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EXHIBIT # 4(a)
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AGREEMENT AND SEVENTH AMENDMENT
TO
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
THIS AGREEMENT AND SEVENTH AMENDMENT TO COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT (this "Amendment") dated as of June 27,
1997 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 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 Agreement and Fifth Amendment to Competitive
Advance and Revolving Credit Facility Agreement
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dated as of November 15, 1994, and as amended and restated by a Sixth Amendment
and Restatement of Competitive Advance and Revolving Credit Facility Agreement
dated as of May 31, 1996 (said Competitive Advance and Revolving Credit
Facility Agreement as so modified, amended and restated 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.
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 July 7, 2002.".
SECTION 2. Amendment to Section 2.20(b) of the Credit Agreement.
Section 2.20(b) of the Credit Agreement is hereby amended in its entirety to
read as follows:
"(b) Each Notice of Extension shall (i) except as
provided in Section 2.20(f), be irrevocable and (ii) constitute a
representation by the Company that (A) neither any Event of Default nor
any Default has occurred and is continuing and (B) the representations
and warranties contained in Article IV are correct on and as of the
Relevant Anniversary Date, as though made on and as of such date;
provided, however, that for purposes of this clause (B), Schedule II, as
used in Section 4.02, shall be deemed to include
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any supplements to such Schedule delivered to the Agent and the Banks by
the Company prior to such Relevant Anniversary Date.".
SECTION 3. Amendment to Section 3.03(a)(i) of the Credit
Agreement. Section 3.03(a)(i) of the Credit Agreement is hereby amended in its
entirety to read as follows:
(i) The representations and warranties contained in Article IV
are correct on and as of the date of such Committed Borrowing, before
and after giving effect to such Committed Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date; provided, however, that the representations and warranties set
forth in the last sentence of Section 4.04(b) and in Section 4.09 need
not be correct on and as of the date of such Committed Borrowing if,
after giving effect to such Committed Borrowing, the aggregate
outstanding principal amount of the Committed Loans of each Bank would
be equal to or less than the aggregate outstanding principal amount of
the Committed Loans of such Bank immediately prior to such Committed
Borrowing and, provided further, that for purposes of this clause (i)
Schedule II, as used in Section 4.02, shall be deemed to include any
supplement to such Schedule delivered to the Agent and the Banks by the
Company prior to the date of such Committed Borrowing;".
SECTION 4. Amendment to Section 3.04(b)(i)(1) of the Credit
Agreement. Section 3.04(b)(i)(1) of the Credit Agreement is hereby amended in
its entirety to read as follows:
"(1) The representations and warranties contained in Article IV
are correct on and as of the date of such Competitive Borrowing, before
and after giving effect to such Competitive Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date; provided, however, that for purposes of this clause (1) Schedule
II, as
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used in Section 4.02, shall be deemed to include any supplement to such
Schedule delivered to the Agent and the Banks by the Company prior to
the date of such Competitive Borrowing;".
SECTION 5. Amendments to Section 4.05 of the Credit Agreement.
Section 4.05 of the Credit Agreement is hereby amended in its entirety to read
as follows:
"(a) Neither the Company nor any Subsidiary has any contingent
liability which either individually or collectively with all such other
contingent liabilities would have a material adverse effect upon the
Company and the Consolidated Subsidiaries taken as a whole or upon the
ability of the Company to perform its obligations under this Agreement
and the Notes.".
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 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.
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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 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 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
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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.
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/ DIANE S. DAY
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Name: Diane S. Day
Title: Vice-President/Treasurer
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
INDIVIDUALLY AND AS AGENT
By:
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Susan Garner
Vice President
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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:
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Name:
Title:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
INDIVIDUALLY AND AS AGENT
By: /s/ JAN DANVERS
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Jan Danvers
Senior Vice President
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THE CHASE MANHATTAN BANK
(SUCCESSOR TO CHEMICAL BANK), AS
AUCTION ADMINISTRATION AGENT
By: /s/ PETER M. LING
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Name: Peter M. Ling
Title: Vice President
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BANK OF AMERICA ILLINOIS
(f/k/a CONTINENTAL BANK N.A.)
By: /s/ CLAIRE LIU
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Name: Claire Liu
Title: Vice President
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NATIONSBANK OF TEXAS, N.A.
By: /s/ BILLY B. GREER
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Name: Billy B. Greer
Title: Vice President
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FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By: /s/ JANE W. WORKMAN
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Name: Jane W. Workman
Title: Senior Vice President
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THE FUJI BANK, LIMITED,
HOUSTON AGENCY
By: /s/ DAVID KELLEY
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Name: David Kelley
Title: Sr. Vice President
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THE TORONTO-DOMINION BANK
By: /s/ DAVID G. PARKER
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Name: David G. Parker
Title: MGR. CR. ADMIN.
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UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By: /s/ SAMUEL AZIZO
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Name: Samuel Azizo
Title: Vice President
By: /s/ DIETER HOEPPLI
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Name: Dieter Hoeppli
Title: Vice President
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WACHOVIA BANK OF GEORGIA,
NATIONAL ASSOCIATION
By: /s/ CARL E. PEOPLES
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Name: Carl E. Peoples
Title: Vice President
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