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EXHIBIT 4(a)
AGREEMENT AND FOURTH AMENDMENT
TO
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
THIS AGREEMENT AND FOURTH AMENDMENT TO COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT (this "Amendment") dates as of January 31,
1994 is among SYSCO CORPORATION, a Delaware corporation (the "Company"), the
banks listed on the signature pages hereof (the "Banks"), TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, a national banking association, as agent for the Banks
(in such capacity, the "Agent"), and CHEMICAL BANK, a New York banking
corporation, 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 and by an Agreement and Third
Amendment to Competitive Advance and Revolving Credit Facility Agreement and
Modification of Notes dated as of January 2, 1990 (said Competitive Advance and
Revolving Credit Facility Agreement as so modified and amended as 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
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terms and conditions specified herein, to amend certain of the provisions of
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.
(a) The following terms and related definitions are
hereby deleted from Section 1.01 of the Credit Agreement: "Current Assets,"
"Current Liabilities," "Consolidated Cash Flow" and "Consolidated Fixed
Charges."
(b) The definition of the term "Indebtedness" contained
in Section 1.01 of the Credit Agreement is hereby amended in its entirety to
read as follows:
" 'Indebtedness' when used with respect to any Person means,
without duplication, (i) all indebtedness of such Person for borrowed
money (whether by loan or the issuance and sale of debt securities) or
for the deferred purchase price of property or services (including,
without limitation, obligations, contingent or otherwise, in respect
of letters of credit, other than payment letters of credit issued to
pay for the purchase of goods by such Person in the ordinary course of
its business),(ii) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property),(iii) all
Capitalized Lease Obligations, (iv) all Assurances and (v) all
Indebtedness referred to in clause (i),(ii) or (iii) above secured by
(or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or interest
in property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Indebtedness.".
SECTION 2. Amendments to Article IV of the Credit Agreement.
(a) The first sentence of Section 4.05 of the Credit
Agreement is hereby amended in its entirety to read as follows:
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"Each Assurance and each obligation in respect of a letter of
credit (unless such letter of credit is a payment letter of credit
issued to pay for the purchase by the Company or a Subsidiary of goods
in the ordinary course of such Person's business) is listed in the
consolidated financial statements referred to in Section 4.04, in the
most recently delivered consolidated financial statements delivered
pursuant to Section 5.01(i) or on Schedule III, other than any such
Assurance or obligation which together with all such other Assurances
and obligations does not exceed 1% of Net Worth.".
(b) 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 2% of
Net Worth.".
SECTION 3. Amendments to Article V of the Credit Agreement.
(a) Section 5.01(g) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(g) Maintenance of Insurance. Maintain, and cause each
Subsidiary to maintain, insurance with responsible, reputable and
solvent insurance companies or associations (or as to workers'
compensation or similar insurance, with an insurance fund or by
self-insurance authorized by the jurisdiction of its incorporation) in
such amounts and covering such risks as are usually insured against by
corporations of established reputation engaged in the same or similar
businesses and similarly situated, including, without limitation,
workers' compensation or similar insurance, insurance against loss by
fire or damage and public liability insurance; provided however, the
Company and any Subsidiary may, in lieu of maintaining such insurance
against losses by fire or damage and public liability insurance,
maintain a self-insurance program with respect to such losses and
liabilities. Any such program of self-insurance maintained by the
Company or any Subsidiary shall be of a type with reserves that are
appropriate, prudent and customary for corporations of similar size
engaged in the same or similar business and owning or operating
similar properties."
(b) Subsections (i) and (ii) of Section 5.01(i) of the
Credit Agreement are hereby amended in their entirety to read as follows:
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"(i) As soon as available, and in any event within 120
days after the end of each fiscal year, (i) a copy of the annual audit
report of the Company for such fiscal year containing a Consolidated
balance sheet and Consolidated statements of income, stockholders'
equity and Consolidated cash flow for such year of the Company and the
Consolidated Subsidiaries, audited and certified by independent
certified public accountants of recognized standing; (ii) a report of
such certified public accountants stating that, in making the
examination necessary for expressing an opinion on such financial
statements, nothing came to their attention that caused them to
believe that there is in existence or has occurred any Event of
Default hereunder, or, to the extent the occurrence thereof is
ascertainable by accountants in the course of normal audit procedures,
any Default or, if such accountants shall have obtained knowledge of
any such Default or Event of Default, they shall disclose in such
report the nature thereof and the length of time it has existed; and
(iii) an Officers' Certificate of the Company (A) setting forth, in
sufficient detail, the information and computations demonstrating
whether the Company was in compliance with Sections 5.02(c) and (b)
during such fiscal year and as at the end of such fiscal year and (B)
stating that there exists no Event of Default or Default, or, if any
such Event of Default or Default exists, stating the nature thereof,
the period of existence thereof and what action the Company has taken
and proposes to take with respect thereto;
(ii) As soon as available, and in any event within 60
days after the end of each of the first three quarterly accounting
periods in each fiscal year, (i) the Consolidated balance sheet and
Consolidated statements of income and Consolidated cash flow for the
periods beginning on the first day of such fiscal year and the first
day of such quarterly accounting period and ending on the date of such
balance sheet, setting forth in comparative form the corresponding
Consolidated figures for the corresponding periods of the preceding
fiscal year, all in reasonable detail, certified by a Financial
Officer of the Company as having been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the period involved (except for such changes as are
disclosed in such financial statements or in the notes thereto and
concurred in by independent certified public accountants) and (ii) an
Officers' Certificate of the Company (A) setting forth, in sufficient
detail, the information and computations demonstrating whether the
Company was in compliance with Sections 5.02(c) and (b) during the
periods covered by the financial reports then being furnished and as
of the end of such periods and (B) stating that there exists no Event
of Default or Default, or, if any such Event of Default or Default
exists, stating the nature thereof, the period of existence thereof
and what action the Company has taken and proposes to take with
respect thereto;".
(c) Subsection (vi) of Section 5.01(i) of the Credit
Agreement is hereby amended in its entirety to read as follows:
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"(vi) Within ten Business Days after the Company obtains
knowledge thereof, notice of any litigation or governmental proceeding
pending against the Company or any Subsidiary which, individually or
in the aggregate, might otherwise materially adversely affect the
business, operations or condition, financial or otherwise, of the
Company and the Consolidated Subsidiaries taken as a whole or the
ability of the Company to perform its obligations under this Agreement
or the Notes;".
SECTION 4. Amendments to Section 5.02 of the Credit Agreement.
(a) Clause (i) of Section 5.02(a) of the Credit
Agreement is hereby amended in its entirety to read as follows:
"(i) the Liens existing on the date hereof and listed on
Schedule V, or if not so listed, secure obligations which in the
aggregate for the Company and its Subsidiaries do not exceed 20% of
Net Worth;".
(b) Section 5.02(d) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(d) Funded Indebtedness. Permit the ratio of
Consolidated Funded Indebtedness to Total Capitalization to be greater
than .60 to 1.0 at the end of any quarterly accounting period."
(c) Section 5.02(e) of the Credit Agreement is hereby
deleted in its entirety and shall read as follows:
"(e) Working Capital. Intentionally omitted."
(d) Section 5.02(f) of the Credit Agreement is hereby
deleted in its entirety and shall read as follows:
"(f) Cash Flow. Intentionally omitted.".
(e) Section 5.02(k) of the Credit Amendment is hereby
amended in its entirety to read as follows:
"(k) Consolidation, Merger or Acquisition. The Company
will not, and will not permit any Consolidated Subsidiary to, (i)
enter into a consolidation with any other Person or merge with or into
any other Person or (ii) acquire the assets of or of the aggregate
equity interest in
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any other Person (any such transaction being herein called an
"Acquisition"), except that:
(A) the Company may permit a Consolidated
Subsidiary to merge into the Company or may effect an
Acquisition of a Consolidated Subsidiary, and a Consolidated
Subsidiary may consolidate or merge with or into another
Consolidated Subsidiary; and
(B) the Company or any Consolidated Subsidiary
may merge with, or effect an Acquisition of, any Person other
than the Company or a Consolidated Subsidiary if
(i) in the case of any merger or
Acquisition involving the Company, the Company is
the continuing corporation and, in the case of any
merger or Acquisition involving a Consolidated
Subsidiary, the continuing corporation (immediately
after giving effect to such merger or Acquisition is
a Consolidated Subsidiary; and
(ii) immediately after the consummation
of the merger or Acquisition, and after giving
effect thereto, no Default or Event of Default would
exist.".
SECTION 5. Amendments to Section 7.05. Section 7.05 of the
Credit Agreement is hereby amended in its entirety to read as follows:
"SECTION 7.05. AGENTS' INDEMNITY. NEITHER AGENT SHALL BE
REQUIRED TO TAKE ANY ACTION HEREUNDER OR TO PROSECUTE OR DEFEND ANY
SUIT IN RESPECT OF THIS AGREEMENT OR THE NOTES UNLESS INDEMNIFIED TO
SUCH AGENT'S SATISFACTION BY THE BANKS AGAINST LOSS, COST, LIABILITY
AND EXPENSE. IF ANY INDEMNITY FURNISHED TO SUCH AGENT SHALL BECOME
IMPAIRED, IT MAY CALL FOR ADDITIONAL INDEMNITY AND CEASE TO DO THE
ACTS INDEMNIFIED AGAINST UNTIL SUCH ADDITIONAL INDEMNITY IS GIVEN. IN
ADDITION, THE BANKS AGREE TO INDEMNIFY EACH AGENT (TO THE EXTENT NOT
REIMBURSED BY THE COMPANY), RATABLY ACCORDING TO THE RESPECTIVE
PRINCIPAL AMOUNTS OF THE COMMITTED NOTES THEN HELD BY EACH OF THEM (OR
IF NO COMMITTED NOTES ARE AT THE TIME OUTSTANDING, RATABLE ACCORDING
TO EITHER (I) THE RESPECTIVE AMOUNTS OF THEIR COMMITMENTS, OR IF NO
COMMITMENTS ARE OUTSTANDING, THE RESPECTIVE AMOUNTS OF THE COMMITMENTS
IMMEDIATELY PRIOR TO THE TIME THE COMMITMENTS CEASED TO BE
OUTSTANDING, FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS,
LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES
OR DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED
ON, INCURRED BY, OR ASSERTED AGAINST SUCH AGENT IN ANY WAY RELATING TO
OR ARISING OUT OF THIS AGREEMENT OR ANY ACTION TAKEN OR OMITTED BY
SUCH AGENT UNDER THIS AGREEMENT OR THE NOTES
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(INCLUDING, WITHOUT LIMITATION, ANY ACTION TAKEN OR OMITTED UNDER
ARTICLE II OF THIS AGREEMENT); PROVIDED THAT NO BANK SHALL BE LIABLE
FOR ANY PORTION OF SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES,
PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS
RESULTING FROM SUCH AGENT'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
EACH BANK AGREES, HOWEVER, THAT IT EXPRESSLY INTENDS, UNDER THIS
SECTION 7.05, TO INDEMNIFY EACH AGENT RATABLY AS AFORESAID FOR ALL
SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS ARISING OUT OF OR
RESULTING FROM SUCH AGENT'S SOLE OR CONTRIBUTORY NEGLIGENCE. WITHOUT
LIMITATION OF THE FOREGOING, EACH BANK AGREES TO REIMBURSE EACH AGENT
PROMPTLY UPON DEMAND FOR ITS RATABLE SHARE OF ANY OUT-OF-POCKET
EXPENSES (INCLUDING REASONABLE COUNSEL FEES) INCURRED BY SUCH AGENT IN
CONNECTION WITH THE PREPARATION, EXECUTION, ADMINISTRATION, OR
ENFORCEMENT OF, OR LEGAL ADVICE IN RESPECT OF RIGHTS OR
RESPONSIBILITIES UNDER, THIS AGREEMENT AND THE NOTES TO THE EXTENT
THAT SUCH AGENT IS NOT REIMBURSED FOR SUCH EXPENSES BY THE COMPANY.
THE PROVISIONS OF THIS SECTION 7.05 SHALL SURVIVE THE TERMINATION OF
THE AGREEMENT AND/OR THE PAYMENT OR ASSIGNMENT OF ANY OF THE NOTES.".
SECTION 6. Amendment to Section 8.05. Section 8.05 of the
Credit Agreement is hereby amended in its entirety to ready as follows:
"SECTION 8.05. INDEMNITY. (A) THE COMPANY SHALL INDEMNIFY THE
AGENT, THE BANKS AND EACH AFFILIATE THEREOF AND THEIR RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM, AND HOLD EACH OF THEM
HARMLESS AGAINST, ANY AND ALL LOSSES, LIABILITIES, CLAIMS OR DAMAGES
TO WHICH ANY OF THEM MAY BECOME SUBJECT, INSOFAR AS SUCH LOSSES,
LIABILITIES, CLAIMS OR DAMAGES ARISE OUT OF OR RESULT FROM (I) THE
TRANSACTIONS EVIDENCED BY THE ASSET PURCHASE AGREEMENT AND THE
DOCUMENTS EXECUTED IN CONNECTION THEREWITH, (II) THIS AGREEMENT OR ANY
ACTUAL OR PROPOSED USE BY THE COMPANY OF THE PROCEEDS OF ANY EXTENSION
OF CREDIT BY ANY BANK HEREUNDER OR BREACH BY THE COMPANY OF THIS
AGREEMENT OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION WITH THIS
AGREEMENT OR (III) ANY INVESTIGATION, LITIGATION OR OTHER PROCEEDING
(INCLUDING ANY THREATENED INVESTIGATION OR PROCEEDING) RELATING TO THE
FOREGOING, AND THE COMPANY SHALL REIMBURSE THE AGENT AND EACH BANK,
AND EACH AFFILIATE THEREOF AND THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES AND AGENTS, UPON DEMAND FOR ANY EXPENSES (INCLUDING LEGAL
FEES) REASONABLY INCURRED IN CONNECTION WITH ANY SUCH INVESTIGATION OR
PROCEEDING; BUT EXCLUDING ANY SUCH LOSSES, LIABILITIES, CLAIMS,
DAMAGES OR EXPENSES INCURRED BY REASON OF THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE PERSON TO BE INDEMNIFIED.
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(B) WITHOUT LIMITING ANY PROVISION OF THIS AGREEMENT, IT
IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT EACH PERSON TO BE
INDEMNIFIED HEREUNDER SHALL BE INDEMNIFIED AND HELD HARMLESS AGAINST
ANY AND ALL LOSSES, LIABILITIES, CLAIMS OR DAMAGES ARISING OUT OF OR
RESULTING FROM THE SOLE OR CONTRIBUTORY ORDINARY NEGLIGENCE OF SUCH
PERSON. WITHOUT PREJUDICE TO THE SURVIVAL OF ANY OTHER OBLIGATIONS OF
THE COMPANY HEREUNDER, THE OBLIGATIONS OF THE COMPANY UNDER THIS
SECTION 8.05 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT AND/OR
PAYMENT OF THE NOTES.".
SECTION 7. 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 each Bank shall have executed a counterpart hereof and delivered the
same to the Agent or, in the case of any 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 8. 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 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), Schedules II and III as used in Sections 4.02 and 4.05,
respectively, of the Credit Agreement shall be
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deemed to include any supplements to such Schedules 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 9. 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 affected and 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 affected and amended hereby.
(c) The Credit Agreement and the Notes and the other
documents and agreements delivered pursuant to the Credit Agreement, as amended
and modified by the amendments referred to above, shall remain in full force
and effect and are hereby ratified and confirmed.
SECTION 10. 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 11. 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
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COMPANY, THE AGENT, THE AUCTION ADMINISTRATION AGENT AND THE BANKS AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS.
SECTION 12. 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 13. 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.
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/ WILLIAM J. DELANEY
Name: William J. DeLaney
Title: Vice President and Treasurer
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TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
INDIVIDUALLY AND AS AGENT
By: /s/ JAN H. DANVERS
Name: Jan H. Danvers
Title: Senior Vice President
CHEMICAL BANK, AS AUCTION
ADMINISTRATION AGENT
By: /s/ JANET M. BELDEN
Name: Janet M. Belden
Title: Vice President
THE CHASE MANHATTAN BANK,
N.A.
By: /s/ RICHARD A. BONOMO
Name: Richard A. Bonomo
Title: Vice President
CONTINENTAL BANK N.A.
By: /s/ MARY JO HOCH
Name: Mary Jo Hoch
Title: Vice President
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CREDIT LYONNAIS
CAYMAN ISLAND BRANCH
By: /s/ ROBERT IVOSEVICH
Name: Robert Ivosevich
Title: Authorized Signature
NATIONSBANK OF TEXAS, N.A.
By: /s/ BOYD P. GENTRY
Name: Boyd P. Gentry
Title: Senior Vice President
THE FUJIBANK, LIMITED,
HOUSTON AGENCY
By: /s/ DAVID L. KELLEY
Name: David L. Kelley
Title: Vice President and Senior
Manager
THE TORONTO-DOMINION BANK
By: /s/ LISA ALLISON
Name: Lisa Allsion
Title: Mgr. Cr. Admin.
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UNION BANK OF SWITZERLAND,
HOUSTON AGENCY AND
CAYMAN ISLANDS BRANCH
By: /s/ EVANS SWANN
Name: Evans Swann
Title: Vice President
By: /s/ DAN O. BOYLE
Name: Dan O. Boyle
Title: Vice President
WACHOVIA BANK OF NORTH
CAROLINA, NATIONAL
ASSOCIATION
By: /s/ KAY S. TRIPLETT
Name: Kay S. Triplett
Title: Senior Vice President
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