Exhibit 4.1
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This Amendment No. 1 to Credit Agreement (this "Agreement")
dated as of May 23, 2005 is made by and among SEABOARD
CORPORATION, a Delaware corporation having its principal place of
business in Shawnee Mission, Kansas (the "Borrower"), BANK OF
AMERICA, N.A., a national banking association organized and
existing under the laws of the United States ("Bank of America"),
in its capacity as administrative agent for the Lenders (as
defined in the Credit Agreement (as defined below)) (in such
capacity, the "Administrative Agent"), and each of the Lenders
signatory hereto.
W I T N E S S E T H:
WHEREAS, the Borrower, the Administrative Agent and the
Lenders have entered into that certain Credit Agreement dated as
of December 3, 2004 (as hereby amended and as from time to time
hereafter further amended, modified, supplemented, restated, or
amended and restated, the "Credit Agreement"; capitalized terms
used in this Agreement not otherwise defined herein shall have
the respective meanings given thereto in the Credit Agreement),
pursuant to which the Lenders have made available to the Borrower
various revolving credit facilities, including a letter of credit
facility and a swing line facility; and
WHEREAS, the Borrower has (i) advised the Administrative
Agent and the Lenders that its Subsidiaries, Seaboard Overseas
Limited ("SOL") and Seaboard Overseas Trading and Shipping (Pty.)
Ltd. ("SOTS"), desire to enter into transactions whereby SOL
would sell inventory, futures contracts and hedging contracts
relating to its grain trading business, its equity interest in
Seaboard Overseas Peru S.R.L. and other assets and SOTS would
sell substantially all of its assets (excluding accounts
receivable) (such sale, as further described on Exhibit A hereto,
the "Grindrod Disposition") and (ii) requested that the Lenders
amend certain provisions of the Credit Agreement as set forth
below, and the Administrative Agent and the Lenders signatory
hereto are willing to effect such amendment on the terms and
conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the premises and further
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Amendments to Credit Agreement. Subject to the terms and
conditions set forth herein, the Credit Agreement is hereby
amended as follows:
A. Section 1.01 is amended to add the definition of
"Grindrod Disposition" thereto in alphabetical order to
read as follows:
"Grindrod Disposition" has the meaning set forth
in Amendment No. 1 to the Credit Agreement dated as of
May 23, 2005.
B. Section 7.04 is amended to restate clause (b)
thereof in its entirety to read as follows:
(b) any Subsidiary may Dispose of all or
substantially all of its assets (upon voluntary
liquidation or otherwise) (i) to the Borrower or to
another Subsidiary; provided that if the transferor in
such a transaction is a wholly-owned Subsidiary, then
the transferree must either be the Borrower or a wholly-
owned Subsidiary or (ii) pursuant to a Disposition
permitted under Sections 7.05(a)-(d) and (g); and
C. Section 7.05 is amended to restate clause (g)
thereof in its entirety to read as follows:
(g) Dispositions by the Borrower and its
Subsidiaries not otherwise permitted under this Section
7.05; provided that (i) at the time of such
Disposition, no Default shall exist or would result
from such Disposition and (ii) the aggregate book value
of all property Disposed of in reliance on this clause
(g) (excluding property Disposed of in connection with
the Grindrod Disposition) shall not exceed 25% of
Consolidated Tangible Net Worth as of the Closing Date;
2. Effectiveness; Conditions Precedent. The effectiveness of
this Agreement and the amendments to the Credit Agreement herein
provided are subject to the satisfaction of the following
conditions precedent:
(a) the Administrative Agent shall have received each of the
following documents or instruments in form and substance
reasonably acceptable to the Administrative Agent:
(i) ten (10) original counterparts of this Agreement, duly
executed by the Borrower, the Administrative Agent and the
Required Lenders, together with all schedules and exhibits
thereto duly completed;
(ii) such other documents, instruments, opinions,
certifications, undertakings, further assurances and other matters as
the Administrative Agent shall reasonably request; and
(b) all fees and expenses payable to the Administrative Agent
and the Lenders (including the fees and expenses of counsel to
the Administrative Agent) estimated to date shall have been paid
in full (without prejudice to final settling of accounts for such
fees and expenses).
3. Representations and Warranties. In order to induce the
Administrative Agent and the Lenders to enter into this
Agreement, the Borrower represents and warrants to the
Administrative Agent and the Lenders as follows:
(a) The representations and warranties made by the Borrower in
Article V of the Credit Agreement and in each of the other Loan
Documents to which it is a party are true and correct on and as
of the date hereof, except to the extent that such
representations and warranties expressly relate to an earlier
date;
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(b) Since the date of the most recent financial reports of the
Borrower delivered pursuant to Section 6.01 of the Credit
Agreement, no act, event, condition or circumstance has occurred
or arisen which, singly or in the aggregate with one or more
other acts, events, occurrences or conditions (whenever occurring
or arising), has had or could reasonably be expected to have a
Material Adverse Effect;
(c) This Agreement has been duly authorized, executed and
delivered by the Borrower and Guarantors party hereto and
constitutes a legal, valid and binding obligation of such
parties, except as may be limited by general principles of equity
or by the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors'
rights generally; and
(d) No Default or Event of Default has occurred and is
continuing.
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4. Entire Agreement. This Agreement, together with all the
Loan Documents (collectively, the "Relevant Documents"), sets
forth the entire understanding and agreement of the parties
hereto in relation to the subject matter hereof and supersedes
any prior negotiations and agreements among the parties relating
to such subject matter. No promise, condition, representation or
warranty, express or implied, not set forth in the Relevant
Documents shall bind any party hereto, and no such party has
relied on any such promise, condition, representation or
warranty. Each of the parties hereto acknowledges that, except
as otherwise expressly stated in the Relevant Documents, no
representations, warranties or commitments, express or implied,
have been made by any party to the other in relation to the
subject matter hereof or thereof. None of the terms or
conditions of this Agreement may be changed, modified, waived or
canceled orally or otherwise, except in writing and in accordance
with Section 10.01 of the Credit Agreement.
5. Full Force and Effect of Agreement. Except as hereby
specifically amended, modified or supplemented, the Credit
Agreement and all other Loan Documents are hereby confirmed and
ratified in all respects and shall be and remain in full force
and effect according to their respective terms.
6. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original as
against any party whose signature appears thereon, and all of
which shall together constitute one and the same instrument.
7. Governing Law. This Agreement shall in all respects be
governed by, and construed in accordance with, the laws of the
State of New York applicable to contracts executed and to be
performed entirely within such State, and shall be further
subject to the provisions of Section 10.14 of the Credit
Agreement.
8. Enforceability. Should any one or more of the provisions of
this Agreement be determined to be illegal or unenforceable as to
one or more of the parties hereto, all other provisions
nevertheless shall remain effective and binding on the parties
hereto.
9. References. All references in any of the Loan Documents to
the "Credit Agreement" shall mean the Credit Agreement, as
amended hereby.
10. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Borrower, the Administrative
Agent and each of the Guarantors and Lenders, and their
respective successors, legal representatives, and assignees to
the extent such assignees are permitted assignees as provided in
Section 10.06 of the Credit Agreement.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be made, executed and delivered by their duly
authorized officers as of the day and year first above written.
BORROWER:
SEABOARD CORPORATION
By: /s/Robert L. Steer
Name: Robert L. Steer
Title: Senior Vice President, Treasurer and CFO
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative Agent
By: /s/Anthea Del Bianco
Name: Anthea Del Bianco
Title: Vice President
LENDERS:
BANK OF AMERICA, N.A.
By: /s/David L. Catherall
Name: David L. Catherall
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/N. Bell
Name: N. Bell
Title: Senior Manager
HARRIS TRUST AND SAVINGS BANK
By: /s/John R. Carley
Name: John R. Carley
Title: Vice President
THE BANK OF NEW YORK
By: /s/Mark Wrigley
Name: Mark Wrigley
Title: Vice President
SUNTRUST BANK
By: /s/Hugh E. Brown
Name: Hugh E. Brown
Title: Vice President
RABOBANK INTERNATIONAL
By: /s/James V. Kenwood
Name: James V. Kenwood
Title: Executive Director
By: /s/Rebecca O. Morrow
Name: Rebecca O. Morrow
Title: Executive Director
US AGANK FCB
By: /s/Travis W. Ball
Name: Travis W. Ball
Title: Vice President