the registrar shall (a) reflect on its books and records (and make a notation on the relevant Registered Global Security of) the date and a decrease in the principal amount of such transferor Registered Global Security in an amount equal to the principal amount to be transferred or (b) cancel the physical note so transferred and the registrar shall (x) reflect on its books and records (and make a notation on the relevant Registered Global Security of) the date and an increase in the principal amount of the transferee Registered Global Security or (y) deliver to the transferee physical notes in like tenor and aggregate principal amount. Each of the Issuer, the Guarantor and the Trustee may require additional opinions, certifications or other evidence as may be reasonably required to confirm that any such proposed transfer is being made in compliance with the Securities Act and applicable state securities laws. (f) Transfers to the Issuer or the Guarantor. With respect to the registration of any proposed transfer of a Security to the Issuer or the Guarantor, (i) the registrar shall register such transfer (A) if it complies with all other requirements of this Indenture; (B) if such transfer is being made by a proposed transferor who has checked the box provided for on the form of such Security stating, or has otherwise certified to the Issuer and the registrar in writing, that the sale has been made to the Issuer; and 29 (C) if the proposed transferor is an Agent Member or is acting through an Agent Member, upon receipt by the registrar of written instructions given in accordance with the Depositary's and the registrar's procedures; and (ii) the registrar shall (A) reflect on its books and records (and make a notation on the relevant Registered Global Security of) the date and a decrease in the principal amount of such transferor Registered Global Security in an amount equal to the principal amount to be transferred or (B) cancel the physical note so transferred, as the case may be, and the registrar shall deliver physical notes to the Issuer in like tenor and aggregate principal amount. (g) Interests in the Offshore Global Security Prior to the Termination of the Restricted Period. Notwithstanding anything to the contrary contained in this Indenture, until the termination of the Restricted Period occurs and appropriate certification substantially in the form of Exhibit B is made as provided in Section 2.1, beneficial interests in the Offshore Global Security may be held only in or through accounts maintained at the Depositary by Euroclear or Clearstream, and no person shall be entitled to effect any transfer or exchange that would result in any such interest being held otherwise than in or through such an account, and no physical notes may be issued in exchange therefor. (h) Other Transfers. The registrar shall effect and register, upon receipt of a written request from the Issuer to do so, a transfer not otherwise permitted by this Section 2.14(h), such registration to be done in accordance with the otherwise applicable provisions of this Section 2.14(h), upon the furnishing by the proposed transferor or transferee of a written opinion of counsel (which opinion and counsel must be reasonably satisfactory to the Issuer and the Trustee) to the effect that, and such other certifications or evidence as the Issuer may require to confirm that, the proposed transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and otherwise in compliance with applicable state securities laws. (i) Legends on Transferred Securities. Upon the transfer, exchange or replacement of Securities not bearing the Private Placement Legend, the registrar shall deliver Securities that do not bear the Private Placement Legend. Upon the transfer, exchange or replacement of Securities bearing the Private Placement Legend, the registrar shall deliver only Securities that bear the Private Placement Legend, unless (i) the requested transfer is after the relevant Resale Restriction Termination Date with respect to such Securities, (ii) upon written request of the Issuer after there is delivered to the registrar an opinion of counsel (which opinion and counsel must be reasonably satisfactory to the Issuer and the Trustee) to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act, (iii) with respect to an Offshore Global Security, with the agreement of the Issuer on or after the termination of the Restricted Period with respect to such Security, (iv) such Securities are sold or exchanged pursuant to an effective registration statement under the Securities Act or (v) such Securities are sold pursuant to Rule 144 and the requirements of this Indenture. 30 ARTICLE III CERTAIN COVENANTS OF THE ISSUER AND THE GUARANTOR 3.1 Payment of Principal and Interest. The Issuer covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay or cause to be paid the principal of, and interest on, each of the Securities of such series (together with any additional amounts payable pursuant to the terms of such Securities) at the place or places, at the respective times and in the manner provided in such Securities and in the Coupons appertaining thereto and in this Indenture. The interest on Unregistered Securities with Coupons attached shall be payable only upon presentation and surrender of the Coupons evidencing the right to such installment of interest as they severally mature. If any temporary Unregistered Security provides that interest thereon may be paid while such Security is in temporary form, the interest on any such temporary Unregistered Security shall be paid, as to the installments of interest evidenced by Coupons attached thereto, if any, only upon presentation and surrender thereof, and, as to the other installments of interest, if any, only upon presentation of such Securities for notation thereon of the payment of such interest, in each case subject to any restrictions that may be established pursuant to Section 2.3. The interest on Registered Securities (together with any additional amounts payable pursuant to the terms of such Securities) shall be payable only to or upon the written order of the Holders entitled thereto and, at the option of the Issuer, may be paid by wire transfer or by mailing checks for such interest payable to or upon the written order of such Holders at their last addresses as they appear on the registry books of the Issuer. For the purposes of the Interest Act (Canada), if in this Indenture or in any Security a rate of interest is or is to be calculated on the basis of a period which is less than a full calendar year, the yearly rate of interest to which such rate is equivalent shall be such rate multiplied by the actual number of days in the calendar year for which such calculation is made and divided by the number of days in such period. The rates of interest set forth in this Indenture or in any Security will be calculated using the nominal rate method of calculation and will not be calculated using the effective rate method of calculation or on any other basis that gives effect to the principle of deemed re-investment of interest. In calculating interest or fees payable under this Indenture or on or with respect to a Security for any period, unless otherwise provided, the first day of such period shall be included and the last day of such period shall be excluded. 3.2 Offices for Payments, etc. The Issuer will maintain in the Borough of Manhattan, The City of New York, an agency where the Registered Securities of each series may be presented for payment, an agency where the Securities of each series may be presented for exchange as is provided in this Indenture and, if applicable, pursuant to Section 2.3 an agency where the Registered Securities of each series may be presented for registration of transfer as in this Indenture provided. The Issuer will maintain one or more agencies in a city or cities located outside the United States (including any city in which such an agency is required to be maintained under the rules of any stock exchange on which the Securities of such series are listed) where the Unregistered Securities, if any, of each series and Coupons, if any, appertaining thereto may be presented for payment. No payment on any Unregistered Security or Coupon will be made upon presentation of such Unregistered Security or Coupon at an agency of the Issuer within the United States nor will any payment be made by transfer to an account in, or by mail to an address in, the United States unless pursuant to applicable 31 United States laws and regulations then in effect such payment can be made without adverse tax consequences to the Issuer. Notwithstanding the foregoing, payments in Dollars of Unregistered Securities of any series and Coupons appertaining thereto which are payable in Dollars may be made at an agency of the Issuer maintained in the Borough of Manhattan, The City of New York if such payment in Dollars at each agency maintained by the Issuer outside the United States for payment on such Unregistered Securities is illegal or effectively precluded by exchange controls or other similar restrictions. Each of the Issuer and the Guarantor will maintain in the Borough of Manhattan, The City of New York, an agency where notices and demands to or upon the Issuer or the Guarantor in respect of the Securities of any series, the Coupons appertaining thereto or this Indenture may be served. The Issuer will give to the Trustee written notice of the location of each such agency and of any change of location thereof. In case the Issuer or the Guarantor shall fail to maintain any agency required by this Section to be located in the Borough of Manhattan, The City of New York, or shall fail to give such notice of the location or of any change in the location of any of the above agencies, presentations and demands may be made and notices may be served at the Corporate Trust Office of the Trustee. The Issuer may from time to time designate one or more additional agencies where the Securities of a series and Coupons appertaining thereto may be presented for payment, where the Securities of that series may be presented for exchange as provided in this Indenture and where the Registered Securities of that series may be presented for registration of transfer as in this Indenture provided, and the Issuer may from time to time rescind any such designation, as the Issuer may deem desirable or expedient; provided, however, that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain the agencies provided for in the immediately preceding paragraphs. The Issuer will give to the Trustee prompt written notice of any such designation or rescission thereof. 3.3 Appointment to Fill a Vacancy in Office of Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so that there shall at all times be a Trustee with respect to each series of Securities hereunder. 3.4 Paying Agents. Whenever the Issuer shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section that such paying agent, (a) will hold all sums received by it as such agent for the payment of the principal of or interest on the Securities of such series (whether such sums have been paid to it by the Issuer or by any other obligor on the Securities of such series) in trust for the benefit of the Holders of the Securities of such series, or Coupons appertaining thereto, or of the Trustee, until such sums shall be paid to such holders or otherwise disposed of as herein provided; 32 (b) will give the Trustee notice of any failure by the Issuer (or by any other obligor on the Securities of such series) to make any payment of the principal of or interest on the Securities of such Series when the same shall be due and payable, and (c) at any time during the continuance of any such failure, upon the written request of the Trustee, it will forthwith pay to the Trustee all sums so held in trust by such paying agent. The Issuer will, on or prior to each due date of the principal of or interest on the Securities of such series, deposit with the paying agent a sum sufficient to pay such principal or interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly notify the Trustee of its action or any failure to take such action. If the Issuer, the Guarantor, any Subsidiary or any Affiliate of the Issuer or the Guarantor, shall act as paying agent with respect to the Securities of any series, it will, on or before each due date of the principal of or interest on the Securities of such series, set aside, segregate and hold in trust for the benefit of the Holders of the Securities of such series or the Coupons appertaining thereto a sum sufficient to pay such principal or interest so becoming due. The Issuer will promptly notify the Trustee of its action or any failure to take such action. Anything in this Section to the contrary notwithstanding, the Issuer may at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid, or by Issuer Order direct any paying agent to pay to the Trustee all sums held in trust for any such series by the Issuer or any paying agent hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein contained. Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the provisions of Sections 10.3 and 10.4. 3.5 Written Statement to Trustee. Each of the Issuer and the Guarantor will deliver to the Trustee annually, commencing May 23, 2003, a certificate, from its principal executive officer, principal financial officer or principal accounting officer, stating whether or not to the best knowledge of the signer thereof the Issuer or the Guarantor, as the case may be, is in compliance (without regard to periods of grace or notice requirements) with all conditions and covenants under this Indenture, and if the Issuer or the Guarantor, as the case may be, shall not be in compliance, specifying such non-compliance and the nature and status thereof of which such signer may have knowledge. 3.6 Luxembourg Publications. In the event of the publication of any notice pursuant to Section 5.11, 6.10(a), 6.11, 8.2, 10.4, 12.2 or 12.5, the party making such publication in the Borough of Manhattan, The City of New York and London shall also, to the extent that notice is required to be given to Holders of Securities of any series by applicable Luxembourg law or stock exchange regulation, as evidenced by an Officers' Certificate delivered to such party, make a similar publication in Luxembourg. 3.7 Certain Covenants Applicable to the Securities; Limitations on Liens. For the benefit of Holders of the Securities, the Guarantor covenants in this Indenture that it will not, and will not permit any Subsidiary to, issue, incur, 33 create, assume or guarantee any debt for borrowed money (including all obligations evidenced by bonds, debentures, notes or similar instruments) secured by a mortgage, security interest, pledge, lien, charge or other encumbrance ("mortgage") upon any Principal Property or upon any shares of stock or indebtedness of any Subsidiary that owns or leases a Principal Property (whether such Principal Property, shares or indebtedness are now existing or owed or hereafter created or acquired) without in any such case effectively providing concurrently with the issuance, incurrence, creation, assumption or guaranty of any such secured debt, or the grant of such mortgage, that the Securities (together with, if the Guarantor shall so determine, any other indebtedness of or guarantee by the Guarantor or such Subsidiary ranking equally with the Securities) shall be secured equally and ratably with (or, at the option of the Guarantor, prior to) such secured debt. The foregoing restriction, however, will not apply to each of the following: (a) mortgages on property, shares of stock or indebtedness or other assets of any corporation existing at the time such corporation becomes a Subsidiary, provided that such mortgages or liens are not incurred in anticipation of such corporation's becoming a Subsidiary; (b) mortgages on property, shares of stock or indebtedness or other assets existing at the time of acquisition thereof by the Guarantor or a Subsidiary or to secure the payment of all or any part of the purchase price thereof, or mortgages on property, shares of stock or indebtedness or other assets to secure any debt incurred prior to, at the time of, or within 180 days after, the latest of the acquisition thereof or, in the case of property, the completion of construction, the completion of improvements or the commencement of substantial commercial operation of such property for the purpose of financing all or any part of the purchase price thereof, such construction or the making of such improvements; (c) mortgages to secure indebtedness owing to the Guarantor or to a Subsidiary; (d) mortgages existing at the date of the initial issuance of any Securities then outstanding; (e) mortgages on property of a Person existing at the time such Person is merged into or consolidated with the Guarantor or a Subsidiary or at the time of a sale, lease or other disposition of the properties of a Person as an entirety or substantially as an entirety to the Guarantor or a Subsidiary provided that such mortgage was not incurred in anticipation of such merger or consolidation or sale, lease or other disposition; (f) mortgages in favor of the United States of America or any state, territory or possession thereof (or the District of Columbia), or any department, agency, instrumentality or political subdivision of the United States of America or any state, territory or possession thereof (or the District of Columbia), to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of constructing or improving the property subject to such mortgages; or (g) extensions, renewals or replacements of any mortgage referred to in the foregoing clauses (a), (b), (d), (e) or (f); provided, however, that the principal amount of indebtedness secured thereby shall not exceed the principal amount of indebtedness so secured at the time of such extension, renewal or replacement. Any mortgages permitted by any of the foregoing clauses (a) through (g) shall not extend to or cover any Principal Property of the Guarantor or such Subsidiary or shares of stock or indebtedness of such Subsidiary, as the case may be, other than the property, including improvements thereto, stock or indebtedness specified in such clauses. Notwithstanding the restrictions outlined in the preceding paragraph, the Guarantor or any Subsidiary will be permitted to issue, incur, create, assume or guarantee debt secured by a mortgage which would otherwise be subject to such restrictions, without equally and ratably securing the Securities, provided that after giving effect thereto, the aggregate amount of all debt so secured by 34 mortgages (not including mortgages permitted under clauses (a) through (g) above) does not exceed 20% of the Consolidated Net Tangible Assets of the Guarantor. 3.8 Limitations on Sale and Lease-Back Transactions. For the benefit of the Holders of the Securities, the Guarantor covenants that it will not, nor will it permit any Subsidiary to, enter into any Sale and Lease-Back Transaction with respect to any Principal Property, other than any such transaction involving a lease for a term of not more than three years or any such transaction between the Guarantor and a Subsidiary or between Subsidiaries, unless: (a) the Guarantor or such Subsidiary would be entitled to incur indebtedness secured by a mortgage on the Principal Property involved in such transaction at least equal in amount to the Attributable Debt with respect to such Sale and Lease-Back Transaction, without equally and ratably securing the Securities, pursuant to the limitation on liens described above; or (b) the proceeds of such transaction are at least equal to the fair market value of the affected Principal Property (as determined in good faith by the Board of Directors of the Guarantor, as evidenced by a Board Resolution of the Guarantor) and the Guarantor applies an amount equal to the greater of the net proceeds of such sale or the Attributable Debt with respect to such Sale and Lease-Back Transaction within 180 days of such sale to either (or a combination of) (i) the retirement (other than any mandatory retirement, mandatory prepayment or sinking fund payment or by payment at maturity) of debt for borrowed money of the Guarantor or a Subsidiary (other than debt that is subordinated to the Securities or debt to the Guarantor or a subsidiary) that matures more than 12 months after its creation of such debt or (ii) the purchase, construction or development of other comparable property. 3.9 Corporate Existence. Subject to Article IX, the Guarantor shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the corporate existence of each of its Subsidiaries (including the Issuer) and all rights (charter and statutory) and franchises of the Guarantor and its Subsidiaries, provided that the Guarantor shall not be required to preserve the corporate existence of any Subsidiary other than the Issuer or any such right or franchise if the Guarantor shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Guarantor and its Subsidiaries taken as a whole and that the loss thereof would not have a material adverse effect on the business, prospects, assets or financial condition of the Guarantor and its Subsidiaries taken as a whole and would not have a material adverse effect on the payment and performance of the obligations of the Issuer or the Guarantor under the Securities or the Guarantees, respectively, and this Indenture. 3.10 Waiver of Stay, Extension or Usury Laws. Each of the Issuer and the Guarantor covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive it from paying all or any portion of the principal of or interest on the Securities as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture; and (to the extent that it may lawfully do so) each of the Issuer and the Guarantor hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. 35 ARTICLE IV SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER, GUARANTOR AND THE TRUSTEE 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of Securityholders. If and so long as the Trustee shall not be the Security registrar for the Securities of any series, the Issuer and any other obligor on the Securities will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of the Registered Securities of such series pursuant to Section 312 of the Trust Indenture Act (a) semi-annually not more than 15 days after each record date for the payment of interest on such Registered Securities, as hereinabove specified, as of such record date and on dates to be determined pursuant to Section 2.3 for non-interest bearing Registered Securities in each year, and (b) at such other times as the Trustee may request in writing, within 30 days after receipt by the Issuer of any such request as of a date not more than 15 days prior to the time such information is furnished. 4.2 Reports by the Issuer and the Guarantor. (a) Each of the Issuer and the Guarantor covenants to file with the Trustee, within 15 days after it is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports that it may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act or pursuant to Section 314 of the Trust Indenture Act. (b) If the Issuer or the Guarantor is not subject to the requirements of Section 13 or Section 15(d) of the Exchange Act, the Issuer and the Guarantor shall furnish to all Holders of Rule 144A Securities and prospective purchasers of Rule 144A Securities designated by the Holders of Rule 144A Securities, promptly upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. 4.3 Reports by the Trustee. Any Trustee's report required under Section 313(a) of the Trust Indenture Act shall be transmitted on or before December 15 in each year beginning December 15, 2002, as provided in Section 313(c) of the Trust Indenture Act, so long as any Securities are Outstanding hereunder, and shall be dated as of a date convenient to the Trustee no more than 60 days prior thereto. A copy of each report at the time of its mailing to Holders of a series of Securities shall be filed by the Issuer or the Guarantor with the Commission and each securities exchange, if any, on which the Securities of such series are listed. The Issuer shall notify the Trustee if and when any series of Securities is listed on any stock exchange. 36 ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default. "Event of Default" with respect to Securities of any series wherever used herein, means each one of the following events which shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (a) default in the payment of any installment of interest upon any of the Securities of such series as and when the same shall become due and payable, and continuance of such default for a period of 30 days; or (b) default in the payment of all or any part of the principal on any of the Securities of such series as and when the same shall become due and payable either at maturity, upon any redemption, by declaration or otherwise; or (c) failure on the part of the Issuer or the Guarantor duly to observe or perform any other of their respective covenants or agreements in respect of the Securities of such series (other than a covenant or agreement in respect of the Securities of such series a default in the performance or breach of which is elsewhere in this Section specifically dealt with) or in this Indenture contained for a period of 90 days after the date on which written notice specifying such failure, stating that such notice is a "Notice of Default" hereunder and demanding that the Issuer or the Guarantor remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Issuer and the Guarantor by the Trustee, or to the Issuer and the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of all series affected thereby; or (d) a court having jurisdiction in the premises shall enter a decree or an order for relief in respect of the Issuer or the Guarantor in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or the Guarantor or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or (e) the Issuer or the Guarantor shall commence a voluntary case under any applicable federal, state or foreign bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or the Guarantor or for any substantial part of its property, or make any general assignment for the benefit of creditors; 37 (f) the Guarantor repudiates its obligations under the Guarantees, or the Guarantees become unenforceable or invalid or are no longer in full force and effect, except as expressly contemplated herein; or (g) any other Event of Default provided in the supplemental indenture under which such series of Securities is issued or in the form of Security for such series. If an Event of Default described in clauses (a), (b), (c) (f) or (g) (if the Event of Default under clause (c) or (g), as the case may be, is with respect to less than all series of Securities then Outstanding) occurs and is continuing, then, and in each and every such case, except for any series of Securities the principal of which shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Securities of each such affected series then Outstanding hereunder (voting as a single class) by notice in writing to the Issuer and the Guarantor (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of any such affected series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all Securities of all such affected series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same shall become immediately due and payable. If an Event of Default described in clause (c) or (g) (if the Event of Default under clause (c) or (g), as the case may be, is with respect to all series of Securities then Outstanding), occurs and is continuing, then and in each and every such case, unless the principal of all the Securities shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of all the Securities then outstanding hereunder (treated as one class), by notice in writing to the Issuer and the Guarantor (and to the Trustee if given by Securityholders), may declare the entire principal (or, if any securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities then Outstanding, and interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable. If an Event of Default specified in Section 5.1(d) or (e) occurs, the principal of and accrued 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. The foregoing provisions, however, are subject to the condition that if, at any time after the principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Issuer or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of such series (or of all the Securities, as the case may be) and the principal of any and all Securities of each such series (or of all the Securities, as the case may be) which shall have become due otherwise than by acceleration (with interest upon such principal and on overdue installments of interest, at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of each such series (or at the respective rates of interest or Yields to Maturity of all the Securities, as the case may be) to the date of such payment or deposit) and such amount as shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of negligence or bad faith, and if any and all Events of Default under the Indenture, other than the non-payment of the principal of Securities which shall 38 have become due by acceleration, shall have been cured, waived or otherwise remedied as provided herein, then and in every such case the Holders of a majority in aggregate principal amount of all the Securities of each such series, or of all the Securities, in each case voting as a single class, then Outstanding, by written notice to the Issuer and the Guarantor and to the Trustee, may waive all defaults with respect to each such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences, but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities. 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt. The Issuer and Guarantor covenant that (a) in case default shall be made in the payment of any installment of interest on any of the Securities of any series when such interest shall have become due and payable, and such default shall have continued for a period of 30 days or (b) in case default shall be made in the payment of all or any part of the principal of any of the Securities of any series when the same shall have become due and payable, whether upon maturity of the Securities of such series or upon any redemption or by declaration or otherwise, then upon demand of the Trustee, the Issuer or the Guarantor will pay to the Trustee for the benefit of the Holders of the Securities of such series the whole amount that then shall have become due and payable on all Securities of such series, and such Coupons, for principal or interest, as the case may be (with interest to the date of such payment upon the overdue principal and on overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series); and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Trustee and each predecessor Trustee, their respective agents, attorneys and counsel, and any expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of its negligence or bad faith. Until such demand is made by the Trustee, the Issuer or the Guarantor may pay the principal of and interest on the Securities of any series to the Holders, whether or not the principal of and interest on the Securities of such series be overdue. 39 In case the Issuer or the Guarantor shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Issuer, the Guarantor or other obligor upon the Securities and collect in the manner provided by law out of the property of the Issuer, the Guarantor or other obligor upon the Securities, wherever situated the moneys adjudged or decreed to be payable. In case there shall be pending proceedings relative to the Issuer, the Guarantor or any other obligor upon the Securities under Title 11 of the United States Code or any other applicable Federal or state bankruptcy, insolvency, reorganization or other similar law, or in case a receiver, liquidator, assignee, custodian, or trustee, sequestrator or similar official shall have been appointed for or taken possession of the Issuer or the Guarantor, or its or their property, or such other obligor or its property, or in case of any other comparable judicial proceedings relative to the Issuer, the Guarantor or other obligor upon the Securities, or to the creditors or property of the Issuer, the Guarantor or such other obligor, the Trustee, irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise: (a) to file and prove a claim or claims for the whole amount of principal and interest (or, if the Securities of any series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) owing and unpaid in respect of the Securities of any series, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee and each predecessor Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee, except as a result of gross negligence or bad faith) and of the Securityholders allowed in any judicial proceedings relative to the Issuer, the Guarantor or other obligor upon the Securities, or to the creditors or property of the Issuer, the Guarantor or such other obligor, (b) unless prohibited by applicable law and regulations, to vote on behalf of the Holders of the Securities of any series in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or person performing similar functions in comparable proceedings, and (c) to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Securityholders and of the Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or other similar official is hereby authorized by each of the Securityholders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders, to pay to the Trustee such amounts as shall be sufficient to cover reasonable compensation to the Trustee, each predecessor Trustee and their respective 40 agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of gross negligence or bad faith. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting the Securities of any series or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar person. All rights of action and of asserting claims under this Indenture, or under any of the Securities of any series or Coupons appertaining to such Securities, may be enforced by the Trustee without the possession of any of the Securities of such series or Coupons appertaining to such Securities or the production thereof in any trial or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses, disbursements and compensation of the Trustee, each predecessor Trustee and their respective agents and attorneys, shall be for the ratable benefit of the Holders of the Securities or Coupons appertaining to such Securities in respect of which such action was taken. In any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Securities and Coupons appertaining to such Securities in respect to which such action was taken, and it shall not be necessary to make any Holders of such Securities or Coupons appertaining to such Securities parties to any such proceedings. 5.3 Application of Proceeds. Any moneys collected by the Trustee pursuant to this Article in respect of any series shall be applied in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal or interest, upon presentation of the several Securities and Coupons appertaining to such Securities in respect of which monies have been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities of such series in reduced principal amounts in exchange for the presented Securities of like series if only partially paid, or upon surrender thereof if fully paid: FIRST: To the payment of costs and expenses applicable to such series in respect of which monies have been collected, including reasonable compensation to the Trustee and each predecessor Trustee and their respective agents and attorneys and of all expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee and their respective agents and attorneys except as a result of gross negligence or bad faith; SECOND: In case the principal of the Securities of such series in respect of which moneys have been collected shall not have become and be then due and payable, to the payment of interest on the Securities of such series in default in the order of the maturity of the installments of such interest (with interest, to the extent that such interest has been collected by the Trustee, upon the overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of 41 Original Issue Discount Securities) specified in such Securities, such payments to be made ratably to the Persons entitled thereto, without discrimination or preference); THIRD: In case the principal of the Securities of such series in respect of which moneys have been collected shall have become and shall be then due and payable, to the payment of the whole amount then owing and unpaid upon all the Securities of such series for principal and interest, with interest upon the overdue principal, and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment of such principal and interest, without preference or priority of principal over interest, or of interest over principal, or of any installment of interest over any other installment of interest, or of any Security of such series over any other Security of such series, ratably to the aggregate of such principal and accrued and unpaid interest; and FOURTH: To the payment of the remainder, if any, to the Issuer or any other Person lawfully entitled thereto. 5.4 Suits for Enforcement. In case an Event of Default has occurred, has not been waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law. 5.5 Restoration of Rights on Abandonment of Proceedings. In case the Trustee or any Securityholder shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been finally determined adversely to the Trustee or such Securityholder, then and in every such case subject to any determination in such proceedings, the Issuer, the Guarantor and the Trustee or such Securityholder shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Guarantor, the Trustee and the Securityholders shall continue as though no such proceedings had been taken. 5.6 Limitations on Suits by Securityholders. No Holder of any Security of any series or of any Coupon appertaining thereto shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Indenture, or for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or other similar official or for any other remedy hereunder, unless (i) such Holder previously shall have given to the Trustee written notice of default and of the continuance thereof, as hereinbefore provided; (ii) the Holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding (treated as a single class) shall have made written request upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the 42 costs, expenses and liabilities to be incurred therein or thereby; (iii) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceeding; and (iv) no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 5.9; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security or Coupon with every other taker and Holder and the Trustee, that no one or more Holders of Securities of any series or Coupons appertaining to such Securities shall have any right in any manner whatever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other such Holder of Securities or Coupons appertaining to such Securities, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities of any applicable series and Coupons appertaining to such Securities. For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity. 5.7 Unconditional Right of Securityholder to Institute Certain Suits. Notwithstanding any other provision in this Indenture and any provision of any Security, the right of any Holder of any Security or Coupon to receive payment of the principal of and interest on such Security or coupon on or after the respective due dates expressed in such Security or Coupon, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default. Except as provided in Section 5.6, no right or remedy herein conferred upon or reserved to the trustee or to the Holders of Securities or Coupons is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. No delay or omission of the Trustee or of any Holder of Securities or Coupons to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein; and, subject to Section 5.6, every power and remedy given by this Indenture or by law to the Trustee or to the Holders of Securities or Coupons may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders of Securities or Coupons. 5.9 Control by Holders of Securities. 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 time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee with respect to the Securities of such series by this Indenture; provided that such direction shall not be otherwise than in accordance with law and the provisions of this Indenture and provided further that (subject to the provisions of Section 6.1) the Trustee shall have the right to decline to follow 43 any such direction if the Trustee, being advised by counsel, shall determine that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors, the executive committee, or a trust committee of directors or Responsible Officers of the Trustee shall determine that the action or proceedings 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 interests of Holders of the Securities of all series so affected not joining in the giving of said direction, it being understood that (subject to Section 6.1) the Trustee shall have no duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders. Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any action deemed proper by the Trustee and which is not inconsistent with such direction or directions by Securityholders. 5.10 Waiver of Past Defaults. Prior to the acceleration of the maturity of any Securities as provided in Section 5.1, 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 an Event of Default shall have occurred and be continuing (voting as a single class) may on behalf of the Holders of all such Securities waive any past default or Event of Default described in Section 5.1 and its consequences, except a default (a) in the payment of principal or interest on any Security of such series or (b) in respect of a covenant or provision hereof which cannot be modified or amended without the consent of the Holder of each Security affected. In the case of any such waiver, the Issuer, the Guarantor, the Trustee and the Holders of all such Securities shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. Upon any such waiver, such default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured, and not to have occurred for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. 5.11 Trustee to Give Notice of Default, But May Withhold in Certain Circumstances. The Trustee shall, within 90 days after the occurrence of a default with respect to the Securities of any series, give notice of all defaults with respect to that series known to the Trustee (i) if any Unregistered Securities of that series are then Outstanding, to the Holders thereof, by publication at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York and at least once in an Authorized Newspaper in London (and, if required by Section 3.6, at least once in an Authorized Newspaper in Luxembourg) and (ii) to all Holders of Registered Securities of such series as the names and addresses of such Holders appear upon the registry books of the Issuer, and to other Holders of Securities of such series as have filed their names and addresses with the Trustee within two years preceding the giving of such notice, unless in each case such defaults shall have been cured before the mailing or publication of such notice (the term "defaults" for the purpose of this Section being hereby defined to mean any event or condition which is, or with notice or lapse of time or both would become, an Event of Default); provided that, except in the case of default in the payment of the 44 principal of or interest on any of the Securities of such series, or in the payment of any sinking fund installment on such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors or trustees and/or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the best interests of the Securityholders of such Series. 5.12 Right of Court to Require Filing of Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Security or Coupon by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder or group of Securityholders of any series holding in the aggregate more than 10% in aggregate principal amount of the Securities of such series, or, in the case of any suit relating to or arising under clause (c) or (f) of Section 5.1 (if the suit relates to Securities of more than one but less than all series), 10% in aggregate principal amount of Securities then Outstanding and affected thereby, or, in the case of any suit relating to or arising under clause (c) or (f) (if the suit under clause (c) or (f) relates to all the Securities then outstanding) of Section 5.1, 10% in aggregate principal amount of all Securities then Outstanding, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of or interest on, any Security on or after the due date expressed in such Security or any date fixed for redemption. ARTICLE VI CONCERNING THE TRUSTEE 6.1 Duties and Responsibilities of the Trustee; Prior to Default. With respect to the Holders of any series of Securities issued hereunder, the Trustee, prior to the occurrence of an Event of Default with respect to the Securities of such series and after the curing or waiving of all Events of Default which may have occurred with respect to such series, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case an Event of Default with respect to the Securities of a series has occurred (which has not been cured or waived) the Trustee shall exercise with respect to such series of Securities such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: 45 (a) prior to the occurrence of an Event of Default with respect to the Securities of any series and after the curing or waiving of all such Events of Default with respect to such series which may have occurred: (i) the duties and obligations of the Trustee with respect to the Securities of any series shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such statements, certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture; (b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and (c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders pursuant to Section 5.9 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture. None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that the repayment of such funds or adequate indemnity against such liability is not reasonably assured to it. The provisions of this Section 6.1 are in furtherance of and subject to Section 315 of the Trust Indenture Act. 6.2 Certain Rights of the Trustee. In furtherance of and subject to the Trust Indenture Act, and subject to Section 6.1: (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officers' Certificate or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon, security or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; 46 (b) any request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officers' Certificate or Issuer Order (unless other evidence in respect thereof be herein specifically prescribed); any resolution of the Board of Directors of the Issuer may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Issuer; and any resolution of the Board of Directors of the Guarantor may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Guarantor; (c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate; (d) the Trustee may consult with counsel and any written advice or any opinion of counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in reliance thereon in accordance with such advice or opinion of counsel; (e) the Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred therein or thereby; (f) the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Indenture; (g) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document unless requested in writing so to do by the Holders of not less than a majority in aggregate principal amount of the Securities of all series affected then Outstanding; provided that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such expenses or liabilities as a condition of proceeding; the reasonable expenses of every such investigation shall be paid by the Issuer or, if paid by the Trustee or any predecessor Trustee, shall be repaid by the Issuer upon demand; and (h) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys not regularly in its employ and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder. 47 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof. The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Issuer and the Guarantor, as applicable, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or sufficiency of this Indenture or of the Securities or Coupons. The Trustee shall not be accountable for the use or application by the Issuer of any of the Securities or of the proceeds thereof. 6.4 Trustee and Agents May Hold Securities or Coupons, Collections, etc. The Trustee or any agent of the Issuer or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities or Coupons with the same rights it would have if it were not the Trustee or such agent and may otherwise deal with the Issuer and receive, collect, hold and retain collections from the Issuer with the same rights it would have if it were not the Trustee or such agent. 6.5 Moneys Held by Trustee. Subject to the provisions of Section 10.4 hereof, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by mandatory provisions of law. Such moneys shall be invested in accordance with the Issuer's written instructions. Neither the Trustee nor any agent of the Issuer or the Trustee shall be under any liability for interest on any moneys received by it hereunder. 6.6 Compensation and Indemnification of Trustee and Its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, such compensation as shall be agreed to in writing between the Issuer and the Trustee (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) and the Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by or on behalf of it in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all agents and other persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its negligence or bad faith. The Issuer also covenants to indemnify the Trustee and each predecessor Trustee for, and to hold it harmless against, any and all loss, liability or expense, including taxes (other than taxes based upon or measured by the income of the Trustee) incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this Indenture or the trusts hereunder and its duties hereunder, including the costs and expenses of defending itself against or investigating any claim of liability in the premises. The obligations of the Issuer under this Section to compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture. Such additional indebtedness shall be a senior claim to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities or Coupons, and the Securities are hereby subordinated to such senior claim. 48 When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.1(d) or Section 5.1(e), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal, state, provincial or foreign bankruptcy, insolvency or other similar law. The Trustee is subject to and shall comply with the provisions of Section 311 of the Trust Indenture Act. 6.7 Right of Trustee to Rely on Officers' Certificate, etc. Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof. 6.8 Indentures Not Creating Potential Conflicting Interests for the Trustee. As of the date hereof, the Issuer has no outstanding debt securities issued pursuant to an indenture of which the Trustee is the trustee. 6.9 Persons Eligible for Appointment as Trustee. The Trustee for each series of Securities hereunder shall at all times be a corporation organized and doing business under the laws of the United States of America or of any State or the District of Columbia having a combined capital and surplus of at least $50,000,000, and which is authorized under such laws to exercise corporate trust powers and is subject to supervision or examination by Federal, State or District of Columbia authority. Such corporation shall have its principal place of business or an agency in the Borough of Manhattan, The City of New York if there is such a corporation in such location willing to act upon reasonable and customary terms and conditions. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 6.10. The provisions of this Section 6.9 are in furtherance of and subject to Section 310(a) of the Trust Indenture Act. 6.10 Resignation and Removal; Appointment of Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more or all series of Securities by giving written notice of resignation to the Issuer and the Guarantor and (i) if any Unregistered Securities of a series affected are then Outstanding, by giving notice of such resignation to the Holders thereof, by publication at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York, and at least once in an Authorized 49 Newspaper in London (and, if required by Section 3.6, at least once in an Authorized Newspaper in Luxembourg), (ii) if any Unregistered Securities of a series affected are then Outstanding, by mailing notice of such resignation to the Holders thereof who have filed their names and addresses with the Trustee within two years preceding the giving of such notice at such addresses as were so furnished to the Trustee and (iii) by mailing notice of such resignation to the Holders of then Outstanding Registered Securities of each series affected at their addresses as they shall appear on the registry books. Upon receiving such notice of resignation, the Issuer and the Guarantor shall promptly appoint a successor trustee or trustees with respect to the applicable series by written instrument in duplicate, executed by authority of the Board of Directors of the Issuer and the Board of Directors of the Guarantor, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee or trustees (it being understood that any such successor trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one successor trustee with respect to the Securities of a particular series); provided that, if the Issuer and the Guarantor appoint different successor trustees, the Guarantor's appointment shall prevail. If no successor trustee shall have been so appointed with respect to any series and have accepted appointment within 30 days after the mailing of such notice of resignation, the resigning trustee may petition any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 5.12, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee. (b) In case at any time any of the following shall occur: (i) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act with respect to any series of Securities after written request therefor by the Issuer or by any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months; or (ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 6.9 and Section 310(a) of the Trust Indenture Act and shall fail to resign after written request therefor by the Issuer, the Guarantor or by any Securityholder; or (iii) the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation; 50 then, in any such case, (A) the Issuer and the Guarantor may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee for such series by written instrument, in duplicate, executed by order of the Board of Directors of the Issuer and the Board of Directors of the Guarantor, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, (it being understood that any such successor trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one successor trustee with respect to the Securities of a particular series); provided that, if the Issuer and the Guarantor appoint different successor trustees, the Guarantor's appointment shall prevail or (B) subject to the provisions of Section 315(e) of the Trust Indenture Act, any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months may on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee. (c) The Holders of a majority in aggregate principal amount of the Securities of each series at the time outstanding may at any time remove the Trustee with respect to Securities of such series and appoint a successor trustee with respect to the Securities of such series by delivering to the Trustee so removed, to the successor trustee so appointed and to the Issuer and the Guarantor the evidence provided for in Section 7.1 of the action in that regard taken by the Securityholders. (d) Any resignation or removal of the Trustee with respect to any series and any appointment of a successor trustee with respect to such series pursuant to any of the provisions of this Section 6.10 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 6.11. (e) The Issuer shall give notice of each removal of the Trustee (i) if any Unregistered Securities of a series affected are then Outstanding, to the Holders thereof, by publication of such notice at least once in an Authorized Newspaper in The City of New York and at least once in an Authorized Newspaper in London (and, if required by Section 3.6, at least once in an Authorized Newspaper in Luxembourg), (ii) if any Unregistered Securities of a series affected are then Outstanding, to the Holders thereof who have filed their names and addresses with the Trustee within two years preceding the giving of such notice, by mailing such notice to such Holders at such addresses as were so furnished to the Trustee (and the Trustee shall make such information available to the Issuer for such purpose) and (iii) to the Holders of Registered Securities of each series affected, by mailing such notice to such Holders at their addresses as they shall appear on the registry books. 6.11 Acceptance of Appointment by Successor Trustee. Any successor trustee appointed as provided in Section 6.10 shall execute and deliver to the Issuer, the Guarantor and its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations of its predecessor hereunder with respect to such series, with like effect as if originally named as trustee for such series hereunder; but, nevertheless, on the written request of the Issuer, the Guarantor or of the successor trustee, upon 51 payment of its charges then unpaid, the trustee ceasing to act shall, subject to Section 10.4, pay over to the successor trustee all moneys at the time held by it hereunder and shall execute and deliver an instrument transferring to such successor trustee all such rights, powers, duties and obligations. Upon request of any such successor trustee, the Issuer and the Guarantor shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 6.6. If a successor trustee is appointed with respect to the Securities of one or more (but not all) series, the Issuer, the Guarantor, the predecessor Trustee and each successor trustee with respect to the Securities of such series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts under separate indentures. No successor trustee with respect to any series of Securities shall accept appointment as provided in this Section 6.11 unless at the time of such acceptance such successor trustee shall be qualified under Section 310(b) of the Trust Indenture Act and eligible under the provisions of Section 6.9. Upon acceptance of appointment by any successor trustee as provided in this Section 6.11, the Issuer shall give notice thereof (a) if any Unregistered Securities of a series affected are then Outstanding, to the Holders thereof, by publication of such notice at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York and at least once in an Authorized Newspaper in London (and, if required by Section 3.6, at least once in an Authorized Newspaper in Luxembourg), (b) if any Unregistered Securities of a series affected are then Outstanding, to the Holders thereof who have filed their names and addresses with the Trustee within two years preceding the giving of such notice, by mailing such notice to such Holders at such addresses as were so furnished to the Trustee (and the Trustee shall make such information available to the Issuer for such purpose) and (c) to the Holders of Registered Securities of each series affected, by mailing such notice to such Holders at their addresses as they shall appear on the registry books. If the acceptance of appointment is substantially contemporaneous with the resignation, then the notice called for by the preceding sentence may be combined with the notice called for by Section 6.10. If the Issuer fails to give such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be given at the expense of the Issuer. 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee. Any corporation into which the Trustee may be converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation 52 succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall be qualified under Section 310(b) of the Trust Indenture Act and eligible under the provisions of Section 6.9, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture any of the Securities of any series shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor Trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities of any series shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor Trustee; and in all such cases such certificate shall have the full force which it is anywhere in the Securities of such series or in this Indenture provided that the certificate of the Trustee shall have; provided, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities of any series in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation. 6.13 Appointment of Authenticating Agent. As long as any Securities of a series remain Outstanding, the Trustee may, by an instrument in writing, appoint with the approval of the Issuer an authenticating agent (the "Authenticating Agent") which shall be authorized to act on behalf of the Trustee to authenticate Securities, including Securities issued upon exchange, registration of transfer, partial redemption or pursuant to Section 2.9. Securities of each such series authenticated by such Authenticating Agent shall be entitled to the benefits of this Indenture and the related Guarantees and shall be valid and obligatory for all purposes as if authenticated by the Trustee. Whenever reference is made in this Indenture to the authentication and delivery of Securities of any series by the Trustee or to the Trustee's Certificate of Authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent for such series and a Certificate of Authentication executed on behalf of the Trustee by such Authenticating Agent. Such Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States of America or of any State or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 (determined as provided in Section 6.9 with respect to the Trustee) and subject to supervision or examination by Federal, State or District of Columbia authority. Any corporation into which any Authenticating Agent may be merged or converted, or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency business of any Authenticating Agent, shall continue to be the Authenticating Agent with respect to all series of Securities for which it served as Authenticating Agent without the execution or filing of any paper or any further act on the part of the Trustee or such Authenticating Agent. Any Authenticating Agent may at any time, and if it shall cease to be eligible shall, resign by giving written notice of resignation to the Trustee, the Issuer and the Guarantor. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such 53 Authenticating Agent, the Issuer and the Guarantor. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 6.13 with respect to one or more series of Securities, the Trustee shall upon receipt of an Issuer Order appoint a successor Authenticating Agent and the Issuer shall provide notice of such appointment to all Holders of Securities of such series in the manner and to the extent provided in Section 11.4. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent. The Issuer agrees to pay to the Authenticating Agent for such series from time to time reasonable compensation. The Authenticating Agent for the Securities of any series shall have no responsibility or liability for any action taken by it as such at the direction of the Trustee. Sections 6.2, 6.3, 6.4, 6.6, 6.9 and 7.3 shall be applicable to any Authenticating Agent. ARTICLE VII CONCERNING THE SECURITYHOLDERS 7.1 Evidence of Action Taken by Securityholders. Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by a specified percentage in principal amount of the Securityholders of any or all series may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such specified percentage of Securityholders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee. Proof of execution of any instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee, the Issuer and the Guarantor, if made in the manner provided in this Article. 7.2 Proof of Execution of Instruments and of Holding of Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument by a Securityholder or his agent or proxy may be proved in the following manner: (a) The fact and date of the execution by any Holder of any instrument may be proved by the certificate of any notary public or other officer of any jurisdiction authorized to take acknowledgments of deeds or administer oaths that the person executing such instruments acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or other such officer. Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit shall also constitute sufficient proof of the authority of the person executing the same. The fact of the holding by any Holder of an Unregistered Security of any series, and the identifying number of such Security and the date of his holding the same, may be proved by the production of such Security or by a certificate executed by any trust company, bank, banker or recognized securities dealer wherever situated satisfactory to the Trustee, if such certificate shall be deemed by the Trustee to be satisfactory. Each such certificate shall be dated and shall state that on the date thereof a Security of such series bearing a specified identifying number was deposited with or exhibited to such trust company, bank, banker or recognized securities dealer by the person named in such certificate. Any such certificate may be issued in respect of one 54 or more Unregistered Securities of one or more series specified therein. The holding by the person named in any such certificate of any Unregistered Securities of any series specified therein shall be presumed to continue for a period of one year from the date of such certificate unless at the time of any determination of such holding (1) another certificate bearing a later date issued in respect of the same Securities shall be produced, or (2) the Security of such series specified in such certificate shall be produced by some other person, or (3) the Security of such series specified in such certificate shall have ceased to be Outstanding. Subject to Sections 6.1 and 6.2, the fact and date of the execution of any such instrument and the amount and numbers of Securities of any series held by the person so executing such instrument and the amount and numbers of any Security or Securities for such series may also be proven in accordance with such reasonable rules and regulations as may be prescribed by the Trustee for such series or in any other manner which the Trustee for such series may deem sufficient. (b) In the case of Registered Securities, the ownership of such Securities shall be proved by the Security register or by a certificate of the Security registrar. The Issuer may set a record date for purposes of determining the identity of Holders of Registered Securities of any series entitled to vote or consent to any action referred to in Section 7.1, which record date may be set at any time or from time to time by notice to the Trustee, for any date or dates (in the case of any adjournment or reconsideration) not more than 60 days nor less than five days prior to the proposed date of such vote or consent, and thereafter, notwithstanding any other provisions hereof, with respect to Registered Securities of any series, only Holders of Registered Securities of such series of record on such record date shall be entitled to so vote or give such consent or revoke such vote or consent. 7.3 Holders to be Treated as Owners. The Issuer, the Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee may deem and treat the person in whose name any Security shall be registered upon the Security register for such series as the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, interest on such Security and for all other purposes; and neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be affected by any notice to the contrary. The Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Holder of any Unregistered Security and the Holder of any Coupon as the absolute owner of such Unregistered Security or Coupon (whether or not such Unregistered Security or Coupon shall be overdue) for the purpose of receiving payment thereof or on account thereof and for all other purposes and neither the Issuer, the Trustee, nor any agent of the Issuer or the Trustee shall be affected by any notice to the contrary. All such payments so made to any such person, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Unregistered Security or Coupon. 55 7.4 Securities Owned by Issuer Deemed Not Outstanding. In determining whether the Holders of the requisite aggregate principal amount of Outstanding Securities of any or all series have concurred in any direction, consent or waiver under this Indenture, Securities which are owned by the Issuer, the Guarantor or any other obligor on the Securities with respect to which such determination is being made or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer, the Guarantor or any other obligor on the Securities with respect to which such determination is being made shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver only Securities which the Trustee knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Issuer, the Guarantor or any other obligor upon the Securities or any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer, the Guarantor or any other obligor on the Securities. In case of a dispute as to such right, the advice of counsel shall be full protection in respect of any decision made by the Trustee in accordance with such advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an Officers' Certificate listing and identifying all Securities, if any, known by the Issuer to be owned or held by or for the account of any of the above described Persons; and, subject to Sections 6.1 and 6.2, the Trustee shall be entitled to accept such Officers' Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such determination. 7.5 Right of Revocation of Action Taken. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 7.1, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action, any Holder of a Security the serial number of which is shown by the evidence to be included among the serial numbers of the Securities the Holders of which have consented to such action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke such action so far as concerns such Security. Except as aforesaid, any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Securities issued in exchange or substitution therefor or on registration of transfer thereof, irrespective of whether or not any notation in regard thereto is made upon any such Security. Any action taken by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action shall be conclusively binding upon the Issuer, the Guarantor, the Trustee and the Holders of all the Securities affected by such action. 7.6 Record Date for Consents and Waivers. The Issuer may, but shall not be obligated to, direct the Trustee to establish a record date for the purpose of determining the Persons entitled to (i) waive any past default with respect to the Securities of such series in accordance with Section 5.10, (ii) consent to any supplemental indenture in accordance with Section 8.2 or (iii) waive compliance with any term, condition or provision of any covenant hereunder (if the Indenture should expressly provide for such waiver). If a record date is fixed, the Holders on such record date, or their duly designated proxies, shall be entitled to waive any such past default, consent to any such supplemental indenture or waive compliance with any such term, condition or provision, whether or not such Holder remains a Holder after such record date; provided, however, that unless such waiver or consent is obtained from the Holders, or 56 duly designated proxies, of the requisite principal amount of Outstanding Securities of such series prior to the date which is the 90th day after such record date, any such waiver or consent previously given shall automatically and without further action by any Holder be canceled and of no further effect. ARTICLE VIII SUPPLEMENTAL INDENTURES 8.1 Supplemental Indentures Without Consent of Securityholders. The Issuer and the Guarantor, each when authorized by a resolution of its Board of Directors (which resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Issuer Order), and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes: (a) to convey, transfer, assign, mortgage or pledge any property or assets to the Trustee as security for one or more series of the Securities or the related Guarantees; (b) to evidence the succession of another entity to the Issuer or the Guarantor, or successive successions, and the assumption by the successor of the covenants, agreements and obligations of the Issuer or the Guarantor pursuant to Article IX; (c) to add to the covenants of the Issuer or the Guarantor such further covenants, restrictions, conditions or provisions as the Issuer or the Guarantor, as the case may be, and the Trustee shall consider to be for the protection of the Holders of Securities or Coupons, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, that in respect of any such additional covenant, restriction, condition or provision such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right of the Holders of a majority in aggregate principal amount of the Securities of such series to waive such an Event of Default; (d) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make any other provisions as the Issuer may deem necessary or desirable, provided that no such action shall adversely affect the interests of the Holders of the Securities or Coupons; 57 (e) to establish the forms or terms of Securities of any series or of the Coupons appertaining to such Securities as permitted by Sections 2.1 and 2.3; and (f) to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Section 6.11. The Trustee is hereby authorized to join with the Issuer and the Guarantor in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. Any supplemental indenture authorized by the provisions of this Section may be executed without the consent of the Holders of any of the Securities at the time outstanding, notwithstanding any of the provisions of Section 8.2. 8.2 Supplemental Indentures With Consent of Securityholders. With the consent (evidenced as provided in Article VII) of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series affected by such supplemental indenture (voting as a single class), the Issuer and the Guarantor, each when authorized by a resolution of its Board of Directors (which resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Issuer Order), and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of each such series or of the Coupons appertaining to such Securities; provided, that, without the consent of each Holder affected, no such supplemental indenture shall: (a) reduce the amount of Securities whose Holders must consent to an amendment, supplement or waiver; (b) reduce the rate of or change the time for payment of interest, including default interest, on any Security; (c) reduce the principal of or premium, if any, on or any mandatory sinking fund payment with respect to, or change the stated maturity of, any Security or reduce the amount of the principal that would be due and payable upon a declaration of acceleration of the maturity thereof; (d) reduce the premium, if any, payable upon the redemption of any Security or change the time at which any Security may or shall be redeemed; 58 (e) change the coin or currency or currencies (including composite currencies) in which any Security or any premium or interest with respect thereto are payable; (f) impair the right to institute suit for the enforcement of any payment of principal of or premium, if any, or interest on any Security; (g) make any change in the percentage of principal amount of Securities necessary to waive compliance with certain provisions of this Indenture pursuant to Section 5.6 or 5.7 or make any change in this sentence of Section 8.2; (h) waive a continuing default or Event of Default in the payment of principal of or premium, if any, or interest on the Securities; or (i) modify or affect the obligations of the Guarantor under Article XIII in any manner adverse to the Holders. A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of 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 this Indenture of the Holders of Securities of any other series or of the Coupons appertaining to such Securities. Upon the request of the Issuer, accompanied by a copy of a resolution of the Board of Directors of the Issuer (which resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Issuer Order) certified by the Secretary or an Assistant Secretary of the Issuer authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of the Holders of the Securities as aforesaid and other documents, if any, required by Section 7.1, the Trustee shall join with the Issuer and the Guarantor in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture. It shall not be necessary for the consent of the Securityholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. Promptly after the execution by the Issuer, the Guarantor and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall give notice thereof (i) to the Holders of then Outstanding Registered Securities of each series affected thereby, by mailing a notice thereof by first-class mail to such Holders at their addresses as they shall appear on the Security register, (ii) if any Unregistered Securities of a series affected thereby are then Outstanding, to the Holders thereof who have filed their names and addresses with the Trustee within two years preceding the giving of such notice, by mailing a notice thereof by first-class mail to such Holders at such addresses as were so furnished to the Trustee and (iii) if any Unregistered Securities of a series affected thereby are then Outstanding, to 59 all Holders thereof, by publication of a notice thereof at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York and at least once in an Authorized Newspaper in London (and, if required by Section 3.6, at least once in an Authorized Newspaper in Luxembourg), and in each case such notice shall set forth in general terms the substance of such supplemental Indenture. Failure of the Issuer to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture. 8.3 Effect of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Issuer, the Guarantor and the Holders of Securities of each series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes. 8.4 Documents to Be Given to Trustee. The Trustee, subject to the provisions of Sections 6.1 and 6.2, may receive an Officers' Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article VIII complies with the applicable provisions of this Indenture. 8.5 Notation on Securities in Respect of Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article may bear a notation in form approved by the Trustee for such series as to any matter provided for by such supplemental indenture or as to any action taken by Securityholders. If the Issuer or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Board of Directors of the Issuer, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Issuer, authenticated by the Trustee and delivered in exchange for the Securities of such series then Outstanding. ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE 9.1 Limitations on Mergers and Consolidations of the Guarantor. The Guarantor shall not, in any transaction or series of transactions, consolidate with or merge into any Person, or sell, lease, convey, transfer or otherwise dispose of all or substantially all of its assets to any Person, unless: (a) either (i) the Guarantor shall be the continuing corporation or (ii) the Person (if other than the Guarantor) formed by such consolidation or into which the Guarantor is merged, or to which such sale, lease, conveyance, transfer or other disposition shall be made (collectively, the "Successor"), is organized and validly existing under the laws of the United States, any State thereof or the District of Columbia, and expressly assumes by supplemental indenture the performance of the Guarantees and the Guarantor's covenants and obligations under this Indenture and the Securities; 60 (b) immediately after giving effect to such transaction or series of transactions, no default or Event of Default shall have occurred and be continuing or would result therefrom; and (c) the Guarantor delivers to the Trustee an Officers' Certificate and an Opinion of Counsel prepared in accordance with Section 11.5, each stating that the transaction and such supplemental indenture comply with this Indenture. 9.2 Successor Person Substituted. Upon any consolidation or merger of the Guarantor or any sale, lease, conveyance, transfer or other disposition of all or substantially all of the assets of the Guarantor in accordance with Section 9.1, the Successor formed by such consolidation or into or with which the Guarantor is merged or to which such sale, lease, conveyance, transfer or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of the Guarantor under this Indenture, the Guarantees and the Securities with the same effect as if such Successor had been named as the Guarantor herein and the predecessor Guarantor, in the case of a sale, conveyance, transfer or other disposition, shall be released from all obligations under this Indenture and the Securities. 9.3 Assignment by and Substitution of the Issuer. The rights and obligations of the Issuer under this Indenture and the Securities may be assigned or transferred (a) to another Person with which the Issuer is amalgamated, consolidated or merged or which acquires by conveyance or transfer any of the properties or assets of the Issuer; (b) to the Guarantor or (c) to another Subsidiary. Provided that the requirements of this Section 9.3 for such assignment or transfer shall have been met, upon any such assignment or transfer, all of the obligations of the Issuer under this Indenture and the Securities shall cease and the Issuer shall be released from all obligations under this Indenture and the Securities. In the case of any assignment other than to the Guarantor, the covenants of the Guarantor set forth in this Indenture shall remain in full force and effect or the Guarantor shall execute a new guarantee agreement containing provisions substantially the same as such covenants. Any successor to the Issuer shall expressly assume by supplemental indenture the due and punctual payment of the principal of (and premium, if any) and interest on all the Securities and the performance of the Issuer's covenants and obligations under this Indenture and the Securities. In addition, in the event the Issuer assigns all of its rights and obligations in respect of this Indenture and the Securities to the Guarantor, the provisions of Article XIII shall no longer apply to the Securities, but the other covenants of the Guarantor set forth in this Indenture and any other covenants of the Guarantor provided with respect to any series of Securities shall remain in full force and effect. ARTICLE X SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS 10.1 Satisfaction and Discharge of Indenture. 61 (a) If at any time (i) the Issuer or the Guarantor shall have paid or caused to be paid the principal of and interest on all the Securities of any series Outstanding hereunder and all Coupons appertaining thereto (other than Securities of such series and Coupons appertaining thereto which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.9) as and when the same shall have become due and payable, or (ii) the Issuer or the Guarantor shall have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated and all Coupons appertaining thereto (other than any Securities of such series and Coupons appertaining thereto which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.9) or (iii) in the case of any series of Securities where the exact amount (including the currency of payment) of principal of and interest due on such Securities can be determined at the time of making the deposit referred to in clause (B) below, (A) all the Securities of such series and all Coupons appertaining thereto not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and (B) the Issuer or the Guarantor shall have irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for and dedicated solely to the benefit of the Holders of the Securities of such series and Coupons appertaining thereto, (x) cash in an amount, or (y) in the case of any series of Securities the payments on which may only be made in Dollars, direct obligations of the United States of America, backed by its full faith and credit ("U.S. Government Obligations"), maturing as to principal ----------------------------- and interest at such times and in such amounts as will insure the availability of cash in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay the principal and interest on all Securities of such series and Coupons appertaining thereto on each date that such principal or interest is due and payable (whether at maturity or upon redemption (through operation of a mandatory sinking fund or otherwise) other than any redemption at the option of the Holder); and if, in any such case, the Issuer or the Guarantor shall also pay or cause to be paid all other sums payable hereunder by the Issuer, then all of the Securities of such series and any Coupons appertaining thereto shall be deemed paid and discharged and the provisions of this Indenture with respect to such Securities and Coupons shall cease to be of further effect (except as to (1) rights of registration of transfer, exchange of Securities of such series and of Coupons appertaining thereto and the Issuer's right of optional redemption, if any, (2) substitution of mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (3) rights of Holders of Securities and Coupons appertaining thereto to receive payments of principal thereof and interest thereon, upon the stated due dates therefor (whether at maturity or upon redemption (through operation of a mandatory sinking fund or otherwise) other than any redemption at the option of the Holder) (but not upon acceleration), (4) the rights, obligations, duties and immunities of the Trustee hereunder, (5) the rights of the Holders of Securities of such series and Coupons appertaining thereto as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them, and (6) the obligations of the Issuer under Section 3.2) and the Trustee, on demand of the Issuer or the Guarantor accompanied by an Officers' Certificate and an Opinion of 62 Counsel which complies with Section 11.5 and at the cost and expense of the Issuer or the Guarantor, shall execute proper instruments acknowledging the same. The Issuer and the Guarantor agree to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the Securities of such series. (b) In addition to discharge of the Indenture pursuant to the next preceding paragraph, in the case of any series of Securities where the exact amounts (including the currency of payment) of principal of and interest due on such Securities can be determined at the time of making the deposit referred to in clause (A) below, on the 91st day after the date of such deposit all the Securities of such a series and any Coupons appertaining thereto shall be deemed paid and discharged and the provisions of this Indenture with respect to the Securities and Coupons shall cease to be of further effect (except as to (i) rights of registration of transfer and exchange of Securities of such series and of Coupons appertaining thereto and the Issuer's right of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (iii) rights of Holders of Securities and Coupons appertaining thereto to receive payments of principal thereof and interest thereon, upon the stated due dates therefor (whether at maturity or upon redemption (through operation of a mandatory sinking fund or otherwise) other than any redemption at the option of the Holder) (but not upon acceleration), (iv) the rights, obligations, duties and immunities of the Trustee hereunder, (v) the rights of the Holders of Securities of such series and Coupons appertaining thereto as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them and (vi) the obligations of the Issuer under Section 3.2) and the Trustee, at the expense of the Issuer or the Guarantor, shall at the Issuer's or the Guarantor's request, execute proper instruments acknowledging the same, if: (A) the Issuer or the Guarantor has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for and dedicated solely to the benefit of the Holders of the Securities of such series and Coupons appertaining thereto, (1) cash in an amount, or (2) in the case of any series of Securities the payments on which may only be made in Dollars, U.S. Government Obligations, maturing as to principal and interest at such times and in such amounts as will insure the availability of cash in an amount or (3) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay the principal and interest on all Securities of such series and Coupons appertaining thereto on each date that such principal or interest is due and payable (whether at maturity or upon mandatory redemption (through operation of a mandatory sinking fund or otherwise) other than any redemption at the option of the Holder); (B) no Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to the Securities shall have occurred and be continuing on the date of such 63 deposit or, insofar as subsections 5.1(d) and (e) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period); (C) such deposit and discharge will not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Issuer or the Guarantor is a party or by which it is bound; (D) such deposit and discharge shall not cause the Trustee to have a conflicting interest as defined in Section 310(b) of the Trust Indenture Act; (E) such deposit and discharge shall not cause any Securities then listed on any registered national securities exchange to be delisted; (F) the Issuer or the Guarantor shall have delivered to the Trustee an Opinion of Counsel based on the fact that (x) the Issuer or the Guarantor has received from, or there has been published by, the U.S. Internal Revenue Service a ruling or (y) since the date hereof, there has been a change in the applicable U.S. Federal income tax law, in either case to the effect that, and such opinion shall confirm that, the Holders of the Securities of such series and Coupons appertaining thereto will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to U.S. Federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and discharge had not occurred; and (G) the Issuer or the Guarantor shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the deposit and discharge contemplated by this provision have been complied with. (c) The Issuer and the Guarantor shall be released from their obligations under Sections 3.7, 3.8 and 9.1 and any other covenants specified pursuant to Section 2.3 with respect to the Securities of any series and any Coupons appertaining thereto on and after the date the conditions set forth below are satisfied (hereinafter, "covenant defeasance"). For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of the applicable series, the Issuer and the Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in such Section or any such covenant, whether directly or indirectly by reason of any reference elsewhere herein to such Section or any such covenant or by reason of any reference in such Section or any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute an Event of Default under Section 5.1, but the remainder of this Indenture and such Securities and Coupons shall be unaffected thereby. The following shall be the conditions to application of this subsection (c) of this Section 10.1: 64 (i) The Issuer or the Guarantor has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series and Coupons appertaining thereto, (A) cash in an amount, or (B) in the case of any series of Securities the payments on which may only be made in Dollars, U.S. Government Obligations maturing as to principal and interest at such times and in such amounts as will insure the availability of cash in an amount or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay the principal and interest on all Securities of such series and Coupons appertaining thereto on each date that such principal or interest is due and payable (whether at maturity or upon redemption (through operation of a mandatory sinking fund or otherwise) other than any redemption at the option of the Holder). (ii) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit or, insofar as subsections 5.1(d) and (e) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period). (iii) Such covenant defeasance will not result in a breach or violation of, or constitute a default under, any agreement or instrument to which the Issuer is a party or by which it is bound. (iv) Such covenant defeasance shall not cause the Trustee to have a conflicting interest as defined in Section 310(b) of the Trust Indenture Act. (v) Such covenant defeasance shall not cause any Securities then listed on any registered national securities exchange to be delisted. (vi) The Issuer or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Securities of such series and Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred. (vii) The Issuer or the Guarantor shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the covenant defeasance contemplated by this provision have been complied with. 65 10.2 Application by Trustee of Funds Deposited for Payment of Securities. Subject to Section 10.4, all moneys and Securities deposited with the Trustee (or other trustee) pursuant to Section 10.1 shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Issuer acting as its own paying agent), to the Holders of the particular Securities of such series and of Coupons appertaining thereto for the payment or redemption of which such moneys or Securities have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest; but such moneys or Securities need not be segregated from other funds except to the extent required by law. 10.3 Repayment of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture with respect to Securities of any series, all moneys then held by any paying agent under the provisions of this Indenture with respect to such series of Securities shall, upon demand of the Issuer or the Guarantor, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys. 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any paying agent for the payment of the principal of or interest on any Security of any series or Coupons attached thereto and not applied but remaining unclaimed for two years after the date upon which such principal or interest shall have become due and payable, shall, upon the written request of the Issuer and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Issuer by the Trustee for such series or such paying agent, and the Holder of the Securities of such series and of any Coupons appertaining thereto shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only to the Issuer for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease; provided, however, that the Trustee or such paying agent, before being required to make any such repayment with respect to moneys deposited with it for any payment (a) in respect of Registered Securities of any series, shall, at the expense of the Issuer, mail by first-class mail to Holders of such Securities at their addresses as they shall appear on the Security register, and (b) in respect of Unregistered Securities of any series, shall at the expense of the Issuer cause to be published once, in an Authorized Newspaper in the Borough of Manhattan, The City of New York and once in an Authorized Newspaper in London (and if required by Section 3.6, once in an Authorized Newspaper in Luxembourg), notice, that such moneys remain and that, after a date specified therein, which shall not be less than 30 days from the date of such mailing or publication, any unclaimed balance of such money then remaining will be repaid to the Issuer. 10.5 Indemnity for U.S. Government Obligations. The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 10.1 or the principal or interest received in respect of such obligations. 66 ARTICLE XI MISCELLANEOUS PROVISIONS 11.1 Incorporators, Stockholders, Officers, Directors and Employees of Issuer and Guarantor Exempt from Individual Liability. No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such or against any past, present or future stockholder, officer, director or employee, as such, of the Issuer or the Guarantor, as applicable or of any successor, either directly or through the Issuer or the Guarantor or any such 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 expressly waived and released by the acceptance of the Securities and the Coupons appertaining thereto by the Holders thereof and as part of the consideration for the issue of the Securities and the Coupons appertaining thereto. 11.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities and Coupons. Nothing in this Indenture, in the Securities or in the Coupons appertaining thereto, expressed or implied, shall give or be construed to give to any Person, other than the parties hereto and their respective successors and the Holders of the Securities or Coupons, if any, any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their respective successors and of the Holders of the Securities or Coupons, if any. 11.3 Successors and Assigns of Issuer and Guarantor Bound by Indenture. All the covenants, stipulations, promises and agreements in this Indenture contained by or in behalf of the Issuer or the Guarantor shall bind its successors and assigns, whether so expressed or not. 11.4 Notices and Demands on Issuer, Guarantor, Trustee and Holders of Securities and Coupons. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities or Coupons to or on the Issuer or the Guarantor may be given or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address of the Issuer or the Guarantor is filed by the Issuer or the Guarantor with the Trustee) to SYSCO Corporation, 1390 Enclave Parkway, Houston, Texas 77077-2099, Attention: Chief Financial Officer. Any notice, direction, request or demand by the Issuer or any Holder of Securities or Coupons to or upon the Trustee shall be deemed to have been sufficiently given or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address of the Trustee is filed by the Trustee with the Issuer) to Wachovia Bank, National Association, 5847 San Felipe, Suite 1050, Houston, Texas 77057, Attention: Corporate Trust Administration Department. Where this Indenture provides for notice to Holders of Registered Securities, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder entitled thereto, at his last address as it appears in the Security register. Where this Indenture provides for notice to Holders of Unregistered Securities who have filed their names and addresses within two years preceding the giving of such notice, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class 67 postage prepaid, to each Holder entitled thereto, at his last address as it appears in such filing. Notice to other Unregistered Securities shall be by publication as provided in Section 6.10(a)(i). In any case where notice to such Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. In case, by reason of the suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the Issuer when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be reasonably satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice. 11.5 Officers' Certificates and Opinions of Counsel; Statements to Be Contained Therein. Upon any application or demand by the Issuer, the Guarantor or both of them to the Trustee to take any action under any of the provisions of this Indenture, the Issuer, the Guarantor or both of them, as the case may be, shall furnish to the Trustee an Officers' Certificate stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished. Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (a) a statement that the person making such certificate or opinion has read such covenant or condition, (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based, (c) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with and (d) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with. Any certificate, statement or opinion of an officer of the Issuer or the Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters where the information is in the possession of the Issuer or the Guarantor, upon the certificate, statement or 68 opinion of or representations by an officer or officers of the Issuer or the Guarantor, unless such counsel knows that the certificate, statement or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate, statement or opinion of an officer of the Issuer or the Guarantor or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Issuer or the Guarantor, unless such officer or counsel, as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate or opinion of any independent firm of public accountants filed with and directed to the Trustee shall contain a statement that such firm is independent. 11.6 Payments Due on Saturdays, Sundays and Holidays. If the date of maturity of interest on or principal of the Securities of any series or any Coupons appertaining thereto or the date fixed for redemption or repayment of any such Security or Coupon shall not be a Business Day, then payment of interest or principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date. 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act (an "incorporated provision"), such incorporated provision shall control. 11.8 New York Law to Govern; Jurisdiction; Service of Process. This Indenture, the Guarantees and each Security and Coupon shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of such State without giving effect to applicable principles of conflicts of laws to the extent the laws of another jurisdiction would be required thereby. Each of the Issuer and the Guarantor hereby submits to the non-exclusive jurisdiction of the federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Issuer has appointed CT Corporation System, 111 Eighth Avenue, New York, New York 10011 as its authorized agent (the "Authorized Agent") upon whom process may be served in any suit, action or proceeding arising out of or relating to this Indenture, the Guarantees and each Security and Coupon or the transactions contemplated thereby that may be instituted in any federal or state court in the Borough of Manhattan in The City of New York by the Trustee or any Holder, and agrees that service of process upon such agent, and written notice of said service to the Issuer by the person serving the same to the address of the Authorized Agent shall be deemed in every respect effective service of process upon the Issuer in any such suit or proceeding. The Issuer further agrees to take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect for a period of ten years from the date of this Indenture. If for any reason CT Corporation System shall cease to be available to act as such Authorized Agent for the 69 Issuer, the Issuer agrees to designate a new agent in the State of New York on the terms and for the purpose of this Section 11.8 reasonably satisfactory to the Trustee. Each of the Issuer and the Guarantor irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may have to laying of venue in respect of any action, suit or proceeding arising out of or in connection with this Indenture, the Guarantees and each Security and Coupon or the transactions contemplated hereby to which it is a party brought in any federal or state court located in the State of New York and hereby agrees not to plead or claim in any such court that any such action, suit or proceeding has been brought in an inconvenient forum. Each of the Issuer and the Guarantor also waives, to the fullest extent permitted by law, all right to trial by jury in any claim or counterclaim (whether based upon contract, tort or otherwise) in any way arising out of or relating to this Indenture, the Guarantees and each Security and Coupon. 11.9 Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute one and the same instrument. 11.10 Effect of Headings. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. 11.11 Securities in a Foreign Currency or in ECU. Unless otherwise specified in an Officers' Certificate delivered pursuant to Section 2.3 of this Indenture with respect to a particular series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities of all series or all series affected by a particular action at the time Outstanding and, at such time, there are Outstanding Securities of any series which are denominated in a coin or currency other than Dollars (including ECUs), then the principal amount of Securities of such series which shall be deemed to be Outstanding for the purpose of taking such action shall be that amount of Dollars that could be obtained for such amount at the Market Exchange Rate. For purposes of this Section 11.11, Market Exchange Rate shall mean the noon Dollar buying rate in New York City for cable transfers of that currency published by the Federal Reserve Bank of New York; provided, however, in the case of ECUs, Market Exchange Rate shall mean the rate of exchange determined by the Commission of the European Communities (or any successor thereto) as published in the Official Journal of the European Communities (such publication or any successor publication, the "Journal"). If such Market Exchange Rate is not available for any reason with respect to such currency, the Trustee shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York or, in the case of ECUs, the rate of exchange as published in the Journal, as of the most recent available date, or quotations or, in the case of ECUs, rates of exchange from one or more major banks in The City of New York or in the country of issue of the currency in question, which for purposes of the ECU shall be Brussels, Belgium, or such other quotations or, in the case of ECU, rates of exchange as the Trustee shall deem appropriate. The provisions of this paragraph shall apply in determining the equivalent principal amount in respect of Securities of a series denominated in a currency other than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture. 70 All decisions and determinations of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in its sole discretion and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably binding upon the Issuer and all Holders. 11.12 Judgment Currency. Each of the Issuer and the Guarantor agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of or interest on the Securities of any series (the "Required Currency") into a currency in which a judgment will be rendered (the "Judgment Currency"), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with clause (a) of this sentence), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized or required by law or executive order to close. ARTICLE XII REDEMPTION OF SECURITIES AND SINKING FUNDS 12.1 Applicability of Article. The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their maturity (pursuant to operation of any sinking fund or otherwise) except as otherwise specified, as contemplated by Section 2.3, for Securities of such series. 12.2 Notice of Redemption; Partial Redemptions. Notice of redemption to the Holders of Registered Securities of any series to be redeemed as a whole or in part other than at the option of the Holder shall be given by mailing notice of such redemption by first-class mail, postage prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders at their last addresses as they shall appear upon the registry books. Notice of redemption to the Holders of Unregistered Securities to be redeemed as a whole or in part, who have filed their names and addresses with the Trustee within two years preceding the giving of such notice, shall be given by mailing notice of such redemption, by first-class mail, postage prepaid, at least 30 days and not more than 60 prior to the date fixed for redemption, to such Holders at such addresses as were so furnished to the Trustee (and, in the case of any such notice given by the Issuer, the Trustee shall make such information available to the Issuer for such purpose). Notice of redemption to all other Holders of 71 Unregistered Securities shall be published in an Authorized Newspaper in the Borough of Manhattan, The City of New York and in an Authorized Newspaper in London (and, if required by Section 3.6, in an Authorized Newspaper in Luxembourg), in each case, once in each of three successive calendar weeks, the first publication to be not less than 30 nor more than 60 days prior to the date fixed for redemption. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice. Failure to give notice, or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series. The notice of redemption to each such Holder shall specify the principal amount of each Security of such series held by such Holder to be redeemed, the date fixed for redemption, the redemption price, the place or places of payment, that payment will be made upon presentation and surrender of such Securities and, in the case of Securities with Coupons attached thereto, of all Coupons appertaining thereto maturing after the date fixed for redemption, that such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the case, that interest accrued to the date fixed for redemption will be paid as specified in such notice and that on and after said date interest thereon or on the portions thereof to be redeemed will cease to accrue. In case any Security of a series is to be redeemed in part only the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of the same series, of like tenor and in an aggregate principal amount equal to the unredeemed portion thereof will be issued. The notice of redemption of Securities of any series to be redeemed at the option of the Issuer shall be given by the Issuer or, at the Issuer's request, by the Trustee in the name and at the expense of the Issuer. On or before the redemption date specified in the notice of redemption given as provided in this section, the Issuer or the Guarantor, as the case may be, will deposit with the Trustee or with one or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate and hold in trust as provided in Section 3.4) an amount of money sufficient to redeem on the redemption date all the Securities of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption. If less than all Outstanding Securities of any series are to be redeemed, the Issuer will deliver to the Trustee at least 70 days prior to the date fixed for redemption an Officers' Certificate stating the aggregate principal amount of Securities of such series to be redeemed. In case of a redemption at the election of the Issuer prior to the expiration of any restriction on such redemption, the Issuer shall deliver to the Trustee, prior to the giving of any notice of redemption to Holders pursuant to this Section, an Officers' Certificate stating that such restriction has been complied with. 72 If less than all the Securities of a series are to be redeemed, the Trustee shall select, in such manner as it shall deem appropriate and fair, Securities of such series to be redeemed in whole or in part. Securities may be redeemed in part in multiples of the minimum authorized denomination for Securities of such series. The Trustee shall promptly notify the Issuer in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities of any series shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed. 12.3 Payment of Securities Called for Redemption. If notice of redemption has been given as above provided, the Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption, and on and after said date (unless the Issuer shall default in the payment of such Securities at the redemption price, together with interest accrued to said date) interest on the Securities or portions of Securities so called for redemption shall cease to accrue, and the unmatured Coupons, if any, appertaining thereto shall be void, and, except as provided in Sections 6.5 and 10.4, such Securities shall cease from and after the close of business on the date fixed for redemption to be entitled to any benefit or security under this Indenture, and the Holders thereof shall have no right in respect of such Securities except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at a place of payment specified in said notice, together with all Coupons, if any, appertaining thereto maturing after the date fixed for redemption, said Securities or the specified portions thereof shall be paid and redeemed by the Issuer or the Guarantor, as the case may be, at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided that payment of interest becoming due on or prior to the date fixed for redemption shall be payable in the case of Securities with Coupons attached thereto, to the Holders of the Coupons for such interest upon surrender thereof, and in the case of Registered Securities, to the Holders of such Registered Securities registered as such on the relevant record date subject to the terms and provisions of Sections 2.3 and 2.7 hereof. If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount Security) borne by such Security. If any Security with Coupons attached thereto is surrendered for redemption and is not accompanied by all appurtenant Coupons maturing after the date fixed for redemption, the surrender of such missing Coupon or Coupons may be waived by the Issuer and the Trustee, if there be furnished to each of them such security or indemnity as they may require to save each of them harmless. Upon presentation of any Security redeemed in part only, the Issuer shall execute and the Trustee shall authenticate and deliver to or on the order of the Holder thereof, at the expense of the Issuer, a new Security or Securities of the same series, in authorized denominations, of like tenor and in an aggregate principal amount equal to the unredeemed portion of the Security so presented. 73 12.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption. Securities shall be excluded from eligibility for selection for redemption if they are identified by registration and certificate number in an Officers' Certificate delivered to the Trustee at least 40 days prior to the last date on which notice of redemption may be given as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b) an entity specifically identified in such written statement as directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer. 12.5 Mandatory and Optional Sinking Funds. The minimum amount of any sinking fund payment provided for by the terms of the Securities of any series is herein referred to as a "mandatory sinking fund payment," and any payment in excess of such minimum amount provided for by the terms of the Securities of any series is herein referred to as an "optional sinking fund payment." The date on which a sinking fund payment is to be made is herein referred to as the "sinking fund payment date." In lieu of making all or any part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Issuer or the Guarantor, as the case may be, may at its option (a) deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the mandatory sinking fund) by the Issuer or the Guarantor, as the case may be, or receive credit for Securities of such series (not previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Issuer or the Guarantor and delivered to the Trustee for cancellation pursuant to Section 2.10, (b) receive credit for optional sinking fund payments (not previously so credited) made pursuant to this Section, and (c) receive credit for Securities of such series (not previously so credited) redeemed by the Issuer or the Guarantor through any optional redemption provision contained in the terms of such series. On or before the 60th day next preceding each sinking fund payment date for any series, the Issuer will deliver to the Trustee an Officers' Certificate (which need not contain the statements required by Section 11.5) (a) specifying the portion of the mandatory sinking fund payment to be satisfied by payment of cash and the portion to be satisfied by credit of Securities of such series and the basis for such credit, (b) stating that none of the Securities of such series to be so credited have previously been so credited, (c) stating that no defaults in the payment of interest or Events of Default with respect to such series have occurred (which have not been waived or cured) and are continuing and (d) stating whether or not the Issuer or the Guarantor intends to exercise its right to make an optional sinking fund payment with respect to such series and, if so, specifying the amount of such optional sinking fund payment which the Issuer or the Guarantor intends to pay on or before the next succeeding sinking fund payment date. Any Securities of such series to be credited and required to be delivered to the Trustee in order for the Issuer or the Guarantor to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.10 to the Trustee with such Officers' Certificate (or reasonably promptly thereafter if acceptable to the Trustee). Such Officers' Certificate shall be irrevocable and upon its receipt by the Trustee the Issuer or the Guarantor shall become unconditionally obligated to make all the cash payments or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the Issuer or the Guarantor, on or before any such 60th day, to deliver such Officers' Certificate and Securities (subject to the parenthetical clause in the second preceding sentence) specified in this 74 paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Issuer or the Guarantor (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof and (ii) that the Issuer or the Guarantor will make no optional sinking fund payment with respect to such series as provided in this Section. If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund payments made in cash shall exceed $50,000 (or the equivalent thereof in any Foreign Currency or ECU) or a lesser sum in Dollars (or the equivalent thereof in any Foreign Currency or ECU) if the Issuer shall so request with respect to the Securities of any particular series, such cash shall be applied on the next succeeding sinking fund payment date to the redemption of Securities of such series at the sinking fund redelegation price together with accrued interest to the date fixed for redemption. If such amount shall be $50,000 (or the equivalent thereof in any Foreign currency or ECU) or less and the Issuer makes no such request then it shall be carried over until a sum in excess of $50,000 (or the equivalent thereof in any Foreign Currency or ECU) is available. The Trustee shall select, in the manner provided in Section 12.2 and subject to the limitations in Section 12.4, for redemption on such sinking fund payment date a sufficient principal amount of Securities of such series to absorb said cash, as nearly as may be, and shall (if requested in writing by the Issuer) inform the Issuer of the serial numbers of the Securities of such series (or portions thereof) so selected. The Trustee, in the name and at the expense of the Issuer (or the Issuer, if it shall so request the Trustee in writing) shall cause notice of redemption of the Securities of such series to be given in substantially the manner provided in Section 12.2 (and with the effect provided in Section 12.3) for the redemption of Securities of such series in part. The amount of any sinking fund payments not so applied or allocated to the redemption of Securities of such series shall be added to the next cash sinking fund payment for such series and, together with such payment, shall be applied in accordance with the provisions of this Section. Any and all sinking fund moneys held on the stated maturity date of the Securities of any particular series (or earlier, if such maturity is accelerated), which are not held for the payment or redemption of particular Securities of such series shall be applied, together with other moneys, if necessary, sufficient for the purpose, to the payment of the principal of, and interest on, the Securities of such series at maturity. On or before each sinking fund payment date, the Issuer or the Guarantor shall pay to the Trustee in cash or shall otherwise provide for the payment of all interest accrued to the date fixed for redemption on Securities to be redeemed on the next following sinking fund payment date. The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking fund moneys or give any notice of redemption of Securities for such series by operation of the sinking fund during the continuance of a default in payment of interest on such Securities or of any Event of Default except that, where the giving of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Issuer or the Guarantor a sum sufficient for such redemption. Except as aforesaid, any moneys 75 in the sinking fund for such series at the time when any such default or Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such default or Event of Default, be deemed to have been collected under Article V and held for the payment of all such Securities. In case such Event of Default shall have been waived as provided in Section 5.10 or the default cured on or before the 60th day preceding the sinking fund payment date in any year, such moneys shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section to the redemption of such Securities. ARTICLE XIII GUARANTEES 13.1 Guarantees. The Guarantor hereby unconditionally guarantees on a senior basis to the Holders from time to time (a) the full and prompt payment of the principal of any Security when and as the same shall become due, whether at the stated maturity thereof, by acceleration, redemption or otherwise, or in the event of default in any sinking fund payment, and (b) the full and prompt payment of any interest on any Security when and as the same shall become due, subject to any applicable grace period; provided that, notwithstanding anything to the contrary herein, the aggregate amount of the obligations guaranteed under the Indenture by the Guarantor shall be limited in amount to the maximum amount that would render the Guarantor's obligations subject to avoidance under the applicable fraudulent conveyance provisions of the United States Bankruptcy Code or any comparable provision of any applicable state law. Each payment by the Guarantor with respect to any Security shall be paid in the currency or currencies specified for payments on such Security as contemplated by Section 2.3 and pursuant to this Indenture. Each and every default in the payment of the principal of and interest on any Security shall give rise to a separate cause of action hereunder, and separate suits may be brought hereunder as each cause of action arises. The Guarantee hereunder constitutes a guarantee of payment and not of collection. The obligations of the Guarantor hereunder with respect to a series of Securities shall be absolute and unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same, whether or not a Guarantee is affixed to any particular Security, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor, and, subject to Section 9.3 and Article X, shall remain in full force and effect until the entire principal of and interest on the Securities of such series shall have been paid or provided for in accordance with the provisions of such series and of this Indenture, and such payment shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to, or the consent of, the Guarantor: (a) the waiver, surrender, compromise, settlement, release or termination of any or all of the obligations, covenants or agreements of the Issuer under this Indenture or the Securities of such series; 76 (b) the failure to give notice to the Guarantor of the occurrence of a default or an Event of Default hereunder; (c) the waiver, compromise or release of the payment, performance or observance by the Issuer or the Guarantor of any or all of the obligations, covenants or agreements of either of them contained in this Indenture; (d) the extension of the time for payment of principal of and interest on any Security of such series or for any other payment under this Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of this Indenture; (e) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in this Indenture or the Securities of such series; (f) the taking or the omission of any of the actions referred to in this Indenture and any of the actions under the Securities of such series; (g) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in this Indenture, or any other act or acts on the part of the Trustee or any of the Holders from time to time of the Securities of such series; (h) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantor or the Issuer, or any of the assets of any of them, or any allegation or contest respecting the validity of the Guarantee in any such proceeding; (i) to the extent permitted by law, the release or discharge by operation of law of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Indenture; (j) to the extent permitted by law, the release or discharge by operation of law of the Issuer from the performance or observance of any obligation, covenant or agreement contained in this Indenture; (k) the default or failure of the Guarantor or the Trustee fully to perform any of its obligations set forth in this Indenture or the Securities of such series; or (l) the invalidity of this Indenture or the Securities of such series or any part of any thereof. The Guarantor hereby waives the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that its 77 Guarantee shall not be discharged except by complete performance of the obligations contained in the Securities, this Indenture and this Guarantee. No set-off, counterclaim, reduction or diminution of any obligation, or any defense of any kind or nature which the Guarantor has or may have against the Trustee shall be available hereunder to the Guarantor against the Trustee to reduce the payments of the Guarantor under this Section 13.1. The Guarantor assumes responsibility for being and remaining informed of the financial condition of the Issuer and of all other circumstances bearing upon the risk of nonpayment of amounts owing under the Securities which diligent inquiry would reveal and agrees that the Holders of the Securities shall have no duty to advise the Guarantor of information known to any of them regarding such condition or any such circumstances. 13.2 Proceedings Against the Guarantor. In the event of a default in the payment of principal of or any premium on any Security when and as the same shall become due, whether at the stated maturity thereof, by acceleration, call for redemption or otherwise, or in the event of a default in any sinking fund payment, or in the event of a default in the payment of any interest on any Security when and as the same shall become due, each of the Trustee and the Holder of such Security shall have the right to proceed first and directly against the Guarantor under this Indenture without first proceeding against the Issuer or exhausting any other remedies which the Trustee or such Holder may have and without resorting to any other security held by it. The Trustee shall have the right, power and authority to do all things it deems necessary or advisable to enforce the provisions of this Indenture relating to the Guarantee and to protect the interests of the Holders of the Securities and, in the event of a default in payment of the principal of or any premium on any Security when and as the same shall become due, whether at the Stated Maturity thereof, by acceleration, call for redemption or otherwise, or in the event of a default in any sinking fund payment, or in the event of a default in the payment of any interest on any Security when and as the same shall become due, the Trustee may institute or appear in such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of its rights and the rights of the Holders, whether for the specific enforcement of any covenant or agreement in this Indenture relating to the Guarantee or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. Without limiting the generality of the foregoing, in the event of a default in payment of the principal of, premium (if any) and interest on any Security when due, the Trustee may institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Guarantor and collect the monies adjudged or decreed to be payable in the manner provided by applicable law out of the property of the Guarantor, wherever situated. 13.3 Guarantees for Benefit of Holders. The Guarantees contained in this Indenture are provided by the Guarantor for the benefit of the Holders from time to time. Such provisions shall not be deemed to create any right in, or to be in whole or in part for the benefit of any Person other than, the Trustee, the Guarantor, the Holders from time to time and their permitted successors and assigns. 78 13.4 Severability. Any provision of this Article XIII that is prohibited or unenforceable in any jurisdiction shall not invalidate the remaining provisions of this Article XIII or this Indenture and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction unless its removal would substantially defeat the basic intent, spirit and purpose of this Indenture and this Article XIII. 79 IN WITNESS WHEREOF the parties hereto have caused this Indenture to be duly executed as of May 23, 2002. SYSCO INTERNATIONAL, CO., as Issuer By: /s/ Diane Day Sanders ------------------------------------------- Name: Diane Day Sanders ------------------------------------------- Title: Treasurer ------------------------------------------- SYSCO CORPORATION, as Guarantor By: /s/ Diane Day Sanders ------------------------------------------- Name: Diane Day Sanders ------------------------------------------- Title: Vice President & Treasurer ------------------------------------------- WACHOVIA BANK, NATIONAL ASSOCIATION, TRUSTEE By: /s/ R. Douglas Milner ------------------------------------------- Name: R. Douglas Milner ------------------------------------------- Title: Vice President ------------------------------------------- 80 EXHIBIT A [Form of 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. THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. 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 SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF OR THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY: (A) TO THE ISSUER OR THE GUARANTOR, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, A-1 (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. [THIS NOTE IS A TEMPORARY GLOBAL SECURITY. PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD APPLICABLE HERETO, BENEFICIAL INTERESTS HEREIN MAY NOT BE HELD BY ANY PERSON OTHER THAN (1) A NON-U.S. PERSON OR (2) A U.S. PERSON WHO PURCHASED SUCH INTEREST IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") PURSUANT TO RULE 144A THEREUNDER. BENEFICIAL INTERESTS HEREIN ARE NOT EXCHANGEABLE FOR PHYSICAL NOTES OTHER THAN A PERMANENT GLOBAL NOTE IN ACCORDANCE WITH THE TERMS OF THE INDENTURE. TERMS IN THIS LEGEND ARE USED AS USED IN REGULATION S UNDER THE SECURITIES ACT.] [THIS LEGEND FOR REG S SECURITY ONLY.] A-2 SYSCO INTERNATIONAL, CO. ____% Notes due ______________ No. ____________ CUSIP: ____________ PRINCIPAL AMOUNT: $____________ AUTHENTICATION DATE: ______________ ORIGINAL ISSUE DATE: _______________ STATED MATURITY: ______________ INTEREST RATE: ____% per annum SUBJECT TO DEFEASANCE PURSUANT TO ARTICLE X OF THE INDENTURE REFERRED TO HEREIN ISSUE PRICE (%): _______% SYSCO International Co., an unlimited liability company organized and existing under the laws of the Province of Nova Scotia, Canada (herein called the "Issuer", which term includes any successor Person under the Indenture referred to herein), for value received, hereby promises to pay to CEDE & Co., or registered assigns, the principal sum of _____________________ ($_________) on _____________ (the "Stated Maturity") and to pay interest thereon at the rate of ____% per annum, computed on the basis of a 360-day year comprising twelve 30-day months, from ____________ (the "Original Issue Date") or from the most recent Interest Payment Date to which interest has been paid or duly provided for, on ____________ and _____________ in each year and at the Stated Maturity or upon redemption, commencing with _____________, 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 Security is registered at the close of business on the Regular Record Date for such interest, which shall be _____________ or _____________ (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Payments of principal on this Security and interest payable on this Security at the Stated Maturity or upon redemption of this Security shall be made in immediately available funds in such currency of the United States of A-3 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 Security, at the office or agency of the paying agent in New York, New York or any other duly appointed paying agent, provided that this Security 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 Securities 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 Securities, on the written order of the Depositary. Initially, the Trustee will act as paying agent and registrar. The Issuer may change any paying agent or registrar upon written notice thereto to the Trustee. Any Subsidiary or Affiliate may act as paying agent, registrar or co-registrar. 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 Issuer, by wire transfer to an account maintained by such Person with a bank located in the United States. [The Holder of this Security is entitled to the benefits of the Registration Rights Agreement, dated ___________, 2002, among the Issuer, SYSCO Corporation, (the "Guarantor") and the Initial Purchasers named therein (the "Registration Rights Agreement"). In the event that (i) the Issuer and the Guarantor have not filed the Exchange Offer Registration Statement or Shelf Registration Statement with the SEC on or before the date on which such Registration Statement is required to be so filed pursuant to Section 2(a) or 2(b), respectively, of the Registration Rights Agreement or (ii) such Exchange Offer Registration Statement or Shelf Registration Statement has not been declared effective by the SEC under the Securities Act on or before the date on which such Registration Statement is required to be declared effective under the Securities Act pursuant to Section 2(a) or 2(b), respectively, of the Registration Rights Agreement or (iii) the Exchange Offer has not been consummated within 210 days after the Closing Date (as such term is defined in the Registration Rights Agreement) or (iv) the Exchange Offer Registration Statement or Shelf Registration Statement required by Section 2(a) or 2(b), respectively, of the Registration Rights Agreement is filed and declared effective by the SEC under the Securities Act but shall thereafter either be withdrawn by the Issuer or the Guarantor or shall become subject to an effective stop order issued pursuant to Section 8(d) of the Securities Act suspending the effectiveness of such Registration Statement (except as specifically permitted in the Registration Rights Agreement) without being succeeded immediately by a post-effective amendment to such Registration Statement or an additional Registration Statement filed and declared effective by the SEC under the Securities Act (each such event referred to in clauses (i) through (iv) is referred to herein as a "Registration Default" and each period during which a Registration Default has occurred and is continuing until the Securities become freely tradable under the Securities Act is referred to herein as, a "Registration Default Period"), then the interest rate on this Security will be increased by 0.25% per annum during the first 90 days of the Registration Default Period, and by 0.50% per annum thereafter for the remaining portion of the Registration Default Period ("Additional Interest"). The interest rate on A-4 this Security will revert to the interest rate prior to any increase pursuant to Section 3(a) of the Registration Rights Agreement at such time as all Registration Defaults are cured.]1 Interest on this Security will accrue from the most recent date to which interest has been paid on this Security [or the Security surrendered in exchange herefor]2 or, if no interest has been paid, from ___________, _____; provided that, if there is no existing default in the payment of interest and if this Security is authenticated between a Regular Record Date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such Interest Payment Date. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The Issuer shall pay interest on overdue principal and premium, if any, and interest on overdue installments of interest and Additional Interest, if any, to the extent lawful, at a rate per annum equal to ___% per annum in excess of the rate of interest applicable to the Securities. The Guarantor hereby fully and unconditionally guarantees on a senior basis to the Holders from time to time (a) the full and punctual payment of the principal of any Security when and as the same shall become due, whether at stated maturity thereof, by acceleration, redemption or otherwise, or in the event of default or any sinking fund payment, and (b) the full and punctual payment of any interest on any Security when and as the same shall become due, subject to any applicable grace period, provided that, notwithstanding anything to the contrary herein, the aggregate amount of the obligations guaranteed under the Indenture by any Guarantor shall be limited in amount to the maximum amount that would not render such Guarantor's obligations subject to avoidance under the applicable fraudulent conveyance provisions of the United States Bankruptcy Code or any comparable provision of any applicable state law. The Securities 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 Issuer, 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 Securities being redeemed; or (2) the sum of the present values of the remaining scheduled payments of principal of and interest on the Securities 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 ___ 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. ________________ (1) Include only for Initial Note. (2) Include only for Exchange Note. A-5 "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 Securities 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 Securities. "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 J.P. Morgan Securities Inc. or its successor. "Reference Treasury Dealer" means each of (1) J.P. Morgan Securities Inc. 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 we specify from time to time; provided; however, that, if either of them ceases to be a Primary Treasury Dealer the Issuer 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 Securities, 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 A-6 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 Securities to be redeemed. If fewer than all of the Securities are to be redeemed, the Trustee will select, in such manner as the Trustee shall deem fair and appropriate, the particular Securities to be redeemed in whole or in part. Unless the Issuer defaults in payment of the redemption price, on or after the date of redemption, interest will cease to accrue on the Securities or portions thereof called for redemption. In the event of redemption of this Security in part only, a new Security or Securities 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 Securities are not subject to any sinking fund. REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY 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 Security shall not be entitled to any benefit under the Indenture referred to herein or be valid or obligatory for any purpose. IN WITNESS WHEREOF, each of the Issuer and the Guarantor has caused this instrument to be duly executed under its corporate seal. SYSCO INTERNATIONAL, CO., as Issuer [Seal] By ------------------------------------------- Name: Title: A-7 SYSCO CORPORATION, as Guarantor [Seal] By ------------------------------------------- Name: Title: A-8 TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Securities referred to in the within-mentioned Indenture. WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee Dated: By -------------------- ------------------------------------------- Authorized Signatory A-9 [REVERSE OF SECURITY] SYSCO INTERNATIONAL, CO. ____% Notes due ___________ This Security is one of a duly authorized issue of securities of the Issuer (the "Securities"), issued and to be issued in one or more series under an Indenture dated as of _______________ and executed and delivered by the Issuer and SYSCO Corporation, as Guarantor, to Wachovia Bank, National Association, as trustee (herein called the "Trustee," which term includes any successor trustee under the Indenture), as executed and delivered by the Issuer and the Guarantor to the Trustee (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 Issuer, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. The acceptance of this Security shall be deemed to constitute the consent and agreement of the Holder hereof to all of the terms and conditions of the Indenture. This Security is a Security of the series designated on the face hereof, limited in aggregate principal amount to $__________. If an Event of Default with respect to the Securities shall occur and be continuing, the principal of the Securities may be declared due and payable in the manner and with the effect provided in the Indenture. The Indenture contains provisions permitting the Issuer 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 Issuer or the Guarantor; (3) to add to the covenants of the Issuer or the Guarantor 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 Issuer and the Guarantor, as applicable, and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Issuer and the Trustee with the consent of the Holders of not less than a majority in 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 Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of A-10 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 Security. As set forth in, and subject to the provisions of, the Indenture, no Holder of any Security 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 Securities, (2) the Holders of not less than 25% in aggregate principal amount of the outstanding securities 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 securities 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 Security on or after the respective due dates expressed herein. No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Issuer or the Guarantor, as applicable, which is absolute and unconditional, to pay the principal of and interest on this Security, as described on the face hereof, at the times, place and rate, and in the coin or currency, herein prescribed. The Securities 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 Securities or its or their nominee(s). The Securities 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 Securities are exchangeable for a like aggregate principal amount of Securities 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 Security, the transfer of this Security is registrable in the security register, upon surrender of this Security 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 Issuer and the Trustee duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of like tenor, of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge shall be made for any registration of transfer or exchange of Securities, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Subject to the terms of the Indenture, prior to due presentment of this Security for registration of transfer, the Issuer, the Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security is overdue, and none of the Issuer, the Guarantor, the Trustee or any such agent shall be affected by notice to the contrary. A-11 The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or of certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture. In the case of any conflict between the provisions of this Security and the Indenture, the provisions of the Indenture shall control. THIS SECURITY, INDENTURE AND THE GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. All capitalized terms used but not defined in this Security 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, the Guarantees or in this Security, 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 Issuer or the Guarantor, as applicable, or of any successor, either directly or through the Issuer or the Guarantor, as applicable, 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. A-12 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 Security and all rights thereunder, hereby irrevocably constituting and appointing __________________________________, attorney to transfer said Security on the books of the Issuer, 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-13 [THE FOLLOWING PROVISION TO BE INCLUDED ON ALL CERTIFICATES BEARING A PRIVATE PLACEMENT LEGEND] In connection with any transfer of this Security occurring prior to ____________, _____, the undersigned confirms that without utilizing any general solicitation or general advertising that: Check One (a) this Security is being transferred in compliance with the exemption from registration under the Securities Act of 1933, as amended (the "Securities Act"), provided by Rule 144A thereunder and the certificate attached hereto has been completed. [ ] (a) this Security is being transferred in compliance with Regulation S under the Securities Act and a certificate in the form specified by the Indenture is being furnished herewith. [ ] (b) this Security is being transferred in compliance with the exemption from registration under the Securities Act provided by Rule 144 thereunder. [ ] (c) this Security is being transferred to the Issuer or the Guarantor. [ ] or (d) this Security is being transferred other than in accordance with (a), (b) or (d) above, and documents are being furnished which comply with the conditions of transfer set forth in this Security and the Indenture. [ ] If none of the foregoing boxes is checked, the Trustee or other registrar shall not be obligated to register this Security 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. A-14 TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED. The undersigned represents and warrants that it is purchasing this Security 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 the Issuer 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 A-15 SCHEDULE OF INCREASES OR DECREASES IN THE PRINCIPAL AMOUNT OF THIS SECURITY The original principal amount of this Security is ____________________________ ($__________). The following increases or decreases in the principal amount of this Security have been made:
Amount of Amount of Principal amount Signature of decrease in increase in of this authorized Date of principal amount principal amount Security following signatory of increase or of this of this such decrease Trustee or decrease Security Security (or increase) Depositary - -------------------------------------------------------------------------------------------------------------
A-16 EXHIBIT B [Form of Certificate to be Delivered in Connection with Exchanges of Regulation S Securities for Rule 144A Securities] SYSCO International, Co., c/o Wachovia Bank, National Association, Trustee [Address of Trustee] Re: SYSCO International, Co. ___% Notes due ______ (the "Notes") Issued under the Indenture (the "Indenture") dated as of ___________________, 2002 This is to certify that, based solely on certifications we have received in writing, by tested telex or by electronic transmission from member organizations ("Member Organizations") appearing in our records as persons being entitled to a portion of the principal amount of Notes represented by the Temporary Offshore Global Security issued under the above-referenced Indenture and being submitted herewith for exchange, that as of the date hereof, $____ principal amount of Notes represented by the Temporary Offshore Global Security being submitted herewith for exchange is beneficially owned by persons who are either (i) non-U.S. persons (within the meaning of Regulation S under the U.S. Securities Act of 1933, as amended (the "Securities Act"), or (ii) U.S. persons who purchased the Notes in a transaction that did not require registration under the Securities Act. We further certify that (i) we are not submitting herewith for exchange any portion of such Temporary Offshore Global Security excepted in such Member Organization certifications and (ii) as of the date hereof we have not received any notification from any Member Organization to the effect that the statements made by such Member Organization with respect to any portion of such Temporary Offshore Global Security submitted herewith for exchange are no longer true and cannot be relied upon as of the date hereof. Accordingly, you are hereby requested to (i) exchange $______ of such beneficial interest held by non-U.S. persons in the Temporary Offshore Global Security for an equivalent beneficial interest in a Permanent Offshore Global Security and (ii) transfer $________ of such beneficial interest held by U.S. persons in the Temporary Offshore Global Security into an equivalent beneficial interest in the U.S. Global Security. B-1 You are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby. Yours faithfully, [EUROCLEAR BANK S.A./N.V., as operator of the Euroclear System] OR [CLEARSTREAM BANK, societe anonyme] By ----------------------------------------- Name: Title: Date:________________ B-2 EXHIBIT C [Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S] ____________,____ SYSCO International, Co. c/o Wachovia Bank, National Association, Trustee [Address of Trustee] Re: SYSCO International, Co. ______% Notes due ____________ (the "Notes") Dear Sirs: In connection with our proposed sale of U.S.$________ 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: o the offer of the Notes was not made to a person in the United States; o 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; o no directed selling efforts have been made by us in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, as applicable; and o the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act. C-1 You 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 C-2 EXHIBIT D [FORM OF TRANSFEREE LETTER OF REPRESENTATION] SYSCO International, Co. c/o Wachovia Bank, National Association [address] New York, NY [zip code] Dear Sirs: This certificate is delivered to request a transfer of $ ______________ principal amount of the _____% Senior Notes Due ___________ (the "Notes") of SYSCO International, Co. (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 after the later of the date or 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) (the "Resale Restriction Termination Date") only (a) to the Company or the Guarantor, (b) pursuant to a registration statement which has been declared effective under the Securities Act, (c) in a transaction complying with the requirements of Rule 144A under the Securities Act ("rule 144A"), to a person we reasonably believe is a 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 D-1 transfer is being made in reliance on Rule 144A, (d) pursuant to offers and sales that occur outside the United States within the meaning 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 or (f) 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) or (f) 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. (4) 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: --------------------------------------------- D-2 1501328v1 EX-4.2 5 syscos4802ex42.txt REGISTRATION RIGHTS AGREEMENT EXHIBIT 4.2 REGISTRATION RIGHTS AGREEMENT This REGISTRATION RIGHTS AGREEMENT dated May 23, 2002 (this "Agreement") is entered into by and among SYSCO International, Co., an unlimited liability company organized under the laws of Nova Scotia, Canada (the "Company"), SYSCO Corporation, a Delaware corporation of which the Company is a wholly owned subsidiary (the "Guarantor"), and J.P. Morgan Securities Inc., TD Securities (USA) Inc., First Union Securities, Inc., Banc of America Securities LLC, Wells Fargo Brokerage Services, LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, SunTrust Capital Markets, Inc., and Tokyo-Mitsubishi International plc (the "Initial Purchasers"). The Company, the Guarantor and the Initial Purchasers are parties to the Purchase Agreement dated May 20, 2002 (the "Purchase Agreement"), which provides for the sale by the Company to the Initial Purchasers of $200,000,000 aggregate principal amount of the Company's 6.10% Senior Notes due 2012 (the "Securities"), which will be guaranteed on a senior unsecured basis as to the payment of principal, premium, if any, and interest by the Guarantor. As an inducement to the Initial Purchasers to enter into the Purchase Agreement, the Company and the Guarantor have agreed to provide to the Initial Purchasers and their direct and indirect transferees the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the closing under the Purchase Agreement. In consideration of the foregoing, the parties hereto agree as follows: 1. Definitions. As used in this Agreement, the following terms shall have the following respective meanings: "Business Day" shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed. "Closing Date" shall mean the Closing Date as defined in the Purchase Agreement. "Company" shall have the meaning set forth in the preamble to this Agreement and shall also include the Company's successors. "Consummated" shall mean, for purposes of this Agreement and the Exchange Offer, upon the latest to occur of (i) the effectiveness under the Securities Act of the Exchange Offer Registration Statement, (ii) the maintenance of such Registration Statement continuously effective and the keeping of the Exchange Offer open for a period not less than the minimum period required pursuant to Section 2(a) hereof and (iii) the delivery by the Company to the registrar under the Indenture of Exchange Securities in the same aggregate principal amount as the aggregate principal amount of Registrable Securities that were tendered by Holders thereof pursuant to the Exchange Offer. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from time to time. "Exchange Dates" shall have the meaning set forth in Section 2(a)(ii) hereof. "Exchange Offer" shall mean the exchange offer by the Company and the Guarantor of Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof. "Exchange Offer Registration" shall mean a registration under the Securities Act effected pursuant to Section 2(a) hereof. "Exchange Offer Registration Statement" shall mean an exchange offer registration statement on Form S-4 (or, if applicable, on another appropriate form) and all amendments and supplements to such registration statement, in each case including the Prospectus contained therein, all exhibits thereto and any document incorporated by reference therein. "Exchange Securities" shall mean senior notes issued by the Company and guaranteed by the Guarantor under the Indenture containing terms identical to the Securities (except that the Exchange Securities will not be subject to restrictions on transfer or to any increase in annual interest rate for failure to comply with this Agreement) and to be offered to Holders of Securities in exchange for Securities pursuant to the Exchange Offer. "Guarantor" shall have the meaning set forth in the preamble to this Agreement and shall also include the Guarantor's successors. "Holders" shall mean the Initial Purchasers, for so long as they own any Registrable Securities, and each of their successors, assigns and direct and indirect transferees who acquire Registrable Securities from time to time; provided that for purposes of Sections 7 and 9 of this Agreement, the term "Holders" shall include Participating Broker-Dealers. "Initial Purchasers" shall have the meaning set forth in the preamble to this Agreement. "Indenture" shall mean the Indenture relating to the Securities dated as of May 23, 2002 among the Company, the Guarantor and Wachovia Bank, National Association, as trustee, and as the same may be amended from time to time in accordance with the terms thereof. 2 "Majority Holders" shall mean the Holders of a majority of the aggregate principal amount of outstanding Registrable Securities; provided that whenever the consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder, Registrable Securities owned directly or indirectly by the Company or any of its affiliates shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage or amount. "NASD" shall mean the National Association of Securities Dealers, Inc. "Participating Broker-Dealers" shall have the meaning set forth in Section 7(a) hereof. "Person" shall mean an individual, partnership, limited liability company, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof. "Purchase Agreement" shall have the meaning set forth in the preamble to this Agreement. "Prospectus" shall mean the prospectus included in a Registration Statement, including any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus supplement, including a prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other amendments and supplements to such prospectus, and in each case including any document incorporated by reference therein. "Registrable Securities" shall mean the Securities; provided that the Securities shall cease to be Registrable Securities when: (i) a Registration Statement with respect to such Securities has been declared effective under the Securities Act and such Securities have been exchanged or disposed of pursuant to such Registration Statement; (ii) such Securities are eligible to be sold pursuant to Rule 144(k) (or any similar provision then in force, but not Rule 144A) under the Securities Act; or (iii) such Securities cease to be outstanding. "Registration Expenses" shall mean any and all expenses incident to performance of or compliance by the Company and the Guarantor with the terms of this Agreement, including without limitation: (i) all SEC, stock exchange or NASD registration and filing fees, (ii) all fees and expenses incurred in connection with compliance with state securities or blue sky laws (including reasonable fees and disbursements of counsel for any Underwriters or Holders in connection with blue sky qualification of any Exchange Securities or Registrable Securities), (iii) all expenses of any Persons in preparing or assisting in preparing, word processing, printing and distributing any Registration Statement, any Prospectus and any amendments or supplements thereto, any underwriting agreements, securities sales agreements or other similar agreements and any other documents relating to the performance of and compliance with this Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating 3 to the qualification of the Indenture under applicable securities laws, (vi) the fees and disbursements of the Trustee and its counsel, (vii) the fees and disbursements of counsel for the Company and the Guarantor and, in the case of a Shelf Registration Statement, the fees and disbursements of one counsel for the Holders (which counsel shall be selected by the Majority Holders and which counsel may also be counsel for the Initial Purchasers) and (viii) the fees and disbursements of the independent public accountants of the Company and the Guarantor, including the expenses of any special audits or "comfort" letters required by or incident to the performance of and compliance with this Agreement, but excluding fees and expenses of counsel to the Underwriters (other than fees and expenses set forth in clause (ii) above) or the Holders and underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of Registrable Securities by a Holder. "Registration Statement" shall mean any registration statement of the Company and the Guarantor that covers any of the Exchange Securities or Registrable Securities pursuant to the provisions of this Agreement and all amendments and supplements to any such registration statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and any document incorporated by reference therein. "SEC" shall mean the U.S. Securities and Exchange Commission. "Securities" shall have the meaning set forth in the preamble to this Agreement. "Securities Act" shall mean the Securities Act of 1933, as amended from time to time. "Shelf Registration" shall mean a registration effected pursuant to Section 2(b) hereof. "Shelf Registration Statement" shall mean a "shelf" registration statement of the Company and the Guarantor that covers all the Registrable Securities (but no other securities unless approved by the Holders whose Registrable Securities are to be covered by such Shelf Registration Statement) on an appropriate form under Rule 415 under the Securities Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and any document incorporated by reference therein. 4 "Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as amended from time to time. "Trustee" shall mean the trustee with respect to the Securities under the Indenture. "Underwriter" shall have the meaning set forth in Section 5 hereof. "Underwritten Offering" shall mean an offering in which Registrable Securities are sold to an Underwriter for reoffering to the public. 2. Registration Under the Securities Act. (a) Registered Exchange Offer. Except as set forth in Section 2(b), the Company and the Guarantor agree to file under the Securities Act, as soon as practicable but in no event later than 90 days after the Closing Date an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities. The Company and the Guarantor agree to use their best efforts to cause the Exchange Offer Registration Statement to be declared effective by the SEC under the Securities Act as soon as practicable, but no later than 180 days after the Closing Date. The Company and the Guarantor further agree to use their best efforts to cause the Exchange Offer to be Consummated promptly, but no later than 210 days after the Closing Date, hold the Exchange Offer open for at least 20 Business Days and exchange Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. The Company and the Guarantor shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law: (i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange; (ii) the dates of acceptance for exchange (which shall begin no sooner than 20 Business Days after the date such notice is mailed) (the "Exchange Dates"); (iii)that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement; (iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the appropriate letters of transmittal, to the 5 institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, prior to the close of business on the last Exchange Date; and (v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing its election to have such Securities exchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantor that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an "affiliate" (within the meaning of Rule 405 under Securities Act) of the Company or the Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantor shall: (i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and (ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantor shall use their best efforts to Consummate the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange Act and all other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate any applicable law or applicable interpretations of the Staff of the SEC. 6 (b) Shelf Registration. In the event that (i) on or prior to the time the Exchange Offer is Consummated, the Company or the Guarantor determines that existing SEC interpretations are changed such that the Exchange Securities received by Holders in the Exchange Offer are not or would not be, upon receipt, transferable by each such Holder without restriction under the Securities Act, (ii) the Exchange Offer has not been Consummated within 210 days following the Closing Date, (iii) the Exchange Offer has been Consummated and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities (other than Registrable Securities held by Holders described in Section 7), or (iv) any applicable law or interpretations do not permit any Holder to Participate in the Exchange Offer, the Company and the Guarantor shall, in lieu of (or, in the case of clause (iii) of this sentence, in addition to) conducting the Exchange Offer contemplated by Section 2(a), file as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantor, as the case may be, but no later than 45 days after the time such obligation to file arises, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and use their best efforts to have such Shelf Registration Statement declared effective by the SEC under the Securities Act no later than 90 days after such Shelf Registration Statement is filed and to keep such Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) under the Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by such Shelf Registration Statement have been sold pursuant to such Shelf Registration Statement. The Company and the Guarantor further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, to take any action reasonably necessary to enable such Holder to use the Prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such Holder as a selling securityholder in the Shelf Registration Statement, and to use their best efforts to cause any such amendment to be declared effective by the SEC under the Securities Act and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantor agree to furnish to the Holders copies of any such supplement or amendment promptly after its being used or filed with the SEC. (c) Registration Expenses. The Company and the Guarantor shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b) hereof. Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement. 7 3. Additional Interest. (a) In the event that (i) the Company and the Guarantor have not filed the Exchange Offer Registration Statement or Shelf Registration Statement with the SEC on or before the date on which such Registration Statement is required to be so filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Offer Registration Statement or Shelf Registration Statement has not been declared effective by the SEC under the Securities Act on or before the date on which such Registration Statement is required to be declared effective under the Securities Act pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been Consummated within 210 days after the Closing Date or (iv) the Exchange Offer Registration Statement or Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective by the SEC under the Securities Act but shall thereafter either be withdrawn by the Company or the Guarantor or shall become subject to an effective stop order issued pursuant to Section 8(d) of the Securities Act suspending the effectiveness of such Registration Statement (except as specifically permitted herein) without being succeeded immediately by a post-effective amendment to such Registration Statement or an additional Registration Statement filed and declared effective by the SEC under the Securities Act (each such event referred to in clauses (i) through (iv) is referred to herein as a "Registration Default" and each period during which a Registration Default has occurred and is continuing until the Securities become freely tradable under the Securities Act is referred to herein as, a "Registration Default Period"), then the interest rate on the Registrable Securities will be increased by 0.25% per annum during the first 90 days of the Registration Default Period, and by 0.50% per annum thereafter for the remaining portion of the Registration Default Period. The interest rate will not at any time be increased by more than 0.50% per annum. In addition, the interest rate on the Registrable Securities will revert to the interest rate prior to any increase pursuant to this Section 3(a) at such time as all Registration Defaults are cured. (b) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantor acknowledge that any failure by the Company or the Guarantor to comply with their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantor's obligations under Section 2(a) and Section 2(b) hereof. 8 4. Registration Procedures. In connection with their obligations pursuant to Section 2(a) and Section 2(b) hereof, the Company and the Guarantor shall as expeditiously as possible: (a) prepare and file with the SEC a Registration Statement on the appropriate form under the Securities Act, which form (i) shall be selected by the Company and the Guarantor, (ii) shall, in the case of a Shelf Registration, be available for the sale of the Registrable Securities by the selling Holders thereof and (iii) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required under the Securities Act and the rules and regulations of the SEC thereunder to be filed therewith; and use their best efforts to cause such Registration Statement to become effective and remain effective for the applicable period in accordance with Section 2 hereof; (b) a reasonable time prior to the filing with the SEC of any Registration Statement, any Prospectus, any amendment to a Registration Statement or amendment or supplement to a Prospectus or of any document that is to be incorporated by reference into a Registration Statement or a Prospectus after initial filing of a Registration Statement, provide copies of such document to the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, to the Holders and their counsel) and make such of the representatives of the Company and the Guarantor as shall be reasonably requested by the Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the Holders or their counsel) available for discussion of such document; and the Company and the Guarantor will not, at any time after the initial filing with the SEC of a Registration Statement, file with the SEC any Prospectus, any amendment of or supplement to a Registration Statement or a Prospectus, or any document that is to be incorporated by reference into a Registration Statement or a Prospectus, of which the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, the Holders and their counsel) shall not have previously been advised and furnished a copy or to which the Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the Holders or their counsel) shall reasonably object; (c) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities, to counsel for the Initial Purchasers, to counsel for such Holders and to each Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge, as many copies of each Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto as they may reasonably request, in order to facilitate the sale or other disposition of the Registrable Securities thereunder; and the Company and the Guarantor consent to the use of such Prospectus and any amendment or supplement thereto in accordance with applicable law by each of the selling Holders and any such Underwriters in connection with the offering and sale of the Registrable Securities covered by and in the manner described in such Prospectus or any amendment or supplement thereto; 9 (d) in the case of a Shelf Registration, furnish to each Holder, without charge, at least one conformed copy of each Registration Statement and any post-effective amendment thereto (without any documents incorporated therein by reference or exhibits thereto, unless requested); (e) prior to the filing of any document that is to be incorporated by reference into a Registration Statement or a related Prospectus, provide copies of such document to the selling Holders and to the Underwriters, if any, make the Company's representatives available for discussion of such document and other customary due diligence matters, and include such information in such document prior to the filing thereof as such selling Holders or Underwriters, if any, reasonably may request, in each case during the period a Registration Statement is effective and prospectus delivery requirements with respect to any offers or sales thereunder are applicable; (f) prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement effective for the applicable period in accordance with Section 2 hereof and cause each Prospectus to be supplemented by any required prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act; and keep each Prospectus current during the period described in Section 4(3) of and Rule 174 under the Securities Act that is applicable to transactions by brokers or dealers with respect to the Registrable Securities or Exchange Securities; (g) upon the occurrence of any event contemplated by Section 4(h)(v) hereof, use their best efforts to prepare and file with the SEC a supplement or post-effective amendment to a Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities, such Prospectus will conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the SEC and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Company and the Guarantor shall notify the Holders to suspend the use of the Prospectus as promptly as practicable after the occurrence of such an event until the Company and the Guarantor have amended or supplemented the Prospectus to correct such misstatement or omission; (h) notify each Holder, counsel for such Holders and counsel for the Initial Purchasers promptly and, if requested by any such Holder or counsel, confirm such advice in writing (i) when a Registration Statement has become effective and when any post-effective amendment thereto has been filed and becomes effective, (ii) of any request by the SEC or any state securities 10 authority for amendments and supplements to a Registration Statement or a related Prospectus or for additional information after the Registration Statement has become effective, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if, between the effective date of a Registration Statement and the closing of any sale of securities covered thereby, the representations and warranties of the Company or the Guarantor contained in this Agreement, any underwriting agreement, securities sales agreement or other similar agreement, if any, relating to an offering of such securities cease to be true and correct or if the Company or the Guarantor receives any notification with respect to the suspension of the qualification of such securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, (v) if at any time when a Prospectus is required to be delivered under the Securities Act, that such Registration Statement, Prospectus, Prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the SEC thereunder or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (vi) of any determination by the Company or the Guarantor that a post-effective amendment to a Registration Statement would be appropriate; (i) use their best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement at the earliest possible moment and provide immediate notice to each Holder of the withdrawal of any such order; (j) in the case of a Shelf Registration, use their best efforts to: (A) register or qualify the Registrable Securities under all applicable state securities or blue sky laws of such jurisdictions as any Holder of Registrable Securities covered by a Shelf Registration Statement or any Underwriter shall reasonably request in writing by the time the applicable Shelf Registration Statement is declared effective by the SEC; cooperate with the Holders in connection with any filings required to be made with the NASD (including retaining any "qualified independent underwriter" that is required to be retained in accordance with the rules and regulations of the NASD); (B) keep such registrations or qualifications in effect and comply with such laws so as to permit the continuance of offers, sales and dealings therein in such jurisdictions during the period the Shelf Registration Statement is required to remain effective under Section 2(b) above and for so long as may be necessary to enable any such Holder or Underwriter to complete its distribution of Securities pursuant to such Shelf Registration Statement; and (C) do any and all other acts and things that may be reasonably necessary or advisable to enable each Holder to complete the disposition in each such jurisdiction of the Registrable 11 Securities owned by such Holder; provided that neither the Company nor the Guarantor shall be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not already so subject; (k) use their best efforts to obtain the consent or approval of each governmental agency or authority, whether federal, state or local, which may be required to effect the Exchange Offer Registration, the Exchange Offer or the Shelf Registration, as the case may be, or the offering or sale in connection therewith or to enable the Holders to offer, or to consummate the disposition of, their Registrable Securities or Participating Broker-Dealers to offer and sell Exchange Securities; (l) cause the Indenture to be qualified under the Trust Indenture Act in connection with the registration of the Exchange Securities or Registrable Securities, as the case may be; cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of the Trust Indenture Act; and execute, and use their best efforts to cause the Trustee to execute, all documents as may be required to effect such changes and all other forms and documents required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner; (m) in the case of a Shelf Registration, make available for inspection by a representative of the Holders of the Registrable Securities (an "Inspector"), any Underwriter participating in any disposition pursuant to such Shelf Registration Statement, and attorneys and accountants designated by the Holders, at reasonable times and in a reasonable manner, all pertinent financial and other records, documents and properties of the Company and the Guarantor, and cause the respective officers, directors and employees of the Company and the Guarantor to supply all information reasonably requested by any such Inspector, Underwriter, attorney or accountant in connection with a Shelf Registration Statement; provided that each such party shall agree to maintain in confidence and not to disclose to any other person any information or records reasonably designated by the Company or the Guarantor as being confidential, until such time as (A) such information becomes a matter of public record (whether by virtue of its inclusion in such Registration Statement or otherwise), or (B) such person shall be required so to disclose such information pursuant to a subpoena or order of any court or arbitrator or governmental or regulatory authority (subject to the requirements of such order, and only after such person shall have given the Company prompt prior written notice of such requirement), or (C) such information is required to be set forth in such Shelf Registration Statement or the Prospectus included therein or in an amendment to such Shelf 12 Registration Statement or an amendment or supplement to such Prospectus in order that such Shelf Registration Statement, Prospectus, amendment or supplement, as the case may be, complies with applicable requirements of the federal securities laws and the rules and regulations of the SEC and does not contain an untrue statement of a material fact or omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; (n) in the case of a Shelf Registration, cooperate with the selling Holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends and enable such Registrable Securities to be issued in such denominations and registered in such names (consistent with the applicable provisions of the Indenture) as the selling Holders may reasonably request at least one Business Day prior to the closing of any sale of Registrable Securities; (o) obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the case may be, not later than the effective date of a Registration Statement; (p) comply with all applicable rules and regulations of the SEC, and make generally available to holders of Securities as soon as practicable but no later than eighteen months after the effective date of a Registration Statement, an earnings statement of the Guarantor and its subsidiaries complying with Section 11(a) of the Securities Act (including, at the option of the Guarantor, Rule 158 thereunder). (q) in the case of a Shelf Registration, use their best efforts to cause all Registrable Securities to be listed on any securities exchange or any automated quotation system on which similar securities issued or guaranteed by the Company or the Guarantor are then listed if requested by the Majority Holders, to the extent such Registrable Securities satisfy applicable listing requirements; (r) in the case of a Shelf Registration, if requested by any Holder of Registrable Securities covered by a Shelf Registration Statement, promptly incorporate in a Prospectus supplement or post-effective amendment such information with respect to such Holder as such Holder reasonably requests to be included therein; and make all required filings of such Prospectus supplement or such post-effective amendment promptly after the Company has received notification of the matters to be incorporated in such filing; and (s) in the case of a Shelf Registration, enter into such customary agreements and take all such other actions in connection therewith (including those requested by the Holders of a majority in principal amount of the Registrable Securities being sold) in order to expedite or facilitate the disposition of such Registrable Securities, including, but not limited to, customary agreements relating to an Underwritten Offering, and in such connection: 13 (i) to the extent possible, make such representations and warranties to the Holders and any Underwriters of such Registrable Securities with respect to the business of the Company and its subsidiaries, the Registration Statement, Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings and confirm the same if and when requested; (ii) obtain opinions of counsel to the Company and the Guarantors (which counsel and opinions, in form, scope and substance, shall be reasonably satisfactory to the Holders and such Underwriters and their respective counsel) addressed to each selling Holder and Underwriter of Registrable Securities, covering the matters customarily covered in opinions requested in underwritten offerings; (iii) obtain "comfort" letters from the independent certified public accountants of the Company and the Guarantor (and, if necessary, any other certified public accountant of any subsidiary of the Company or the Guarantor, or of any business acquired by the Company or the Guarantor for which financial statements and financial data are or are required to be included or incorporated by reference in the Registration Statement) addressed to each selling Holder and Underwriter of Registrable Securities, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters in connection with underwritten offerings; and (iv) deliver such documents and certificates as may be reasonably requested by the Holders of a majority in principal amount of the Registrable Securities being sold or the Underwriters, and which are customarily delivered in underwritten offerings, to evidence the continued validity of the representations and warranties of the Company and the Guarantor made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in an underwriting agreement. In the case of a Shelf Registration Statement, the Company may require each Holder to furnish to the Company such information regarding such Holder and the proposed disposition by such Holder of Registrable Securities as the Company and the Guarantor may from time to time reasonably request in writing. Each Holder agrees by acquisition of the Registrable Securities to furnish promptly to the Company all information required to be disclosed in the Shelf Registration Statement in order to make the information previously furnished to the Company by such Holder for that purpose not materially misleading or necessary to cause the Shelf Registration Statement not to omit a material fact with respect to such Holder that is necessary in order to make the statements therein with respect to such Holder not misleading. 14 In the case of a Shelf Registration Statement, each Holder agrees by acquisition of the Registrable Securities that, upon receipt of any notice from the Company and the Guarantor of the happening of any event of the kind described in Section 4(h)(iii) or 4(h)(v) hereof, such Holder will forthwith discontinue disposition of Registrable Securities pursuant to a Registration Statement until such Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 4(g) hereof and, if so directed by the Company and the Guarantor, such Holder will deliver to the Company and the Guarantor all copies in its possession, other than permanent file copies then in such Holder's possession, of the Prospectus covering such Registrable Securities that is current at the time of receipt of such notice. If the Company and the Guarantor shall give any such notice to suspend the disposition of Registrable Securities pursuant to a Registration Statement, the Company and the Guarantor shall extend the period during which the Registration Statement shall be maintained effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such notice to and including the date when the Holders shall have received copies of the supplemented or amended Prospectus necessary to resume such dispositions. The Company and the Guarantor may give any such notice only twice during any 365-day period and each such suspension shall not extend for a period of more than 45 days. 5. Underwritten Registrations. (a) Selection of Underwriters. The Holders of Registrable Securities covered by a Shelf Registration Statement who desire to do so may sell such Registrable Securities in an Underwritten Offering. In any such Underwritten Offering, the investment banker or investment bankers and manager or managers (the "Underwriters") that will administer the offering will be selected by the Holders of a majority in principal amount of the Registrable Securities to be included in such offering. (b) Participation by Holders. No Holder may participate in any Underwritten Offering hereunder unless such Holder (i) agrees to sell his Registrable Securities on the basis provided in any underwriting arrangements approved by the Holders of a majority in principal amount of the Registrable Securities to be included in such offering and (ii) completes and executes all questionnaires, powers of attorney, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements. 6. Rule 144. The Company covenants to the Holders that, in the event the Exchange Offer is not completed within one year of the Closing Date, the Company shall disseminate the information required to be disseminated by Rule 144(c) adopted by the SEC under the Securities Act, to the extent such information is reasonably available for such dissemination, and shall take such further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell Registrable Securities without registration 15 under the Securities Act within the limitations of the exemption provided by Rule 144 under the Securities Act, as such Rule may be amended from time to time, or any similar or successor rule or regulation hereafter adopted by the SEC. Upon the request of any Holder in connection with that Holder's sale pursuant to Rule 144, the Company shall deliver to such Holder a written statement as to whether it has complied with such requirements. 7. Participation of Broker-Dealers in Exchange Offer. The Company and the Guarantor shall indicate in a "Plan of Distribution" section contained in the Exchange Offer Registration Statement that any broker-dealer who holds Registrable Securities that it acquired for its own account as a result of market-making activities or other trading activities (other than Registrable Securities acquired directly from the Company) (a "Participating Broker-Dealer") may exchange such Registrable Securities pursuant to the Exchange Offer; however, a Participating Broker-Dealer may be deemed to be an "underwriter" within the meaning of the Securities Act and must, therefore, deliver a prospectus meeting the requirements of the Act in connection with any resales of the Exchange Securities received by a Participating Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may be satisfied by the delivery by a Participating Broker-Dealer of the Prospectus contained in the Exchange Offer Registration Statement. Such "Plan of Distribution" section shall also contain all other information with respect to such resales by Participating Broker-Dealers that the SEC may require in order to permit such resales pursuant thereto, but such "Plan of Distribution" shall not name any Participating Broker-Dealer or disclose the amount of Exchange Securities held by any Participating Broker-Dealer except to the extent required by the SEC. In light of the above, and notwithstanding the other provisions of this Agreement, the Company and the Guarantor agree (i) to include in the Exchange Offer Registration Statement a Prospectus for use in any resales by any Participating Broker-Dealer and (ii) to keep such Exchange Offer Registration Statement effective for a period of up to 180 days after the last Exchange Date (as such period may be extended pursuant to the penultimate paragraph of Section 4 of this Agreement), if requested by the Initial Purchasers or by one or more Participating Broker-Dealers. The Company and the Guarantor shall provide sufficient copies of the latest version of such Prospectus to Participating Broker-Dealers promptly upon request at any time during such 180 day period in order to facilitate such resales. (b) The Initial Purchasers shall have no liability to the Company, the Guarantor or any Holder with respect to any request that they may make pursuant to Section 7(a) above, except for any such liability they may have pursuant to Section 9. 8. Representations and Warranties. The Company and the Guarantor jointly and severally represent and warrant to, and agree with, each Initial Purchaser and each of the Holders that: 16 (a) Each Registration Statement and each Prospectus furnished pursuant to Section 2(a) or Section 2(b) hereof and any further amendments or supplements to any such Registration Statement or Prospectus, when it becomes effective or is filed with the SEC, as the case may be, and, in the case of an Underwritten Offering, at the time of the closing under the underwriting agreement relating thereto, will conform in all material respects to the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the SEC thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at all times subsequent to the time that such Registration Statement has become effective under the Securities Act when a prospectus would be required to be delivered under the Securities Act, other than from (i) such time as a notice has been given to Holders pursuant to Section 4(h)(v) hereof until (ii) such time as the Company furnishes an amended or supplemented prospectus pursuant to Section 4(g) hereof, each such Registration Statement, and each Prospectus furnished pursuant to Section 2(a) or Section 2(b) hereof, as then amended or supplemented, will conform in all material respects to the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the SEC thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by a Holder or by any Underwriter expressly for use therein. (b) Any documents incorporated by reference in any Prospectus referred to in Section 8(a) hereof, when they become or became effective or are or were filed with the SEC, as the case may be, will conform or conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and none of such documents will contain or contained an untrue statement of a material fact or will omit or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by a Holder or by any Underwriter expressly for use therein. (c) The compliance by the Company and the Guarantor with all of the provisions of this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Guarantor or any subsidiary of the Guarantor (including the Company) pursuant to, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Guarantor or any subsidiary of the Guarantor (including the Company) is a party or by which the Guarantor or any subsidiary of the Guarantor (including the Company) is bound or to which any of the property or assets of the Guarantor or any subsidiary of the Guarantor (including the Company) is subject, nor will such action result in any violation of the provisions of the charter, by-laws or similar organizational documents of the Guarantor or any subsidiary of the Guarantor (including the Company), or 17 result in the violation of any law or statute or any judgement, order or regulation of any court or arbitrator or governmental or regulatory authority; and no consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the compliance by the Company and the Guarantor with all of the provisions of this Agreement and the consummation by the Company and the Guarantor of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations, orders and registrations or qualifications as may be required (i) under applicable state securities laws, in connection with the purchase and resale of the Securities by the Initial Purchasers and (ii) with respect to the Exchange Securities(including the related guarantee) under the Securities Act and applicable state securities laws as contemplated by this Agreement. (d) This Agreement has been duly authorized, executed and delivered by each of the Company and the Guarantor. 9. Indemnification and Contribution. (a) Indemnification of the Initial Purchasers and Holders. The Company and the Guarantor jointly and severally agree to indemnify and hold harmless each Initial Purchaser and each other Holder, their respective affiliates and each Person, if any, who controls any Initial Purchaser or any other Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, reasonable legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted), joint or several, caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or any Prospectus, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, except insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to (i) any Initial Purchaser furnished to the Company and the Guarantor in writing through J.P. Morgan Securities Inc. expressly for use therein or (ii) any selling Holder furnished to the Company and the Guarantor in writing by such Holder expressly for use therein. In connection with any Underwritten Offering permitted by Section 5, the Company and the Guarantor will also indemnify the Underwriters, if any, and their respective affiliates and each Person who controls such Persons (within the meaning of the Securities Act and the Exchange Act) to the same extent as provided above with respect to the indemnification of the Holders, if requested in connection with any Registration Statement. 18 (b) Indemnification of the Company and the Guarantor. Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company, the Guarantor, the Initial Purchasers and the other selling Holders, their respective affiliates, the directors of the Company and the Guarantor, each officer of the Company and the Guarantor who signed the Registration Statement and each Person, if any, who controls the Company, the Guarantor, any Initial Purchaser and any other selling Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities caused by any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Holder furnished to the Company in writing by such Holder expressly for use in any Registration Statement and any Prospectus. (c) Notice and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any Person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such Person (the "Indemnified Person") shall promptly notify the Person against whom such indemnification may be sought (the "Indemnifying Person") in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under this Section 9 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under this Section 9. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 9 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such counsel related to such proceeding. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying 19 Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm (x) for any Initial Purchaser, its affiliates and any control Persons of such Initial Purchaser shall be designated in writing by J.P. Morgan Securities Inc., (y) for any other Holder, its affiliates and any control Persons of such Holder shall be designated in writing by the Majority Holders and (z) in all other cases shall be designated in writing by the Guarantor. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (A) includes a full and unconditional release of such Indemnified Person from all liability on claims that are the subject matter of such proceeding and (B) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person. (d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantor from the offering of the Securities and the Exchange Securities, on the one hand, and by the Holders from receiving Securities or Exchange Securities registered under the Securities Act, on the other hand, or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company and the Guarantor on the one hand and the Holders on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable 20 considerations. The relative fault of the Company and the Guarantor on the one hand and the Holders on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Guarantor or by the Holders and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. (e) Limitation on Liability. The Company, the Guarantor and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 9, in no event shall a Holder be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities or Exchange Securities sold by such Holder exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. (f) Non-Exclusive Remedies. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity. (g) Survival. The indemnity and contribution provisions contained in this Section 9 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Initial Purchasers or any other Holder, their respective affiliates or any Person controlling any Initial Purchaser or any other Holder, or by or on behalf of the Company or the Guarantor, their respective affiliates or the officers or directors of or any Person controlling the Company or the Guarantor, (iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities pursuant to a Shelf Registration Statement. 10. General. (a) No Inconsistent Agreements. The Company and the Guarantor represent, warrant and agree that (i) the rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of any other outstanding securities issued or guaranteed by the Company 21 or the Guarantor under any other agreement and (ii) neither the Company nor the Guarantor has entered into, or on or after the date of this Agreement will enter into, any agreement that is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. (b) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the Company and the Guarantor have obtained the written consent of Holders of at least a majority in aggregate principal amount of the outstanding Registrable Securities affected by such amendment, modification, supplement, waiver or consent; provided that no amendment, modification, supplement, waiver or consent to any departure from the provisions of Section 9 hereof shall be effective as against any Holder unless consented to in writing by such Holder. (c) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, telex, telecopier or any courier guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such Holder to the Company by means of a notice given in accordance with the provisions of this Section 10(c), which address initially is, with respect to the Initial Purchasers, the address set forth in Section 14(b) of the Purchase Agreement; and (ii) if to the Company and the Guarantor, initially at the Guarantor's address set forth in Section 14(b) of the Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 10(c). All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if telecopied; and on the next Business Day if timely delivered to an air courier guaranteeing overnight delivery. Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee, at the address specified in the Indenture. (d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders; provided that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms of the Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire Registrable Securities in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all the terms of this Agreement, and by taking and holding such 22 Registrable Securities such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and such Person shall be entitled to receive the benefits hereof. No Initial Purchaser (in its capacity as an Initial Purchaser) shall have any liability or obligation to the Company or the Guarantor with respect to any failure by a Holder (other than such Initial Purchaser) to comply with, or any breach by any Holder (other than such Initial Purchaser) of, any of the obligations of such Holder under this Agreement. (e) Purchases and Sales of Securities. The Company and the Guarantor shall not, and shall use their best efforts to cause their affiliates (as defined in Rule 405 under the Securities Act) not to, purchase and then resell or otherwise transfer any Registrable Securities. (f) Third Party Beneficiaries. Each Holder shall be a third party beneficiary to the agreements made hereunder between the Company and the Guarantor, on the one hand, and the Initial Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights or the rights of other Holders hereunder. (g) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. (h) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (i) Governing Law; Jurisdiction; Service of Process. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to any principles of conflicts of laws that would result in the application of the laws of any other jurisdiction. Each of the Company and the Guarantor hereby submits to the non-exclusive jurisdiction of the federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated thereby. The Company has appointed CT Corporation System, 111 Eighth Avenue, New York, New York 10011 as its Authorized Agent (the "Authorized Agent") upon whom process may be served in any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated thereby that may be instituted in any federal or state court in the Borough of Manhattan in The City of New York by any Initial Purchaser or any other Holder or by any Person who controls any Initial Purchaser or any other Holder, and agrees that service of process upon such agent, and written notice of said service to the Company by the person serving the same to the address referred to in Section 10(c), shall be deemed in every respect effective service of process upon the Company in any such suit or proceeding. The Company further agrees to take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect for a period of ten years from the date of this Agreement. If for any reason CT Corporation System shall 23 cease to be available to act as such authorized agent for the Company, the Company agrees to designate a new agent in the State of New York on the terms and for the purpose of this Section 10(i) reasonably satisfactory to J.P. Morgan Securities Inc. Each of the Company and the Guarantor irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may have to laying of venue in respect of any action, suit or proceeding arising out of or in connection with this Agreement or the transactions contemplated hereby to which it is a party brought in any federal or state court located in the State of New York and hereby agrees not to plead or claim in any such court that any such action, suit or proceeding has been brought in an inconvenient forum. Each of the Company and the Guarantor also waives, to the fullest extent permitted by law, all right to trial by jury in any claim or counterclaim (whether based upon contract, tort or otherwise) in any way arising out of or relating to this Agreement. (j) Miscellaneous. This Agreement contains the entire agreement between the parties relating to the subject matter hereof and supersedes all oral statements and prior writings with respect thereto. Section headings herein are for convenience only and are not a part of this Agreement. If any term, provision, covenant or restriction contained in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable or against public policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated. The Company, the Guarantor and the Initial Purchasers shall endeavor in good faith negotiations to replace any invalid, void or unenforceable provision with a valid provision the economic effect of which comes as close as possible to that of the invalid, void or unenforceable provision. 24 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. SYSCO INTERNATIONAL, CO. By: /s/ Diane Day Sanders ----------------------------------------- Diane Day Sanders Treasurer SYSCO CORPORATION By: /s/ Diane Day Sanders ------------------------------------------ Diane Day Sanders Vice President and Treasurer Confirmed and accepted as of the date first above written: J.P. MORGAN SECURITIES INC. For itself and on behalf of the several Initial Purchasers By /s/ Maria Sramek --------------------------------- Name: Maria Sramek Title: Vice President 25 1501332v1 EX-5.1 6 syscos4802ex51.txt OPINION EXHIBIT 5.1 Arnall Golden Gregory LLP 2800 One Atlantic Center 1201 West Peachtree Street Atlanta, Georgia 30309-3450 Phone (404) 873-8500 Fax (404) 873-8501 August 21, 2002 SYSCO CORPORATION SYSCO International, Co. 1390 Enclave Parkway Houston, Texas 77077-2027 Re: Legality of the 6.10% notes due 2012 being registered Ladies and Gentlemen: We render this opinion in connection with the Registration Statement on Form S-4 (the "Registration Statement") of SYSCO International, Co., a Nova Scotia unlimited liability company ("SYSCO International"), and SYSCO Corporation, a Delaware corporation ("SYSCO"), relating to $200,000,000 in aggregate principal amount of SYSCO International's 6.10% Notes due 2012 (the "Exchange Notes"). The Exchange Notes are being offered pursuant to an exchange offer (the "Exchange Offer") in exchange for SYSCO International's outstanding 6.10% Notes due 2012. The Exchange Notes are unconditionally guaranteed (the "Guarantees") by SYSCO. In connection with this opinion, we, as outside securities counsel to SYSCO International and SYSCO, have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Indenture (the "Indenture") dated as of May 23, 2002 among SYSCO International, as issuer, SYSCO, as guarantor, and Wachovia Bank, National Association, as trustee (the "Trustee"), (ii) the Registration Statement, (iii) the form of the Exchange Notes as set forth in the Indenture, and (iv) all such additional agreements, certificates and other documents as we have deemed necessary to form a basis for this opinion. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the originals (and the authenticity of such originals) of all documents submitted to us as copies. We have, when relevant facts material to our opinion were not independently established by us, relied upon certificates of public officials and certificates and other written statements of officers of SYSCO International and SYSCO. Based upon and subject to the foregoing and to the qualifications expressed below, we advise you that, in our opinion: (i) The Exchange Notes, when duly executed by the proper officers of SYSCO International, duly authenticated by the Trustee in accordance with the terms of the Indenture and issued and delivered in accordance with the terms of the Exchange Offer and the Indenture, will constitute valid and legally binding obligations of SYSCO International, enforceable against SYSCO International in accordance with their terms, subject to bankruptcy, insolvency, reorganization, receivership, fraudulent conveyance or transfer, moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles. (ii) The Guarantees have been duly and validly authorized by SYSCO and, when the Exchange Notes are executed and delivered in accordance with the terms of the Exchange Offer and the Indenture (and when the Exchange Notes have been duly executed by the proper officers of SYSCO International, duly authenticated by the Trustee in accordance with the terms of the Indenture and issued and delivered in accordance with the terms of the Exchange Offer and the Indenture), will constitute valid and binding obligations of SYSCO, enforceable against SYSCO in accordance with their terms, subject to bankruptcy, insolvency, reorganization, receivership, fraudulent conveyance or transfer, moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles. We express no opinion herein as to the laws of any jurisdiction other than the laws of the State of New York, the laws of the State of Delaware and the Delaware General Corporation Law. We consent to the filing of this opinion as an exhibit to the Registration Statement and the reference to this firm under the caption "Legal Matters" contained therein and elsewhere in the Registration Statement. This consent is not to be construed as an admission that we are a party whose consent is required to be filed with the Registration Statement under the provisions of the Securities Act. Very truly yours, ARNALL GOLDEN GREGORY LLP /s/ ARNALL GOLDEN GREGORY LLP 1476730 EX-5.2 7 syscos4802ex52.txt OPINION EXHIBIT 5.2
Suite 900 Correspondence: Telephone: 902.420.3200 CHARLES S. REAGH Purdy's Wharf Tower One P.O. Box 997 Fax: 902.420.1417 Direct Dial: 902.420.3335 1959 Upper Water Street Halifax, NS halifax@smss.com Direct Fax: 902.496.6173 Halifax, NS Canada B3J 2X2 www.smss.com csr@smss.com Canada B3J 3N2 File Reference: NS2807-887
File Reference: NS2807-887 August 21, 2002 SYSCO CORPORATION SYSCO INTERNATIONAL, CO. 1390 Enclave Parkway Houston, TX 77077-2027 Ladies and Gentlemen: We render this opinion in connection with the Registration Statement on Form S-4 (the "REGISTRATION STATEMENT") of SYSCO International, Co. ("SYSCO INTERNATIONAL"), an unlimited company organized under the laws of the Province of Nova Scotia (the "PROVINCE"), and SYSCO Corporation ("SYSCO"), a Delaware corporation, relating to $200,000,000 in aggregate principal amount of SYSCO International's 6.10% Notes due 2012 (the "EXCHANGE NOTES"). We have made such investigations and examined originals or copies, certified or otherwise identified to our satisfaction, of such documents and records as we considered necessary or relevant for purposes of the opinion expressed below, including without limitation all corporate records of SYSCO International contained in its minute book (which we have assumed are correct and complete) and a certified resolution of the board of directors of SYSCO International authorizing the Exchange Notes. We have also reviewed and relied upon: 1. a certificate of status (the "CERTIFICATE OF STATUS") pertaining to SYSCO International issued on behalf of the Registrar of Joint Stock Companies for the Province of Nova Scotia, dated August 21, 2002; 2. a certificate of an officer of SYSCO International dated the date hereof (the "OFFICER'S CERTIFICATE"). With respect to all documents examined by us, we have assumed the genuineness of all signatures, the legal capacity of individuals signing any documents, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as certified, conformed, telecopied or photocopied copies. We understand that the Exchange Notes will be issued under and Indenture dated as of May 23, 2002 (the "INDENTURE") among SYSCO International, SYSCO and Wachovia Bank, National Association, as trustee (the "TRUSTEE"). We have assumed SYSCO Corporation - and - SYSCO International, Co. August 21, 2002 Page 1 that the Indenture has been signed by Diane Day Sanders as Treasurer of SYSCO International and unconditionally delivered by SYSCO International to the Trustee or its lawful representatives. The opinion expressed herein relates only to the laws of the Province on the date of this letter, and the federal laws of Canada applicable in the Province as at the date of this letter, and no opinion is expressed with respect to the laws of any other jurisdiction. Based upon and subject to the foregoing, we advise you that, in our opinion, the Exchange Notes have been duly authorized for issuance by SYSCO International. This opinion is rendered to you solely for your benefit in connection with the filing of the Registration Statement, and is not to be used, circulated, quoted or otherwise referred to for any other purpose without our express written consent. We hereby consent to being named in the Registration Statement and in the prospectus that constitutes a part thereof as special counsel to SYSCO International who have passed upon legal matters in connection with the Exchange Notes. We further consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ STEWART MCKELVEY STIRLING SCALES EX-15.1 8 syscos4802ex151.txt LETTER EXHIBIT 15.1 August 20, 2002 Shareholders and Board of Directors of SYSCO Corporation: We are aware of the incorporation by reference in the Registration Statement (Form S-4 No. 333-_____) of SYSCO International for the registration of $200,000,000 6.10% Notes of our report dated May 13, 2002 relating to the unaudited consolidated interim financial statements of SYSCO Corporation that are included in its Form 10-Q for the quarter ended March 30, 2002. Pursuant to Rule 436(c) of the Securities Act of 1933, our report is not a part of the Registration Statement prepared or certified by accountants within the meaning of Sections 7 or 11 of the Securities Act of 1933. Very truly yours, /s/ ERNST & YOUNG ERNST & YOUNG 1476730v4 EX-25.1 9 syscos4802ex251.txt FORM T-1 EXHIBIT 25.1 Registration No. 333-___ FORM T-1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) Wachovia Bank, National Association (Exact name of trustee as specified in its charter) United States of America (Jurisdiction of incorporation or organization if not a U.S. national bank) 22-1147033 (I.R.S. Employer Identification Number) One Wachovia Center 301 South College Street Charlotte, North Carolina 28288 (Address of principal executive offices; Zip code) R. Douglas Milner Wachovia Bank, National Association 5847 San Felipe, Suite 1050 Houston, Texas 77057 (713)278-4321 (Name, address and telephone number of agent for service) Sysco International, Co. (Exact name of obligor as specified in its charter) Nova Scotia (State or other jurisdiction of incorporation or organization) N/A (I.R.S. Employer Identification No.) 1390 Enclave Parkway Houston, Texas 77077 (Address of principal executive offices; Zip code) 6.10% Notes due 2012 (Title of the indenture securities) Item 1. GENERAL INFORMATION. Furnish the following information as to the trustee: a. Name and address of each examining or supervising authority to which it is subject. NAME ADDRESS Board of Governors of the Federal Washington, D.C. Reserve System Comptroller of the Currency Washington, D.C. Federal Deposit Insurance Washington, D.C. Corporation b. Whether it is authorized to exercise corporate trust powers. The Trustee is authorized to exercise corporate trust powers. Item 2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the trustee, describe each such affiliation. The obligor is not an affiliate of the trustee. (See Note 1 on page 6.) Item 3. VOTING SECURITIES OF THE TRUSTEE. Furnish the following information as to each class of voting securities of the trustee: As of August 20, 2002 (Insert date within 31 days). COL. A COL. B TITLE OF CLASS AMOUNT OUTSTANDING Common Stock 1,371,400,000 Item 4. TRUSTEESHIPS UNDER OTHER INDENTURES. If the trustee is a trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the obligor are outstanding, furnish the following information: a. Title of the securities outstanding under each such other indenture. Not Applicable. b. A brief statement of the facts relied upon as a basis for the claim that no conflicting interest within the meaning of Section 310(b)(1) of the Act arises as a result of the trusteeship under any such other indenture, including a statement as to how the indenture securities will rank as compared with the securities issued under such other indenture. Not Applicable. 2 Item 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR UNDERWRITERS. If the trustee or any of the directors or executive officers of the trustee is a director, officer, partner, employee, appointee, or representative of the obligor of any underwriter for the obligor, identify each such person having any such connection and state the nature of each such connection. Not Applicable - see answer to Item 13. Item 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS. Furnish the following information as to the voting securities of the trustee owned beneficially by the obligor and each director, partner, and executive officer of the obligor. As of August 20, 2002 (Insert date within 31 days).
COL. D COL. C PERCENTAGE OF VOTING SECURITIES COL. A COL. B AMOUNT OWNED REPRESENTED BY AMOUNT GIVEN NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
Not Applicable - see answer to Item 13. Item 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR OFFICIALS. Furnish the following information as to the voting securities of the trustee owned beneficially by each underwriter for the obligor and each director, partner, and executive officer of each such underwriter: As of August 20, 2002 (Insert date within 31 days).
COL. D COL. C PERCENTAGE OF VOTING SECURITIES COL. A COL. B AMOUNT OWNED REPRESENTED BY AMOUNT GIVEN NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
Not Applicable - see answer to Item 13. Item 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE. Furnish the following information as to securities of the obligor owned beneficially or held as collateral security for obligations in default by the trustee: As of August 20, 2002 (Insert date within 31 days). 3
COL. C AMOUNT OWNED COL. D COL. B BENEFICIALLY OR PERCENT OF CLASS WHETHER THE SECURITIES HELD AS COLLATERAL REPRESENTED BY COL. A ARE VOTING OR SECURITY FOR AMOUNT GIVEN NAME OF CLASS NONVOTING SECURITIES OBLIGATIONS IN DEFAULT IN COL. C
Not Applicable - see answer to Item 13. Item 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE. If the trustee owns beneficially or hold as collateral security for obligations in default any securities of an underwriter for the obligor, furnish the following information as to each class of securities of such underwriter any of which are so owned or held by the trustee: As of August 20, 2002 (Insert date within 31 days).
COL. C COL. D AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS COL. A COL. B OR HELD AS COLLATERAL REPRESENTED BY TITLE OF ISSUER AMOUNT SECURITY FOR OBLIGATIONS AMOUNT GIVEN AND TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE IN COL. C
Not Applicable - see answer to Item 13. Item 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR. If the trustee owns beneficially or holds as collateral security for obligations in default voting securities of a person who, to the knowledge of the trustee (1) owns 10 percent or more of the voting securities of the obligor or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the following information as to the voting securities of such person: As of August 20, 2002 (Insert date within 31 days).
COL. C COL. D AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS COL. A COL. B OR HELD AS COLLATERAL REPRESENTED BY TITLE OF ISSUER AMOUNT SECURITY FOR OBLIGATIONS AMOUNT GIVEN AND TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE IN COL. C
Not Applicable - see answer to Item 13. 4 Item 11. Ownership or holdings by the trustee of any securities of a person owning 50 percent or more of the voting securities of the obligor. If the trustee owns beneficially or holds as collateral security for obligations in default any securities of a person who, to the knowledge of the trustee, owns 50 percent or more of the voting securities of the obligor, furnish the following information as to each class of securities of such person any of which are so owned or held by the trustee: As of August 20, 2002 (Insert date within 31 days).
COL. C COL. D AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS COL. A COL. B OR HELD AS COLLATERAL REPRESENTED BY TITLE OF ISSUER AMOUNT SECURITY FOR OBLIGATIONS AMOUNT GIVEN AND TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE IN COL. C
Not Applicable - See answer to Item 13. Item 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE. Except as noted in the instructions, if the obligor is indebted to the trustee, furnish the following information: As of August 20, 2002 (Insert date within 31 days). COL. A COL. B COL. C NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE Not Applicable - See answer to Item 13. Item 13. Defaults by the Obligor. a. State whether there is or has been a default with respect to the securities under this indenture. Explain the nature of any such default. None. b. If the trustee is a trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the obligor are outstanding, or is trustee for more than one outstanding series of securities under the indenture, state whether there has been a default under any such indenture or series, identify the indenture or series affected, and explain the nature of any such default. None. Item 14. AFFILIATIONS WITH THE UNDERWRITERS. If any underwriter is an affiliate of the trustee, describe each such affiliation. Not Applicable. 5 Item 15. FOREIGN TRUSTEE. Identify the order or rule pursuant to which the foreign trustee is authorized to act as sole trustee under indentures qualified or to be qualified under the Act. Not Applicable. Item 16. LIST OF EXHIBITS. List below all exhibits filed as a part of this statement of eligibility. 1. Articles of Association of First Union National Bank as now in effect.* 2. Certificate of Authority of the trustee to commence business.* 3. Copy of the authorization of the trustee to exercise corporate trust powers.* 4. Existing bylaws of the trustee.* 5. Not Applicable. 6. The consent of the trustee required by Section 321(b) of the Act. 7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.** 8. Not Applicable. 9. Not Applicable. - ------------------------ * Previously filed with the Securities and Exchange Commission as an Exhibit to Form T-1 in connection with Registration Statement Number 033-54465 incorporated herein by reference. ** This report is available over the Internet at the website of the Federal Deposit Insurance Corporation and this report as therein contained is incorporated herein by reference. This website is located at HTTP://WWW3.FDIC.GOV/IDASP/MAIN.ASP. ONCE AT THAT ADDRESS, TYPE IN "WACHOVIA CORPORATION" AT THE FIELD ENTITLED "INSTITUTION NAME" THEN CLICK ON THE "FIND" FIELD ABOVE WHERE THE NAME OF THE BANK HAS BEEN TYPED IN THEN CLICK ON THE CERTIFICATE NUMBER FOR WACHOVIA CORPORATION (1073551) THEN CLICK ON THE "GENERATE REPORT" FIELD. 6 NOTES: Note 1: The trustee is a subsidiary of Wachovia Corporation, a bank holding company; all of the voting securities of the trustee are held by Wachovia Corporation. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee, Wachovia Bank, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the city of Houston, State of Texas, on the 20th day of August, 2002. WACHOVIA BANK, NATIONAL ASSOCIATION (Trustee) By: /s/ R. Douglas Milner -------------------------------------------- R. Douglas Milner, Vice President (Name and Title) 7 EXHIBIT 6 Wachovia Bank, National Association, pursuant to the requirements of Section 321(b) of the Trust Indenture Act of 1939, as amended (the "Act") in connection with the proposed issuance by Sysco International, Co. Notes, consents that reports of examination by federal, state, territorial, or district authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor, as contemplated by Section 321(b) of the Act. Dated: August 20, 2002 WACHOVIA BANK, NATIONAL ASSOCIATION By: /s/ R. Douglas Milner -------------------------------------------- R. Douglas Milner, Vice President 8 1501342v1 EX-99.1 10 syscos4802ex991.txt LETTER OF TRANSMITTAL EXHIBIT 99.1 SYSCO INTERNATIONAL, CO. LETTER OF TRANSMITTAL For Tender Of All Outstanding 6.10% Notes due 2012 in exchange for 6.10% Notes due 2012 which have been registered under the Securities Act of 1933, as amended, pursuant to the Prospectus dated __________, 2002. THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ________, 2002 UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE. DELIVER TO: WACHOVIA BANK, NATIONAL ASSOCIATION, EXCHANGE AGENT - ----------------------------------------------------------------------------- By Mail, Overnight Courier or Hand: By Facsimile: - ----------------------------------------------------------------------------- Wachovia Bank Customer Information Center (704) 590-7628 Corporate Trust Operations - NC1153 1525 West W.T. Harris Blvd. - 3C3 Confirm: Charlotte, N.C. 28262-1153 (704) 590-7413 (704) 590-7413 Attn: Marsha Rice - ----------------------------------------------------------------------------- DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY. The undersigned acknowledges receipt of the Prospectus dated __________, 2002 (the "Prospectus"), of SYSCO International, Co., a Nova Scotia unlimited liability company (" SYSCO International"), and this Letter of Transmittal (this "Letter"), which together constitute the offer (the "Exchange Offer") to exchange an aggregate principal amount of up to $200,000,000 of 6.10% Notes due 2012 of SYSCO International (the "New Notes"), which have been registered under the Securities Act of 1933, as amended, for an equal principal amount of the outstanding 6.10% Notes due 2012 (the "Old Notes") of SYSCO International. Both the Old Notes and the New Notes are unconditionally guaranteed by SYSCO Corporation. Wachovia Bank, National Association is the exchange agent for the Exchange Offer (the "Exchange Agent"). SYSCO International reserves the right, in accordance with applicable law, at any time: (i) to delay the acceptance of the Old Notes; (ii) to terminate the Exchange Offer if SYSCO International determines that any of the conditions to the Exchange Offer have not occurred or have not been satisfied; (iii) to extend the Expiration Date of the Exchange Offer and keep all Old Notes tendered other than those Old Notes properly withdrawn; and (iv) to waive any condition to or amend the terms of the Exchange Offer. If SYSCO International materially changes the Exchange Offer, or if SYSCO International waives a material condition of the Exchange Offer, SYSCO International will promptly distribute a prospectus supplement to the holders of the Old Notes disclosing the change or waiver. SYSCO International also will extend the Exchange Offer as required by Rule 14e-1 under the Securities Exchange Act of 1934, as amended. If SYSCO International exercises any of the rights listed above, it will promptly give oral or written notice of the action to the Exchange Agent and will issue a release to an appropriate news agency. In the case of an extension, an announcement will be made no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date. This Letter is to be completed by a holder of Old Notes if Old Notes are to be forwarded herewith or if a tender of Old Notes, if available, is to be made by book-entry transfer to the account maintained by the Exchange Agent at The Depository Trust Company ("DTC") pursuant to the procedures set forth in "The Exchange Offer" section of the Prospectus. Holders of Old Notes whose certificates are not immediately available, or who are unable to deliver their certificates or confirmation of the book-entry transfer of their Old Notes into the Exchange Agent's account at DTC and all other documents required by this Letter to the Exchange Agent on or prior to the Expiration Date, must tender their Old Notes according to the guaranteed delivery procedures set forth in "The Exchange Offer--Guaranteed Delivery Procedures" section of the Prospectus. See Instruction 1. Delivery of documents to DTC does not constitute delivery to the Exchange Agent. Holders who tender their Old Notes using the DTC Automated Tender Offer Program ("ATOP") procedures described below need not submit this Letter. The undersigned has completed the appropriate boxes below and signed this Letter to indicate the action the undersigned desires to take with respect to the Exchange Offer. List below the Old Notes to which this Letter relates. If the space provided below is inadequate, the certificate numbers and principal amount of Old Notes should be listed on a separate signed schedule affixed hereto.
- ------------------------------------------------------------------------------------------------------------------------------ DESCRIPTION OF OLD NOTES 1 2 3 - ------------------------------------------------------------------------------------------------------------------------------ Names(s) and Address(es) of Registered Principal Holders(s)(Please fill Amount of Old Principal in, if blank) Certificate Number(s)* Note(s)** Amount Tendered*** - ------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------
* Need not be completed if Old Notes are being tendered by book-entry transfer. ** Old Notes tendered hereby must be in denominations of principal amount of $1,000 and any integral multiple thereof. See Instruction 1 below. *** Unless otherwise indicated in this column, a holder will be deemed to have tendered ALL of the Old Notes represented by the Old Notes indicated in column 2. [_] CHECK HERE IF TENDERED OLD NOTES ARE ENCLOSED HEREWITH. [_] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING: Name of Tendering Institution __________________________________________________ Account Number ___________ Transaction Code Number _____________________________ 2 By crediting Old Notes to the Exchange Agent's Account at DTC in accordance with DTC's ATOP procedures with respect to the Exchange Offer, including transmitting an Agent's Message to the Exchange Agent in which the holder of the Old Notes acknowledges and agrees to be bound by the terms of this Letter, the participant in ATOP confirms, on behalf of itself and the beneficial owners of such Old Notes, all provisions of this Letter applicable to it and such beneficial owner as if it had completed the information required herein and executed and transmitted this Letter to the Exchange Agent. [_] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING: Name(s) of Registered Holder(s) ________________________________________________ Window Ticket Number (if any) __________________________________________________ Date of Execution of Notice of Guaranteed Delivery _____________________________ Name of Institution that Guaranteed Delivery ___________________________________ IF DELIVERED BY DTC, COMPLETE THE FOLLOWING: Account Number ___________________ Transaction Code Number ____________________ [_] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO. Name: __________________________________________________________________________ Address: _______________________________________________________________________ PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY 3 Ladies and Gentlemen: Upon the terms and subject to the conditions of the Exchange Offer, the undersigned hereby tenders to SYSCO International the aggregate principal amount of Old Notes indicated above. Subject to, and effective upon, the acceptance for exchange of the Old Notes tendered hereby, the undersigned hereby sells, assigns and transfers to, or upon the order of, SYSCO International all right, title and interest in and to such Old Notes as are being tendered hereby. The undersigned hereby irrevocably constitutes and appoints the Exchange Agent as the true and lawful agent and attorney-in-fact of the undersigned (with full knowledge that the Exchange Agent also acts as agent of SYSCO International) with respect to the tendered Old Notes, with full power of substitution and resubstitution (such power of attorney being deemed an irrevocable power coupled with an interest) to (1) deliver certificates representing such Old Notes, or transfer ownership of such Old Notes on the account books maintained by DTC, together, in each such case, with all accompanying evidences of transfer and authenticity to, or upon the order of, SYSCO International, (2) present and deliver such Old Notes for transfer on the books of SYSCO International, and (3) receive all benefits or otherwise exercise all rights and incidents of beneficial ownership of such Old Notes, all in accordance with the terms of the Exchange Offer. The undersigned hereby represents and warrants that (1) the undersigned has full power and authority to tender, sell, assign and transfer the Old Notes tendered hereby, (2) SYSCO International will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and (3) the Old Notes tendered for exchange are not subject to any adverse claims or proxies when the same are accepted by SYSCO International. The undersigned hereby further represents that any New Notes acquired in exchange for Old Notes tendered hereby will have been acquired in the ordinary course of business of the person receiving such New Notes, whether or not such person is the undersigned, that neither the holder of such Old Notes nor any such other person is engaged in, or intends to engage in, a distribution of such New Notes within the meaning of the Securities Act, or has an arrangement or understanding with any person to participate in the distribution of such New Notes, and that neither the holder of such Old Notes nor any such other person is an "affiliate," as defined in Rule 405 under the Securities Act of 1933, as amended (the "Securities Act"), of SYSCO International or SYSCO Corporation. The undersigned also acknowledges that this Exchange Offer is being made based on SYSCO International's understanding of an interpretation by the staff of the United States Securities and Exchange Commission (the "SEC") as set forth in no-action letters issued to third parties, that the New Notes issued in exchange for the Old Notes pursuant to the Exchange Offer may be offered for resale, resold and otherwise transferred by each holder thereof (other than a broker-dealer who acquires such Old Notes directly from SYSCO International for resale pursuant to Rule 144A under the Securities Act or any other available exemption under the Securities Act or any such holder that is an "affiliate" of SYSCO International within the meaning of Rule 405 under the Securities Act), without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such New Notes are acquired in the ordinary course of such holder's business and such holder is not engaged in, and does not intend to engage in, a distribution of such New Notes and has no arrangement with any person to participate in the distribution of such New Notes. If a holder of Old Notes is engaged in or intends to engage in a distribution of the New Notes or has any arrangement or understanding with respect to the distribution of the New Notes to be acquired pursuant to the Exchange Offer, such holder (1) may not rely on the applicable interpretations of the staff of the SEC, (2) will not be entitled to tender its Old Notes in the Exchange Offer and (3) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction. If the undersigned is a broker-dealer that will receive New Notes for its own account in exchange for Old Notes, it represents that the Old Notes to be exchanged for the New Notes were acquired by it as a result of market-making activities or other trading activities and acknowledges that it will deliver a Prospectus in connection with any resale of such New Notes; however, by so acknowledging and by delivering a Prospectus, the undersigned will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. 4 The undersigned will, upon request, execute and deliver any additional documents deemed by SYSCO International to be necessary or desirable to complete the sale, assignment and transfer of the Old Notes tendered hereby. All authority conferred or agreed to be conferred in this Letter and every obligation of the undersigned hereunder shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of the undersigned and shall not be affected by, and shall survive, the death or incapacity of the undersigned. This tender may be withdrawn only in accordance with the procedures set forth in "The Exchange Offer-Withdrawal of Tenders of Old Notes" section of the Prospectus. For purposes of the Exchange Offer, SYSCO International shall be deemed to have accepted for exchange validly tendered Old Notes when, as and if SYSCO International gives oral or written notice thereof to the Exchange Agent. Any tendered Old Notes that are not accepted for exchange pursuant to the Exchange Offer for any reason will be returned, without expense, to the undersigned at the address shown below or at a different address as may be indicated herein under "Special Delivery Instructions" as promptly as practicable after the Expiration Date. Unless otherwise indicated herein in the box entitled "Special Issuance Instructions" below, please deliver the New Notes (and, if applicable, substitute certificates representing Old Notes for any Old Notes not exchanged) in the name of the undersigned or, in the case of a book-entry delivery of Old Notes, please credit the account indicated above maintained at DTC. Similarly, unless otherwise indicated under the box entitled "Special Delivery Instructions" below, please send the New Notes (and, if applicable, substitute certificates representing Old Notes for any Old Notes not exchanged) to the undersigned at the address shown above in the box entitled "Description of Old Notes." THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF OLD NOTES" ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE TENDERED THE OLD NOTES AS SET FORTH IN SUCH BOX ABOVE.
- -------------------------------------------------------------------------------------------------------------------------- SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS - -------------------------------------------------------------------------------------------------------------------------- (See Instructions 3 and 4) (See Instructions 3 and 4) - -------------------------------------------------------------------------------------------------------------------------- To be completed ONLY if certificates for Old Notes To be completed ONLY if certificates for Old Notes not not exchanged and/or New Notes are to be issued exchanged and/or New Notes are to be sent to someone in the name of and sent to someone other than the other than the person(s) whose signature(s) appear(s) person(s) whose signature(s) appear(s) on this on this Letter below or to such person(s) at an Letter below, or if Old Notes delivered by book-entry address other than shown in the box entitled transfer which are not accepted for exchange are to "Description of Old Notes" on this Letter above. be returned by credit to an account maintained at DTC other than the account indicated above. - -------------------------------------------------------------------------------------------------------------------------- Issue New Notes and/or Old Notes to: Deliver New Notes and/or Old Notes to: Name(s): ___________________________________ Name(s): _______________________________________ (Please Type or Print) (Please Type or Print) Address: ___________________________________ Address: _______________________________________ ____________________________________________ ________________________________________________ ____________________________________________ ________________________________________________ (Including Zip Code) (Including Zip Code) - -------------------------------------------------------------------------------------------------------------------------- ____________________________________________ (Tax Identification or Social Security Number) (See Substitute Form W-9) - -------------------------------------------------------------------------------------------------------------------------- 5 [_] Credit unexchanged Old Notes delivered by book- entry transfer to the DTC account set forth below. ____________________________________________ (DTC Account Number, if applicable) - --------------------------------------------------------------------------------------------------------------------------
IMPORTANT: THIS LETTER OR A FACSIMILE HEREOF OR AN AGENT'S MESSAGE IN LIEU HEREOF (TOGETHER WITH THE CERTIFICATES FOR OLD NOTES OR A BOOK-ENTRY CONFIRMATION AND ALL OTHER REQUIRED DOCUMENTS OR THE NOTICE OF GUARANTEED DELIVERY) MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE. PLEASE READ THIS LETTER OF TRANSMITTAL CAREFULLY BEFORE COMPLETING ANY BOX ABOVE 6 PLEASE SIGN HERE (TO BE COMPLETED BY ALL TENDERING HOLDERS) (Complete accompanying Substitute Form W-9 on Page 13) ________________________________________________________________________________ ________________________________________________________________________________ (Signature(s) of Owner) Dated: _____________________, 20___ Name(s): ______________________________________________________________________ (Please Type or Print) Capacity (full title): _________________________________________________________ Address: _______________________________________________________________________ (Including ZIP Code) Daytime Area Code and Telephone No.: ___________________________________________ Taxpayer Identification or Social Security No.: ________________________________ (See Substitute Form W-9 on Page 13) (If a holder is tendering any Old Notes, this Letter must be signed by the registered holder(s) as the name(s) appear(s) on the certificate(s) for the Old Notes or by any person(s) authorized to become registered holder(s) by endorsements and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, officer or other person acting in a fiduciary or representative capacity, please set forth full title. See Instruction 3.) 7 SIGNATURE GUARANTEE (if required by Instruction 3) FINANCIAL INSTITUTIONS: PLACE MEDALLION GUARANTEE IN SPACE BELOW Authorized Signature: __________________________________________________________ Name: __________________________________________________________________________ Name of Firm: __________________________________________________________________ Address: _______________________________________________________________________ Area Code and Telephone Number: ________________________________________________ Dated: _________________________________________________________________________ 8 INSTRUCTIONS SYSCO INTERNATIONAL, CO. Forming part of the terms and conditions of the offer to exchange 6.10% Notes due 2012, which have been registered under the Securities Act of 1933, as amended, for any and all outstanding 6.10% Notes due 2012. 1. DELIVERY OF THIS LETTER AND OLD NOTES; GUARANTEED DELIVERY PROCEDURES. This Letter is to be completed by holders of Old Notes either if certificates are to be forwarded herewith or if tenders are to be made pursuant to the procedures for delivery by book-entry transfer set forth in "The Exchange Offer--Procedures for Tendering Old Notes" section of the Prospectus and an Agent's Message is not delivered. Certificates for all physically tendered Old Notes, or book-entry confirmation, as the case may be, as well as a properly completed and duly executed Letter (or facsimile thereof) and any other documents required by this Letter, must be received by the Exchange Agent at the address set forth herein on or prior to the Expiration Date, or the tendering holder must comply with the guaranteed delivery procedures set forth below. Old Notes tendered hereby must be in denominations of principal amount of $1,000 and any integral multiple thereof. The term "Agent's Message" means a message, transmitted by DTC to and received by the Exchange Agent and forming a part of a book-entry confirmation which states that DTC has received an express acknowledgment from the tendering participant, which acknowledgment states that it has received and agrees to be bound by the Letter and that SYSCO International may enforce the Letter against the tendering participant. Holders who tender their Old Notes using the DTC ATOP procedures need not submit this Letter. Holders of Old Notes whose certificates for Old Notes are not immediately available or who cannot deliver their certificates and all other required documents to the Exchange Agent on or prior to the Expiration Date, or who cannot complete the procedure for book-entry transfer on a timely basis, may tender their Old Notes pursuant to the guaranteed delivery procedures set forth in "The Exchange Offer-- Guaranteed Delivery Procedures" section of the Prospectus. Pursuant to such procedures, holders may tender their Old Notes if (i) the tender is made by or through an Eligible Guarantor Institution (as defined in Instruction 3 below); (ii) a properly completed and signed Notice of Guaranteed Delivery in the form provided with this Letter is delivered to the Exchange Agent on or before the Expiration Date (by facsimile transmission, mail or hand delivery), setting forth the name and address of the holder of Old Notes and the amount of Old Notes tendered, stating that the tender is being made thereby; and (iii) the certificates or a confirmation of book-entry transfer and a properly completed and signed Letter are delivered to the Exchange Agent within three New York Stock Exchange trading days after the Expiration Date. The Notice of Guaranteed Delivery may be delivered by hand, facsimile or mail to the Exchange Agent, and a guarantee by an Eligible Guarantor Institution must be included in the form described in the notice. Delivery of this Letter, the Old Notes and all other required documents by whatever method you choose is at your sole risk. Delivery is complete when the Exchange Agent actually receives the items to be delivered. Delivery of documents to DTC in accordance with DTC's procedures does not constitute delivery to the Exchange Agent. If delivery is by mail, then registered mail, return receipt requested, properly insured, or an overnight delivery service is recommended. In all cases, please allow sufficient time to ensure timely delivery. If Old Notes are sent by mail, it is suggested that the mailing be made sufficiently in advance of the Expiration Date to permit delivery to the Exchange Agent prior to 5:00 p.m., New York City time, on the Expiration Date. See "The Exchange Offer" section of the Prospectus. 2. PARTIAL TENDERS (not applicable to holders of Old Notes who tender by book-entry transfer). If less than all of the Old Notes evidenced by a submitted certificate are to be tendered, the tendering holder(s) should fill in the aggregate principal amount of Old Notes to be tendered in the box above entitled "Description of Old Notes--Amount Tendered." A reissued certificate representing the balance of 9 nontendered Old Notes will be sent to such tendering holder, unless otherwise provided in the appropriate box on this Letter, promptly after the Expiration Date. All of the Old Notes delivered to the Exchange Agent will be deemed to have been tendered unless otherwise indicated. 3. SIGNATURES ON THIS LETTER; BOND POWERS AND ENDORSEMENTS; GUARANTEE OF SIGNATURES. If this Letter is signed by the registered holder of the Old Notes tendered hereby, the signature must correspond exactly with the name as written on the face of the certificates without any change whatsoever. If any tendered Old Notes are owned of record by two or more joint owners, all such owners must sign this Letter. If any tendered Old Notes are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate copies of this Letter as there are different registrations of certificates. When this Letter is signed by the registered holder of the Old Notes specified herein and tendered hereby, no endorsements of certificates or separate bond powers are required. If, however, the New Notes are to be issued, or any untendered Old Notes are to be reissued, to a person other than the registered holder, then endorsements of any certificates transmitted hereby or separate bond powers are required. Signatures on such certificates must be guaranteed by an Eligible Guarantor Institution. If this Letter is signed by a person other than the registered holder of any certificates specified herein, such certificates must be endorsed or accompanied by appropriate bond powers, in either case signed exactly as the name of the registered holder appears on the certificates, and the signatures on such certificates must be guaranteed by an Eligible Guarantor Institution. If this Letter or any certificates or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and unless waived by SYSCO International, proper evidence satisfactory to SYSCO International of their authority to so act must be submitted. ENDORSEMENTS ON CERTIFICATES FOR OLD NOTES OR SIGNATURES ON BOND POWERS REQUIRED BY THIS INSTRUCTION 3 MUST BE GUARANTEED BY A FIRM WHICH IS A MEMBER OF THE SECURITY TRANSFER AGENT'S MEDALLION SIGNATURE PROGRAM OR BY ANY OTHER "ELIGIBLE GUARANTOR INSTITUTION" WITHIN THE MEANING OF RULE 17Ad-15 UNDER THE SECURITIES EXCHANGE ACT OF 1934. SIGNATURES ON THIS LETTER NEED NOT BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION, PROVIDED THE OLD NOTES ARE TENDERED: (1) BY A REGISTERED HOLDER OF OLD NOTES (WHICH TERM, FOR PURPOSES OF THE EXCHANGE OFFER, INCLUDES ANY PARTICIPANT IN THE DTC SYSTEM WHOSE NAME APPEARS ON A SECURITY POSITION LISTING AS THE HOLDER OF SUCH OLD NOTES) TENDERED WHO HAS NOT COMPLETED THE BOX ENTITLED "SPECIAL ISSUANCE INSTRUCTIONS" OR "SPECIAL DELIVERY INSTRUCTIONS" ON THIS LETTER OR (2) FOR THE ACCOUNT OF AN ELIGIBLE GUARANTOR INSTITUTION. 4. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. Tendering holders of Old Notes should indicate in the applicable box the name and address to which New Notes issued pursuant to the Exchange Offer and/or substitute certificates evidencing Old Notes not exchanged are to be issued or sent, if different from the name or address of the person signing this Letter. In the case of issuance in a different name, the employer identification or social security number of the person named must also be indicated. A holder of Old Notes tendering Old Notes by book-entry transfer may request that Old Notes not exchanged be credited to such account maintained at DTC as such holder of Old Notes may designate hereon. If no such instructions are given, such Old Notes not exchanged will be returned to the name or address of the person signing this Letter. 10 5. TAX IDENTIFICATION NUMBER. Federal income tax law generally requires that a tendering holder whose Old Notes are accepted for exchange must provide SYSCO International (as payor) with such holder's correct Taxpayer Identification Number ("TIN") on Substitute Form W-9 below, which, in the case of a tendering holder who is an individual, is his or her social security number. If SYSCO International is not provided with the current TIN or an adequate basis for an exemption, such tendering holder may be subject to a $50 penalty imposed by the Internal Revenue Service. In addition, delivery of New Notes to such tendering holder may be subject to backup withholding on all reportable payments made after the exchange. If withholding results in an overpayment of taxes, a refund may be obtained. Exempt holders of Old Notes (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. See the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (the "W-9 Guidelines") for additional instructions. To prevent backup withholding, each tendering holder of Old Notes must provide its correct TIN by completing the "Substitute Form W-9" set forth below, certifying that the TIN provided is correct (or that such holder is awaiting a TIN) and that (i) the holder is exempt from backup withholding, (ii) the holder has not been notified by the Internal Revenue Service that such holder is subject to a backup withholding as a result of a failure to report all interest or dividends or (iii) the Internal Revenue Service has notified the holder that such holder is no longer subject to backup withholding. If the tendering holder of Old Notes is a nonresident alien or foreign entity not subject to backup withholding, such holder must give SYSCO International a completed Form W-8BEN, Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding, or other similar statement, signed under penalties of perjury, certifying as to that individual's exempt status. You can obtain the appropriate form from the Exchange Agent. If the Old Notes are in more than one name or are not in the name of the actual owner, such holder should consult the W-9 Guidelines for information on which TIN to report. If such holder does not have a TIN, such holder should consult the W-9 Guidelines for instructions on applying for a TIN, check the box in Part 2 of the Substitute Form W-9 and write "applied for" in lieu of its TIN. Note: checking this box and writing "applied for" on the form means that such holder has already applied for a TIN or that such holder intends to apply for one in the near future. If such holder does not provide its TIN to SYSCO International within 60 days, backup withholding will begin and continue until such holder furnishes its TIN to SYSCO International. 6. TRANSFER TAXES. SYSCO International will pay any transfer taxes for the exchange of the Old Notes in the Exchange Offer. If, however, New Notes are delivered to or issued in the name of a person other than the registered holder, or if a transfer tax is imposed for any reason other than for the exchange of Old Notes in the Exchange Offer, then the tendering holder will pay the transfer taxes. If a tendering holder does not submit satisfactory evidence of payment of taxes or exemption from taxes with the Letter, the taxes will be billed to the tendering holder. EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT IS NOT NECESSARY FOR TRANSFER TAX STAMPS TO BE AFFIXED TO THE OLD NOTES SPECIFIED IN THIS LETTER. 7. WAIVER OF CONDITIONS. SYSCO International reserves the right to waive any or all conditions enumerated in the Prospectus. 8. NO CONDITIONAL TENDERS. No alternative, conditional, irregular or contingent tenders will be accepted. SYSCO International reserves the right to reject any Old Notes not properly tendered or any Old Note the acceptance of which would, in the opinion of SYSCO International or its counsel, be unlawful. All tendering holders of Old Notes, by execution of this Letter, shall waive any right to receive notice of the acceptance of their Old Notes for exchange. 11 SYSCO International reserves the right to waive any defects or irregularities in tenders. Unless waived, any deficit or irregularity in tenders must be cured within such time as SYSCO International shall determine. Neither SYSCO International, any affiliates or assigns of SYSCO International, the Exchange Agent nor any other person is under any obligation to give notice of any irregularities in tender nor will they be liable for failing to give such notice. 9. MUTILATED, LOST, STOLEN OR DESTROYED OLD NOTES. Any holder whose Old Notes have been mutilated, lost, stolen or destroyed should contact the Exchange Agent at the address indicated above for further instructions. 10. VALIDITY OF TENDERS. All questions as to the validity, form, eligibility (including time of receipt), acceptance and withdrawal of tendered Old Notes will be determined by SYSCO International in its sole discretion, which determination will be final and binding. SYSCO International's interpretation of the terms and conditions of the Exchange Offer shall be final and binding. 11. WITHDRAWAL. Tenders may be withdrawn only pursuant to the limited withdrawal rights set forth in the Prospectus under "The Exchange Offer - Withdrawal of Tenders of Old Notes." 12. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions relating to the procedure for tendering, as well as requests for additional copies of the Prospectus and this Letter, may be directed to the Exchange Agent, at the address and telephone number indicated above. 12 TO BE COMPLETED BY ALL TENDERING HOLDERS (See Instruction 5 above) TAXPAYER IDENTIFICATION NUMBER Substitute Form W-9 Name: __________________________________________________________________________ (First, middle, last) (If joint names, list both and circle the name of the person or entity whose number you enter in Part I below) Address: _______________________________________________________________________ ________________________________________________________________________________
- ------------------------------------------------------------------------------------------------------------------------------- Part 1 - - Please provide your Taxpayer Identification Part 2 - - If you are exempt from backup withholding, Number ("TIN") in the space provided below and check here. certify by signing and dating below. ____________________________________________ [_] - Exempt from backup withholding (Social Security or Employer Identification Number) - -------------------------------------------------------------------------------------------------------------------------------
Part 3 -- Certification -- Under penalties of perjury, I certify that: 1. The information provided above on this Substitute Form W-9 is true, complete and correct; and 2. I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (the "IRS") that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has informed me that I am no longer subject to backup withholding. Signature: _________________________________________ Date: ____________________ Certification Instructions -- You must cross out item 2 of Part 3 if you have been notified by the IRS that you are currently subject to backup withholding because of underreporting interest or dividends on your tax return. However, if after being notified by the IRS that you are subject to backup withholding, you receive another notification from the IRS stating that you are no longer subject to backup withholding, do not cross out item 2 of Part 3. NOTE: Failure to complete and return this Substitute Form W-9 may result in backup withholding of any payments made to you. Please review the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 for additional details. NOTE: You must complete the following certificate if you are awaiting a Taxpayer Identification Number. 13 CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office or (b) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number by the time of the exchange, all reportable payments made to me thereafter may be subject to withholding until I provide a number. - ----------------------------------------- ------------------------------ Signature Date 14 GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 WHAT NAME AND NUMBER TO GIVE THE REQUESTER
- ------------------------------------------------------------------------------------------------------------------------------------ GIVE THE NAME AND EMPLOYER GIVE THE NAME AND SOCIAL IDENTIFICATION FOR THIS TYPE OF ACCOUNT: SECURITY NUMBER OF - - FOR THIS TYPE OF ACCOUNT: NUMBER OF - - - ------------------------------------- ------------------------------ ----------------------------------- ------------------ 1. Individual The individual 6. Sole proprietorship The owner (3) 2. Two or more individuals The actual owner of the 7. A valid trust, estate, or Legal entity (4) (joint account) account or, if combined pension trust funds, the first individual on the account (1) 3. Custodian account of minor The minor (2) 8. Corporate The corporation (Uniform Gift to Minors Act) 4. a. The usual revocable The grantor-trustee (1) 9. Association, club, The organization savings trust (grantor is religious, charitable, also trustee) educational, or other tax-exempt organization b. So-called trust The actual owner (1) 10. Partnership The partnership account that is not a legal or valid trust under state law 5. Sole proprietorship The owner (3) 11. A broker or registered The broker or nominee nominees 12. Account with the The public entity Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments - ------------------------------------------------------------------------------------------------------------------------------------
(1) List first and circle the name of the person whose number you furnish. (2) Circle the minor's name and furnish the minor's social security number. (3) Show the individual's name. See Items 5 or 6 of the instructions above. You may also enter your business name. (4) List first and circle the name of the legal trust, estate, or pension trust. (Do not furnish the identification number of the personal representative or trustee unless the legal entity itself is not designated in the account title.) NOTE: If no name is circled when there is more than one name listed, the number will be considered to be that of the first name listed. INSTRUCTIONS (Section references are to the Internal Revenue Code.) PURPOSE OF FORM.--A person who is required to file an information return with the Internal Revenue Service (the IRS) must obtain your correct taxpayer identification number (TIN) to report income paid to you, real-estate transactions, mortgage interest you paid, the acquisition or abandonment of secured property, cancellation of debt, or contributions you made to an individual retirement arrangement (IRA). Use Form W-9 to furnish your correct TIN to the requester (the person asking you to furnish your TIN), and when applicable, (1) to certify that the TIN you are furnishing is correct (or that you are waiting for a number to be issued), (2) to certify that you are not subject to backup withholding, and (3) to claim exemption from backup withholding if you are an exempt payee. Furnishing your correct TIN and making the appropriate certifications will prevent certain payments from being subject to backup withholding. NOTE: If a requester gives you a form other than a W-9 to request your TIN, you must use the requester's form. 15 WHAT IS BACKUP WITHHOLDING?--Persons making certain payments to you are required to withhold and pay to the IRS 30% of such payments after December 31, 2001 (29% after December 31, 2003). This is called "backup withholding." Payments that could be subject to backup withholding include interest, dividends, broker and barter exchange transactions, rents, royalties, nonemployee compensation, and certain payments from fishing boat operators, but do not include real estate transactions. If you give the requester your correct TIN, make the appropriate certifications, and report all your taxable interest and dividends on your tax return, your payments will not be subject to backup withholding. Payments you receive will be subject to backup withholding if: (1) You do not furnish your TIN to the requester, or (2) The IRS notifies the requester that you furnished an incorrect TIN, or (3) You are notified by the IRS that you are subject to backup withholding because you failed to report all your interest and dividends on your tax return (for reportable interest and dividends only), or (4) You fail to certify to the requester that you are not subject to backup withholding under (Part 3) above (for reportable interest and dividend accounts opened after 1983 only), or (5) You fail to certify your TIN. This applies only to reportable interest, dividend, broker, or barter exchange accounts opened after 1983, or broker accounts considered inactive in 1983. Except as explained in (5) above, other reportable payments are subject to backup withholding only if (1) or (2) above applies. Certain payees and payments are exempt from backup withholding and information reporting. See Payees and Payments Exempt From Backup Withholding, below, and Exempt Payees and Payments under Specific Instructions, below, if you are an exempt payee. PAYEES AND PAYMENTS EXEMPT FROM BACKUP WITHHOLDING.--The following is a list of payees exempt from backup withholding and for which no information reporting is required. For interest and dividends, all listed payees are exempt except Item (9). For broker transactions, payees listed in (1) through (13) and a person registered under the Investment Advisors Act of 1940 who regularly acts as a broker are exempt. Payments subject to reporting under sections 6041 and 6041A are generally exempt from backup withholding only if made to payees described in Items (1) through (7), except that a corporation that provides medical and health care services or bills and collects payments for such services is not exempt from backup withholding or information reporting. Only payees described in Items (1) through (5) are exempt from backup withholding for barter exchange transactions and patronage dividends. (1) An organization exempt from tax under section 501(a), or an Individual Retirement Plan (IRA), or a custodial account under section 403(b)(7); (2) The United States or any of its agencies or instrumentalities; (3) A state, the District of Columbia, a possession of the United States, or any of their political subdivisions or instrumentalities; (4) A foreign government or any of its political subdivisions, agencies, or instrumentalities; (5) An international organization or any of its agencies or instrumentalities; (6) A corporation; (7) A foreign central bank of issue; (8) A dealer in securities or commodities required to register in the U.S., the District of Columbia or a possession of the U.S.; (9) A futures commission merchant registered with the Commodity Futures Trading Commission; (10) A real estate investment trust; (11) An entity registered at all times during the tax year under the investment Company Act of 1940; (12) A common trust fund operated by a bank under section 584(a); (13) A financial institution; (14) A middleman known in the investment community as a nominee or custodian; or (15) A trust exempt from tax under section 664 or described in section 4947. Payments of dividends and patronage dividends generally not subject to backup withholding include the following: 16 o Payments to nonresident aliens subject to withholding under section 1441. o Payments to partnerships not engaged in trade or business in the U.S. and that have at least one nonresident alien partner. o Payments of patronage dividends not paid in money. o Payments made by certain foreign organizations. o Section 404(k) payments made by an ESOP. Payments of interest generally not subject to backup withholding include the following: o Payments of interest on obligations issued by individuals. NOTE: You may be subject to backup withholding if this interest is $600 or more and is paid in the course of the payer's trade or business and you have not provided your correct TIN to the payer. o Payments of tax-exempt interest (including exempt-interest dividends under section 852). o Payments described in section 6049(b)(5) to nonresident aliens. o Payments on tax-free covenant bonds under section 1451. o Payments made by certain foreign organizations. o Mortgage or student loan interest paid by you. Payments that are not subject to information reporting are also not subject to backup withholding. For details, see sections 6041, 6041A, 6042, 6044, 6045, 6049, 6050A, and 6050N, and their regulations. PENALTIES FAILURE TO FURNISH TIN.--If you fail to furnish your correct TIN to a requester, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty. CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. SPECIFIC INSTRUCTIONS TAXPAYER IDENTIFICATION NUMBER (TIN).--You must enter your TIN in the appropriate box. If you are a resident alien and you do not have and are not eligible to get an SSN, your TIN is your IRS individual taxpayer identification number (ITIN). Enter it in the social security number box. HOW TO GET A TIN.--If you do not have a TIN, apply for one immediately. To apply for an SSN, get FORM SS-5 from your local Social Security Administration office. Get FORM W-7 to apply for an ITIN or FORM SS-4 to apply for an EIN. You can get Forms W-7 and SS-4 from the IRS by calling 1-800-TAX-FORM (1-800-829-3676). If you do not have a TIN, write "Applied For" in the space for the TIN, sign and date the form, and give it to the requester. For interest and dividend payments, and certain payments made with respect to readily tradable instruments, you will generally have 60 days to get a TIN and give it to the requester. Other payments are subject to backup withholding. NOTE: Writing "Applied For" means that you have already applied for a TIN or that you intend to apply for one soon. As soon as you receive your TIN, complete another Form W-9, include your TIN. Sign and date this form, and give it to the requester. 17 NAME.--If you are an individual, you must generally provide the name shown on your social security card. However, if you have changed your last name, for instance, due to marriage, without informing the Social Security Administration of the name change please enter your first name, the last name shown on your social security card and your new last name. If you are a sole proprietor, you must furnish your individual name and either your SSN or EIN. You may also enter your business name on the business name line. Enter your name(s) as shown on your social security card and/or as it was used to apply for your EIN on Form SS-4. PRIVACY ACT NOTICE.--Section 6109 requires you to furnish your correct TIN to persons who must file information returns with the IRS to report interest, dividends, and certain other income paid to you, mortgage interest you paid, the acquisition or abandonment of secured property, cancellation of debt or contributions you made to an individual retirement arrangement (IRA). The IRS uses the numbers for identification purposes and to help verify the accuracy of your tax return. The IRS may provide this information to the Department of Justice for civil and criminal litigation and to cities, states, and the District of Columbia to carry out their tax laws. You must provide your TIN whether or not you are required to file a tax return. Payers must generally withhold 30% of taxable interest, dividend, and certain other payments to a payee who does not furnish a TIN to a payer. Certain penalties may also apply. 18 1485529 EX-99.2 11 syscos4802ex992.txt NOTICE OF GUARANTEED DELIVERY EXHIBIT 99.2 NOTICE OF GUARANTEED DELIVERY With Respect to the Exchange Offer by SYSCO INTERNATIONAL, CO. for all outstanding 6.10% Notes Due 2012 for 6.10% Notes due 2012 which have been registered under the Securities Act of 1933, as amended, pursuant to the Prospectus dated _________, 2002. THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ______, 200__, UNLESS EXTENDED ("EXPIRATION DATE"). TENDERED OLD NOTES MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION DATE. This form or one substantially equivalent hereto must be used to accept the Exchange Offer of SYSCO International, Co., a Nova Scotia unlimited liability company ("SYSCO International"), made pursuant to the prospectus dated __________, 2002 (the "Prospectus), and the enclosed Letter of Transmittal (the "Letter of Transmittal") if certificates for Old Notes are not immediately available or if the procedure for book-entry transfer cannot be completed on a timely basis or time will not permit all required documents to reach the exchange agent prior to 5:00 p.m., New York City time, on the Expiration Date of the Exchange Offer. Such form may be delivered or transmitted by facsimile transmission, mail or hand delivery to Wachovia Bank, National Association (the "Exchange Agent") as set forth below. In addition, in order to utilize the guaranteed delivery procedure to tender Old Notes pursuant to the Exchange Offer, a completed, signed and dated Letter of Transmittal (or facsimile thereof) must also be received by the Exchange Agent within three New York Stock Exchange trading days after the Expiration Date. Capitalized terms not defined herein are defined in the Prospectus. DELIVER TO: WACHOVIA BANK, NATIONAL ASSOCIATION, EXCHANGE AGENT - --------------------------------------------------------------------------- By Mail, Overnight Courier or Hand: By Facsimile: - --------------------------------------------------------------------------- Wachovia Bank Customer Information Center (704) 590-7628 Corporate Trust Operations - NC1153 1525 West W.T. Harris Blvd. - 3C3 Confirm: Charlotte, N.C. 28262-1153 (704) 590-7413 (704) 590-7413 Attn: Marsha Rice - --------------------------------------------------------------------------- DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY. Ladies and Gentlemen: Upon the terms and conditions set forth in the Prospectus and the accompanying Letter of Transmittal, the undersigned hereby tenders to SYSCO International the principal amount of Old Notes set forth below, pursuant to the guaranteed delivery procedures described in "The Exchange Offer--Guaranteed Delivery Procedures" section of the Prospectus. Principal Amount of Old Notes Tendered: ________________________________________ Certificate Nos. (If Available): _______________________________________________ ________________________________________________________________________________ Signature(s) of Record Holder(s) ________________________________________________________________________________ (Please Type or Print Names(s) of Record Holder(s)) Dated: __________________________________________, 20____ Address: _______________________________________________________________________ ZIP Code ________________________________________________________________________________ Daytime Area Code and Telephone No. [_] Check this box if Old Notes will be delivered by book-entry transfer to The Depository Trust Company. Name of Tendering Institution: ________________________________________________ Account Number: ________________________________________________________________ THE ACCOMPANYING GUARANTEE MUST BE COMPLETED. 2 GUARANTEE (Not to be used for signature guarantee) The undersigned, a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc., a commercial bank or trust company having an office or correspondent in the United States, or an "eligible guarantor institution," as such term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), (a) represents that the above named person(s) "own(s)" the Old Notes tendered hereby within the meaning of Rule 14e-4(b)(2) under the Exchange Act, (b) represents that the tender of those Old Notes complies with Rule 14e-4, and (c) guarantees to deliver to the Exchange Agent, at its address set forth in the Notice of Guaranteed Delivery, the certificates representing all tendered Old Notes, in proper form for transfer, or a book-entry confirmation (a confirmation of a book-entry transfer of Old Notes into the Exchange Agent's account at DTC), together with a properly completed and duly executed Letter of Transmittal (or facsimile thereof), with any required signature guarantees, and any other documents required by the Letter of Transmittal within three (3) New York Stock Exchange trading days after the Expiration Date. Name of Firm: __________________________________________________________________ ________________________________________________________________________________ (Authorized Signature) Address: _______________________________________________________________________ ZIP Code Area Code and Tel. No.: ________________________________________________________ Name: __________________________________________________________________________ (Please Type or Print) Title: _________________________________________________________________________ Dated: _____________________________________, 20____ DO NOT SEND CERTIFICATES WITH THIS NOTICE OF GUARANTEED DELIVERY. CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL. 3 INSTRUCTIONS 1. Delivery of this Notice of Guaranteed Delivery. A properly completed and duly executed copy of this Notice of Guaranteed Delivery and any other documents required by this Notice of Guaranteed Delivery must be received by the Exchange Agent at its address set forth on the cover hereof prior to the Expiration Date. The method of delivery of this Notice of Guaranteed Delivery and all other required documents to the Exchange Agent is at the election and risk of the Holder but, except as otherwise provided below, the delivery will be deemed made only when actually received by the Exchange Agent. Instead of delivery by mail, it is recommended that Holders use an overnight or hand delivery service, properly insured. If such delivery is by mail, it is recommended that the Holder use properly insured, registered mail with return receipt requested. For a full description of the guaranteed delivery procedures, see the Prospectus under the caption "The Exchange Offer--Guaranteed Delivery Procedures." In all cases, sufficient time should be allowed to assure timely delivery. No Notice of Guaranteed Delivery should be sent to SYSCO International. 2. Signature on this Notice of Guaranteed Delivery. If this Notice of Guaranteed Delivery is signed by the Holder(s) referred to herein, then the signature must correspond with the name(s) as written on the face of the Old Notes without alteration, enlargement or any change whatsoever. If this Notice of Guaranteed Delivery is signed by a person other than the Holder(s) listed, this Notice of Guaranteed Delivery must be accompanied by a properly completed bond power signed as the name of the Holder(s) appear(s) on the face of the Old Notes without alteration, enlargement or any change whatsoever. If this Notice of Guaranteed Delivery is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, such person should so indicate when signing, and, unless waived by SYSCO International, evidence satisfactory to SYSCO International of their authority so to act must be submitted with this Notice of Guaranteed Delivery. 3. Requests for Assistance or Additional Copies. Questions relating to the Exchange Offer or the procedure for consenting and tendering as well as requests for assistance or for additional copies of the Prospectus, the Letter of Transmittal and this Notice of Guaranteed Delivery, may be directed to the Exchange Agent at the address set forth on the cover hereof or to your broker, dealer, commercial bank or trust company. 4 1485529v4 EX-99.3 12 syscos4802ex993.txt FORM OF LETTER EXHIBIT 99.3 FORM OF LETTER TO BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES AND OTHER NOMINEES SYSCO INTERNATIONAL, CO. Offer to Exchange 6.10% Notes due 2012, which have been registered under the Securities Act of 1933, as amended, for any and all outstanding 6.10% Notes due 2012 To: Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees: Upon and subject to the terms and conditions set forth in the prospectus dated ________, 2002 (the "Prospectus"), and the enclosed Letter of Transmittal (the "Letter of Transmittal"), an offer to exchange (the "Exchange Offer") the registered 6.10% Notes due 2012 (the "New Notes") for any and all outstanding 6.10% Notes due 2012 (the "Old Notes") is being made pursuant to such Prospectus. The Exchange Offer is being made in order to satisfy certain obligations of SYSCO International, Co. ("SYSCO International") and its parent, SYSCO Corporation ("SYSCO"), contained in the Registration Rights Agreement, dated as of May 23, 2002, between SYSCO International, SYSCO and J.P. Morgan Securities Inc., on its own behalf and as representative of the initial purchasers of the Old Notes (the "Initial Purchasers"). We are requesting that you contact your clients for whom you hold Old Notes regarding the Exchange Offer. For your information and for forwarding to your clients for whom you hold Old Notes registered in your name or in the name of your nominee, or who hold Old Notes registered in their own names, we are enclosing the following documents: 1. Prospectus dated __________, 2002; 2. The Letter of Transmittal for your use and for the information of your clients; 3. A Notice of Guaranteed Delivery to be used to accept the Exchange Offer if certificates for Old Notes are not immediately available or time will not permit all required documents to reach the Exchange Agent prior to the Expiration Date (as defined below) or if the procedure for book-entry transfer cannot be completed on a timely basis; 4. A form of letter which may be sent to your clients for whose account you hold Old Notes registered in your name or the name of your nominee, with space provided for obtaining such clients' instructions with regard to the Exchange Offer; and 5. Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. Your prompt action is requested. The Exchange Offer will expire at 5:00 p.m., New York City time, on _________, 2002, unless extended by SYSCO International (the "Expiration Date"). Old Notes tendered pursuant to the Exchange Offer may be withdrawn at any time before the Expiration Date. To participate in the Exchange Offer, a duly executed and properly completed Letter of Transmittal (or facsimile thereof or Agent's Message in lieu thereof), with any required signature guarantees and any other required documents, should be sent to the Exchange Agent, and certificates representing the Old Notes, or a timely confirmation of a book-entry transfer of such Old Notes should be delivered to the Exchange Agent, all in accordance with the instructions set forth in the Letter of Transmittal and the Prospectus. If holders of Old Notes wish to tender, but it is impracticable for them to forward their certificates for Old Notes prior to the expiration of the Exchange Offer or to comply with the book-entry transfer procedures on a timely basis, a tender may be effected by following the guaranteed delivery procedures described in the Prospectus under the caption "The Exchange Offer--Guaranteed Delivery Procedures." Additional copies of the enclosed material may be obtained from the Exchange Agent. Exchange Agent Telephone: (___) __________ Facsimile: (___) __________ Very truly yours, SYSCO INTERNATIONAL, CO. Nothing herein or in the enclosed documents shall constitute you or any person as an agent of SYSCO International or the Exchange Agent, or authorize you or any other person to make any statements on behalf of either of them with respect to the Exchange Offer, except for statements expressly made in the Prospectus and the Letter of Transmittal. 2 1485529v4 EX-99.4 13 syscos4802ex994.txt FORM OF LETTER EXHIBIT 99.4 FORM OF LETTER TO CLIENTS SYSCO INTERNATIONAL, CO. Offer to Exchange 6.10% Notes due 2012, which have been registered under the Securities Act of 1933, as amended, for any and all outstanding 6.10% Notes due 2012 To Our Clients: Enclosed for your consideration is a prospectus of SYSCO International, Co., a Nova Scotia unlimited liability company ("SYSCO International"), dated __________, 2002 (the "Prospectus"), and the enclosed Letter of Transmittal (the "Letter of Transmittal") relating to the offer to exchange (the "Exchange Offer") the registered 6.10% Notes due 2012 of SYSCO International (the "New Notes") for any and all outstanding 6.10% Notes due 2012 of SYSCO International (the "Old Notes"), upon the terms and subject to the conditions described in the Prospectus and the Letter of Transmittal. The Exchange Offer is being made in order to satisfy certain obligations of SYSCO International and its parent, SYSCO Corporation ("SYSCO"), contained in the Registration Rights Agreement, dated as of May 23, 2002, between SYSCO International, SYSCO and J.P. Morgan Securities Inc., on its own behalf and as representative of the initial purchasers of the Old Notes (the "Initial Purchasers"). This material is being forwarded to you as the beneficial owner of the Old Notes carried by us in your account but not registered in your name. A TENDER OF SUCH OLD NOTES MAY ONLY BE MADE BY US AS THE HOLDER OF RECORD AND PURSUANT TO YOUR INSTRUCTIONS. Accordingly, we request instructions as to whether you wish us to tender on your behalf the Old Notes held by us for your account, pursuant to the terms and conditions set forth in the enclosed Prospectus and Letter of Transmittal. We also request that you confirm that we may, on your behalf, make the representations and warranties contained in the Letter of Transmittal. Your instructions should be forwarded to us as promptly as possible in order to permit us to tender the Old Notes on your behalf in accordance with the provisions of the Exchange Offer. THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ___________, 2002 UNLESS EXTENDED BY SYSCO INTERNATIONAL (THE "EXPIRATION DATE"). ANY OLD NOTES TENDERED PURSUANT TO THE EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME BEFORE 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE. Your attention is directed to the following: 1. The Exchange Offer is for any and all Old Notes. 2. The Exchange Offer is subject to certain conditions set forth in the Prospectus in the section captioned "The Exchange Offer--Conditions of the Exchange Offer." 3. Any transfer taxes incident to the transfer of Old Notes from the holder to SYSCO International will be paid by SYSCO International, except as otherwise provided in the Instructions in the Letter of Transmittal. 4. The Exchange Offer expires at 5:00 p.m., New York City time, on the Expiration Date unless extended by SYSCO International. If you wish to have us tender your Old Notes, please so instruct us by completing, executing and returning to us the instruction form set forth below. The Letter of Transmittal is furnished to you for information only and may not be used directly by you to tender Old Notes. INSTRUCTIONS WITH RESPECT TO THE EXCHANGE OFFER The undersigned acknowledge(s) receipt of your letter and the enclosed materials referred to therein relating to the Exchange Offer made by SYSCO International with respect to their Old Notes. This will instruct you to tender the number of Old Notes indicated below held by you for the account of the undersigned, pursuant to the terms and conditions set forth in the Prospectus and the related Letter of Transmittal. (Check one). Box 1 [_] Please tender my Old Notes held by you for my account. If I do not wish to tender all of the Old Notes held by you for my account, I have identified on a signed schedule attached hereto the number of Old Notes that I do not wish tendered. Box 2 [_] Please do not tender any Old Notes held by you for my account. The undersigned expressly agrees to be bound by the enclosed Letter of Transmittal and acknowledges that such Letter of Transmittal may be enforced against the undersigned. Date _____________, 20__ _____________________________________________ Signature(s) _____________________________________________ _____________________________________________ Please print name(s) here _____________________________________________ _____________________________________________ Address(es) _____________________________________________ Area Code and Telephone No. UNLESS A SPECIFIC CONTRARY INSTRUCTION IS GIVEN IN THE SPACE PROVIDED, YOUR SIGNATURE(S) HEREON SHALL CONSTITUTE AN INSTRUCTION TO US TO TENDER ALL OLD NOTES. 2 1485529v4 -----END PRIVACY-ENHANCED MESSAGE-----