AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment"),
dated as of December 17, 2010 is made by and among SEABOARD
CORPORATION, a Delaware corporation (the "Company"), CERTAIN
SUBSIDIARIES OF THE COMPANY (each a "Designated Borrower" and,
together with the Company, the "Borrowers"), BANK OF AMERICA,
N.A., as administrative agent (in such capacity, the
"Administrative Agent"), and each of the Lenders signatory
hereto. Capitalized terms used but not otherwise defined herein
have the respective meanings ascribed to them in the Credit
Agreement as defined below.
W I T N E S S E T H:
WHEREAS, the Borrowers, Bank of America, as Administrative
Agent, Swing Line Lender and L/C Issuer, and the Lenders have
entered into that certain Amended and Restated Credit Agreement
dated as of July 10, 2008 (as hereby amended and as from time to
time hereafter further amended, modified, supplemented, restated,
or amended and restated, the "Credit Agreement"), pursuant to
which the Lenders have made available to the Borrowers a
revolving credit facility, including a letter of credit
subfacility and a swing line subfacility; and
WHEREAS, the Borrowers have requested that the
Administrative Agent and the Required Lenders amend certain
provisions of the Credit Agreement as set forth in Section 1
below; and
WHEREAS, the Administrative Agent and the Lenders signatory
hereto are willing to effect such amendments on the terms and
conditions as set forth herein;
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby 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) The definition of "Priority Indebtedness" in
Section 1.02 of the Credit Agreement is amended by deleting
the reference to "Section 7.01(n)" and inserting "Section
7.01(p)" in lieu thereof.
(b) Section 7.01(o) of the Credit Agreement is deleted
in its entirety and the following new Sections 7.01(o) and
(p) are inserted in lieu thereof:
(o) Liens on the barge securing the financing
obtained by Transcontinental Capital Corp. (Bermuda)
Ltd. in connection with the purchase of a 106 MW barge-
mounted power plant in the Dominican Republic; and
(p) Liens not otherwise permitted by this Section
7.01; provided, that the aggregate amount of
Indebtedness secured by Liens permitted by this clause
(p) shall not at any time, when added to all other
Priority Indebtedness, exceed 10% of Consolidated
Tangible Net Worth determined at such time.
(c) Section 7.03(i) of the Credit Agreement is amended
by deleting "Ingenio v Refineria San Martin del Tabacal" and
inserting "Transcontinental Capital Corp. (Bermuda) Ltd." in
lieu thereof.
2. Conditions Precedent. The effectiveness of this
Amendment is 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) one or more counterparts of this Amendment,
duly executed by the Borrowers, the Administrative
Agent and the Required Lenders;
(ii) such other documents, instruments, opinions,
certifications, undertakings, further assurances and
other matters as the Administrative Agent shall
reasonably require; and
(b) unless waived by the Administrative Agent, all
fees and expenses of the Administrative Agent and the
Lenders (including the reasonable fees and expenses of
counsel to the Administrative Agent to the extent invoiced
prior to the date hereof) in connection with this Amendment
shall have been paid in full (without prejudice to final
settling of accounts for such fees and expenses).
3. Reaffirmation by each of the Borrowers. Each of the
Borrowers hereby consents, acknowledges and agrees to the
amendments of the Credit Agreement set forth herein.
4. Representations and Warranties. In order to induce the
Administrative Agent and the Lenders to enter into this
Amendment, the Borrowers represent and warrant to the
Administrative Agent and the Lenders as follows:
(a) The representations and warranties of (i) the
Borrowers contained in Article V and (ii) each Loan Party
contained in each other Loan Document or in any document
furnished at any time under or in connection herewith or
therewith, shall be true and correct on and as of the date
hereof, except to the extent that such representations and
warranties specifically refer to an earlier date, in which
case they shall be true and correct as of such earlier date,
and except that for purposes of this Amendment, the
representations and warranties contained in subsections (a)
and (b) of Section 5.05 shall be deemed to refer to the most
recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01.
(b) Since the date of the most recent financial
reports of the Company delivered pursuant to Section 6.01(a)
of the Credit Agreement, there has been no event or
circumstance that has resulted or could reasonably be
expected to result in a Material Adverse Effect.
(c) No Default or Event of Default has occurred and is
continuing.
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5. Entire Agreement. This Amendment, 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 relative
to such subject matter. No promise, condition, representation or
warranty, express or implied, not herein set forth, shall bind
any party hereto and not one of them 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. None of the terms or conditions of this Amendment
may be changed, modified, waived or canceled orally or otherwise,
except as permitted pursuant to Section 10.01 of the Credit
Agreement.
6. Full Force and Effect of Amendment. Except as hereby
specifically amended, modified or supplemented, the Credit
Agreement and all other Loan Documents are hereby confirmed and
ratified in all respects by each party hereto and shall be and
remain in full force and effect according to their respective
terms.
7. Counterparts. This Amendment 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.
Delivery of an executed counterpart of a signature page of this
Amendment by telecopy, facsimile or other electronic transmission
(including .PDF) shall be effective as delivery of a manually
executed counterpart of this Amendment.
8. Governing Law. This Amendment shall in all respects be
governed by, and construed in accordance with the laws of the
State of New York.
9. Enforceability. Should any one or more of the
provisions of this Amendment 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.
10. References. All references in any of the Loan
Documents to the "Credit Agreement" shall mean the Credit
Agreement as amended hereby.
11. Successors and Assigns. This Amendment shall be
binding upon and inure to the benefit of the Borrowers, the
Administrative Agent and each of the Lenders, and their
respective successors, assigns and legal representatives;
provided, however, that no Borrower, without the prior consent of
the Required Lenders, may assign any rights, powers, duties or
obligations hereunder.
[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.
BORROWERS:
SEABOARD CORPORATION
By: /s/ Robert L. Steer
Name: Robert L. Steer
Title: Senior Vice President and CFO
MERRIAM FINANCIAL SERVICES, LTD.
By: /s/ Robert L. Steer
Name: Robert L. Steer
Title: Vice President
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ Joan Mok-Lau
Name: Joan Mok-Lau
Title: Vice President
LENDERS:
BANK OF AMERICA, N.A., as a Lender,
L/C Issuer and Swing Line Lender
By: /s/ David L. Catherall
Name: David L. Catherall
Title: Senior Vice President
COBANK, ACB
By: /s/ Alan V. Schuler
Name: Alan V. Schuler
Title: Vice President
U.S. AGBANK, FCB, as disclosed
agent
By: /s/ Travis W. Ball
Name: Travis W. Ball
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By: /s/ Robert M. Mandula
Name: Robert M. Mandula
Title: Managing Director
By: /s/ Izumi Fukushima
Name: Izumi Fukushima
Title: Executive Director
SUNTRUST BANK
By: /s/ M. Gabe Bonfield
Name: M. Gabe Bonfield
Title: Vice President
THE BANK OF NEW YORK MELLON
By: /s/ Donald G. Cassidy, Jr.
Name: Donald G. Cassidy, Jr.
Title: Managing Director