Exhibit 10.1
AMENDED AND RESTATED ISSUING AND PAYING AGENCY AGREEMENT
This Agreement, dated as of April 13, 2006, is by and between Sysco
Corporation (the "ISSUER") and JPMorgan Chase Bank, National Association
("JPMORGAN").
1. APPOINTMENT AND ACCEPTANCE
The Issuer hereby appoints JPMorgan as its issuing and paying agent in
connection with the issuance and payment of certain short-term promissory notes
of the Issuer (the "NOTES"), as further described herein, and JPMorgan agrees to
act as such agent upon the terms and conditions contained in this Agreement.
2. COMMERCIAL PAPER PROGRAMS
The Issuer may establish one or more commercial paper programs under this
Agreement by delivering to JPMorgan a completed program schedule (the "PROGRAM
SCHEDULE"), with respect to each such program. JPMorgan has given the Issuer a
copy of the current form of Program Schedule and the Issuer shall complete and
return its first Program Schedule to JPMorgan prior to or simultaneously with
the execution of this Agreement. In the event that any of the information
provided in, or attached to, a Program Schedule shall change, the Issuer shall
promptly inform JPMorgan of such change in writing.
3. NOTES
All Notes issued by the Issuer under this Agreement shall be short-term
promissory notes, exempt from the registration requirements of the Securities
Act of 1933, as amended, as indicated on the Program Schedules, and from
applicable state securities laws. The Notes may be placed by dealers (the
"DEALERS") pursuant to Section 4 hereof. Notes shall be issued in either
certificated or book-entry form.
4. AUTHORIZED REPRESENTATIVES
The Issuer shall deliver to JPMorgan a duly adopted corporate resolution
from the Issuer's Board of Directors (or other governing body) authorizing the
issuance of Notes under each program established pursuant to this Agreement and
a certificate of incumbency, with specimen signatures attached, of those
officers, employees and agents of the Issuer authorized to take certain actions
with respect to the Notes as provided in this Agreement (each such person is
hereinafter referred to as an "AUTHORIZED REPRESENTATIVE"). Until JPMorgan
receives any subsequent incumbency certificates of the Issuer, JPMorgan shall be
entitled to rely on the last incumbency certificate delivered to it for the
purpose of determining the Authorized Representatives. The Issuer represents and
warrants that each Authorized Representative may appoint other officers,
employees and agents of the Issuer (the "DELEGATES"), including without
limitation any Dealers, to issue instructions to JPMorgan under this Agreement,
and take other actions on the Issuer's behalf hereunder, provided that notice of
the appointment of each Delegate is delivered to JPMorgan in writing. Each such
appointment shall remain in effect unless and until revoked by the Issuer in a
written notice to JPMorgan.
5. CERTIFICATED NOTES
If and when the Issuer intends to issue certificated notes ("CERTIFICATED
NOTES"), the Issuer and JPMorgan shall agree upon the form of such Notes.
Thereafter, the Issuer shall from time to time deliver to JPMorgan adequate
supplies of Certificated Notes which will be in bearer form, serially numbered,
and shall be executed by the manual or facsimile signature of an Authorized
Representative. JPMorgan will acknowledge receipt of any supply of Certificated
Notes received from the Issuer, noting any exceptions to the shipping manifest
or transmittal letter (if any), and will hold the Certificated Notes in
safekeeping for the Issuer in accordance with
JPMorgan's customary practices. JPMorgan shall not have any liability to the
Issuer to determine by whom or by what means a facsimile signature may have been
affixed on Certificated Notes, or to determine whether any facsimile or manual
signature is genuine, if such facsimile or manual signature resembles the
specimen signature attached to the Issuer's certificate of incumbency with
respect to such Authorized Representative. Any Certificated Note bearing the
manual or facsimile signature of a person who is an Authorized Representative on
the date such signature was affixed shall bind the Issuer after completion
thereof by JPMorgan, notwithstanding that such person shall have ceased to hold
his or her office on the date such Note is countersigned or delivered by
JPMorgan.
6. BOOK-ENTRY NOTES
The Issuer's book-entry notes ("BOOK-ENTRY NOTES") shall not be issued in
physical form, but their aggregate face amount shall be represented by a master
note (the "MASTER NOTE") executed by the Issuer pursuant to the book-entry
commercial paper program of The Depository Trust Company ("DTC"). JPMorgan shall
maintain the Master Note in safekeeping, in accordance with its customary
practices, on behalf of Cede & Co., the registered owner thereof and nominee of
DTC. As long as Cede & Co. is the registered owner of the Master Note, the
beneficial ownership interest therein shall be shown on, and the transfer of
ownership thereof shall be effected through, entries on the books maintained by
DTC and the books of its direct and indirect participants. The Master Note and
the Book-Entry Notes shall be subject to DTC's rules and procedures, as amended
from time to time. JPMorgan shall not be liable or responsible for sending
transaction statements of any kind to DTC's participants or the beneficial
owners of the Book-Entry Notes, or for maintaining, supervising or reviewing the
records of DTC or its participants with respect to such Notes. In connection
with DTC's program, the Issuer understands that as one of the conditions of its
participation therein, it shall be necessary for the Issuer and JPMorgan to
enter into a Letter of Representations and for DTC to receive and accept such
Letter of Representations. In accordance with DTC's program, JPMorgan shall
obtain from the CUSIP Service Bureau a written list of CUSIP numbers for
Issuer's Book-Entry Notes, and JPMorgan shall deliver such list to DTC. The
CUSIP Service Bureau shall bill the Issuer directly for the fee or fees payable
for the list of CUSIP numbers for the Issuer's Book-Entry Notes.
7. ISSUANCE INSTRUCTIONS TO JPMORGAN; PURCHASE PAYMENTS
The Issuer understands that all instructions under this Agreement are to be
directed to JPMorgan's Commercial Paper Operations Department. JPMorgan shall
provide the Issuer, or, if applicable, the Issuer's Dealers, with access to
JPMorgan's Money Market Issuance System or other electronic means (collectively,
the "SYSTEM") in order that JPMorgan may receive electronic instructions for the
issuance of Notes. Electronic instructions must be transmitted in accordance
with the procedures furnished by JPMorgan to the Issuer or its Dealers in
connection with the System. These transmissions shall be the equivalent to the
giving of a duly authorized written and signed instruction which JPMorgan may
act upon without liability. In the event that the System is inoperable at any
time, an Authorized Representative or a Delegate may deliver written, telephone
or facsimile instructions to JPMorgan, which instructions shall be verified in
accordance with any security procedures agreed upon by the parties. JPMorgan
shall incur no liability to the Issuer in acting upon instructions believed by
JPMorgan in good faith and in accordance with agreed upon security procedures to
have been given by an Authorized Representative or a Delegate. In the event that
a discrepancy exists between a telephonic instruction and a written
confirmation, the telephonic instruction will be deemed the controlling and
proper instruction,. JPMorgan may electronically record any conversations made
pursuant to this Agreement, and the Issuer hereby consents to such recordings.
In the event of a dispute as to the content of verbal instructions received,
upon Issuer's request, JPMorgan shall provide to Issuer evidence of the
telephonic instructions received, which, to the extent that the same are
reasonably available to JPMorgan, shall include electronic recordings of such
instructions. All issuance instructions regarding the Notes must be received by
1:00 P.M. New York time in order for the Notes to be issued or delivered on the
same day.
2
(a) ISSUANCE AND PURCHASE OF BOOK-ENTRY NOTES. Upon receipt of issuance
instructions from the Issuer or its Dealers with respect to Book-Entry
Notes, JPMorgan shall transmit such instructions to DTC and direct DTC to
cause appropriate entries of the Book-Entry Notes to be made in accordance
with DTC's applicable rules, regulations and procedures for book-entry
commercial paper programs. JPMorgan shall assign CUSIP numbers to the
Issuer's Book-Entry Notes to identify the Issuer's aggregate principal
amount of outstanding Book-Entry Notes in DTC's system, together with the
aggregate unpaid interest (if any) on such Notes. Promptly following DTC's
established settlement time on each issuance date, JPMorgan shall access
DTC's system to verify whether settlement has occurred with respect to the
Issuer's Book-Entry Notes. Prior to the close of business on such business
day, JPMorgan shall deposit immediately available funds in the amount of
the proceeds due the Issuer (if any) to the Issuer's account at JPMorgan
and designated in the applicable Program Schedule (the "ACCOUNT"), provided
that JPMorgan has received DTC's confirmation that the Book-Entry Notes
have settled in accordance with DTC's applicable rules, regulations and
procedures. JPMorgan shall have no liability to the Issuer whatsoever if
any DTC participant purchasing a Book-Entry Note fails to settle or delays
in settling its balance with DTC or if DTC fails to perform in any respect.
(b) ISSUANCE AND PURCHASE OF CERTIFICATED NOTES. Upon receipt of issuance
instructions with respect to Certificated Notes, JPMorgan shall: (a)
complete each Certificated Note as to principal amount, date of issue,
maturity date, place of payment, and rate or amount of interest (if such
Note is interest bearing) in accordance with such instructions; (b)
countersign each Certificated Note; and (c) deliver each Certificated Note
in accordance with the Issuer's instructions, except as otherwise set forth
below. Whenever JPMorgan is instructed to deliver any Certificated Note by
mail, JPMorgan shall strike from the Certificated Note the word "Bearer,"
insert as payee the name of the person so designated by the Issuer and
effect delivery by mail to such payee or to such other person as is
specified in such instructions to receive the Certificated Note. The Issuer
understands that, in accordance with the custom prevailing in the
commercial paper market, delivery of Certificated Notes shall be made
before the actual receipt of payment for such Notes in immediately
available funds, even if the Issuer instructs JPMorgan to deliver a
Certificated Note against payment. Therefore, once JPMorgan has delivered a
Certificated Note to the designated recipient, the Issuer shall bear the
risk that such recipient may fail to remit payment of such Note or return
such Note to JPMorgan. Delivery of Certificated Notes shall be subject to
the rules of the New York Clearing House in effect at the time of such
delivery. Funds received in payment of Certificated Notes shall be credited
to the Account.
8. USE OF SALES PROCEEDS IN ADVANCE OF PAYMENT
JPMorgan shall not be obligated to credit the Issuer's Account unless and
until payment of the purchase price of each Note is received by JPMorgan. From
time to time, JPMorgan, in its sole discretion, may permit the Issuer to have
use of funds payable with respect to a Note prior to JPMorgan's receipt of the
sales proceeds of such Note. If JPMorgan makes a deposit, payment or transfer of
funds on behalf of the Issuer before JPMorgan receives payment for any Note,
such deposit, payment or transfer of funds shall represent an advance by
JPMorgan to the Issuer to be repaid promptly, and in any event on the same day
as it is made, from the proceeds of the sale of such Note, or by the Issuer if
such proceeds are not received by JPMorgan.
3
9. PAYMENT OF MATURED NOTES
To the extent the Notes are extendible, notice that the Issuer will not
redeem any Note on the relative Initial Redemption Date (as defined in the
applicable Extendible Commercial Note Announcement) must be received in writing
by JPMorgan by 11:00 A.M. on such Initial Redemption Date. On any other day when
a Note matures or is prepaid, the Issuer shall transmit, or cause to be
transmitted, to the Account, prior to 2:00 P.M. New York time on the same day,
an amount of immediately available funds sufficient to pay the aggregate
principal amount of such Note and any applicable interest due. JPMorgan shall
pay the interest (if any) and principal on a Book-Entry Note to DTC in
immediately available funds, which payment shall be by net settlement of
JPMorgan's account at DTC. JPMorgan shall pay Certificated Notes upon
presentment. JPMorgan shall have no obligation under the Agreement to make any
payment for which there is not sufficient, available and collected funds in the
Account, and JPMorgan may, without liability to the Issuer, refuse to pay any
Note that would result in an overdraft to the Account.
10. OVERDRAFTS
(a) Intraday overdrafts with respect to each Account shall be subject to
JPMorgan's policies as in effect from time to time.
(b) An overdraft will exist in an Account if JPMorgan, in its sole
discretion, (i) permits an advance to be made pursuant to Section 8 and,
notwithstanding the provisions of Section 8, such advance is not repaid in
full on the same day as it is made, or (ii) pays a Note pursuant to Section
9 in excess of the available collected balance in such Account. Overdrafts
shall be subject to JPMorgan's established banking practices, including,
without limitation, the imposition of interest, funds usage charges and
administrative fees. The Issuer shall repay any such overdraft, fees and
charges no later than the next business day, together with interest on the
overdraft at the rate established by JPMorgan for the Account, computed
from and including the date of the overdraft to the date of repayment.
11. NO PRIOR COURSE OF DEALING
No prior action or course of dealing on the part of JPMorgan with respect
to advances of the purchase price or payments of matured Notes shall give rise
to any claim or cause of action by the Issuer against JPMorgan in the event that
JPMorgan refuses to pay or settle any Notes for which the Issuer has not timely
provided funds as required by this Agreement.
12. RETURN OF CERTIFICATED NOTES
JPMorgan will in due course cancel any Certificated Note presented for
payment and return such Note to the Issuer. JPMorgan shall also cancel and
return to the Issuer any spoiled or voided Certificated Notes. Promptly upon
written request of the Issuer or at the termination of this Agreement, JPMorgan
shall destroy all blank, unissued Certificated Notes in its possession and
furnish a certificate to the Issuer certifying such actions.
13. INFORMATION FURNISHED BY JPMORGAN
Upon the reasonable request of the Issuer, JPMorgan shall promptly provide
the Issuer with information with respect to any Note issued and paid hereunder,
provided, that the Issuer delivers such request in writing and, to the extent
applicable, includes the serial number or note number, principal amount, payee,
date of issue, maturity date, amount of interest (if any) and place of payment
of such Note.
4
14. REPRESENTATIONS AND WARRANTIES
The Issuer represents and warrants that: (i) it has the right, capacity and
authority to enter into this Agreement; and (ii) it will comply with all of its
obligations and duties under this Agreement. The Issuer further represents and
agrees that each Note issued and distributed upon its instruction pursuant to
this Agreement shall constitute the Issuer's representation and warranty to
JPMorgan that such Note is a legal, valid and binding obligation of the Issuer,
and that such Note is being issued in a transaction which is exempt from
registration under the Securities Act of 1933, as amended, and any applicable
state securities law.
15. DISCLAIMERS
Neither JPMorgan nor its directors, officers, employees or agents shall be
liable for any act or omission under this Agreement except in the case of
negligence or willful misconduct. IN NO EVENT SHALL JPMORGAN BE LIABLE FOR
SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER
(INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF JPMORGAN HAS BEEN ADVISED
OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION.
In no event shall JPMorgan be considered negligent in consequence of complying
with DTC's rules, regulations and procedures. The duties and obligations of
JPMorgan, its directors, officers, employees or agents shall be determined by
the express provisions of this Agreement and they shall not be liable except for
the performance of such duties and obligations as are specifically set forth
herein and no implied covenants shall be read into this Agreement against them.
Neither JPMorgan nor its directors, officers, employees or agents shall be
required to ascertain whether any issuance or sale of any Notes (or any
amendment or termination of this Agreement) has been duly authorized or is in
compliance with any other agreement to which the Issuer is a party (whether or
not JPMorgan is also a party to such agreement).
16. INDEMNIFICATION
The Issuer agrees to indemnify, defend and hold harmless JPMorgan, its
directors, officers, employees and agents (collectively, "Indemnitees") from and
against any and all liabilities, claims, losses, damages, penalties, costs and
expenses (including reasonable attorneys' fees and disbursements) suffered or
incurred by or asserted or assessed against any Indemnitee arising in respect of
this Agreement, except in respect of any Indemnitee for any such liability,
claim, loss, damage, penalty, cost or expense resulting from the negligence or
willful misconduct of such Indemnitee. This indemnity will survive the
termination of this Agreement.
17. OPINION OF COUNSEL
The Issuer shall deliver to JPMorgan all documents it may reasonably
request relating to the existence of the Issuer and authority of the Issuer for
this Agreement, including, without limitation, an opinion of counsel reasonably
acceptable by JPMorgan.
18. NOTICES
All notices, confirmations and other communications hereunder shall (except
to the extent otherwise expressly provided) be in writing and shall be sent by
first-class mail, postage prepaid, by telecopier or by hand, addressed as
follows, or to such other address as the party receiving such notice shall have
previously specified to the party sending such notice:
If to the Issuer: SYSCO Corporation
1390 Enclave Parkway
Houston, TX 77077
5
Attention: Ms. Kathy Oates Gish
Telephone: 281-584-1443
Facsimile: 281-584-1792
If to JPMorgan concerning the daily issuance and redemption of Notes:
Attention: Money Market Operations
227 W. Monroe 26th Floor
Chicago, IL 60606
Telephone: (800) 499-3176/ (312) 267-5100
Facsimile: (312) 267-5210
All other: Attention: Commercial Paper JPM
4 New York Plaza 15th Floor
New York NY 10004-2413
Telephone: (212) 623-8220
Facsimile: (212) 623-8420
19. COMPENSATION
The Issuer shall pay compensation for services pursuant to this Agreement
in accordance with the pricing schedules attached hereto as Exhibit A, as the
same may be amended from time to time upon 30 days written notice to the Issuer
upon such payment terms as the parties shall determine. The Issuer shall also
reimburse JPMorgan for any fees and charges imposed by DTC with respect to
services provided in connection with the Book-Entry Notes.
20. BENEFIT OF AGREEMENT
This Agreement is solely for the benefit of the parties hereto and no other
person shall acquire or have any right under or by virtue hereof.
21. TERMINATION
This Agreement may be terminated at any time by either party by written
notice to the other, but such termination shall not affect the respective
liabilities of the parties hereunder arising prior to such termination.
22. FORCE MAJEURE
In no event shall JPMorgan be liable for any failure or delay in the
performance of its obligations hereunder because of circumstances beyond
JPMorgan's control, including, but not limited to, acts of God, flood, war
(whether declared or undeclared), terrorism, fire, riot, strikes or work
stoppages for any reason, embargo, government action, including any laws,
ordinances, regulations or the like which restrict or prohibit the providing of
the services contemplated by this Agreement, inability to obtain material,
equipment, or communications or computer facilities, or the failure of equipment
or interruption of communications or computer facilities, and other causes
beyond JPMorgan's control whether or not of the same class or kind as
specifically named above.
23. ENTIRE AGREEMENT
This Agreement, together with the exhibits attached hereto, constitutes the
entire agreement between JPMorgan and the Issuer with respect to the subject
matter hereof and
6
supersedes in all respects all prior proposals, negotiations, communications,
discussions and agreements between the parties concerning the subject matter of
this Agreement.
24. WAIVERS AND AMENDMENTS
No failure or delay on the part of any party in exercising any power or
right under this Agreement shall operate as a waiver, nor does any single or
partial exercise of any power or right preclude any other or further exercise,
or the exercise of any other power or right. Any such waiver shall be effective
only in the specific instance and for the purpose for which it is given. No
amendment, modification or waiver of any provision of this Agreement shall be
effective unless the same shall be in writing and signed by the Issuer and
JPMorgan.
25. BUSINESS DAY
Whenever any payment to be made hereunder shall be due on a day which is
not a business day for JPMorgan, then such payment shall be made on JPMorgan's
next succeeding business day.
26. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed an original and such counterparts together shall constitute but one
instrument.
27. HEADINGS
The headings in this Agreement are for purposes of reference only and shall
not in any way limit or otherwise affect the meaning or interpretation of any of
the terms of this Agreement.
28. GOVERNING LAW
This Agreement and the Notes shall be governed by and construed in
accordance with the internal laws of the State of New York, without regard to
the conflict of laws provisions thereof.
29. JURISDICTION AND VENUE
Each party hereby irrevocably and unconditionally submits to the
jurisdiction of the United States District Court for the Southern District of
New York and any New York State court located in the Borough of Manhattan in New
York City and of any appellate court from any thereof for the purposes of any
legal suit, action or proceeding arising out of or relating to this Agreement (a
"PROCEEDING"). Each party hereby irrevocably agrees that all claims in respect
of any Proceeding may be heard and determined in such Federal or New York State
court and irrevocably waives, to the fullest extent it may effectively do so,
any objection it may now or hereafter have to the laying of venue of any
Proceeding in any of the aforementioned courts and the defense of an
inconvenient forum to the maintenance of any Proceeding.
30. WAIVER OF TRIAL BY JURY
EACH PARTY HEREBY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING
ARISING OUT OF OR RELATING TO ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
31. ACCOUNT CONDITIONS
Each Account shall be subject to JPMorgan's standard account conditions, as
in effect from time to time, with respect to similarly situated customers.
7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on their behalf by duly authorized officers as of the day and year
first-above written.
JPMORGAN CHASE BANK, SYSCO CORPORATION
NATIONAL ASSOCIATION
By: /s/ Judith Hyppolite By: /s/ Kathy Oates Gish
--------------------------------- ------------------------------------
Name: Judith Hyppolite Name: Kathy Oates Gish
Title: Assistant Vice President Title: Vice President and Asst. Treas.
Date: April 13, 2006 Date: 4-13-06
8
EXHIBITA
FEE SCHEDULE
[PLEASE ATTACH]
Exhibit A
(JPMORGAN LOGO)
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
COMMERCIAL PAPER ISSUING & PAYING AGENCY SERVICES
Sysco Corporation
FEE SCHEDULE FOR COMMERCIAL PAPER
ISSUING AND PAYING AGENT FEE
A Sliding Scale Administrative Fee, based on your average monthly outstanding
commercial paper, will apply. The scale is as follows:
On the First $50 million 0.65 basis points
On the Next $150 million 0.55 basis points
On the Next $300 million 0.45 basis points
On the Next $600 million 0.40 basis points
Thereafter 0.35 basis points
This Sliding Scale Administrative Fee is subject to a $585.00 per month
minimum.
PASS-THROUGH CHARGES
1. The Issuer will reimburse JPMorgan for those fees of The Depository
Trust Company ("DTC"), associated with the issuance, redemption and
interest payment of the Notes. Presently these fees are $1.70 per
Issuance/Deliver Order and $0.80 per Maturity Presentment. These
charges are subject to the DTC Maximum Transaction Size of
$50,000,000.00. The Issuer acknowledges that JPMorgan does not charge
these fees, but merely passes the then current DTC charges on to the
Issuer. DTC may at any time change these fees and without notice.
2. The Issuer will be billed directly by The CUSIP Service Bureau
("CUSIP") for fees associated with the CUSIP Numbers required by DTC
for their Same Day Funds Settlement ("SDFS") Money Market Instrument
("MMI") Book-entry only Program. Presently CUSIP charges are $475.00
per year for Discount CUSIP Numbers and $127.00 for the first block of
Interest-Added-at-Maturity CUSIP Numbers.
SYSTEM FEE $250 per month