1
EXHIBIT #4(a)
2
AGREEMENT AND FIFTH AMENDMENT
TO
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
THIS AGREEMENT AND FIFTH AMENDMENT TO COMPETITIVE ADVANCE AND REVOLVING CREDIT
FACILITY AGREEMENT (this "Amendment") dated as of November 15, 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, by an Agreement and Third Amendment to
Competitive Advance and Revolving Credit Facility Agreement and Modification of
Notes dated as of January 2, 1990, and by an Agreement and Fourth Amendment to
Competitive Advance and Revolving Credit Facility Agreement dated as of January
31, 1994 (said Competitive Advance and Revolving Credit Facility Agreement as
so modified and amended 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
-1-
3
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 Section 1.01 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. Amendment to Section 1.01 of the Credit Agreement. The definition
of the term "Original Termination Date" contained in Section 1.01 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"`Original Termination Date' means December 31, 1999."
SECTION 2. 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.
-2-
4
SECTION 3. 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 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 4. 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 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 5. 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.
-3-
5
SECTION 6. 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.
SECTION 7. 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 8. 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.
-4-
6
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:
Name:
Title:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
INDIVIDUALLY AND AS AGENT
By:
Name: Jay Schwartz
Title: Vice President
-5-
7
CHEMICAL BANK, AS AUCTION
ADMINISTRATION AGENT
By:
Name:
Title:
-6-
8
THE CHASE MANHATTAN BANK,
N.A.
By:
Name:
Title:
-7-
9
BANK OF AMERICA ILLINOIS
(SUCCESSOR TO CONTINENTAL BANK N.A.)
By:
Name:
Title:
-8-
10
CREDIT LYONNAIS
CAYMAN ISLAND BRANCH
By:
Name:
Title:
-9-
11
NATIONSBANK OF TEXAS, N.A.
By:
Name:
Title:
-10-
12
THE FUJI BANK, LIMITED,
HOUSTON AGENCY
By:
Name:
Title:
-11-
13
THE TORONTO-DOMINION BANK
By:
Name:
Title:
-12-
14
UNION BANK OF SWITZERLAND,
HOUSTON AGENCY AND
CAYMAN ISLANDS BRANCH
By:
Name:
Title:
By:
Name:
Title:
-13-
15
WACHOVIA BANK OF NORTH
CAROLINA, NATIONAL
ASSOCIATION
By:
Name:
Title:
-14-