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EXHIBIT 4(j)
AGREEMENT AND NINTH AMENDMENT
TO
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
THIS AGREEMENT AND NINTH AMENDMENT TO COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT (this "Amendment") dated as of December 1, 1999 is
among SYSCO CORPORATION, a Delaware corporation (the "Company"), the banks
listed on the signature pages hereof (the "Banks"), CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION (formerly known as Texas Commerce Bank National
Association), a national banking association, as agent for the Banks (in such
capacity, the "Agent"), and THE CHASE MANHATTAN BANK, a New York banking
corporation (successor to Chemical Bank), as auction administration agent (in
such capacity, the "Auction Administration Agent").
PRELIMINARY STATEMENT
The Company, the Banks, certain other banks, the Agent and the Auction
Administration Agent have entered into a Competitive Advance and Revolving
Credit Facility Agreement dated as of July 27, 1988, as modified by an Agreement
and First Amendment to Competitive Advance and Revolving Credit Facility
Agreement dated as of February 14, 1989, by an Agreement and Second Amendment to
Competitive Advance and Revolving Credit Facility Agreement and Modification of
Notes dated as of May 1, 1989, by an Agreement and Third Amendment to
Competitive Advance and Revolving Credit Facility Agreement and Modification of
Notes dated as of January 2, 1990, by an Agreement and Fourth Amendment to
Competitive Advance and Revolving Credit Facility Agreement dated as of January
31, 1994, and by an
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Agreement and Fifth Amendment to Competitive Advance and Revolving Credit
Facility Agreement dated as of November 15, 1994, as amended and restated by a
Sixth Amendment and Restatement of Competitive Advance and Revolving Credit
Facility Agreement dated as of May 31, 1996, as further modified by an Agreement
and Seventh Amendment to Competitive Advance and Revolving Credit Facility
Agreement dated as of June 27, 1997, and as further modified by an Agreement and
Eighth Amendment to Competitive Advance and Revolving Credit Facility Agreement
dated as of June 22, 1998 (said Competitive Advance and Revolving Credit
Facility Agreement as so modified, amended and restated and further modified
being the "Credit Agreement"). All capitalized terms defined in the Credit
Agreement and not otherwise defined herein shall have the same meanings herein
as in the Credit Agreement. The Company, the Banks, the Agent and the Auction
Administration Agent have agreed, upon the terms and conditions specified
herein, to amend the Credit Agreement as hereinafter set forth:
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, the Company, the Banks, the Agent and the Auction
Administration Agent hereby agree as follows:
SECTION 1. Amendments to Section 1.01 of the Credit Agreement. Certain
definitions contained in Section 1.01 of the Credit Agreement are hereby amended
as follows:
(a) The definition of the term"Subsidiary" is amended in its
entirety to read as follows:
"`Subsidiary' means, with respect to any Person (the `parent') at
any date, any corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership
interests representing more than 50% of
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the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that
is, as of such date, otherwise controlled, by the parent or one or
more Subsidiaries of the parent or by the parent and one or more
Subsidiaries of the parent. In the foregoing sentence the term
`controlled' refers to the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies
of a Person, whether through the ability to exercise voting power, by
contract or otherwise.".
(b) The definition of the term "Wholly-Owned Consolidated
Subsidiary" is hereby amended in its entirety to read as follows:
"`Wholly-Owned Consolidated Subsidiary' means a Consolidated
Subsidiary, all of the outstanding capital stock, member interests,
partner interests or other ownership interests in which, other than
directors' qualifying shares, are at the time owned by the Company, by
any one or more other Wholly-Owned Consolidated Subsidiaries, or by
the Company and any one or more Wholly-Owned Consolidated
Subsidiaries.".
SECTION 2. Amendments to Section 4.18(c) of the Credit Agreement.
Section 4.18(c) of the Credit Agreement is hereby amended in its entirety to
read as follows:
"(c) Neither the Company nor any ERISA Affiliate has incurred, or is
reasonably expected to incur, any Withdrawal Liability to any Multiemployer
Plan which would exceed in the aggregate 4% of Net Worth.".
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SECTION 3. Amendments to Section 5.01(i)(iii) of the Credit Agreement.
Section 5.01(i)(iii) of the Credit Agreement is hereby amended in its entirety
to read as follows:
"(iii) The Company will furnish to the Agent (i) if requested by any
Bank through the Agent, promptly after the filing thereof with the Internal
Revenue Service copies of each Schedule B (Actuarial Information) to the
annual report (Form 5500 Series) with respect to each PBGC Plan; (ii)
promptly after becoming aware of the occurrence of any material Termination
Event in connection with any PBGC Plan, a written notice signed by the
President or Financial Officer of the Company specifying the nature thereof
and any action the Company or appropriate ERISA Affiliate proposes to take
with respect thereto; (iii) promptly and in any event within five Business
Days after receipt thereof by the Company or any of its ERISA Affiliates
from the PBGC, copies of each notice received by the Company or any such
ERISA Affiliate of the PBGC's intention to terminate any PBGC Plan or to
have a trustee appointed under Section 4042(b) of ERISA to administer any
PBGC Plan; (iv) promptly a written notice in the event there is either a
failure of the Company or an ERISA Affiliate to comply with the minimum
funding requirements of Section 412 of the Code or Section 302 of ERISA or
an application for a waiver from either or both of such standards is
requested or received by the Company or an ERISA Affiliate with respect to
a PBGC Plan and in either event the failure to comply or the application or
grant of waiver is with respect to a material amount; and (v) promptly and
in any event within five Business Days after receipt thereof by the Company
or any ERISA Affiliate from a Multiemployer Plan sponsor, a copy of each
notice received by the Company or any ERISA Affiliate concerning the
imposition and the amount of withdrawal liability upon the
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Company or an ERISA Affiliate by a Multiemployer Plan pursuant to Section
4202 of ERISA. The Company will comply in all material respects with all
applicable provisions of ERISA, the violation of which would, in the
reasonable judgment of the Majority Banks, give rise to a material
liability of the Company, and notice of which violation has been given by
the Agent to the Company. For purposes of this Section 5.01(i)(iii), an
obligation or liability shall be considered material if it equals or
exceeds $4,000,000;".
SECTION 4. Amendment to Section 5.02(a)(xi) of the Credit Agreement.
Section 5.02(a)(xi) of the Credit Agreement is hereby amended in its entirety to
read as follows:
"(xi) a Lien on the Company's headquarters building located at 0000
Xxxxxxx Xxxxxxx, Xxxxxxx, Xxxxx to secure Indebtedness;".
SECTION 5. Amendments to Section 6.01 of the Credit Agreement. Section
6.01 of the Credit Agreement is hereby amended
(a) by amending paragraph (e) thereof in its entirety to read as
follows:
"(e) The Company or any Subsidiary shall (i) default in the payment of
any Indebtedness (excluding Indebtedness evidenced by the Notes) of the
Company or such Subsidiary (as the case may be), or any interest or premium
thereon, when due whether by acceleration or otherwise, beyond any period
of grace provided with respect thereto, or (ii) default in the performance
or observance of any obligation or condition with respect to such other
Indebtedness if the effect of such default results in the holder of such
other Indebtedness accelerating the maturity of such other Indebtedness and
the Company or such Subsidiary fails to pay such Indebtedness within five
Business Days after such acceleration, if, in the case of any defaults
described in clauses (i) and (ii) of this Section 6.01(e), the
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aggregate principal amount of all such Indebtedness for which all such
defaults shall have occurred and be continuing exceeds $25,000,000; or";
(b) by amending paragraph (j) thereof in its entirety to read as
follows:
"(j) A final judgment or judgments for the payment of money shall be
rendered by a court or courts against the Company or any Significant
Subsidiary in excess of $25,000,000 in the aggregate and the same shall not
be discharged (or provision shall not be made for such discharge), or a
stay of execution thereof shall not be procured, within 30 days from the
date of entry thereof and the Company or such Significant Subsidiary, as
the case may be, shall not, within said period of 30 days, or such longer
period during which execution of the same shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during such appeal;
or"; and
(c) by amending paragraph (k) thereof in its entirety to read as
follows:
"(k) (i) The Company or any ERISA Affiliate or any of its agents or
representatives shall engage in any `prohibited transaction' (as defined in
Section 406 of ERISA or Section 4975 of the Code) which can be expected to
result in a material liability to the Company or any ERISA Affiliate, (ii)
any material `accumulated funding deficiency' (as defined in Section 302 of
ERISA or Section 412 of the Code), whether or not waived, shall exist with
respect to any PBGC Plan, if in the reasonable judgment of the Majority
Banks, such accumulated funding deficiency would give rise to a material
liability of the Company or any ERISA Affiliate, (iii) the Company or any
ERISA Affiliate shall apply for or be granted a funding waiver under
Section 302 of ERISA or Section 412 of the Code, which waiver or request
for waiver is for a material amount, (iv) a `reportable event' (other
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than a reportable event not subject to the provision for thirty-day notice
to the PBGC under applicable PBGC regulations) shall occur with respect to
any PBGC Plan, which reportable event is, in the reasonable opinion of the
Majority Banks, likely to result in the termination of such PBGC Plan for
purposes of Title IV of ERISA and to give rise to a material liability of
the Company or any ERISA Affiliate, (v) proceedings shall commence to have
a trustee appointed or a trustee shall be appointed to terminate or
administer a PBGC Plan under Section 4042(b) of ERISA which proceeding is,
in the reasonable opinion of the Majority Banks, likely to result in the
termination of such PBGC Plan and to give rise to a material liability of
the Company or any ERISA Affiliate with respect to such termination, (vi) a
notice of intent to terminate a PBGC Plan under Section 4041(c) is filed
with the PBGC if such termination would give rise to a material liability
of the Company or any ERISA Affiliate, (vii) any Multiemployer Plan is in
reorganization or is insolvent and the circumstances are such that, in the
reasonable opinion of the Majority Banks, there could be a material
liability incurred by or imposed upon the Company or any ERISA Affiliate,
(viii) there is a complete or partial withdrawal from a Multiemployer Plan
under circumstances that, in the reasonable opinion of the Majority Banks,
would likely subject the Company or any ERISA Affiliate to a material
liability, or (ix) any event or condition described in (i) through (viii)
above (determined without regard to whether the event or condition taken
alone would or could result in a material liability) shall occur or exist
with respect to a PBGC Plan or Multiemployer Plan which individually or in
combination with one or more of any events described in (i) through (viii)
above (determined without regard to whether the event or condition taken
alone would or could result in a material liability), if any, in the
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reasonable opinion of the Majority Banks would likely, subject the Company
or any ERISA Affiliate to any material tax, penalty or other liability (for
purposes of this Section 6.01(k) , an obligation or liability shall be
considered material if it equals or exceeds $20,000,000);".
SECTION 6. Conditions of Effectiveness. This Amendment shall become
effective when, and only when, the following conditions shall have been
fulfilled:
(a) the Company, the Agent, the Auction Administration Agent and
Banks together constituting the Majority Banks shall have executed a counterpart
hereof and delivered the same to the Agent or, in the case of any such Bank as
to which an executed counterpart hereof shall not have been so delivered, the
Agent shall have received written confirmation by telecopy or other similar
writing from such Bank of execution of a counterpart hereof by such Bank; and
(b) the Agent shall have received from the Company a certificate of
the Secretary or Assistant Secretary of the Company certifying that attached
thereto is (i) a true and complete copy of the general borrowing resolutions of
the Board of Directors of the Company authorizing the execution, delivery and
performance of the Credit Agreement, as amended hereby, and (ii) the incumbency
and specimen signature of each officer of the Company executing this Amendment.
SECTION 7. Representations and Warranties True; No Default or Event of
Default. The Company hereby represents and warrants to the Agent, the Auction
Administration Agent and the Banks that after giving effect to the execution and
delivery of this Amendment (a) the representations and warranties set forth in
the Credit Agreement (as modified hereby) are true and correct on the date
hereof as though made on and as of such date; provided, however, that for
purposes of this clause (a), Schedule II as used in Section 4.02 of the Credit
Agreement shall
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be deemed to include any supplements to such Schedule delivered to the Agent and
the Banks by the Company prior to the date of this Amendment and (b) neither any
Default nor Event of Default has occurred and is continuing as of the date
hereof.
SECTION 8. Reference to the Credit Agreement and Effect on the Notes
and Other Documents Executed Pursuant to the Credit Agreement.
(a) Upon the effectiveness of this Amendment, each reference in the
Credit Agreement to "this Agreement," "hereunder," "herein," "hereof" or words
of like import shall mean and be a reference to the Credit Agreement, as amended
hereby.
(b) Upon the effectiveness of this Amendment, each reference in the
Notes and the other documents and agreements delivered or to be delivered
pursuant to the Credit Agreement shall mean and be a reference to the Credit
Agreement, as amended hereby.
(c) The Credit Agreement and the Notes and other documents and
agreements delivered pursuant to the Credit Agreement, and modified by the
amendments referred to above, shall remain in full force and effect and are
hereby ratified and confirmed.
SECTION 9. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
SECTION 10. GOVERNING LAW; BINDING EFFECT. THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND
APPLICABLE FEDERAL LAW AND SHALL BE BINDING UPON THE COMPANY, THE AGENT, THE
AUCTION ADMINISTRATION AGENT AND THE BANKS AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS.
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SECTION 11. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
SECTION 12. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED HEREBY,
THE NOTES AND THE LETTER AGREEMENTS REFERRED TO IN SECTIONS 2.05(b) AND 2.05(c)
OF THE CREDIT AGREEMENT CONSTITUTE A "LOAN AGREEMENT" AS DEFINED IN SECTION
26.02 OF THE TEXAS BUSINESS AND COMMERCE CODE, AND REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed effective as of the date first stated herein, by their respective
officers thereunto duly authorized.
SYSCO CORPORATION
By: /s/ XXXXX XXX XXXXXXX
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Name: Xxxxx Xxx Xxxxxxx
Title: Vice President & Treasurer
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION
(FORMERLY KNOWN AS TEXAS COMMERCE BANK
NATIONAL ASSOCIATION),
INDIVIDUALLY AND AS AGENT
By: /s/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: Vice President
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THE CHASE MANHATTAN BANK
(SUCCESSOR TO CHEMICAL BANK), AS AUCTION
ADMINISTRATION AGENT
By: /s/ XXXXXXXXXXX XXXXXXXX
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Name: Xxxxxxxxxxx Xxxxxxxx
Title: Assistant Vice President
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BANK OF AMERICA, NATIONAL
ASSOCIATION
(FORMERLY KNOWN AS CONTINENTAL BANK N.A.)
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: Principal
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FIRST UNION NATIONAL BANK
By: /s/ XXXXXXX X. XXX
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Name: Xxxxxxx X. Xxx
Title: Vice President
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WACHOVIA BANK OF GEORGIA,
NATIONAL ASSOCIATION
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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THE TORONTO-DOMINION BANK
By:
--------------------------------------
Name:
Title:
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UBS AG, STAMFORD BRANCH
By: /s/ XXXXXXX SAINT
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Name: Xxxxxxx Saint
Title: Associate Director
Loan Portfolio Support, US
By: /s/ XXXXXX X. XXXXX III
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Name: Xxxxxx X. Xxxxx III
Title: Executive Director
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XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By: /s/ XXXXX XXXXXXXXXX
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Name: Xxxxx Xxxxxxxxxx
Title: Vice President
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