FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Quarterly Report Under Section 13 or 15(d)
of the Securities Exchange Act of 1934
For Quarter Ended March 23, 1996
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commission file number 1-3390
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Seaboard Corporation
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Exact name of registrant as specified in its charter)
Delaware 04-2260388
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
9000 W. 67th Street, Shawnee Mission, KS 66202
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Address of principal executive offices) (Zip Code)
913-676-8800
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Registrant's telephone number, including area code)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Former name, former address and former fiscal year, if changed since last
report.
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X . No ___.
Indicate number of shares outstanding of each of the issuer's classes of
common stock, as of latest practicable date. Common stock of $1 par value,
1,487,520 shares outstanding, as of March 23, 1996.
Total pages in filing - 12 pages
<TABLE>
SEABOARD CORPORATION AND SUBSIDIARIES
Condensed Consolidated Balance Sheets
March 23, 1996 and December 31, 1995
(Thousands of Dollars)
<CAPTION>
Part I - Financial Information
March 23, December 31,
1996 1995
----------- ------------
Assets
------
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 5,007 $ 5,529
Short-term investments 99,500 135,197
Receivables, net 125,504 117,709
Inventories 144,511 112,843
Income taxes receivable 6,607 --
Deferred income taxes 8,584 8,231
Prepaid expenses and deposits 15,221 14,251
---------- ---------
Total current assets 404,934 393,760
---------- ---------
Investments in and advances to foreign
subsidiaries not consolidated 26,203 26,140
---------- ---------
Property, plant and equipment 683,734 650,402
Accumulated depreciation (223,304) (211,987)
---------- ---------
Net property, plant and equipment 460,430 438,415
---------- ---------
Other assets 19,676 19,817
---------- ---------
Total assets $911,243 $878,132
========== =========
Liabilities and Stockholders' Equity
------------------------------------
Current liabilities:
Notes payable and current maturities
of long-term debt $ 63,186 $ 40,826
Accounts payable 59,712 75,749
Income taxes payable -- 744
Other current liabilities 93,372 57,417
---------- ----------
Total current liabilities 216,270 174,736
---------- ----------
Long-term debt, less current maturities 297,582 297,440
---------- ----------
Deferred income taxes 15,546 14,569
---------- ----------
Other liabilities 27,721 25,577
---------- ----------
Stockholders' equity:
Common stock of $1 par value,
Authorized 4,000,000 shares;
issued 1,789,599 shares 1,790 1,790
Less 302,079 shares held in treasury,
at par value 302 302
---------- ----------
1,488 1,488
Additional capital 13,214 13,214
Unrealized gain on debt securities,
(net of deferred income tax expense
of $25 and $150 at March 23, 1996
and December 31, 1995, respectively) 52 251
Retained earnings 339,370 350,857
---------- ----------
Total stockholders' equity 354,124 365,810
---------- ----------
Total liabilities and stockholders' equity $911,243 $878,132
========== ==========
<FN>
See notes to condensed consolidated financial statements.
</TABLE>
Page 2
<TABLE>
SEABOARD CORPORATION AND SUBSIDIARIES
Condensed Consolidated Statements of Earnings
Twelve weeks ended March 23, 1996 and March 25, 1995
(Thousands of dollars except per share amounts)
<CAPTION>
March 23, March 25,
1996 1995
----------- -----------
<S> <C> <C>
Net sales $297,631 $235,923
Cost of sales and operating expenses 277,427 193,836
----------- -----------
Gross income 20,204 42,087
Selling, general and administrative expenses 33,035 28,398
----------- -----------
Operating income (loss) (12,831) 13,689
----------- -----------
Income (loss) from foreign subsidiaries not
consolidated 68 (1,019)
----------- -----------
Other income(expense):
Interest income 1,744 2,301
Interest expense (5,683) (2,534)
Miscellaneous 97 (47)
----------- -----------
Total other income (expense) (3,842) (280)
----------- -----------
Earnings (loss) before income taxes (16,605) 12,390
----------- -----------
Income tax expense(benefit):
Current (6,240) 4,531
Deferred 750 (181)
----------- -----------
Total income taxes (5,490) 4,350
----------- -----------
Net earnings (loss) $(11,115) $ 8,040
=========== ===========
Earnings (loss) per common share $ (7.47) $ 5.40
=========== ===========
Dividends declared per common share $ .25 $ .25
=========== ===========
Average number of shares outstanding 1,487,520 1,487,520
=========== ===========
<FN>
See notes to condensed consolidated financial statements.
</TABLE>
Page 3
<TABLE>
SEABOARD CORPORATION AND SUBSIDIARIES
Condensed Consolidated Statements of Cash Flows
Twelve weeks ended March 23, 1996 and March 25, 1995
(Thousands of Dollars)
<CAPTION>
March 23, March 25,
1996 1995
------------ -----------
<S> <C> <C>
Net cash provided by (used in)
operating activities $ (25,026) $ 3,948
------------ -----------
Cash flows from investing activities:
Purchase of investments (107,152) (67,846)
Proceeds from the sale or maturity of
investments 142,525 79,582
Capital expenditures, net (33,780) (29,195)
Notes receivable (1,254) 1,014
Investments and advances to foreign
subsidiaries not consolidated 5 987
----------- ----------
Net cash provided by (used in)
investing activities 344 (15,458)
----------- ----------
Cash flows from financing activities:
Notes payable to bank 22,396 6,488
Proceeds from long-term debt 349 5,943
Principal payments (243) (1,436)
Deferred grants -- 2,993
Bond construction fund 2,030 1,117
Dividends paid (372) (372)
----------- ----------
Net cash provided by (used in)
financing activities 24,160 14,733
----------- ----------
Net increase (decrease) in cash and cash
equivalents (522) 3,223
Cash and cash equivalents at beginning of
year 5,529 4,773
----------- ----------
Cash and cash equivalents at end of quarter $ 5,007 $ 7,996
=========== ==========
<FN>
For purposes of the Condensed Consolidated Statements of Cash Flows, the
Company considers all demand deposits and overnight investments as cash.
See notes to condensed consolidated financial statements.
</TABLE>
Page 4
SEABOARD CORPORATION AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
Note 1
- ------
In the opinion of the Company, the accompanying unaudited condensed
consolidated financial statements reflect all adjustments (consisting of
normal recurring accruals) necessary to present fairly the financial position
as of March 23, 1996, and the results of operations and cash flows for the
periods ended March 23, 1996 and March 25, 1995.
Note 2
- ------
The results of operations for the twelve weeks ended March 23, 1996 and March
25, 1995 are not necessarily indicative of the results to be expected for the
full year.
Note 3
- ------
<TABLE>
The following is a summary of inventories at March 23, 1996 and December 31,
1995 (in thousands):
<CAPTION>
March 23, December 31,
1996 1995
---------- ------------
<S> <C> <C>
At lower of last-in, first-out (LIFO)
cost or market:
Live poultry $ 28,206 $ 26,442
Dressed poultry 23,733 21,219
Feed and baking ingredients, packaging
supplies and other 8,713 8,772
---------- ----------
60,652 56,433
LIFO allowance (8,905) (6,965)
---------- ----------
Total inventories at lower of
LIFO cost or market 51,747 49,468
---------- ----------
At lower of first-in, first-out (FIFO)
cost or market:
Live hogs 32,613 28,626
Grain, flour and feed 40,146 19,551
Crops in production, fertilizers and
pesticides 8,870 7,639
Dressed pork 3,727 166
Other 7,408 7,393
---------- ----------
Total inventories at lower of
FIFO cost or market 92,764 63,375
---------- ----------
Total inventories $144,511 $112,843
========== ==========
</TABLE>
Page 5
Management's Discussion and Analysis of
Financial Condition and Results of Operations
LIQUIDITY AND CAPITAL RESOURCES
- -----------------------------------------------------------------------------
March 23, December 31,
1996 1995
- -----------------------------------------------------------------------------
Current ratio 1.87:1 2.25:1
Working capital $ 188.7 $ 219.0
- -----------------------------------------------------------------------------
Cash used in operating activities for the quarter ending March 23, 1996 was
$25.0 million, compared to $3.9 million of cash provided by operations in the
same quarter one year earlier. The decrease in cash was primarily related to
the net loss of $11.1 million and increased inventories and receivables. The
increased inventories primarily represent shipments of commodities enroute to
foreign customers. Additional pork inventories represent expansion of the
live hog herds, grain in feed mills and finished product at a pork plant which
began operating in December, 1995. The increase in accounts receivable is
primarily attributable to sales of wheat to affiliated, nonconsolidated
foreign flour mills. Partially offsetting these is a $21 million increase
in current liabilities primarily consisting of advance payments on commodity
sales and accrued voyage expenses.
The Company invested $29.3 million in property, plant and equipment through
March 23, 1996 in the food production and processing segment. Capital
expenditures of $25.3 million were for construction of hog farrowing and
finishing facilities, two feed mills and a pork-processing plant located in
Guymon, Oklahoma. Cumulative capital expenditures on these facilities since
1992 total $248.5 million. The Company expects additional expenditures for
facilities and working capital to total approximately $25.0 million in the
next two years, of which approximately $20.6 million is currently under
contract. Management anticipates the facilities will be financed from cash.
Capital expenditures of $1.0 million were made at the Company's poultry
processing plant in Athens, Georgia to increase processing capacity through
processing equipment upgrades. Cumulative capital expenditures related to
the expansion totaled $9.5 million and were funded with cash.
Other capital expenditures in the food production and processing segment
through March 23, 1996 included $3.0 million in general modernization and
efficiency upgrades of plant and equipment.
Capital expenditures in the transportation segment through March 23, 1996
totaled $4.2 million for general replacement and upgrades of property and
equipment.
Page 6
At December 31, 1995, the Company had $33.8 million outstanding under
short-term uncommitted credit lines from banks that totaled $122 million.
In the first quarter of 1996, the Company entered into a $75 million one-year
revolving credit facility and a five-year $50 million revolving credit facility
with a group of banks and certain uncommitted credit lines were reduced by $17
million. As of March 23, 1996, the Company had $35 million outstanding under
the one-year revolving credit facility and $20.8 million outstanding under
the remaining short-term uncommitted credit lines totaling $105 million.
Subsequent to March 23, 1996, the Company borrowed $10 million of the $50
million revolving credit facility. Utilization of the five- year revolving
credit facility is limited by existing debt covenants.
Management intends to continue seeking opportunities for expansion in the
industries in which it operates and believes that the Company's liquidity,
capital resources and borrowing capabilities are adequate for its current
and intended operations.
RESULTS OF OPERATIONS
- ---------------------
Net sales for the twelve weeks ending March 23, 1996 increased by $61.7
million compared to the same quarter one year earlier. Operating income
decreased by $26.5 million compared to the same quarter one year ago.
The segment distribution of net sales and operating income compared to the
prior year are as follows (in millions).
Net Sales Operating Income
---------------------- -----------------------
March 23, March 25, March 23, March 25,
1996 1995 1996 1995
--------- --------- --------- ---------
Food Production and
Processing Segment $ 157.5 $ 145.2 $ (13.2) $ 3.2
Commodity Segment 73.9 24.4 3.9 1.9
Transportation Segment 57.0 59.1 (2.9) 8.6
Other 9.2 7.2 (0.6) --
--------- --------- --------- ---------
$ 297.6 $ 235.9 $ (12.8) $ 13.7
========= ========= ========= =========
Food Production And Processing Segment
- --------------------------------------
Corn is the most significant component of the feed used to grow the Company's
poultry and hog inventories. The gross income of both the poultry and pork
product lines have been affected by the rising price of corn. The price of
May corn futures on the Chicago Board of Trade has risen from $2.50 per bushel
on March 24, 1995 to $3.90 per bushel on March 22, 1996. Management does not
expect corn prices to recover to previous levels in the current year due to
anticipated short supplies of corn attributed to adverse weather conditions.
The Company implements hedging stratagies to manage exposure to fluctuations
in these commodity markets; however, prolonged periods of high corn prices
have caused and will continue to cause an increase in the cost to grow
livestock. Because poultry inventories are valued at LIFO, the higher cost
of corn is reflected in earnings when purchased. The pork inventories
are valued at FIFO, accordingly most of the higher cost corn is in inventory
and will affect cost of sales in future quarters. If the Company is not able
to recover these higher costs through higher sales prices, the Company's gross
income would be negatively affected. Management, at this time, is not able
to assess the likelihood or timing of its ability to increase prices.
Page 7
Net sales of poultry products totaled $110.3 million in the first quarter of
1996, an increase of $14.5 million compared to the first quarter of 1995.
The increase was primarily due to increased volume resulting from efficiency
upgrades of equipment. Sales prices in the first quarter were slightly higher
than those of a year ago but lower than prices in the fourth quarter of 1995.
A temporary suspension of shipments to Russia caused an industry-wide inventory
buildup in the first quarter and sales prices, particularly for leg quarters,
have fallen. Russian importation of poultry resumed in the first quarter and
Management expects prices to recover once inventory levels have been reduced
though lower prices are expected to continue through the second quarter.
Higher feed costs are the primary reason gross income from poultry sales have
fallen $10.7 million to $0.5 million when compared to the first quarter of
1995.
Net sales of live hogs and pork products increased by $3.6 million in the
first quarter of 1996, compared to the same time one year earlier, to total
$21.8 million. The increase resulted primarily from sales of pork products
at the hog processing plant in Guymon, Oklahoma which began operations in
December 1995. The net increase was partially offset by the discontinued
operations at the Albert Lea, Minnesota pork processing plant in December
1995 when the Company leased the plant to a third party. Management expects
increases in sales as the Oklahoma plant increases its production.
The pork operations reported negative gross income of $4.6 million in the
first quarter of 1996 compared to a negative gross income of $0.3 million
in the first quarter of 1995. The decline is primarily related to the hog
processing plant in Guymon, Oklahoma. The plant is in the initial stage
of operations and is not expected to operate at single shift capacity until
the third quarter of 1996. The Company expects second quarter results to
continue to be adversely affected from operating at less than full capacity
and higher grain costs.
Operating income for the segment declined by $16.4 million for the quarter
ending March 23, 1996 compared to the same quarter one year earlier. The
decline was primarily related to higher finished feed costs and operating
the pork plant at less than capacity.
Commodity Trading
- -----------------
Net sales from commodity trading activity increased by $49.5 million in the
first quarter of 1996 compared to the same quarter one year earlier. The
increase is primarily related to expanded trading of wheat, soybeans, corn
and other grains in foreign markets.
Page 8
Transportation Segment
- ----------------------
Net sales from containerized cargo operations decreased by $2.1 million in
the first quarter of 1996 compared to the first quarter of 1995 despite an
increase in the number of revenue producing units moved during the quarter.
Operating income from containerized cargo operations decreased by $11.5
million in the first quarter of 1996 compared to the same quarter one year
ago. The decrease in sales and operating income was primarily related to
lower freight rates resulting from competition in certain markets. Management
cannot predict when rates in these markets will improve and, therefore, the
results of operations in future periods could continue to be adversely
affected.
Other Operations
- ----------------
Net sales from electric power generating increased by $2.0 million in the first
quarter of 1996 compared to the same time one year earlier to total $9.2
million. Operating income decreased primarily as a result of increasing
reserves on the receivables from the sale of electric power in the Dominican
Republic.
Selling, General and Administrative Expenses
- --------------------------------------------
Selling, general and administrative (SG&A) expenses totaled $33.0 million for
the quarter ending March 23, 1996, an increase of $4.6 million compared to
the same time one year earlier. The increase was primarily related to
reserves for potential uncollectible receivables. The increased SG&A expenses
associated with opening the pork plant in Oklahoma were offset by the decrease
in SG&A expenses from the discontinued operations at the Albert Lea, Minnesota
pork processing plant in December, 1995.
Interest Income and Expense
- ---------------------------
Interest income declined during the quarter compared to the same quarter one
year earlier resulting primarily from a decrease in invested funds. Interest
expense increased during the quarter by $3.1 million compared to the same
quarter one year earlier. The increase was primarily related to the issuance
of long-term debt in the second quarter of 1995 and increased short-term
borrowings.
The Company does not believe its businesses have been materially adversely
affected by general inflation.
Page 9
SEABOARD CORPORATION AND SUBSIDIARIES
PART II - OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
The annual meeting of stockholders was held on April 22, 1996 in Newton,
Massachusetts. Two items were submitted to a vote of stockholders as
described in the Company's Proxy Statement dated March 29, 1996. The table
below briefly describes the proposals and results of the stockholders' vote.
Votes in Votes Broker
Favor Against Abstain Nonvotes
--------- ------- ------- --------
1. To elect:
H. Harry Bresky, 1,340,371 0 6,072 0
Joe E. Rodrigues 1,340,451 0 5,992 0
David A. Adamsen 1,340,351 0 6,092 0
and Thomas J. Shields 1,340,351 0 6,092 0
As directors.
2. To ratify selection of
KPMG Peat Marwick LLP
As independent auditors. 1,346,183 50 210 0
Page 10
SEABOARD CORPORATION AND SUBSIDIARIES
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
4.5 - $75.0 million Amended And Restated Short-Term Revolving
Credit Agreement dated as of March 28, 1996. The Exhibits to
the Amended And Restated Short-Term Revolving Credit Agreement
have been omitted from the filing, but will be provided
supplementally upon request of the commission.
4.6 - $50.0 million Amended And Restated Long-Term Revolving
Credit Agreement dated as of March 28, 1996. The Exhibits to
the Amended And Restated Long-Term Revolving Credit Agreement
have been omitted from the filing, but will be provided
supplementally upon request of the commission.
4.7 - Seaboard Corporation Note Agreement dated as of December
1, 1993 ($100,000,000 Senior Notes due December 1, 2005). First
Amendment to Note Agreement.
4.8 - Seaboard Corporation Note Agreement dated as of June 1,
1995 ($125,000,000 Senior Notes due June 1, 2007). First
Amendment to Note Agreement.
(b) Reports on Form 8-K. Seaboard Corporation has not filed any reports
on Form 8-K during the twelve week period ended March 23, 1996.
This Form 10-Q contains forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995, which may include
statements concerning projection of revenues, income or loss, capital
expenditures, capital structure or other financial items, statements regarding
the plans and objectives of management for future operations, statements of
future economic performance, statements of the assumptions underlying or
relating to any of the foregoing statements and other statements which are
other than statements of historical fact. These statements appear in a number
of places in this Form 10-Q and include statements regarding the intent, belief
or current expectations of the Company and its management with respect to (i)
the cost and timing of the completion of new or expanded facilities, (ii) the
Company's financing plans, (iii) the Company's competitive position, (iv) the
supply and price of feed stocks and other materials used by the Company, (v)
the demand and price for the Company's products and services, or (vi) other
trends affecting the Company's financial condition or results of operations.
Readers are cautioned that any such forward-looking statements are not
guarantees of future performance and involve risks and uncertainties, and that
actual results may differ materially as a result of various factors. The
accompanying information contained in this Form 10-Q, including with
limitation the information under the heading "Management's Discussion and
Analysis of Financial Condition and Results of Operations" identifies
important factors which could cause such differences.
Page 11
PART II - OTHER INFORMATION
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
DATE: May 6, 1996
Seaboard Corporation
by: /s/ Robert Steer
------------------------------------
Robert Steer, Vice President-Finance
by: /s/ Jesse H. Bechtold
-------------------------------------------
Jesse H. Bechtold, Chief Accounting Officer
Page 12
U.S. $50,000,000
AMENDED AND RESTATED
LONG TERM REVOLVING CREDIT AGREEMENT,
dated as of March __, 1996,
(amending and restating the Long Term Revolving
Credit Agreement dated as of March 1, 1996)
among
SEABOARD CORPORATION
and CERTAIN OF ITS SUBSIDIARIES
as the Borrowers,
CERTAIN COMMERCIAL LENDING INSTITUTIONS,
as the Lenders,
THE BANK OF NOVA SCOTIA,
as Co-Managing Agent and as the Documentation Agent
and
THE CHASE MANHATTAN BANK, N.A.,
as Co-Managing Agent and as the Syndication Agent
AMENDED AND RESTATED
LONG TERM REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED LONG TERM REVOLVING CREDIT AGREEMENT, dated
as of March __, 1996 (amending and restating the Long Term Revolving Credit
Agreement dated as of March 1, 1996), among SEABOARD CORPORATION, a Delaware
corporation ("Seaboard"), H&O SHIPPING LTD., a Liberia corporation ("H&O"),
SEABOARD MARINE LTD., a Liberia corporation ("Marine"), the various financial
institutions as are or may become parties hereto (collectively, the
"Lenders"), THE BANK OF NOVA SCOTIA ("Scotiabank") and THE CHASE MANHATTAN
BANK, N.A. ("Chase") as co-managing agents (in such capacity, individually
referred to as a "Co-Managing Agent" and collectively referred to as the
"Co-Managing Agents"), Scotiabank as documentation agent (in such capacity,
the "Documentation Agent") and Chase as syndication agent (in such capacity,
the "Syndication Agent").
W I T N E S S E T H:
WHEREAS, certain of the parties hereto entered into a Long Term
Revolving Credit Agreement dated as of March 1, 1996 (the "Original
Agreement"), which provides for aggregate Commitments of $50,000,000 from
the Lenders pursuant to which Revolving Loans and Swing Line Loans would be
made to Seaboard and for a procedure pursuant to which Seaboard may invite
the Lenders to bid for (on an uncommitted basis) and to make short-term
loans (in the form of Competitive Bid Loans) to Seaboard;
WHEREAS, the parties hereto desire to add H&O and Marine as Borrowers
hereunder and to provide a procedure by which other Material Subsidiaries of
Seaboard may become Borrowers hereunder; and
WHEREAS, the parties hereto desire to amend and restate the Original
Agreement to reflect the changes referred to above and to make certain other
changes;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and
recitals, shall, except where the context otherwise requires, have the
following meanings (such meanings to be equally applicable to the singular
and plural forms thereof):
"Absolute Rate" means, with respect to an Absolute Rate Loan made by a
given Lender, a fixed rate of interest per annum (rounded to the nearest
1/10,000th of 1%) offered by such Lender and accepted by a Borrower.
"Absolute Rate Auction" means a solicitation of Competitive Bid Loan
quotes at an Absolute Rate pursuant to Section 2.6.
"Absolute Rate Loan" means a Competitive Bid Loan which bears interest
at an Absolute Rate.
"Adjusted Consolidated Shareholders' Equity" means, at any time,
(a) the sum of (i) the amount of shareholders' equity of
Seaboard and the Subsidiaries (but excluding, without limitation,
all Preferred Stock other than perpetual Preferred Stock and, to the
extent included therein, minority interests), plus
(ii) the amount of Unamortized Tax Incentive Grants
and Tax Incentive Financings, plus
(iii) the amount of the Code 447(i) Suspense Account
Amount, minus
(b) The sum of (i) the Restricted Basket Transfer Proceeds
Amount, plus
(ii) the Restricted Subsidiary Net Worth Amount,
all determined on a consolidated basis at such time.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully
diluted basis) having ordinary voting power for the election of
directors or managing general partners; or
(b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agent" means as the context may require, either Co-Managing Agent, the
Documentation Agent or the Syndication Agent.
"Agreement" means, on any date, this Amended and Restated Long Term
Revolving Credit Agreement as originally in effect on the Restated Agreement
Effective Date and as thereafter from time to time amended, supplemented,
amended and restated, or otherwise modified and in effect on such date.
"Alternate Base Rate" means, on any date and with respect to all Base
Rate Loans, a fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently established by the
Syndication Agent at its Domestic Office as its base rate for Dollar
loans; and
(b) the Federal Funds Rate most recently determined by the
Syndication Agent plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the lowest rate
of interest determined by the Syndication Agent in connection with extensions
of credit. Changes in the rate of interest on that portion of any Loans
maintained as Base Rate Loans will take effect simultaneously with each
change in the Alternate Base Rate. The Syndication Agent will give notice
promptly to Seaboard and the Lenders of changes in the Alternate Base Rate.
"Applicable Facility Fee Rate" means (a) initially, the rate per annum
set forth in the table below opposite the Consolidated Net Debt Ratio as
determined in the certificate required by subsection 5.1.6(b), and (b) on
and after any date specified below on which the Applicable Facility Fee Rate
is to be adjusted, the rate per annum set forth in the table below opposite
the applicable Consolidated Net Debt Ratio:
Seaboard's Consolidated
Net Debt Ratio
Applicable
Facility Fee Rate
Less than or equal to 35%
0.11%
Less than or equal to 55% but greater than 35%
0.14%
Less than or equal to 65% but > 55%
0.1875%
> 65%
0.25%
The Applicable Facility Fee Rate shall be adjusted, to the extent applicable,
60 days (or, in the case of the last Fiscal Quarter of any Fiscal Year, 100
days) after the end of each Fiscal Quarter, based on the Consolidated Net
Debt Ratio as of the last day of such Fiscal Quarter; it being understood
that if Seaboard fails to deliver the financial statements required by
subsection 7.1.1(a) or (b), as applicable, and the related certificate
required by subsection 7.1.2 by the 60th day (or, if applicable, the 100th
day) after any Fiscal Quarter, the Applicable Facility Fee Rate shall be
0.25% until such financial statements and certificate are delivered.
"Applicable Margin" means (a) initially, the rate per annum set forth
in the table below opposite the Consolidated Net Debt Ratio as determined
in the certificate required by Subsection 5.1.6(b), and (b) on and after
any date specified below on which the Applicable Margin is to be adjusted,
the rate per annum set forth in the table below opposite the applicable
Consolidated Net Debt Ratio:
Seaboard's Consolidated
Net Debt Ratio
Applicable Margin
Less than or equal to 35%
0.24%
Less than or equal to 55% but > 35%
0.26%
Less than or equal to 65% but > 55%
0.2625%
> 65%
0.30%
The Applicable Margin shall be adjusted, to the extent applicable, 60 days
(or, in the case of the last Fiscal Quarter of any Fiscal Year, 100 days)
after the end of each Fiscal Quarter, based on the Consolidated Net Debt
Ratio as of the last day of such Fiscal Quarter; it being understood that
if Seaboard fails to deliver the financial statements required by subsection
7.1.1(a) or (b), as applicable, and the related certificate required by
subsection 7.1.2 by the 60th day (or, if applicable, the 100th day) after
any Fiscal Quarter, the Applicable Margin shall be 0.30% until such financial
statements and certificate are delivered.
"Applicant Borrower" is defined in Section 10.15.
"Assignee Lender" is defined in Section 10.11.1.
"Authorized Officer" means, relative to each Borrower, those of its
officers, including without limitation, its Senior Financial Officer (if
applicable), whose signatures and incumbency shall have been certified to
the Documentation Agent and the Lenders pursuant to Section 5.1.1.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Basket Liens" is defined in Section 7.2.2(a)(viii).
"Basket Secured Debt" is defined in Section 7.2.2(a)(viii)(A).
"Borrower" means any of Seaboard, H&O, Marine, and any Material
Subsidiary that from time to time becomes a party hereto pursuant to Section
10.15.
"Borrowing" means, as the context may require, either a Competitive Bid
Loan Borrowing, a Swing Line Loan Borrowing or a Revolving Loan Borrowing.
"Borrowing Request" means, as the context may require, either a Revolving
Loan Borrowing Request or a Competitive Bid Loan Borrowing Request.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a
legal holiday on which banks are authorized or required to be closed
in New York, New York; and
(b) relative to the making, continuing, prepaying or
repaying of any LIBO Rate Loans, any day on which dealings in
Dollars are carried on in the London interbank market.
"Capital Lease" means, at any time, a lease with respect to which the
lessee is required to recognize the acquisition of an asset and the incurrence
of a liability at such time.
"Cash Equivalents" means (a) the following short-term (less than six
months) investment vehicles:
(i) Money market mutual funds rated Vmigl by Moody's or A1
by S&P.
(ii) 0 - 7 day repurchase agreements collateralized by U.S.
government securities.
(iii) 0 - 6 month certificates of deposit from banks rated
C or better by Thomson BankWatch, Inc. or II or better by IBCA
Banking, Ltd.
(iv) Variable rate demand notes that are secured by
irrevocable, direct-pay letters of credit rated A through C by
Thomson BankWatch, Inc. or rated in one of the top three rating
categories by Moody's or S&P. In the case of foreign banks, the
letter of credit must be rated in one of the top two rating
categories by Moody's or S&P. The underlying obligor must be rated
3A, 4A or 5A by Dun & Bradstreet. If the underlying obligor is not
rated by Dun & Bradstreet, the letter of credit securing the issue
must be rated in one of the top two rating categories by Moody's or
S&P.
and (b) the following long-term investment vehicles:
(i) Securities that are exempt from U.S. Federal income tax
("Municipals") with maximum maturity of five (5) years rated Aa, P-1
or Vmig1 or better by Moody's or AA, A-1 or better by S&P.
(ii) Negotiable Deposits (including time deposits and
certificates of deposit) with entities carrying on banking business
in the United States rated C or better by Thomson BankWatch, Inc. or
II or better by IBCA Banking, Ltd. The maximum maturity may not
exceed two (2) years.
(iii) Original-issue discount ("OID") obligations that are
either direct obligations of, or obligations guaranteed as to
interest and principal by, the United States of America, or, are
direct obligations of any agency or corporate instrumentality of the
United States of America. The maximum maturity of any OID shall not
exceed five (5) years.
(iv) Interest of publicly traded obligations of U.S.
corporations, the U.S. government, its agencies and
instrumentalities. This includes commercial paper, corporate notes
and bonds, collateralized mortgage obligations ("CMO"), and asset-
backed securities ("ABS"); provided that with respect to bonds and
floating rate notes, such instruments are rated A- or better by S&P
or A3 by Moody's and, with respect to commercial paper, such
instruments are rated A-1 or better by S&P or P-1 by Moody's. The
maximum maturity shall not exceed five (5) years.
For securities which have put dates, reset dates or trade based on their
average maturity, the put, reset date or average maturity will be used
instead of the final maturity date for the determination of maximum maturity.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Chase" is defined in the preamble.
"Code" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"Code 447(i) Suspense Account Amount" means, at any time, the amount
included in deferred tax liabilities on a consolidated balance sheet of
Seaboard and the Subsidiaries prepared in accordance with GAAP at such time
in respect of deferred tax liabilities incurred in connection with section
447(i) of the Code.
"Co-Managing Agent" is defined in the preamble.
"Combined Subsidiary Funded Debt" means, at any time, the aggregate
amount of Subsidiary Funded Debt of all Subsidiaries determined on a combined
basis at such time.
"Commitment" means as the context may require, a Lender's Revolving Loan
Commitment or Swing Line Loan Commitment.
"Commitment Amount" means, as the context may require, the Revolving
Loan Commitment Amount or the Swing Line Loan Commitment Amount.
"Commitment Termination Date" means the Revolving Loan Commitment
Termination Date.
"Commitment Termination Event" means
(a) the occurrence of any Default described in clauses (a)
through (d) of Section 8.1.7; or
(b) the occurrence and continuance of any other Event of
Default and either
(i) the declaration of the Loans to be due and
payable pursuant to Section 8.3, or
(ii) in the absence of such declaration, the giving
of notice by the Documentation Agent, acting at the direction
of the Required Lenders, to Seaboard that the Commitments
have been terminated.
"Competitive Bid Loan" means a loan made by a Lender to a Borrower
based on the LIBO Rate or the Absolute Rate as part of a Competitive Bid
Loan Borrowing resulting from the procedure described in Section 2.6.
"Competitive Bid Loan Acceptance" means an acceptance by a Borrower of
a Competitive Bid Loan Offer pursuant to clause (e) of Section 2.6,
substantially in the form of Exhibit C-3 attached hereto.
"Competitive Bid Loan Borrowing" means Competitive Bid Loans made
pursuant to the same Competitive Bid Loan Borrowing Request by the Lender or
each of the Lenders whose offer to make such Competitive Bid Loans as part of
such requested Borrowing has been accepted by a Borrower pursuant to clause
(e) of Section 2.6.
"Competitive Bid Loan Borrowing Request" means a certificate requesting
that the Lenders extend offers to make Competitive Bid Loans, duly executed by
an Authorized Officer of a Borrower substantially in the form of Exhibit B-2
attached hereto.
"Competitive Bid Loan Maturity Date" is defined in clause (a)(iii) of
Section 2.6.
"Competitive Bid Loan Note" means any promissory note of a Borrower, in
the form of Exhibit A-2 hereto (as such promissory note may be amended,
endorsed or otherwise modified from time to time), evidencing the aggregate
Indebtedness of such Borrower to such Lender resulting from Competitive Bid
Loans outstanding from such Lender, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal thereof.
"Competitive Bid Loan Offer" means an offer by a Lender to make a
Competitive Bid Loan to a Borrower pursuant to clause (c) of Section 2.6,
substantially in the form of Exhibit C-2 attached hereto.
"Competitive Bid Outstanding Balance" means, at any time, the then
aggregate outstanding principal amount of all Competitive Bid Loans.
"Competitive Bid Rate" means, as the context may require, either the
Absolute Rate or the LIBO Rate (plus the LIBO Rate Bid Margin) offered by a
Lender in a Competitive Bid Loan Offer in respect of a Competitive Bid Loan
proposed pursuant to Section 2.6.
"Consolidated Funded Debt" means, at any time, the amount of Funded Debt
of Seaboard, and the amount of Subsidiary Funded Debt of all Subsidiaries,
determined on a consolidated basis at such time.
"Consolidated Net Debt Ratio" means the ratio, expressed as a percentage,
of Consolidated Funded Debt less Unrestricted Cash to Adjusted Consolidated
Shareholders' Equity.
"Consolidated Shareholders' Equity" means, at any time,
(a) the amount of shareholders' equity of Seaboard and the
Subsidiaries (but excluding, without limitation, all Preferred Stock
other than perpetual Preferred Stock and, to the extent included
therein, minority interest), minus
(b) (i) the Restricted Basket Transfer Proceeds Amount,
plus
(ii) the Restricted Subsidiary Net Worth Amount,
all determined on a consolidated basis at such time.
"Consolidated Tangible Net Worth" means, at any time, the amount equal to
(a) the sum of
(i) the par value or stated value (as the case may
be) at such time of all authorized, issued and outstanding
capital stock of Seaboard and the Subsidiaries (excluding
capital stock held in treasury), plus (or minus in each case
of a deficit),
(ii) the amount of the paid-in capital and retained
earnings at such time of Seaboard and the Subsidiaries, plus
(iii) the amount of Unamortized Tax Incentive Grants
and Tax Incentive Financings, plus
(iv) the amount of the Code 447(i) Suspense Account
Amount,
minus
(b) (i) the net book value (after deducting related
depreciation, obsolescence, amortization, valuation and other
proper reserves) of all Intangible Assets of Seaboard and the
Subsidiaries, plus
(ii) the Restricted Basket Transfer Proceeds Amount,
plus
(iii) the Restricted Subsidiary Net Worth Amount,
all determined on a consolidated basis at such time.
"Consolidated Total Assets" means, at any time, an amount equal to the net
book value (net of related depreciation, obsolescence, amortization, valuation,
and other proper reserves) of all assets of Seaboard and the Subsidiaries minus
the amount of minority interest of Seaboard and the Subsidiaries, determined on
a consolidated basis at such time.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of a
Borrower, substantially in the form of Exhibit D hereto.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with
Seaboard, are treated as a single employer under Section 414(b) or 414(c) of
the Code or Section 4001 of ERISA.
"Credit Extension" means the making of a Loan by a Lender.
"Credit Extension Request" means any Borrowing Request.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event
of Default.
"Designated Borrower" means any Applicant Borrower which becomes a
Borrower party hereto in accordance with Section 10.15.
"Designated Borrower Certificate" means a Designated Borrower
Certificate substantially in the form of Exhibit I hereto.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented or otherwise modified from
time to time by Seaboard with the written consent of the Documentation Agent
and the Required Lenders.
"Disposition Value" means, at any time, with respect to any Property
(a) in the case of Property that does not constitute
Subsidiary Stock, the net book value thereof at such time, and
(b) in the case of Property that constitutes Subsidiary
Stock, an amount equal to that percentage of the net book value of
the assets of the Subsidiary that issued such stock as is equal to
the percentage of all of the outstanding Voting Stock of such
Subsidiary represented by such Subsidiary Stock (assuming, in the
case of Subsidiary Stock that is convertible into such Voting Stock,
conversion of such Subsidiary Stock), determined at such time.
"Documentation Agent" is defined in the preamble.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of such
Lender designated as such below its signature hereto or designated in the
Lender Assignment Agreement or such other office of a Lender (or any successor
or assign of such Lender) within the United States as may be designated from
time to time by notice from such Lender, as the case may be, to Seaboard and
the Syndication Agent.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines
(including consent decrees and administrative orders) relating to public
health and safety and protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA also refer to any successor sections.
"Event of Default" is defined in Section 8.1.
"Excluded Transfers" is defined in Section 7.2.5(b).
"Existing Subsidiary Debt" is defined in Section 7.2.6(a)(i).
"Fair Market Value" means, with respect to any Property, the sale value
of such Property that would be realized in an arm's-length sale at such time
between an informed and willing buyer, and an informed and willing seller,
under no compulsion to buy or sell, respectively.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published for such day (or, if
such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York; or
(b) if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on such
transactions received by Chase from three federal funds brokers of
recognized standing selected by it.
"Fee Letter" means the confidential fee letter, dated as of December 13,
1995, between Seaboard and the Co-Managing Agents.
"Fiscal Period" means either the four-week period beginning on January 1
of any calendar year or any consecutive four-week period thereafter in that
calendar year; provided, however, that the thirteenth Fiscal Period in any
calendar year shall be composed of all of the remaining days in that calendar
year.
"Fiscal Quarter" means either the period composed of the first three
Fiscal Periods in any Fiscal Year or any consecutive period of three Fiscal
Periods thereafter in that Fiscal Year; provided, however, that the fourth
Fiscal Quarter in any Fiscal Year shall be composed of the four remaining
Fiscal Periods in that Fiscal Year.
"Fiscal Year" means any period of thirteen consecutive Fiscal Periods
ending on December 31; references to a Fiscal Year with a number corresponding
to any calendar year (e.g., the "1988 Fiscal Year") refer to the Fiscal Year
ending on the December 31 occurring during such calendar year.
"Foreign Pension Plan" means any plan, fund or other similar program
(a) established or maintained outside of the United States
of America by any one or more of Seaboard or the Subsidiaries
primarily for the benefit of the employees (substantially all of
whom are aliens not residing in the United States of America) of
Seaboard or such Subsidiaries, which plan, fund or other similar
program provides for retirement income for such employees or results
in a deferral of income for such employees in contemplation of
retirement, and
(b) not otherwise subject to ERISA.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"Funded Debt" means, at any time, with respect to any Person,
Indebtedness of such Person having a final maturity of more than one (1)
year from such time or that is renewable or extendable at the option of such
Person for a period more than one (1) year from the date of determination.
"GAAP" is defined in Section 1.4.
"Governmental Authority" means
(a) the government of
(i) the United States of America and any State or
other political subdivision thereof, or
(ii) any other jurisdiction in which Seaboard or any
Subsidiary conducts all or any part of its business, or that
asserts any jurisdiction over the conduct of the affairs of,
or the Property of Seaboard or any Subsidiary, and
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any
such government.
"Guaranty" means with respect to any Person (for the purposes of this
definition, the "Guarantor") any obligation (except the endorsement in the
ordinary course of business of negotiable instruments for deposit or
collection) of such Person guaranteeing or in effect guaranteeing any
indebtedness, dividend or other obligation of any other Person (the "Primary
Obligor") in any manner, whether directly or indirectly, including, without
limitation, obligations incurred through an agreement, contingent or
otherwise, by the Guarantor:
(a) to purchase such indebtedness or obligation or any
Property constituting security therefor;
(b) to advance or supply funds
(i) for the purchase or payment of such
indebtedness or obligation, or
(ii) to maintain working capital or other balance
sheet condition or any income statement condition of the
Primary Obligor or otherwise to advance or make available
funds for the purchase or payment of such indebtedness or
obligation;
(c) to lease Property or to purchase Securities or other
Property or services primarily for the purpose of assuring the owner
of such indebtedness or obligation of the ability of the Primary
Obligor to make payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of the indebtedness or
obligation of the Primary Obligor against loss in respect thereof.
For purposes of computing the amount of any Guaranty, in connection with any
computation of indebtedness or other liability, it shall be assumed that the
indebtedness or other liabilities that are the subject of such Guaranty are
direct obligations of the issuer of such Guaranty, and the amount of the
Guaranty is the amount of the direct obligation then outstanding.
"H&O" is defined in the preamble.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous
or toxic chemical, material or substance within the meaning of any
other applicable federal, state or local law, regulation, ordinance
or requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning
any hazardous, toxic or dangerous waste, substance or material, all
as amended or hereafter amended.
"herein", "hereof", "hereto", "hereunder" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and
each other Loan Document, the parties hereto agree that the rule of ejusdem
generis shall not be applicable to limit a general statement, which is
followed by or referable to an enumeration of specific matters, to matters
similar to the matters specifically mentioned.
"Indebtedness" means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money (whether or not evidenced
by a Security) and its obligations in respect of mandatorily redeemable
preferred stock;
(b) any liabilities for borrowed money secured by any Lien
existing on Property owned by such Person (whether or not such
liabilities have been assumed);
(c) any obligations in respect of any Capital Lease of such
Person;
(d) the present value of all payments due under any
arrangement for retention of title or any conditional sale agreement
(other than a Capital Lease) discounted at the implicit rate, if
known, with respect thereto or, if unknown, at 8% per annum;
(e) obligations of such Person in respect of letters of
credit or instruments serving a similar function issued or accepted
by banks and other financial institutions for the account of such
Person (whether or not representing obligations for borrowed money);
(f) the aggregate net obligation under Swaps of such
Person; and
(g) any Guaranty of such Person of any obligation or
liability of another person.
As used in this definition of Indebtedness only, Swaps shall mean, with
respect to any Person, obligations with respect to interest rate swaps and
currency swaps and similar obligations obligating such Person to make
payments, whether periodically or upon the happening of a contingency, except
that if any agreement relating to such obligation provides for the netting
of amounts payable by and to such Person thereunder or if any such agreement
provides for the simultaneous payment of amounts by and to such Person, then
in each such case, the amount of such obligations shall be the net amount
thereof. The aggregate net obligation of Swaps at any time shall be the
aggregate amount of the obligations of such Person under all Swaps assuming
all such Swaps had been terminated by such Person as of the end of the then
most recently ended fiscal quarter of such Person. If such net aggregate
obligation shall be an amount owing to such Person, then the amount shall
be deemed to be Zero Dollars ($0).
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Information Memorandum" is defined in Section 6.1.
"Intangible Assets" with respect to any Person, means the following:
(a) deferred assets (including, without limitation,
insurance and prepaid taxes), other than prepaid expenses which are
refundable;
(b) patents, copyrights, trademarks, trade names, service
marks, brand names, franchises, goodwill, experimental expenses and
other similar intangibles;
(c) unamortized debt discount and expense; and
(d) all other Property which would be considered to be
intangible under generally accepted accounting principles.
"Interest Period" means,
(a) relative to any LIBO Rate Loans, the period beginning
on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to
Section 2.3 or 2.4 and shall end on (but exclude) the day which
numerically corresponds to such date one, two, three or six months
thereafter (or, if such month has no numerically corresponding day,
on the last Business Day of such month), in either case as a
Borrower may select in its relevant notice pursuant to Section 2.3
or 2.4; provided, however, that
(i) if such Interest Period would otherwise end on
a day which is not a Business Day, such Interest Period shall
end on the next following Business Day (unless such next
following Business Day is the first Business Day of the next
calendar month, in which case such Interest Period shall end
on the Business Day next preceding such numerically
corresponding day); and
(ii) no Interest Period may end later than the date
set forth in clause (a) of the definition of "Revolving Loan
Commitment Termination Date,"
(b) relative to each Competitive Bid Loan made at a LIBOR
Auction, the period commencing on the date of such Borrowing and
ending one, two, three or six months thereafter, as a Borrower may
elect in accordance with Section 2.4; provided that:
(i) if such Interest Period would otherwise end on
a day which is not a Business Day, such Interest Period shall
end on the next following Business Day; provided, however,
that if such next following Business Day is the first Business
Day of a calendar month, such Interest Period shall end on the
next preceding Business Day, and
(ii) no Interest Period may end later than the date
set forth in clause (a) of the definition of "Revolving Loan
Commitment Termination Date."
No more than five Interest Periods shall be in effect at any one time.
"Intergroup Transfer" is defined in Section 7.2.5(c).
"Investment" means, investments made in cash or by delivery of Property
by Seaboard or a Subsidiary in any Person, whether by acquisition of stock,
indebtedness or other obligation or Security, or by loan, Guaranty, advance
or capital contribution, or otherwise, or in any Property.
"Invitation for Competitive Bid Loan Offers" means an invitation by the
Syndication Agent to the Lenders to submit Competitive Bid Loan Offers
pursuant to clause (b) of Section 2.6, substantially in the form of Exhibit
C-1 attached hereto.
"Lender Approved Transfer" is defined in Section 7.2.5(f).
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit E hereto.
"Lenders" is defined in the preamble.
The "LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be
made, continued or maintained as, or converted into, a LIBO Rate Loan for
any Interest Period, a rate per annum (rounded upwards, if necessary, to the
nearest 1/16 of 1%) determined pursuant to the following formula:
LIBO Rate = LIBO Rate
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be determined by the Syndication Agent on the basis of the LIBOR
Reserve Percentage in effect on, and the applicable rates furnished to and
received by the Syndication Agent from the Reference Lenders, two Business
Days before the first day of such Interest Period, subject, however, to the
provisions of Section 3.2.4.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate Loans,
the rate of interest equal to the average (rounded upwards, if necessary, to
the nearest 1/16 of 1%) of the rates per annum at which Dollar deposits in
immediately available funds are offered to each Reference Lender's LIBOR
Office in the London interbank market as at or about 11:00 a.m. London time
two Business Days prior to the beginning of such Interest Period for
delivery on the first day of such Interest Period, and in an amount
approximately equal to the amount of the applicable LIBO Rate Loan or
Competitive Bid Loan based on a LIBOR Auction and for a period approximately
equal to such Interest Period.
"LIBO Rate Bid Margin" means, in respect of Competitive Bid Loans based
on a LIBOR Auction, the margin above or below the applicable LIBO Rate offered
for each such Competitive Bid Loan, expressed as a percentage (rounded to
the nearest 1/10,000th of 1%) to be added to such rate.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest
determined by reference to the LIBO Rate (Reserve Adjusted).
"LIBOR Auction" means a solicitation of Competitive Bid Loan Offers
pursuant to Section 2.6, hereof based on the LIBO Rate.
"LIBOR Office" means, relative to any Lender, the office of such Lender
designated as such below its signature hereto or designated in the Lender
Assignment Agreement or such other office of a Lender as designated from time
to time by notice from such Lender to Seaboard and the Syndication Agent,
whether or not outside the United States, which shall be making or
maintaining LIBO Rate Loans of such Lender hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for
LIBO Rate Loans, the reserve percentage (expressed as a decimal) equal to the
maximum aggregate reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
specified under regulations issued from time to time by the F.R.S. Board and
then applicable to assets or liabilities consisting of and including
"Eurocurrency Liabilities", as currently defined in Regulation D of the
F.R.S. Board, having a term approximately equal or comparable to such
Interest Period; provided, however, that if no such reserve percentage is so
specified, the LIBOR Reserve Percentage shall be zero.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other), or
preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, any financing lease
having substantially the same economic effect as any of the foregoing, and
the filing of any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction).
"Loan" means, as the context may require, either a Revolving Loan, a
Competitive Bid Loan or a Swing Line Loan.
"Loan Document" means this Agreement, the Notes, the Seaboard Guaranty,
the Fee Letter and each other agreement, document or instrument delivered in
connection with this Agreement and such other agreements, whether or not
specifically mentioned herein or therein.
"Marine" is defined in the preamble.
"Material Adverse Effect" means a material adverse effect on the
business, prospects, profits, Properties or condition (financial or otherwise)
of Seaboard and the Subsidiaries, in the aggregate, the ability of any
Borrower to perform its obligations set forth herein and in the Notes executed
by it or the ability of Seaboard to perform its obligations set forth herein
and in the Seaboard Guaranty.
"Material Subsidiary" means, at any time a Subsidiary that,
(a) at any time during the then current Fiscal Year or the
two (2) then preceding Fiscal Years of Seaboard, constituted more
than three percent (3%) of Consolidated Total Assets or Consolidated
Shareholders' Equity, or
(b) accounted for more than three percent (3%) of the
revenues or net income of Seaboard and its consolidated
Subsidiaries, determined on a consolidated basis, in respect of any
one or more of the then preceding twelve (12) Fiscal Quarters of
Seaboard.
"Merger Transfer" is defined in Section 7.2.5(d).
"Money Market Loan" means a Swing Line Loan that bears interest based
upon the Money Market Rate.
"Money Market Loan Maturity Date" means the maturity date for repayment
of a Money Market Loan as agreed upon by a Borrower and the Swing Line Lender;
provided, however, that such maturity date may not be later than the Stated
Maturity Date.
"Money Market Rate" means the rate of interest quoted to a Borrower by
the Swing Line Lender with respect to a Swing Line Loan as the rate of
interest at which the Swing Line Lender is prepared to make a Money Market
Loan for such Swing Line Loan for the period ending on the Money Market Loan
Maturity Date.
"Monthly Payment Date" means the last day of each calendar month or, if
any such day is not a Business Day, the next succeeding Business Day.
"Moody's" means Moody's Investors Service Inc. and its successors and
assigns.
"Multiemployer Plan" means any "multiemployer plan" (as defined in
section 3(37) of ERISA) in respect of which Seaboard or any member of the
Controlled Group is an "employer" (as such term is defined in section 3 of
ERISA).
"Net Transfer Proceeds" means the Fair Market Value of the proceeds (of
whatever type) paid or payable to Seaboard and the Subsidiaries in respect of
the Transfer of any of their respective Properties, determined as of the date
of the substantial completion of such Transfer, net of ordinary and customary
expenses incurred by Seaboard and the Subsidiaries in connection with such
Transfer and paid to Persons other than Seaboard, a Subsidiary or an Affiliate.
"Note" means, as the context may require, either a Revolving Loan Note, a
Competitive Bid Loan Note or a Swing Line Loan Note.
"Obligations" means all obligations (monetary or otherwise) of Seaboard
and each other Borrower arising under or in connection with this Agreement,
the Notes, and each other Loan Document.
"Ordinary Course Transfer" is defined in Section 7.2.5(a).
"Original Agreement" is defined in the recitals.
"Participant" is defined in Section 10.11.2.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which
Seaboard or any corporation, trade or business that is, along with Seaboard,
a member of a Controlled Group, may have liability, including any liability
by reason of having been a substantial employer within the meaning of section
4063 of ERISA at any time during the preceding five years, or by reason of
being deemed to be a contributing sponsor under section 4069 of ERISA.
"Percentage" means, relative to any Lender, the percentage set forth
opposite its signature hereto or set forth in the Lender Assignment Agreement,
as such percentage may be adjusted from time to time pursuant to Lender
Assignment Agreement(s) executed by such Lender and its Assignee Lender(s) and
delivered pursuant to Section 10.11.
"Permitted Lines of Business" means,
(a) Meat (including chicken, turkey, beef, lamb and pork),
poultry and seafood production and processing,
(b) Fruit and vegetable production and processing,
(c) Ocean transportation and related ground transportation
and support,
(d) Animal feed production and processing,
(e) Bag production,
(f) Flour and feed milling,
(g) Commercial and residential construction,
(h) Power production,
(i) Textile production,
(j) Short-line railroad transportation,
(k) Commodity merchandising,
(l) Baking, and
(m) Cash and investments held for future use by Seaboard
and the Subsidiaries in connection with any of the aforementioned
Permitted Lines of Business.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or any other entity,
whether acting in an individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Preferred Stock" means, with respect to any corporation, capital shares
or capital stock of such corporation that are entitled to preference or
priority over any other capital shares or capital stock of such corporation
in respect of either or both of the payment of dividends or the distribution
of assets upon liquidation.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, and whether tangible or intangible.
"Property Disposition Date" is defined in Section 7.2.5(b).
"Purchase Money Lien" means,
(a) a Lien on tangible Property (or a group of related
items of Property the substantial portion of which are tangible),
property classifiable in accordance with GAAP as long-term, acquired
or constructed by Seaboard or any Subsidiary, which Lien secures
Indebtedness used by the owner of such Property to pay for all or a
portion of the related purchase price or construction costs of such
Property, provided that
(i) such Lien shall not extend to or cover any
Property other than Property acquired or constructed after the
date hereof with the proceeds of the Indebtedness secured
thereby, and shall not secure Indebtedness other than such
Indebtedness,
(ii) such Lien shall be imposed on such Property
within one hundred twenty (120) days after the acquisition
thereof or the substantial completion thereof, and
(iii) such Lien shall secure Indebtedness in an
amount not exceeding one hundred percent (100%) of the cost of
acquisition or construction of the Property to which such
Indebtedness relates, and
(b) Liens existing on Property of any corporation at the
time it becomes a Subsidiary or merges with or consolidates into
Seaboard or a Subsidiary, and Liens existing on Property acquired by
Seaboard or any Subsidiary that were in existence at the time of
such acquisition, provided that
(i) such Lien shall not extend to or cover any
Property other than the Property subject to such Lien at the
time of such transaction, and shall not secure indebtedness
other than the indebtedness secured at the time of such
transaction,
(ii) such Lien shall not secure indebtedness in an
amount exceeding one hundred percent (100%) of the Fair Market
Value of such Property measured at the time of such
transaction, and
(iii) such Lien shall not have been created in
contemplation of any such transaction, and shall not have been
created by Seaboard or a Subsidiary.
"Quarterly Payment Date" means the last day of each March, June,
September, and December or, if any such day is not a Business Day, the next
succeeding Business Day.
"Reference Lenders" means Chase, Scotiabank and The Dai-Ichi Kangyo
Bank, Ltd.
"Reinvested Transfer" is defined in Section 7.2.5(e).
"Release" means a "release", as such term is defined in CERCLA.
"Required Lenders" means, (a) before the Commitment Termination Date,
one or more Lenders having at least 66-2/3% of the Commitments, and (b) on
or after the Commitment Termination Date, one or more Lenders holding at
least 66-2/3% of the then aggregate outstanding principal amount of the Loans.
"Resource Conservation and Recovery Act" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect from time to
time.
"Restated Agreement Effective Date" is defined in Section 5.1.
"Restricted Basket Transfer Proceeds Amount" means, at any time, the net
book value of all Restricted Basket Transfer Proceeds of Seaboard and the
Subsidiaries, determined at such time.
"Restricted Basket Transfer Proceeds" means all consideration other than
cash received by Seaboard or any Subsidiary in respect of any Transfer of
Property of Seaboard or any Subsidiary permitted solely by Section 7.2.5(b)
hereof and in which the Fair Market Value of the aggregate consideration
payable for such Transfer and all related Transfers is greater than Seven
Million Five Hundred Thousand Dollars ($7,500,000).
"Restricted Subsidiary Net Worth Amount" means, at any time, with respect
to any Subsidiary, the amount of the shareholders' equity of such Subsidiary
that cannot at such time be paid as a dividend on the capital stock of such
Subsidiary by virtue of restrictions, direct or indirect, on the payment of
such dividends imposed by the terms of any indebtedness, whether or not such
indebtedness is recourse or non-recourse to such Subsidiary.
"Revolving Loan" is defined in Section 2.1.1.
"Revolving Loan Borrowing" means Revolving Loans of the same type and,
in the case of LIBO Rate Loans, having the same Interest Period, made by all
Lenders on the same Business Day pursuant to the same Revolving Loan
Borrowing Request in accordance with Section 2.1.
"Revolving Loan Borrowing Request" means a certificate requesting
Revolving Loans or Swing Line Loans duly executed by an Authorized Officer
of a Borrower, substantially in the form of Exhibit B-1 hereto.
"Revolving Loan Commitment" means, relative to any Lender, such Lender's
obligation to make Revolving Loans pursuant to Section 2.1.1.
"Revolving Loan Commitment Amount" means, on any date, $50,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Revolving Loan Commitment Termination Date" means the earliest of
(a) March 1, 2001;
(b) the date on which the Revolving Loan Commitment Amount
is terminated in full or reduced to zero pursuant to Section 2.2;
and
(c) the date on which any Commitment Termination Event
occurs.
Upon the occurrence of any event described in clause (b) or (c), the
Revolving Loan Commitments shall terminate automatically and without any
further action.
"Revolving Loan Note" means a promissory note of a Borrower payable to
any Lender, in the form of Exhibit A-1 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of such Borrower to such Lender resulting from
outstanding Revolving Loans, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal thereof.
"S&P" means Standard & Poor's Corporation and its successors and assigns.
"Scotiabank" is defined in the preamble.
"Seaboard" is defined in the preamble.
"Seaboard Guaranty" means the guaranty by Seaboard of all of the
Obligations of each other Borrower, in the form of Exhibit H hereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" means "security" as defined in section 2(1) of the Securities
Act.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer, director of finance, or comptroller of any
Borrower.
"Stated Maturity Date" means March 1, 2001.
"Subsidiary" means, at any time, a corporation that, in accordance with
GAAP, is properly included in a consolidated balance sheet of Seaboard and
its consolidated subsidiaries prepared at such time, as a subsidiary of
Seaboard.
"Subsidiary Funded Debt" means, at any time, with respect to any
Subsidiary,
(a) Funded Debt of such Subsidiary, and
(b) Preferred Stock of such Subsidiary.
For purposes of determining the amount of Subsidiary Funded Debt at any time,
the amount of Subsidiary Funded Debt shall include the amount of the principal
of all indebtedness constituting Subsidiary Funded Debt, the amount of accrued
and unpaid interest thereon, the par or stated value of all Preferred Stock
constituting Subsidiary Funded Debt, and the amount of declared but unpaid
dividends thereon, and any other amounts due in respect of such indebtedness
and Preferred Stock.
"Subsidiary Stock" means the capital stock of any Subsidiary and any
security exchangeable for, or convertible into, such capital stock.
"Successor Corporation" is defined in Section 7.2.1.
"Swing Line Lender" means Chase, in its individual capacity hereunder
(and not in its capacity as a Co-Managing Agent or the Syndication Agent).
At the request of Chase another Lender consented to by Seaboard (such consent
not to be unreasonably withheld) may become a successor Swing Line Lender.
"Swing Line Loan Borrowing" means Swing Line Loans made by the Swing
Line Lender on the same Business Day pursuant to a Revolving Loan Borrowing
Request in accordance with Section 2.1.
"Swing Line Loan Commitment" is defined in Section 2.1.2.
"Swing Line Loan Commitment Amount" means, on any day, $10,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Swing Line Loan Note" means any promissory note of a Borrower in the
form of Exhibit A-3 hereto (as such promissory note may be amended, endorsed
or otherwise modified from time to time), evidencing the aggregate
Indebtedness of such Borrower to the Swing Line Lender resulting from Swing
Line Loans outstanding from the Swing Line Lender, and also means all other
promissory notes accepted from time to time in substitution therefor or
renewal thereof.
"Swing Line Loans" is defined in Section 2.1.2.
"Syndication Agent" is defined in the preamble.
"Taxes" is defined in Section 4.6.
"Transfer" is defined in Section 7.2.5.
"type" means, relative to any Revolving Loan, the portion thereof, if
any, being maintained as a Base Rate Loan or a LIBO Rate Loan, and relative
to any Swing Line Loan, the portion thereof, if any, being maintained as a
Base Rate Loan or a Money Market Loan.
"Unamortized Tax Incentive Grants and Tax Incentive Financings" means,
at any time, the amount included in liabilities on a consolidated balance
sheet of Seaboard and the Subsidiaries prepared in accordance with GAAP at
such time in respect of all monies granted by political subdivisions as
contractual concessions for economic development by Seaboard or its
Subsidiaries in such political subdivisions.
"United States" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"Unrestricted Cash" means, with respect to any Person, the aggregate
amount of cash and Cash Equivalents on hand, and all cash and Cash
Equivalents on deposit in a bank which are not subject to any Lien or other
restriction and are not dedicated to any specific use or purpose.
"Voting Stock" means capital stock of any class or classes of a
corporation the holders of which are ordinarily, in the absence of
contingencies, entitled to vote in the election of corporate directors (or
Persons performing similar functions).
"Welfare Plan" means a "welfare plan", as such term is defined in section
3(1) of ERISA.
"Wholly-Owned Subsidiaries" means, at any time, a Subsidiary all of the
capital stock of which, and securities convertible into, exchangeable for, or
representing the right to purchase, such capital stock (other than directors'
qualifying shares) is owned at such time by any one or more of Seaboard and the
other Wholly-Owned Subsidiaries, free of any Lien.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each Note, Borrowing Request, Continuation/Conversion Notice, Loan Document,
notice and other communication delivered from time to time in connection with
this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in
any Article, Section or definition to any clause are references to such clause
of such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless
otherwise specified, all accounting terms used herein or in any other Loan
Document shall be interpreted, all accounting determinations and computations
hereunder or thereunder (including under Section 7.2.2 through Section 7.2.6,
inclusive, and Section 7.2.8) shall be made, and all financial statements
required to be delivered hereunder or thereunder shall be prepared, in
accordance with those generally accepted accounting principles ("GAAP")
applied in the preparation of the financial statements referred to in Section
6.2.
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION 2.1. Commitments. On the terms and subject to the
conditions of this Agreement (including Article V),
(a) each Lender severally agrees to make Revolving Loans
pursuant to the Revolving Loan Commitments described in Section
2.1.1; and
(b) the Swing Line Lender agrees to make Swing Line Loans
pursuant to the Swing Loan Commitment described in Section 2.1.2.
SECTION 2.1.1. Revolving Loan Commitment. From time to time on any
Business Day occurring prior to the Revolving Loan Commitment Termination
Date, each Lender will make Loans (relative to such Lender, its "Revolving
Loans") to the any Borrower equal to such Lender's Percentage of the aggregate
amount of the Borrowing of the Revolving Loans requested by such Borrower to
be made on such day. The Commitment of each Lender described in this Section
2.1.1 is herein referred to as its "Revolving Loan Commitment". On the terms
and subject to the conditions hereof, a Borrower may from time to time borrow,
prepay and reborrow the Revolving Loans.
SECTION 2.1.2. Swing Line Loan Commitment. From time to time on any
Business Day occurring prior to the Revolving Loan Commitment Termination
Date, the Swing Line Lender will make loans (referred to herein as "Swing
Line Loans") to any Borrower as Base Rate Loans or Money Market Loans equal
to the aggregate amount of Swing Line Loans being requested by such Borrower
to be made on such day. The commitment of the Swing Line Lender described
in this Section 2.1.2 is herein referred to as its "Swing Line Loan
Commitment." On the terms and subject to the conditions hereof, a Borrower
may from time to time prior to the Revolving Loan Commitment Termination
Date, borrow, prepay and reborrow Swing Line Loans.
SECTION 2.1.3. Lenders Not Permitted or Required to Make Revolving
Loans or Swing Line Loans. No Lender shall be permitted or required to make
any Revolving Loan or Swing Line Loan if, after giving effect thereto and to
any repayment of Credit Extensions to be made with the proceeds thereof, the
aggregate unpaid principal amount of
(a) all Loans outstanding to all Lenders would exceed the
Loan Commitment Amount; or
(b) all Swing Line Loans outstanding to the Swing Line
Lender would exceed the Swing Line Loan Commitment Amount.
SECTION 2.2. Reduction of Commitments. Seaboard may, from time to
time on any Business Day occurring after the time of the initial Borrowing
hereunder, voluntarily reduce the Revolving Loan Commitment Amount or the
Swing Line Loan Commitment Amount; provided, however, that (i) all such
reductions shall require at least three Business Days' prior written
irrevocable notice to the Agents and be permanent, and (ii) any partial
reduction of (A) the Revolving Loan Commitment Amount shall be in a minimum
amount of $5,000,000 and in an integral multiple of $500,000, and (B) the
Swing Line Loan Commitment Amount shall be in a minimum amount of $1,000,000
and in an integral multiple of $250,000; and provided, further, that Seaboard
may terminate the Commitments in whole if, at the time of and as a condition
of such termination, the Borrowers shall have repaid in full the aggregate
outstanding principal amount of all Revolving Loans and Swing Line Loans,
together with all accrued interest and fees thereon to the date of
termination.
SECTION 2.3. Revolving Loan and Swing Line Loan Borrowing Procedure
and Funding Maintenance.
(a) Revolving Loans. By delivering a Revolving Loan
Borrowing Request to the Syndication Agent, on a Business Day, any
Borrower may from time to time irrevocably request, (x) on not less
than three nor more than five Business Days' notice, at or before
10:00 a.m. (New York City time), in the case of LIBO Rate Loans, and
(y) at or before 10:30 a.m. (New York City time) on the date of the
proposed Revolving Loan Borrowing, but not more than five Business
Days prior to such date, in the case of Base Rate Loans, that a
Revolving Loan Borrowing be made by all the Lenders in a minimum
amount of $5,000,000 and an integral multiple of $500,000, or, if
less, in the unused amount of the Revolving Loan Commitment. The
Syndication Agent shall promptly notify each Lender of the receipt
of a Revolving Loan Borrowing Request. On the terms and subject to
the conditions of this Agreement, each Revolving Loan Borrowing
shall be comprised of the type of Revolving Loans, and shall be made
on the Business Day, specified in such Revolving Loan Borrowing
Request. On or before 11:00 a.m. (New York City time), in the case
of LIBO Rate Loans, and 12:00 (noon) (New York City time), in the
case of Base Rate Loans, on the Business Day that such Revolving
Loan Borrowing is to be made, each Lender shall deposit with the
Syndication Agent immediately available funds in an amount equal to
such Lender's Percentage of the requested Revolving Loan Borrowing.
Such deposit will be made to an account which the Syndication Agent
shall specify from time to time by notice to the Lenders. To the
extent funds are received from the Lenders, the Syndication Agent
shall make such funds available to the Borrower by wire transfer to
the accounts such Borrower shall have specified in its Revolving
Loan Borrowing Request. No Lender's obligation to make any
Revolving Loan shall be affected by any other Lender's failure to
make any Revolving Loan.
(b) Swing Line Loans. By written or telephonic notice to
the Swing Line Lender on or before 3:00 p.m. (New York City time),
on a Business Day any Borrower may from time to time request that a
Swing Line Loan Borrowing be made by the Swing Line Lender on such
Business Day (or the next succeeding Business Day) in an aggregate
minimum principal amount of $1,000,000 and an integral multiple of
$250,000. All telephonic notices shall be confirmed on the same
Business Day by the delivery to the Syndication Agent of an
appropriately completed Revolving Loan Borrowing Request. On the
terms and subject to the conditions of this Agreement, each Swing
Line Loan Borrowing shall be comprised of the type of Swing Line
Loans specified in such Revolving Loan Borrowing Request. The
proceeds of the Swing Line Loans shall be made available by the
Swing Line Lender to such Borrower by wire transfer of such proceeds
to such transferees, or to such accounts of such Borrower, as such
Borrower shall have specified in its Revolving Loan Borrowing
Request.
(c) Failure to Repay Swing Line Loans. If the outstanding
principal amount of any Swing Line Loan is not repaid when due
pursuant to the terms of this Agreement, each Lender (other than the
Swing Line Lender) irrevocably agrees that it will, upon receipt of
a notice from the Swing Line Lender, promptly (and in any event
within one Business Day) transfer to the Swing Line Lender, in
immediately available funds, an amount equal to such Lender's
Percentage of the then aggregate outstanding amount of all Swing
Line Loans, and thereafter such Loans shall constitute a Revolving
Loan made by such Lender thereunder; provided, however, that the
obligation of each Lender to make such Revolving Loans shall not be
subject to the satisfaction of any of the conditions precedent set
forth in Section 5.2.
SECTION 2.4. Continuation and Conversion Elections. By delivering
a Continuation/Conversion Notice to the Syndication Agent on or before 10:00
a.m., New York time, on a Business Day, any Borrower may from time to time
irrevocably elect, on not less than three nor more than five Business Days'
notice that all, or any portion in an aggregate minimum amount of $5,000,000
and an integral multiple of $500,000, of any Revolving Loans made to such
Borrower be, in the case of Base Rate Loans, converted into LIBO Rate Loans
or, in the case of LIBO Rate Loans, be converted into a Base Rate Loan or
continued as a LIBO Rate Loan (in the absence of delivery of a Continuation/
Conversion Notice with respect to any LIBO Rate Loan at least three Business
Days before the last day of the then current Interest Period with respect
thereto, such LIBO Rate Loan shall, on such last day, automatically convert
to a Base Rate Loan); provided, however, that (x) each such conversion or
continuation shall be pro rated among the applicable outstanding Revolving
Loans of all Lenders, and (y) no portion of the outstanding principal amount
of any Revolving Loans may be continued as, or be converted into, LIBO Rate
Loans when any Default has occurred and is continuing.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder, or to make
a Competitive Bid Loan based on a LIBOR Auction, by causing one of its
foreign branches or Affiliates (or an international banking facility created
by such Lender) to make or maintain such LIBO Rate Loan or Competitive Bid
Loan, as the case may be; provided, however, that such LIBO Rate Loan or
Competitive Bid Loan, as the case may be, shall nonetheless be deemed to have
been made and to be held by such Lender, and the obligation of a Borrower to
repay such LIBO Rate Loan or Competitive Bid Loan, as the case may be, shall
nevertheless be to such Lender for the account of such foreign branch,
Affiliate or international banking facility; and provided, further, that no
Lender shall cause any such foreign branch, Affiliate or international banking
facility to make or maintain any LIBO Rate Loan or Competitive Bid Loan that
would subject a Borrower to costs beyond what its costs would be if such
Lender itself had made or maintained such LIBO Rate Loan or Competitive Bid
Loan at that time, except that such foreign branch, Affiliate or international
banking facility may maintain a LIBO Rate Loan or Competitive Bid Loan that
it made or already has been maintaining itself. In addition, each Borrower
hereby consents and agrees that, for purposes of any determination to be made
for purposes of Sections 4.1, 4.2, 4.3 or 4.4, it shall be conclusively
assumed that each Lender elected to fund all LIBO Rate Loans and Competitive
Bid Loans based on a LIBOR Auction by purchasing Dollar deposits in its LIBOR
Office's interbank eurodollar market.
SECTION 2.6. Competitive Bid Loans. Subject to the terms and
conditions of this Agreement (including Article V), each Lender severally
agrees that any Borrower may request that Competitive Bid Loan Borrowings
under this Section 2.6 be made from time to time on any Business Day prior
to the date occurring 15 Business Days prior to the Revolving Loan Commitment
Termination Date in the manner set forth below; provided, however, that
following the making of each Competitive Bid Loan Borrowing, the aggregate
amount of all Loans then outstanding shall not exceed the Revolving Loan
Commitment Amount.
(a) Competitive Bid Loan Borrowing Request. A Borrower may
request Competitive Bid Loan Borrowings under this Section 2.6 by
delivering to the Syndication Agent, not later than 10:00 a.m. (New
York City time) at least (x) five Business Days prior to the date of
the proposed Competitive Bid Loan Borrowing (in the case of LIBOR
Auctions) or (y) one Business Day prior to the date of the proposed
Competitive Bid Loan Borrowing (in the case of an Absolute Rate
Auction), a revocable Competitive Bid Loan Borrowing Request (which
shall constitute an invitation to the Lenders to extend Competitive
Bid Loan Offers to such Borrower, and which may contain requests for
up to three different Competitive Bid Loan Borrowings), specifying
(i) the proposed date (which shall be a Business
Day) and aggregate principal amount or amounts of each
Competitive Bid Loan to be made as part of such proposed
Competitive Bid Loan Borrowing (each of which such Competitive
Bid Loan shall be in a minimum principal amount of $5,000,000
and in an integral multiple of $1,000,000 (and, subject to the
proviso contained in the first sentence of this Section, which
principal amount may exceed the Revolving Loan Commitment
Amount then available to be borrowed),
(ii) whether the Competitive Bid Loan Offers
requested are to set forth a LIBO Rate Bid Margin or an
Absolute Rate (or a combination thereof),
(iii) the proposed maturity date or dates (each a
"Competitive Bid Loan Maturity Date") for repayment of each
Competitive Bid Loan to be made as part of such Competitive
Bid Loan Borrowing (which maturity date or dates may not be
later than the earlier of (A) the date occurring six months
after the date of such Competitive Bid Loan Borrowing or (B)
the Revolving Loan Commitment Termination Date),
(iv) in the case of Competitive Bid Loans based on
the LIBOR Auction, the proposed duration of the Interest
Period applicable thereto, and
(v) how the proceeds of the Competitive Bid Loans
will be applied.
(b) Invitation for Competitive Bid Loan Offers. Promptly
upon receipt of a Competitive Bid Loan Borrowing Request but in no
event later than 2:30 p.m. (New York City time) on the date of such
receipt, the Syndication Agent shall send to the Lenders by
facsimile an Invitation for Competitive Bid Loan Offers containing
the information contained in the applicable Competitive Bid Loan
Request and which shall constitute an invitation by the applicable
Borrower to each Lender to submit Competitive Bid Loan Offers in
response thereto.
(c) Submission and Contents of Competitive Bid Loan Offers.
(i) If any Lender, in its sole discretion, elects
to offer to make a Competitive Bid Loan to the applicable
Borrower as part of such proposed Competitive Bid Loan
Borrowing at a rate of interest specified by such Lender in
its sole discretion, it shall deliver to the Syndication Agent
not later than (x) 11:00 a.m. (New York City time) on the
fourth Business Day prior to the proposed date of Borrowing,
in the case of a LIBOR Auction or (y) 9:30 a.m. (New York City
time) on the proposed date of Borrowing, in the case of an
Absolute Rate Auction, a Competitive Bid Loan Offer, which
must comply with the requirements of this clause, and be in
the form of Exhibit C-2 hereto; provided, that Competitive Bid
Loan Offers submitted by the Syndication Agent (or any
Affiliate of the Syndication Agent) in the capacity of a
Lender may be submitted, and may only be submitted, if the
Syndication Agent or such Affiliate notifies such Borrower of
the terms of the offer or offers contained therein not later
than (x) 10:45 a.m. (New York City time) on the fourth
Business Day prior to the proposed date of Borrowing, in the
case of a LIBOR Auction or (y) 9:15 a.m. (New York City time)
on the proposed date of Borrowing, in the case of an Absolute
Rate Auction. Subject to Articles V and VIII, such
Competitive Bid Loan Offer shall be irrevocable except with
the written consent of the Syndication Agent, given on the
instructions of the applicable Borrower, and shall specify
(A) the proposed date of Borrowing, which
shall be the same as that set forth in the applicable
Invitation for Competitive Bid Loan Offers,
(B) the principal amount of the
Competitive Bid Loan which such Lender would be
willing to make as part of such proposed Competitive
Bid Loan Borrowing, which principal amount may be
greater than, less than or equal to such Lender's
Percentage of the Revolving Loan Commitment Amount,
but which amount shall be in a minimum principal
amount of $5,000,000 and in an integral multiple of
$1,000,000,
(C) in the case of a LIBOR Auction, the
LIBO Rate Bid Margin, and in the case of an Absolute
Rate Auction, the Absolute Rate therefor, and
(D) the identity of the quoting Lender.
(ii) Any Competitive Bid Loan Offer that:
(A) is not substantially in the form of
Exhibit C-2 hereto or does not specify all of the
information required in clause (c) of this Section;
(B) contains qualifying, conditional or
similar language;
(C) contains proposed terms other than or
in addition to those set forth in the applicable
Invitation for Competitive Bid Loan Offers; or
(D) arrives after the time set forth in
clause (c) of this Section
shall be disregarded by the Syndication Agent.
(d) Notice to Borrower. The Syndication Agent shall (by
telephone confirmed by telecopy), by 1:00 p.m. (New York City time)
(on the fourth Business Day prior to the proposed date of Borrowing,
in the case of a LIBOR Auction) and 10:00 a.m. (New York City time)
(on the proposed date of Borrowing, in the case of an Absolute Rate
Auction) notify the applicable Borrower of the terms of any
Competitive Bid Loan Offer submitted by a Lender that is in
accordance with clause (c) of this Section. Any subsequent
Competitive Bid Loan Offer of a Lender shall be disregarded by the
Syndication Agent unless such subsequent Competitive Bid Loan Offer
is submitted solely to correct a manifest error in such earlier
Competitive Bid Loan Offer. The Syndication Agent's notice to such
Borrower shall specify (A) the aggregate principal amount of
Competitive Bid Loans for which offers have been received in respect
of the related Invitation for Competitive Bid Loan Offers, (B) the
respective principal amounts and Competitive Bid Rates so offered,
and (C) the identity of such quoting Lenders.
(e) Competitive Bid Loan Acceptance. The applicable
Borrower shall, in turn, before (x) 4:00 p.m. (New York City time)
on the fourth Business Day prior to the proposed date of Borrowing,
in the case of a LIBOR Auction, or (y) 12:00 (noon) (New York City
time) on the date of such proposed Competitive Bid Loan Borrowing,
in the case of an Absolute Rate Auction, either
(i) irrevocably cancel the Competitive Bid Loan
Borrowing Request that requested such Competitive Bid Loan
Borrowing by giving the Syndication Agent (which shall
promptly notify each Lender) telephonic notice (promptly
confirmed in writing) to that effect (and, for purposes of
this Section, a failure on the part of such Borrower to timely
notify the Syndication Agent under the terms of this clause
shall be deemed to be non-acceptance of all offers so notified
to it pursuant to clause (d) above), or
(ii) irrevocably accept one or more of the offers
made by any Lender or Lenders pursuant to clause (d) above, in
its sole discretion, by giving the Syndication Agent
telephonic notice (and the Syndication Agent shall, promptly
upon receiving such telephonic notice from such Borrower,
notify each Lender whose Competitive Bid Loan Offer has been
accepted) (promptly confirmed in writing by delivery to the
Syndication Agent of a Competitive Bid Loan Acceptance, copies
of which shall thereafter be forwarded to each of the Lenders)
of
(A) the amount of the Competitive Bid Loan
Borrowing to be made on such date,
and
(B) the amount of the Competitive Bid Loan
(which amount shall not be greater than, but which may
be less than, the amount offered by such Lender for
such Competitive Bid Loan pursuant to clause (d)
above) to be made by such Lender as part of such
Competitive Bid Loan Borrowing,
and reject any remaining offers made by Lenders pursuant to
clause (d) above by giving the Syndication Agent (which shall
promptly give to the Lenders) notice to that effect;
provided, however, that
(A) the aggregate amount of the
Competitive Bid Loan Offers accepted by such Borrower
shall not exceed the principal amount specified in the
applicable Competitive Bid Loan Borrowing Request,
(B) if Competitive Bid Loan Offers are
made by two or more Lenders at the same rate and
acceptance of all such equal Competitive Bid Loan
Offers would result in a greater principal amount of
Competitive Bid Loan Offers being accepted than the
aggregate principal amount specified in the applicable
Competitive Bid Loan Borrowing Request, if such
Borrower elects to accept any of such Competitive Bid
Loan Offers such Borrower shall accept such
Competitive Bid Loan Offers pro rata from such Lenders
(on the basis of the maximum amounts of such
Competitive Bid Loan Offers) unless any such Lender's
pro rata share would be less than the minimum amount
specified by such Lender in its Competitive Bid Loan
Offer, in which case such Borrower shall have the
right to accept one or more such equal Competitive Bid
Loan Offers in their entirety and reject the other
equal Competitive Bid Loan Offer or Competitive Bid
Loan Offers or to allocate acceptance among all such
equal Competitive Bid Loan Offers (but giving effect
to the minimum and maximum amounts specified for each
such Competitive Bid Loan Offer), as such Borrower may
elect in its sole discretion.
(C) no bid shall be accepted for a
Competitive Bid Loan unless such Competitive Bid Loan
is in a minimum principal amount of $5,000,000 (except
as provided in clause (B) above) and an integral
multiple of $1,000,000 (except as provided in clause
(B) above) and is part of a Competitive Bid Loan
Borrowing in a minimum principal amount of $5,000,000,
and
(D) such Borrower may not accept any offer
that is described in clause (c)(ii) of this Section,
or that otherwise fails to comply with the
requirements of this Agreement.
(f) Funding of Competitive Bid Loans. Not later than 11:00
a.m. (New York City time) (in the case of a Borrowing based on a
LIBOR Auction) and 1:00 p.m. (New York City time) (in the case of a
Borrowing based on an Absolute Rate Auction), in each case on the
date specified for each Competitive Bid Loan hereunder, each Lender
participating therein shall make available the amount of the
Competitive Bid Loan to be made by it on such date to the
Syndication Agent in immediately available funds, for the account of
the applicable Borrower, such deposit to be made to an account
maintained by the Syndication Agent, as the Syndication Agent shall
specify from time to time by notice to the Lenders or as otherwise
agreed to in writing by the Syndication Agent and such Borrower.
The amount so received by the Syndication Agent shall promptly be
made available to such Borrower by depositing the same in
immediately available funds in an account of such Borrower's
notified to the Syndication Agent in writing.
SECTION 2.7. Notes. Each Lender's Loans to each Borrower under its
Commitments shall be evidenced by a Note of such Borrower payable to the order
of such Lender in a maximum principal amount equal to
(a) in the case of Revolving Loans, such Lender's
Percentage of the original Revolving Loan Commitment Amount;
(b) in the case of Competitive Bid Loans, $50,000,000; and
(c) in the case of the Swing Line Lender with respect to
Swing Line Loans, $10,000,000.
Each Borrower hereby irrevocably authorizes each Lender to make (or cause to
be made) appropriate notations on the grid attached to such Lender's Note (or
on any continuation of such grid), which notations, if made, shall evidence,
inter alia, the date of, the outstanding principal amount of, and the interest
rate and Interest Period (in the case of Revolving Loan Notes) and the
Competitive Bid Loan Maturity Dates and Interest Period (if applicable) (in
the case of Competitive Bid Loan Notes) applicable to the Loans evidenced
thereby. Such notations shall be prima facie evidence of the matters stated
therein, absent manifest error; provided, however, that the failure of any
Lender to make any such notations shall not limit or otherwise affect any
Obligations of the applicable Borrower.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments. Each Borrower shall repay
in full the unpaid principal amount of each Revolving Loan and each Swing
Line Loan made as a Base Rate Loan taken by such Borrower upon the Stated
Maturity Date therefor, each Money Market Loan taken by such Borrower upon
the Money Market Loan Maturity Date therefor and each Competitive Bid Loan
taken by such Borrower upon the Competitive Bid Loan Maturity Date therefor.
Prior thereto, each Borrower
(a) may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding
principal amount of any Revolving Loans or Swing Line Loans;
provided, however, that
(i) any such prepayment of Revolving Loans shall be
made pro rata among Revolving Loans of the same type and, if
applicable, having the same Interest Period of all Lenders;
(ii) no such prepayment of any LIBO Rate Loan or a
Competitive Bid Loan may be made on any day other than the
last day of the Interest Period for such Loan, unless such
Borrower has paid any costs required pursuant to Section 4.4;
(iii) all such voluntary prepayments shall require at
least one but no more than five Business Days' prior written
notice to the Syndication Agent, which shall promptly notify
the Lenders; and
(iv) all such voluntary partial prepayments shall be
in an aggregate minimum amount of $5,000,000 and an integral
multiple of $500,000, and in the case of Swing Line Loans, be
in an aggregated minimum amount of $1,000,000 and an integral
multiple of $250,000; and
(b) shall, on each date when any reduction in the Revolving
Loan Commitment Amount shall become effective, including pursuant to
Section 2.2, make a mandatory prepayment (i) first, of all Swing
Line Loans, and (ii) second, if necessary, of all Loans other than
Swing Line Loans, equal to the excess, if any, of the aggregate,
outstanding principal amount of all Loans over the Revolving Loan
Commitment Amount as so reduced.
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 4.4. No voluntary
prepayment of principal of any Revolving Loans or Swing Line Loans shall
cause a reduction in the Revolving Loan Commitment Amount or the Swing Line
Loan Commitment Amount, as the case may be.
SECTION 3.2. Interest Provisions. Interest on the outstanding
principal amount of Loans shall accrue and be payable in accordance with
this Section 3.2.
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered
Borrowing Request or Continuation/Conversion Notice, the applicable Borrower
may elect that Loans comprising a Borrowing accrue interest at a rate per
annum:
(a) on that portion maintained from time to time as a Base
Rate Loan, equal to the Alternate Base Rate from time to time in
effect;
(b) on that portion maintained as a LIBO Rate Loan, during
each Interest Period applicable thereto, equal to the sum of the
LIBO Rate (Reserve Adjusted) for such Interest Period plus the
Applicable Margin;
(c) on that portion maintained as a Money Market Loan,
equal to the applicable Money Market Rate quoted by the Swing Line
Lender for such Money Market Loan; and
(d) on that portion of such Borrowing maintained as
Competitive Bid Loans, equal to the applicable Competitive Bid Rate
specified by the Lender making such Competitive Bid Loan in its
Competitive Bid Loan Offer with respect thereto delivered by such
Lender and accepted by such Borrower pursuant to Section 2.6.
All LIBO Rate Loans shall bear interest from and including the first day of
the applicable Interest Period to (but not including) the last day of such
Interest Period at the interest rate determined as applicable to such LIBO
Rate Loan. The Syndication Agent shall promptly notify the applicable Borrower
and the Lenders of its determination of the interest rate applicable to each
LIBOR Rate Loan and each Competitive Bid Loan based upon a LIBOR Auction, which
determination shall be conclusive, absent manifest error. Upon the request
of any Borrower, the Syndication Agent shall advise such Borrower of the
Alternate Base Rate from time to time in effect.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount
of any Loan is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise), or after any other monetary Obligation of any
Borrower shall have become due and payable, such Borrower shall pay, but only
to the extent permitted by law, interest (after as well as before judgment) on
such amounts at a rate per annum equal to the Alternate Base Rate plus a margin
of 2%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall
be payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or
in part, of principal outstanding on such Loan;
(c) with respect to Base Rate Loans and Money Market Loans,
on each Monthly Payment Date occurring after the date of the initial
Borrowing hereunder;
(d) with respect to Competitive Bid Loans based on an
Absolute Rate, on each Competitive Bid Loan Maturity Date and, with
respect to Competitive Bid Loans based on an Absolute Rate with a
Competitive Bid Loan Maturity Date in excess of three months, on
each Quarterly Payment Date occurring after the making of such Loan;
(e) with respect to LIBO Rate Loans and Competitive Bid
Loans based on a LIBOR Auction, the last day of each applicable
Interest Period (and, if such Interest Period shall exceed 90 days,
on the 90th day of such Interest Period);
(f) with respect to any Base Rate Loans converted into LIBO
Rate Loans on a day when interest would not otherwise have been
payable pursuant to clause (c), on the date of such conversion; and
(g) on that portion of any Loans the Stated Maturity Date
of which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.2.4. Interest Rate Determination. Each reference Lender agrees
to furnish to the Syndication Agent timely information for the purpose of
determining each LIBO Rate. If any one or more of the Reference Lenders shall
fail timely to furnish such information to the Syndication Agent for any such
interest rate, the Syndication Agent shall determine such interest rate on the
basis of the information furnished by the remaining Reference Lenders.
SECTION 3.3. Fees. Seaboard agrees to pay the fees set forth in this
Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Facility Fee. Seaboard agrees to pay to the
Syndication Agent for the account of each Lender, for the period (including any
portion thereof when any of its Commitments are suspended by reason of Seaboard
or any other Borrower's inability to satisfy any condition of Article V)
commencing on the date hereof and continuing through the Revolving Loan
Commitment Termination Date, a facility fee at the Applicable Facility Fee Rate
on such Lender's Percentage of the Revolving Loan Commitment Amount. Such
facility fees shall be payable by Seaboard in arrears on each Quarterly Payment
Date, commencing with the first such day following the date hereof and on the
Revolving Loan Commitment Termination Date.
SECTION 3.3.2. Co-Managing Agents' Fees. Seaboard agrees to pay to
each Co-Managing Agent, for its own account, the non-refundable fees in the
amounts and on the dates set forth in the Fee Letter.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall
determine (which determination shall, upon notice thereof to Seaboard and
the Syndication Agent, be conclusive and binding on the applicable Borrowers)
that the introduction of or any change in or in the interpretation of any law
makes it unlawful, or any central bank or other governmental authority asserts
that it is unlawful, for such Lender to make, continue or maintain any Loan as,
or to convert any Loan into, a LIBO Rate Loan, or to make or maintain any
Competitive Bid Loan based on a LIBOR Auction, the obligations of all Lenders
to make, continue, maintain or convert any such Loans shall, upon such
determination, forthwith be suspended until such Lender shall notify the
Syndication Agent that the circumstances causing such suspension no longer
exist, and all LIBO Rate Loans shall automatically convert into Base Rate
Loans at the end of the then current Interest Periods with respect thereto
or sooner, if required by such law or assertion. If any Lender shall make
such determination with respect to the making or maintaining of a Competitive
Bid Loan based on a LIBOR Auction and such Competitive Bid Loan is required
by law or assertion to be prepaid on a date prior to the end of the Interest
Period therefor, then the applicable Borrower shall prepay such Competitive
Bid Loan on such date.
SECTION 4.2. Deposits Unavailable. If the Syndication Agent shall
have determined that
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to Chase in its relevant
market; or
(b) by reason of circumstances affecting the Reference
Lenders or the relevant market, adequate means do not exist for
ascertaining the interest rate applicable hereunder to LIBO Rate
Loans or Competitive Bid Loans based on a LIBOR Auction,
then, upon notice from the Syndication Agent to Seaboard and the Lenders, the
obligations of all Lenders under Section 2.4 and Section 2.5 to make or
continue any Loans as, or to convert any Loans into, LIBO Rate Loans or the
right of any Borrower to solicit any Competitive Bid Loans based on a LIBOR
Auction shall forthwith be suspended until the Syndication Agent shall notify
Seaboard and the Lenders that the circumstances causing such suspension no
longer exist.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. Each Borrower
agrees to reimburse each Lender for any increase in the cost to such Lender
of, or any reduction in the amount of any sum receivable by such Lender in
respect of, making, continuing or maintaining (or of its obligation to make,
continue or maintain) any Loans as, or of converting (or of its obligation
to convert) any Revolving Loans into, LIBO Rate Loans or Competitive Bid
Loans based on LIBOR Auctions. Such Lender shall notify the Syndication Agent
and the applicable Borrower in writing of the occurrence of any such event
within five (5) days of such Lender becoming aware of any such event, such
notice to state, in reasonable detail, the reasons therefor and the additional
amount required fully to compensate such Lender for such increased cost or
reduced amount. Such additional amounts shall be payable by such Borrower
directly to such Lender within five days of its receipt of such notice.
SECTION 4.4. Funding Losses. In the event any Lender shall incur
any loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any
Loan as a LIBO Rate Loan or a Competitive Bid Loan based on a LIBOR Auction,
or to convert any portion of the principal amount of any Revolving Loan into,
a LIBO Rate Loan) as a result of
(a) any repayment or prepayment of the principal amount of
any LIBO Rate Loans or Competitive Bid Loans based on LIBOR Auctions
or any conversion of a LIBO Rate Loan on a date other than the
scheduled last day of the Interest Period applicable thereto,
whether pursuant to Section 3.1 or otherwise;
(b) any Loans (i) not being made as, or (ii) being made as
Loans other than as, LIBO Rate Loans or Competitive Bid Loans based
on LIBOR Auctions, in each case, in accordance with the Revolving
Loan Borrowing Request or Competitive Bid Loan Acceptance therefor,
as the case may be; or
(c) any Revolving Loans not being continued as, or
converted into, LIBO Rate Loans in accordance with the Continuation/
Conversion Notice therefor,
then, upon the written notice of such Lender to the applicable Borrower (with
a copy to the Syndication Agent), such Borrower shall, within five days of its
receipt thereof, pay directly to such Lender such amount as will (in the
reasonable determination of such Lender) reimburse such Lender for such loss or
expense. Each Lender shall furnish such Borrower with a certificate setting
forth the basis for determining any additional amount or amounts to be paid to
it hereunder.
SECTION 4.5. Increased Capital Costs. If any change in, or
the introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority affects or would affect the amount of capital
required or expected to be maintained by any Lender or any Person controlling
such Lender, and such Lender determines (in its sole and absolute discretion)
that the rate of return on its or such controlling Person's capital as a
consequence of its Commitments or the Loans made by such Lender is reduced to a
level below that which such Lender or such controlling Person could have
achieved but for the occurrence of any such circumstance, then, such Lender
shall notify the Syndication Agent and Seaboard in writing of the occurrence
of any such circumstance within five (5) Business Days of such Lender becoming
aware of such circumstance, and Seaboard shall within five (5) Business Days
of its receipt of such notice pay directly to such Lender additional amounts
sufficient to compensate such Lender or such controlling Person for such
reduction in rate of return. Each Lender shall furnish Seaboard with a
certificate setting forth the basis for determining any additional amount or
amounts to be paid to it hereunder.
SECTION 4.6. Taxes. All payments by the Borrowers of principal of, and
interest on, the Loans and all other amounts payable hereunder (including fees)
shall be made free and clear of and without deduction for any present or future
income, excise, stamp or franchise taxes and other taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed by any taxing
authority, but excluding franchise taxes and taxes imposed on or measured by any
Lender's net income or receipts by the jurisdiction where such Lender is
organized or maintains a place of business (such non-excluded items being called
"Taxes"). Seaboard represents and warrants that any payments to be made by H&O
or Marine hereunder are not subject to any withholding or deduction therefrom in
respect of any Taxes pursuant to any law, rule or regulation of Liberia. In the
event that any withholding or deduction from any payment to be made by a
Borrower hereunder is required in respect of any Taxes pursuant to any
applicable law, rule or regulation, then such Borrower will
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to the Syndication Agent an official
receipt or other documentation satisfactory to the Syndication Agent
evidencing such payment to such authority; and
(c) pay to the Syndication Agent for the account of the
Lenders such additional amount or amounts as is necessary to ensure
that the net amount actually received by each Lender will equal the
full amount such Lender would have received had no such withholding
or deduction been required.
Moreover, if any Taxes are directly asserted against the Syndication Agent or
any Lender with respect to any payment received by the Syndication Agent or such
Lender hereunder, the Syndication Agent or such Lender may pay such Taxes and
the applicable Borrower will promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such person after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such person would have received
had not such Taxes been asserted.
If a Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Syndication Agent, for the account of the
respective Lenders, the required receipts or other required documentary
evidence, such Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure. For purposes of this Section 4.6, a distribution hereunder by
the Syndication Agent or any Lender to or for the account of any Lender shall
be deemed a payment by the applicable Borrower.
Upon the request of Seaboard or the Syndication Agent, each Lender that is
organized under the laws of a jurisdiction other than the United States shall,
prior to the due date of any payments under the Notes, execute and deliver to
Seaboard and the Syndication Agent, on or about the first scheduled payment date
in each Fiscal Year, one or more (as Seaboard or the Syndication Agent may
reasonably request) United States Internal Revenue Service Forms 4224 or Forms
1001 or such other forms or documents (or successor forms or documents),
appropriately completed, as may be applicable to establish the extent, if any,
to which a payment to such Lender is exempt from withholding or deduction of
Taxes.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by any Borrower pursuant to this Agreement, the Notes, or
any other Loan Document shall be made by such Borrower to the Syndication Agent
for the pro rata account of the Lenders entitled to receive such payment. All
such payments required to be made to the Syndication Agent shall be made,
without setoff, deduction or counterclaim, not later than 11:00 a.m., New York
time, on the date due, in same day or immediately available funds, to such
account as the Syndication Agent shall specify from time to time by notice to
Seaboard. Funds received after that time shall be deemed to have been received
by the Syndication Agent on the next succeeding Business Day. The Syndication
Agent shall promptly remit in same day funds to each Lender its share, if any,
of such payments received by the Syndication Agent for the account of such
Lender. All interest and fees shall be computed on the basis of the actual
number of days (including the first day but excluding the last day) occurring
during the period for which such interest or fee is payable over a year
comprised of 360 days. Whenever any payment to be made shall otherwise be
due on a day which is not a Business Day, such payment shall (except as
otherwise required by clause (a)(ii) of the definition of the term "Interest
Period" with respect to LIBO Rate Loans and clause (b)(i) of the definition of
"Interest Period" with respect to Competitive Bid Loans based on the LIBOR
Auction) be made on the next succeeding Business Day and such extension of
time shall be included in computing interest and fees, if any, in connection
with such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Revolving Loan or Swing Line Loan
(other than pursuant to the terms of Sections 4.3, 4.4 and 4.5) in excess of
its pro rata share of payments then or therewith obtained by all Lenders
entitled thereto, such Lender shall purchase from the other Lenders such
participation in Revolving Loans or Swing Line Loans made by them as shall be
necessary to cause such purchasing Lender to share the excess payment or other
recovery ratably with each of them; provided, however, that if all or any
portion of the excess payment or other recovery is thereafter recovered from
such purchasing Lender, the purchase shall be rescinded and each Lender which
has sold a participation to the purchasing Lender shall repay to the purchasing
Lender the purchase price to the ratable extent of such recovery together with
an amount equal to such selling Lender's ratable share (according to the
proportion of
(a) the amount of such selling Lender's required repayment
to the purchasing Lender
to
(b) total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. Each Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with respect to such participation as fully
as if such Lender were the direct creditor of such Borrower in the amount of
such participation. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Lenders entitled under this Section to share in the benefits of
any recovery on such secured claim.
SECTION 4.9. Setoff. Each Lender shall, upon the occurrence of any
Default described in clauses (a) through (d) of Section 8.1.7 or, with the
consent of the Required Lenders, upon the occurrence of any other Event of
Default, have the right to appropriate and apply to the payment of the
Obligations owing to it (whether or not then due) any and all balances, credits,
deposits, accounts or moneys of each such Borrower then or thereafter maintained
with such Lender; provided, however, that any such appropriation and application
shall be subject to the provisions of Section 4.8. Each Lender agrees promptly
to notify the applicable Borrower and the Syndication Agent after any such
setoff and application made by such Lender; provided, however, that the failure
to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff under applicable
law or otherwise) which such Lender may have.
SECTION 4.10. Use of Proceeds. Each Borrower shall apply the
proceeds of the Credit Extensions for the general corporate purposes of such
Borrower and its subsidiaries.
Without limiting the foregoing, no proceeds of any Loan will be used to
acquire any equity security of a class which is registered pursuant to Section
12 of the Securities Exchange Act of 1934 or any "margin stock", as defined in
F.R.S. Board Regulation U.
ARTICLE V
CONDITIONS TO RESTATEMENT
SECTION 5.1. Restated Agreement Effective Date. This Agreement shall
become effective on the date (the "Restated Agreement Effective Date") on which
counterparts hereof executed on behalf of each Borrower, each Agent and each
Lender (or notice thereof satisfactory to the Syndication Agent) shall have been
received by the Syndication Agent and notice thereof shall have been given by
the Syndication Agent to Seaboard and each Lender, and each of the conditions
precedent set forth in this Section 5.1 shall have been satisfied.
SECTION 5.1.1. Resolutions, etc. The Documentation Agent shall have
received from each Borrower a certificate, dated the Restated Agreement
Effective Date, of its Secretary or Assistant Secretary as to
(a) resolutions of its Board of Directors then in full
force and effect authorizing the execution, delivery and performance
of this Agreement, the Notes and each other Loan Document to be
executed by it (including, without limitation, in the case of
Seaboard, the Seaboard Guaranty); and
(b) the incumbency and signatures of those of its officers
including, without limitation, the Senior Financial Officer,
authorized to act with respect to this Agreement, the Notes and each
other Loan Document executed by it (including, without limitation,
in the case of Seaboard, the Seaboard Guaranty),
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary of such Borrower canceling or
amending such prior certificate.
SECTION 5.1.2. Delivery of Notes. The Syndication Agent shall have
received, for the account of each Lender, its Notes duly executed and delivered
by each Borrower.
SECTION 5.1.3. Opinion of Counsel. The Documentation Agent shall
have received an opinion, dated the Restated Agreement Effective Date and
addressed to the Co-Managing Agents, the Documentation Agent, the Syndication
Agent and all Lenders, from Sullivan & Worcester, counsel to Seaboard,
substantially in the form of Exhibit F hereto.
SECTION 5.1.4. Closing Fees, Expenses, etc. Each of the Co-Managing
Agents shall have received for its own account, and the Syndication Agent shall
have received for its own account, or for the account of each Lender and each
Agent other than the Co-Managing Agents, as the case may be, all fees, costs and
expenses due and payable pursuant to Sections 3.3 and 10.3, if then invoiced.
SECTION 5.1.5. No Material Adverse Change. No material adverse
change in each Borrower's business or financial condition shall have occurred
since December 31, 1994.
SECTION 5.1.6. Closing Certificate. The Syndication Agent shall have
received from Seaboard:
(a) (i) a consolidated balance sheet of Seaboard and
its consolidated subsidiaries, as at the end of the Fiscal
Quarter ended September 9, 1995, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of Seaboard and its
consolidated subsidiaries for such Fiscal Quarter and for the
portion of the Fiscal Year ending with such Fiscal Quarter,
setting forth in each case, in comparative form, the figures
for the corresponding periods in the previous Fiscal Year, all
in reasonable detail, prepared in accordance with GAAP
applicable to quarterly financial statements generally, and
certified as of the Restated Agreement Effective Date as
complete and correct, subject to changes resulting from year-end
adjustments, by a Senior Financial Officer; provided, that
delivery of copies of Seaboard's Quarterly Report on Form 10-Q
filed with the Securities and Exchange Commission shall be
deemed to satisfy the requirements of this Section 5.1.6(a) so
long as such Quarterly Report contains or is accompanied by
the information specified in this Section 5.1.6(a); and
(b) a certificate dated the Restated Agreement Effective
Date of a Senior Financial Officer of Seaboard, setting forth:
(i) Covenant Compliance. The information
(including detailed calculations) required in order to
establish whether Seaboard was in compliance with the
requirements of Section 7.2.3 and Section 7.2.4, and to
calculate the Consolidated Net Debt Ratio for the Fiscal
Quarter ended September 9, 1995 (including with respect to
each such Section, where applicable, the calculations of the
maximum or minimum amount, ratio or percentage, as the case
may be, permissible under the terms of such Sections, and the
calculation of the amount, ratio or percentage then in
existence);
(ii) a statement that the representations and
warranties contained in Article VI are true and correct on and
as of such date, as though made on and as of such date; and
(iii) a statement that no Default or Event of Default
has occurred and is continuing.
SECTION 5.1.7. Seaboard Guaranty. The Syndication Agent shall have
received the Seaboard Guaranty, duly executed and delivered by Seaboard.
SECTION 5.2. All Credit Extensions. In connection with any and each
Credit Extension, the obligation of each Lender to make any Credit Extension
shall be subject to the satisfaction of each of the conditions precedent set
forth in this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both
before and after giving effect to any Credit Extension (but, if any Default of
the nature referred to in Section 8.1.5 shall have occurred with respect to any
other Indebtedness, without giving effect to the application, directly or
indirectly, of the proceeds thereof) the following statements shall be true and
correct:
(a) the representations and warranties set forth in Article
VI (excluding, however, those contained in Section 6.6) shall be
true and correct with the same effect as if then made (unless stated
to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct as of such
earlier date).
(b) except as disclosed by Seaboard to the Documentation
Agent and the Lenders pursuant to Section 6.6,
(i) no labor controversy, litigation, arbitration
or governmental investigation or proceeding shall be pending
or, to the knowledge of Seaboard, threatened against Seaboard
or any of its Subsidiaries which might materially adversely
affect Seaboard's consolidated business, operations, assets,
revenues, properties or prospects or which purports to affect
the legality, validity or enforceability of this Agreement,
the Notes, the Seaboard Guaranty or any other Loan Document;
and
(ii) no development shall have occurred in any labor
controversy, litigation, arbitration or governmental
investigation or proceeding disclosed pursuant to Section 6.6
which might materially adversely affect the consolidated
businesses, operations, assets, revenues, properties or
prospects of Seaboard and its Subsidiaries; and
(c) no Default shall have then occurred and be continuing,
and neither Seaboard nor any of its Subsidiaries are in material
violation of any law or governmental regulation or court order or
decree.
SECTION 5.2.2. Credit Extension Request. In connection with any and
each Credit Extension, the Syndication Agent shall have received a Borrowing
Request. The delivery of a Borrowing Request and the acceptance by the
applicable Borrower of the proceeds of such Credit Extension shall constitute a
representation and warranty by such Borrower that on the date of such Credit
Extension (both immediately before and after giving effect to such Credit
Extension and the application of the proceeds thereof) the statements made in
Section 5.2.1 are true and correct.
SECTION 5.2.3. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of Seaboard or any of its Subsidiaries
shall be satisfactory in form and substance to the Agents and their counsel; the
Agents and their counsel shall have received all information, approvals,
opinions, documents or instruments as the Agents or their counsel may reasonably
request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, each Co-Managing Agent, the Syndication
Agent and the Documentation Agent to enter into this Agreement and to make
Credit Extensions hereunder, Seaboard, and to the extent relating thereto, each
other Borrower represents and warrants unto the Documentation Agent, the
Syndication Agent, each Co-Managing Agent and each Lender as set forth in this
Article VI.
SECTION 6.1. Nature of Business. The Information Memorandum (together
with all exhibits and annexes thereto, the "Information Memorandum"), dated
January 1996, and prepared by the Agents, correctly describes the general nature
of the business and principal Properties of Seaboard and the Subsidiaries as of
the date hereof.
SECTION 6.2. Financial Statements; Indebtedness; Material Adverse
Change.
(a) Financial Statements. Seaboard has provided the
Documentation Agent with the financial statements described in Item
6.2(a) of the Disclosure Schedule. Such financial statements have
been prepared in accordance with generally accepted accounting
principles consistently applied, and present fairly, in all material
respects, the consolidated financial position of Seaboard and its
consolidated Subsidiaries as of such dates and the results of their
operations and cash flows for such periods.
(b) Indebtedness. Item 6.2(b) of the Disclosure Schedule
hereto lists all Indebtedness of Seaboard and the Subsidiaries as of
the date hereof, and provides the following information with respect
to each item of such Indebtedness: the obligor, the holder thereof,
the outstanding amount, the current portion, and the collateral
securing such Indebtedness, if any.
(c) Material Adverse Change. Since December 31, 1994 there
has been no change in the business, prospects, profits, Properties
or condition (financial or otherwise) of Seaboard or any of the
Subsidiaries except changes in the ordinary course of business that,
in the aggregate for all such changes, could not reasonably be
expected to have a Material Adverse Effect.
SECTION 6.3. Subsidiaries and Affiliates. Item 6.3 of the Disclosure
Schedule hereto states
(a) the name of each of the Subsidiaries, its jurisdiction
of incorporation and the percentage of its Voting Stock owned by
Seaboard and each other Subsidiary, and
(b) the name of each Affiliate of Seaboard or any of the
Subsidiaries (other than natural persons who are Affiliates solely
as a result of their membership in the families of officers or
directors) and the nature of the affiliation.
Each of Seaboard and the Subsidiaries has good and marketable title to all of
the shares it purports to own of the stock of each Subsidiary, free and clear
in each case of any Lien. All such shares have been duly issued and are fully
paid and nonassessable.
SECTION 6.4. Title to Properties.
(a) Each of Seaboard and the Subsidiaries has good title
to all of the Property reflected in the most recent balance sheet
referred to in Section 6.2 hereof (except as sold or otherwise
disposed of in the ordinary course of business), except for such
failures to have good title as are immaterial to such financial
statements and that, in the aggregate for all such failures, could
not reasonably be expected to have a Material Adverse Effect. All
such Property is free from Liens not permitted by Section 7.2.2
hereof.
(b) Each of Seaboard and the Subsidiaries owns, possesses
or has the right to use all of the patents, trademarks, service
marks, trade names, copyrights, licenses, and rights with respect
thereto, necessary for the present and currently planned future
conduct of its business, without any known conflict with the rights
of others, except for such failures to own, possess, or have the
right to use, that, in the aggregate for all such failures, could
not reasonably be expected to have a Material Adverse Effect.
SECTION 6.5. Taxes.
(a) Returns Filed; Taxes Paid.
(i) All tax returns required to be filed by
Seaboard and each Subsidiary and any other Person with which
Seaboard or any Subsidiary files or has filed a consolidated
return in any jurisdiction have been filed on a timely basis,
and all taxes, assessments, fees and other governmental
charges upon each of Seaboard, such Subsidiary and any such
Person, and upon any of their respective Properties, income or
franchises, that are due and payable have been paid, except
for such tax returns and such tax payments that could not, in
the aggregate for all such tax returns and payments,
reasonably be expected to have a Material Adverse Effect.
(ii) All liabilities of each of Seaboard, the
Subsidiaries and the other Persons referred to in Section
6.5(a)(i) hereof with respect to federal income taxes have
been finally determined except for the Fiscal Years 1992
through 1995, the only years not closed by the completion of
an audit or the expiration of the statute of limitations.
(b) Book Provisions Adequate.
(i) The amount of the liability for taxes reflected
in each of the consolidated balance sheets referred to in
Section 6.2 hereof is in each case an adequate provision for
taxes as of the date of such balance sheets (including,
without limitation, any payment due pursuant to any tax
sharing agreement) as are or may become payable by any one or
more of Seaboard and the other Persons consolidated with
Seaboard in such financial statements in respect of all tax
periods ending on or prior to such dates.
(ii) Seaboard does not know of any proposed
additional tax assessment against it or any such Person that
is not reflected in full in the most recent balance sheet
referred to in Section 6.2 hereof.
SECTION 6.6. Pending Litigation.
(a) There are no proceedings, actions or investigations
pending or, to the knowledge of Seaboard, threatened against or
affecting Seaboard or any Subsidiary in any court or before any
Governmental Authority or arbitration board or tribunal that, in the
aggregate for all such proceedings, actions and investigations,
could reasonably be expected to have a Material Adverse Effect.
(b) Neither Seaboard nor any Subsidiary is in default with
respect to any judgment, order, writ, injunction or decree of any
court, Governmental Authority, arbitration board or tribunal that,
in the aggregate for all such defaults, could reasonably be expected
to have a Material Adverse Effect.
SECTION 6.7. Full Disclosure. The financial statements referred to in
Section 6.2 hereof do not, nor does this Agreement, the Information Memorandum
or any written statement furnished by or on behalf of any Borrower in connection
with the negotiation, execution, delivery or performance of any of the Loan
Documents contain any untrue statement of a material fact or omit a material
fact necessary to make the statements contained therein and herein not
misleading. There is no fact that any Borrower has not disclosed in writing
that has had or, so far as any Borrower can now reasonably foresee, could
reasonably be expected to have, a Material Adverse Effect.
SECTION 6.8. Corporate Organization and Authority. Each of Seaboard
and the Material Subsidiaries
(a) is a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of
incorporation,
(b) has all legal and corporate power and authority to own
and operate its Properties and to carry on its business as now
conducted and as presently proposed to be conducted,
(c) has all licenses, certificates, permits, franchises and
other governmental authorizations necessary to own and operate its
Properties and to carry on its business as now conducted and as
presently proposed to be conducted, except where the failure to have
such licenses, certificates and permits, franchises and other
governmental authorizations, in the aggregate for all such failures,
could not reasonably be expected to have a Material Adverse Effect,
and
(d) has duly qualified or has been duly licensed, and is
authorized to do business and is in good standing, as a foreign
corporation, in each state in the United States of America and in
each other jurisdiction where the failure to be so qualified or
licensed and authorized and in good standing, in the aggregate for
all such failures, could reasonably be expected to have a Material
Adverse Effect.
SECTION 6.9. Charter Instruments, Other Agreements. Neither Seaboard
nor any Subsidiary is in violation in any respect of any term of any charter
instrument or bylaw. Neither Seaboard nor any Subsidiary is in violation in any
respect of any term in any agreement or other instrument to which it is a party
or by which it or any of its Property may be bound except for such violations
that, in the aggregate for all such failures, could not reasonably be expected
to have a Material Adverse Effect.
SECTION 6.10. Restrictions on Seaboard and Subsidiaries. Neither
Seaboard nor any Subsidiary:
(a) is a party to any contract or agreement, or subject to
any charter or other corporate restriction that, in the aggregate
for all such contracts, agreements, charters and corporate
restrictions, could reasonably be expected to have a Material
Adverse Effect;
(b) is a party to any contract or agreement that restricts
the right or ability of such corporation to incur Indebtedness,
other than the Loan Documents and the agreements listed in Item 6.10
of the Disclosure Schedule, none of which restricts the execution,
delivery and performance by Seaboard or any other Borrower of this
Agreement, the Notes executed by such Borrower and each other Loan
Document executed or to be executed by it (including, without
limitation, in the case of Seaboard, the Seaboard Guaranty), and
true, correct and complete copies of each of which have been
provided to the Documentation Agent; and
(c) has agreed or consented to cause or permit in the
future (upon the happening of a contingency or otherwise) any of its
Property, whether now owned or hereafter acquired, to be subject to
a Lien not permitted by Section 7.2.2 hereof.
SECTION 6.11. Compliance with Law. Neither Seaboard nor any
Subsidiary is in violation of any law, ordinance, governmental rule or
regulation to which it is subject, which violations, in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
SECTION 6.12. ERISA.
(a) Compliance with ERISA. Seaboard and each member of the
Controlled Group are in compliance with ERISA, except for such
failures to comply that, in the aggregate for all such failures,
could not reasonably be expected to have a Material Adverse Effect.
(b) Funding Status. No accumulated funding deficiency (as
defined in section 302 of ERISA and section 412 of the Code),
whether or not waived, exists with respect to any Pension Plan.
(c) PBGC. No liability to the PBGC has been or is expected
to be incurred by Seaboard or any member of the Controlled Group
with respect to any Pension Plan that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect. No circumstance exists that constitutes grounds under
section 4042 of ERISA entitling the PBGC to institute proceedings to
terminate, or appoint a trustee to administer, any Pension Plan or
trust created thereunder, nor has the PBGC instituted any such
proceeding.
(d) Multiemployer Plans. Neither Seaboard nor any member
of the Controlled Group has incurred or presently expects to incur
any withdrawal liability under Title IV of ERISA with respect to any
Multiemployer Plan. There have been no "reportable events" (as such
term is defined in section 4043 of ERISA) with respect to any
Multiemployer Plan that could result in the termination of such
Multiemployer Plan and give rise to a liability of Seaboard or any
member of the Controlled Group in respect thereof.
(e) Foreign Pension Plan. Except as disclosed on Item 6.12
of the Disclosure Schedule, the present value of all benefits vested
under each Foreign Pension Plan, determined as of the most recent
valuation date in respect thereof, does not exceed the value of the
assets of such Foreign Pension Plan, and all required payments in
respect of the funding of such Foreign Pension Plan have been made.
SECTION 6.13. Environmental Compliance.
(a) Compliance. Each of Seaboard and the Subsidiaries is
in compliance with all Environmental Laws in effect in each
jurisdiction where it is currently doing business and in which the
failure so to comply, in the aggregate for all such failures, could
reasonably be expected to have a Material Adverse Effect.
(b) Liability. Neither Seaboard nor any Subsidiary is
subject to any liability under any Environmental Laws that, in the
aggregate for all such liabilities, could reasonably be expected to
have a Material Adverse Effect.
(c) Notices. Neither Seaboard nor any Subsidiary has
received any
(i) notice from any Governmental Authority by which
any of its currently or previously owned or leased Properties
has been identified in any manner by any Governmental
Authority as a hazardous substance disposal or removal site,
"Super Fund" clean-up site, or candidate for removal or
closure pursuant to any Environmental Law,
(ii) notice of any Lien arising under or in
connection with any Environmental Law that has attached to any
revenues of, or to, any of its currently or previously owned
or leased Properties, or
(iii) any communication, written or oral, from any
Governmental Authority concerning action or omission by
Seaboard or such Subsidiary in connection with its currently
or previously owned or leased Properties resulting in the
release of any hazardous substance resulting in any violation
of any Environmental Law,
in each case where the effect of which, in the aggregate for all
such notices and communications, could reasonably be expected to
have a Material Adverse Effect.
SECTION 6.14. Due Authorization, Non-conflict; Obligations are
Enforceable.
(a) Due Authorization, Non-conflict. The execution,
delivery and performance by each Borrower of this Agreement, the
Notes executed by such Borrower and each other Loan Document
executed or to be executed by it (including, without limitation, in
the case of Seaboard, the Seaboard Guaranty):
(i) is within the corporate powers of such
Borrower; and
(ii) is legal and does not conflict with, result in
any breach of any of the provisions of, constitute a default
under, or result in the creation of any Lien upon any Property
of such Borrower or any Subsidiary under the provisions of,
any agreement, charter instrument, bylaw or other instrument
to which it is a party or by which it or any of its Property
may be bound.
(b) Obligations are Enforceable. Each of this Agreement,
the Notes executed by each Borrower and each other Loan Document
executed or to be executed by such Borrower (including, without
limitation, in the case of Seaboard, the Seaboard Guaranty) has been
duly authorized by all necessary action on the part of such the
Borrower, has been, or will be, executed and delivered by duly
authorized officers of such Borrower, and constitutes, or will
constitute upon the due execution and delivery thereof, a legal,
valid and binding obligation of such Borrower, enforceable in
accordance with its terms, except that the enforceability of the
Loan Documents may be:
(i) limited by applicable bankruptcy,
reorganization, arrangement, insolvency, moratorium, or other
similar laws affecting the enforceability of creditors' rights
generally; and
(ii) subject to the availability of equitable
remedies.
SECTION 6.15. Governmental Consent. Neither the nature of Seaboard
or any Subsidiary, or of any of their respective businesses or Properties, nor
any relationship between Seaboard or any Subsidiary and any other Person, nor
any circumstance in connection with the execution, delivery or performance of
this Agreement, the Notes, or any other Loan Document (including, without
limitation, in the case of Seaboard, the Seaboard Guaranty) by any Borrower, is
such as to require a consent, approval or authorization of, or filing,
registration or qualification with, any Governmental Authority on the part of
any Borrower as a condition to the execution, delivery or performance of this
Agreement, the Notes, or any other Loan Document (including, without limitation,
in the case of Seaboard, the Seaboard Guaranty) by any Borrower. Neither
Seaboard nor any Subsidiary is subject to regulation under the Investment
Company Act of 1940 as amended, the Public Utility Holding Company Act of 1935
as amended, the Interstate Commerce Act as amended or the Federal Power Act as
amended.
SECTION 6.16. No Defaults under Notes. No event has occurred and
no condition exists that, upon the execution, delivery and performance of this
Agreement, the Notes, or any other Loan Document (including, without limitation,
in the case of Seaboard, the Seaboard Guaranty) by any Borrower would constitute
a Default or an Event of Default.
SECTION 6.17. Use of Proceeds of Notes.
(a) Use of Proceeds. Each Borrower shall use the proceeds
of the Credit Extensions extended to it for general corporate
purposes.
(b) Margin Securities. None of the transactions
contemplated herein and in the Notes and each other Loan Document
(including, without limitation, the use of the proceeds from the
Credit Extensions) violates, will violate or will result in a
violation of section 7 of the Exchange Act, or any regulations
issued pursuant thereto, including, without limitation, Regulation
G, Regulation T and Regulation X of the Board of Governors of the
Federal Reserve System, 12 C.F.R., Chapter II. Neither any Borrower
nor any Subsidiary, with the proceeds of the Credit Extensions,
intends to carry or purchase, or refinance borrowings that were used
to carry or purchase, any "margin stock" (as defined by said
Regulation G), including margin stock originally issued by such
Borrower or such Subsidiary.
(c) Absence of Foreign or Enemy Status. Neither the Credit
Extensions nor the use of proceeds therefrom will result in a
violation of any of the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended), or any ruling issued thereunder or any enabling
legislation or Presidential Executive Order in connection therewith.
SECTION 6.18. Borrower Subsidiaries. (a) Each Borrower, other
than Seaboard, is a Material Subsidiary.
(b) Each Designated Borrower will be a Material Subsidiary of
Seaboard; and
(c) Each Designated Borrower will have, on the effectiveness of
the applicable Designated Borrower Certificate, full right and authority to
enter into this Agreement, the Notes and each other Loan Document to which it
is a party, and to perform all of its Obligations under this Agreement, the
Notes and each other Loan Document to which it is a party; all of the foregoing
actions will have been, prior to any Borrowing Request by such Borrower, duly
authorized by all necessary action on the part of such Borrower; and on the
effectiveness of the applicable Designated Borrower Certificate and the
execution and delivery by such Borrower of its Notes, this Agreement, such
Notes and each other Loan Document to which it is a party will constitute, valid
and binding obligations of such Borrower enforceable in accordance with their
respective terms except as such terms may be limited by the application of
bankruptcy, moratorium, insolvency and similar laws affecting the rights of
creditors generally and by equitable principles affecting the availability of
specific performance and other remedies.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with each
Agent and each Lender that, until all Commitments have terminated and all
Obligations have been paid and performed in full, Seaboard will perform the
obligations set forth in this Section 7.1.
SECTION 7.1.1. Financial and Business Information. Seaboard shall
deliver to each Lender and the Syndication Agent:
(a) Quarterly Statements. As soon as practicable after the
end of each Fiscal Quarter (other than the last Fiscal Quarter of
each Fiscal Year), and in any event within sixty (60) days
thereafter, duplicate copies of,
(i) a consolidated balance sheet of Seaboard and
its consolidated subsidiaries, as at the end of such Fiscal
Quarter, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of Seaboard and its
consolidated subsidiaries for such Fiscal Quarter and (in the
case of the second and third Fiscal Quarters) for the portion
of the Fiscal Year ending with such Fiscal Quarter,
setting forth in each case, in comparative form, the figures for the
corresponding periods in the previous Fiscal Year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified as complete and
correct, subject to changes resulting from year-end adjustments, by
a Senior Financial Officer of Seaboard, and accompanied by the
certificate required by Section 7.1.2 hereof; provided, that
delivery of copies of Seaboard's Quarterly Report on Form 10-Q filed
with the Securities and Exchange Commission within the time period
specified above shall be deemed to satisfy the requirements of this
Section 7.1.1(a) so long as such Quarterly Report contains or is
accompanied by the information specified in this Section 7.1.1(a);
(b) Annual Statements. As soon as practicable after the
end of each Fiscal Year, and in any event within one hundred (100)
days thereafter, duplicate copies of,
(i) a consolidated and consolidating balance sheet
of Seaboard and its consolidated subsidiaries as at the end of
such Fiscal Year, and
(ii) a consolidated and consolidating statement of
income, and consolidated statements of changes in
shareholders' equity and cash flows of Seaboard and the
Subsidiaries, for such Fiscal Year,
setting forth in the case of each consolidated financial statement,
in comparative form, the figures for the previous Fiscal Year, all
in reasonable detail, prepared in accordance with GAAP, and
accompanied by
(A) (I) in the case of the consolidated
financial statements of Seaboard and its consolidated
subsidiaries, an opinion thereon of independent
certified public accountants of recognized national
standing, which opinion shall, without qualification
(including, without limitation, qualifications related
to the scope of the audit or the ability of Seaboard
or a subsidiary thereof to continue as a going
concern), state that such financial statements present
fairly, in all material respects, the financial
position of the companies being reported upon and
their results of operations and cash flows and have
been prepared in conformity with GAAP, and that the
examination of such accountants in connection with
such financial statements has been made in accordance
with generally accepted auditing standards, and that
such audit provides a reasonable basis for such
opinion in the circumstances, and
(II) in the case of such consolidating
statements, a statement from such independent
certified public accountants that such statements were
prepared using the same work papers as were used in
the preparation of such consolidated statements of
Seaboard and its consolidated subsidiaries, and
(B) a certification by a Senior Financial Officer
of Seaboard that such consolidated and consolidating
statements are complete and correct,
provided that the delivery of Seaboard's Annual Report on Form 10-K
for such Fiscal Year (together with Seaboard's annual report to
shareholders, if any, prepared pursuant to Rule 14a-3 under the
Exchange Act) filed with the Securities and Exchange Commission
within the time period specified above shall be deemed to satisfy
the requirements of this Section 7.1.1(b) so long as such Annual
Report contains or is accompanied by the opinions and other
information otherwise specified in this Section 7.1.1(b);
(c) SEC and Other Reports. Promptly upon their becoming
available one copy of each financial statement, report, notice or
proxy statement sent by Seaboard or any Subsidiary to stockholders
generally, and of each regular or periodic report and any
registration statement, prospectus or written communication, and
each amendment thereto, in respect thereof filed by Seaboard or any
Subsidiary with, or received by, such Person in connection therewith
from, the National Association of Securities Dealers, any securities
exchange or the Securities and Exchange Commission or any successor
agency;
(d) Notice of Default or Event of Default. Immediately,
and in any event within three (3) days, upon becoming aware of the
existence of any condition or event which constitutes a Default or
an Event of Default, a written notice specifying the nature and
period of existence thereof and what action the applicable Borrower
is taking or proposes to take with respect thereto;
(e) Notice of Claimed Default. Immediately, and in any
event within three (3) days, upon becoming aware that any Lender or
a holder of any Indebtedness or other Security of Seaboard, any
other Borrower or any other Subsidiary, shall have given notice or
taken any other action with respect to a claimed Default, Event of
Default or default or event of default, a written notice specifying
the notice given or action taken by such Lender or holder, as the
case may be, and the nature of the claimed Default, Event of Default
or default or event of default and what action Seaboard or the
applicable Borrower is taking or proposes to take with respect
thereto;
(f) ERISA.
(i) immediately upon becoming aware of the
occurrence of any "reportable event" (as such term is defined
in section 4043 of ERISA) or "prohibited transaction) (as such
term is defined in section 406 of ERISA or section 4975 of the
Code) in connection with any Pension Plan or any trust created
thereunder, a written notice specifying the nature thereof,
what action the Borrower is taking or proposes to take with
respect thereto, and, when known, any action taken by the
Internal Revenue Service, the Department of Labor or the PBGC
with respect thereto; and
(ii) prompt written notice of and, where applicable,
a description of
(A) any notice from the PBGC in respect of
the commencement of any proceedings pursuant to
section 4042 of ERISA to terminate any Pension Plan or
for the appointment of a trustee to administer any
Pension Plan,
(B) any distress termination notice
delivered to the PBGC under section 4041 of ERISA in
respect of any Pension Plan, and any determination of
the PBGC in respect thereto,
(C) the placement of any Multiemployer
Plan in reorganization status under Title IV of ERISA,
(D) any Multiemployer Plan becoming
"insolvent" (as such term is defined in section 4245
of ERISA) under Title IV of ERISA, and
(E) the whole or partial withdrawal of
Seaboard or any member of the Controlled Group from
any Multiemployer Plan and the withdrawal liability
incurred in connection therewith,
provided that Seaboard shall not be required to deliver any such
notice at any time when the aggregate amount of the actual or
potential liability of Seaboard and the Subsidiaries in respect of
all such events is at such time less than two percent (2%) of
Consolidated Shareholders' Equity determined at such time; and
(g) Requested Information. With reasonable promptness,
such other data and information as from time to time may be
requested by any Lender or any Agent, including, without limitation,
(i) a copy of each report submitted to Seaboard or
any Subsidiary by independent accountants in connection with
any annual, interim or special audit made by them of the books
of Seaboard or any Subsidiary;
(ii) copies of any statement, report or certificate
furnished to any holder of indebtedness of Seaboard or any
Subsidiary; and
(iii) information requested to comply with 17 C.F.R.
Sec. 230.144A, as amended, from time to time.
SECTION 7.1.2. Officers' Certificates. Each set of financial
statements delivered to each Lender and the Syndication Agent pursuant to
Section 7.1.1(a) or Section 7.1.1(b) hereof shall be accompanied by a
certificate of a Senior Financial Officer of Seaboard, setting forth:
(a) Covenant Compliance. The information (including
detailed calculations) required in order to establish whether
Seaboard was in compliance with the requirements of Section 7.2.3
and Section 7.2.4, and to calculate the Consolidated Net Debt Ratio
for the period covered by the financial statement then being
furnished (including with respect to each such Section, where
applicable, the calculations of the maximum or minimum amount, ratio
or percentage, as the case may be, permissible under the terms of
such Sections, and the calculation of the amount, ratio or
percentage then in existence); and
(b) Event of Default. A statement that the signers have
reviewed the relevant terms hereof and have made, or caused to be
made, under their supervision, a review of the transactions and
conditions of Seaboard and the Subsidiaries from the beginning of
the accounting period covered by the income statements being
delivered therewith to the date of the certificate and that such
review shall not have disclosed the existence during such period of
any condition or event that constitutes a Default or an Event of
Default or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof and what
action the applicable Borrower shall have taken or proposes to take
with respect thereto.
SECTION 7.1.3. Accountants' Certificates. Each set of annual
financial statements delivered pursuant to Section 7.1.1(b) shall be accompanied
by a certificate of the accountants who certify such financial statements,
stating that they have reviewed this Agreement and stating further, whether, in
making their audit, such accountants have become aware of any condition or
event that then constitutes a Default or an Event of Default, and, if such
accountants are aware that any such condition or event then exists, specifying
the nature and period of existence thereof.
SECTION 7.1.4. Inspection. Seaboard will permit the representatives
of each Lender and the Agents to visit and inspect any of the Properties of
Seaboard or any Subsidiary, to examine all their respect books of account,
records, reports and other papers, to make copies and extracts therefrom, and
to discuss their respective affairs, finances and accounts with their respective
officers, employees and independent public accounts (and by this provision
Seaboard authorizes said accountants to discuss the finances and affairs of
Seaboard and the Subsidiaries) all at such reasonable times and as often as may
be reasonably requested. Each Agent and each Lender hereby agree to take and to
cause its Affiliates to take normal and reasonable precautions and exercise due
care to maintain the confidentiality of all non-public information obtained
pursuant to this Section, and neither such Agent or such Lender nor any of its
Affiliates shall use any such information other than in connection with or in
enforcement of this Agreement and the other Loan Documents or in connection with
the other business now or hereafter existing or contemplated with Seaboard or
any Subsidiary; except to the extent such information (i) was or becomes
generally available to the public other than as a result of disclosure by such
Agent or such Lender, or (ii) was or becomes available on a non-confidential
basis from a source other than Seaboard, provided that such source is not bound
by a confidentiality agreement with Seaboard known to such Agent or such Lender;
provided, however, that any Agent and any Lender may disclose such information
(A) at the request or pursuant to any requirement of any Governmental Authority
to which such Agent or such Lender is subject or in connection with an
examination of such Agent or such Lender by any such authority; (B) pursuant to
subpoena or other court process; (C) when required to do so in accordance with
the provisions of any applicable law, ordinance, governmental rule or
regulation; (D) to the extent reasonably required in connection with any
litigation or proceeding to which any Agent, any Lender or their respective
Affiliates may be party; (E) to the extent reasonably required in connection
with the exercise of any remedy hereunder or under any other Loan Document; (F)
to such Agent's or such Lender's independent auditors and other professional
advisors; (G) to any Participant or Assignee Lender, actual or potential,
provided that such Person agrees in writing to keep such information
confidential to the same extent required of the Agents and Lenders hereunder;
(H) as to any Agent or Lender or its Affiliate, as expressly permitted under
the terms of any other document or agreement regarding confidentiality to which
Seaboard or any Subsidiary is party or is deemed party with such Agent or Lender
or such Affiliate; and (I) to its Affiliates.
SECTION 7.1.5. Payment of Taxes and Claims.
Seaboard will, and will cause each Subsidiary to, pay before they come
delinquent,
(a) all taxes, assessments and governmental charges or
levies imposed upon it or its Property, and
(b) all claims or demands of materialmen, mechanics,
carriers, warehousemen, vendors, landlords and other like Persons
that, if unpaid, might result in the creation of a Lien upon its
Property,
provided, that items of the foregoing description need not be paid so long as
(i) such items are being actively contested in good
faith and by appropriate proceedings,
(ii) adequate book reserves have been established
and maintained with respect thereto, and
(iii) such items, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
SECTION 7.1.6. Maintenance of Properties; Corporate Existence; etc.
Seaboard will, and will cause each Material Subsidiary to:
(a) Property. Maintain its Property in a condition
sufficient to permit its ordinary operation, ordinary wear and tear
and obsolescence excepted, and make all necessary renewals,
replacements, additions, betterments and improvements thereto;
(b) Insurance. Maintain, with financially sound and
reputable insurers, insurance with respect to its Property and
business against such casualties and contingencies, of such types
and in such amounts as is customary in the case of corporations of
established reputations engaged in the same or a similar business
and similarly situated;
(c) Financial Records. Keep accurate and complete books
of records and accounts that permit the provision of accurate and
complete financial statements in accordance with GAAP;
(d) Corporate Existence and Rights. Do or cause to be done
all things necessary to preserve and keep in full force and effect
its corporate existence, rights (charter and statutory) and
franchises, except where the failure to do so, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect;
and
(e) Compliance with Law. Not be in violation of any law,
ordinance or governmental rule or regulation to which it is subject
(including, without limitation, any Environmental Law) and not fail
to obtain any license, certificate, permit, franchise or other
governmental authorization necessary to the ownership of its
Properties or to the conduct of its business if such violations or
failures to obtain, in the aggregate, could reasonably be expected
to have a Material Adverse Effect or, in the aggregate, a material
adverse effect on the ability of Seaboard or any Subsidiary to
conduct in the future the business it conducts at the time of such
violation or failure to obtain.
SECTION 7.1.7. ERISA Compliance. Seaboard will, and will cause each
member of the Controlled Group to, at all times with respect to each Pension
Plan, make timely payments of contributions required to meet the minimum funding
standard set forth in ERISA or the Code with respect thereto, and to comply with
all other applicable provisions of ERISA. Seaboard will, and will cause each
Subsidiary to, at all times with respect to each Foreign Pension Plan,
maintained by any of them, comply with all laws of any Governmental Authority
with jurisdiction over such Foreign Pension Plans.
SECTION 7.2. Negative Covenants. Seaboard agrees with each Agent and
each Lender that, until all Commitments have terminated and all Obligations
have been paid and performed in full, Seaboard will perform the obligations set
forth in this Section 7.2.
SECTION 7.2.1. Merger; Acquisition.
(a) Merger and Consolidation. Seaboard will not merge into
or consolidate with, or sell, lease, transfer or otherwise dispose
of all or substantially all of its Property to, any other Person or
permit any other Person to consolidate with or merge into it;
provided that the foregoing restriction does not apply to the merger
or consolidation of Seaboard with, or the sale, lease, transfer or
other disposition by Seaboard of all or substantially all of its
Property to, another corporation, if:
(i) the corporation that results from such merger
or consolidation or that purchases, leases, or acquires all or
substantially all of such Property (the "Successor
Corporation") is organized under the laws of the United States
of America or any jurisdiction thereof;
(ii) all of the obligations of Seaboard under this
Agreement, the Notes, the Seaboard Guaranty and the other Loan
Documents including the due and punctual performance and
observance of all the covenants herein and therein contained,
are expressly assumed by the Successor Corporation pursuant to
such agreements and instruments with respect to such
assumption as shall be approved by the Required Lenders, and
Seaboard causes to be delivered to each Lender and the
Documentation Agent an opinion of independent counsel
satisfactory to the Required Lenders to the effect that such
agreements and instruments are enforceable in accordance with
their terms and the terms hereof;
(iii) the Obligations rank at least pari passu with
all other Indebtedness of the Successor Corporation (provided
that this Section 7.2.1(a)(iii) shall not prohibit the
existence of Indebtedness secured by Liens that do not violate
Section 7.2.2 hereof); and
(iv) immediately prior to, and immediately after the
consummation of the transaction, and after giving effect
thereto, no Default or Event of Default would exist under any
provision hereof.
(b) Acquisition of Stock. Seaboard will not acquire any
stock of any corporation if upon completion of such acquisition such
corporation would be a Subsidiary, or acquire all of the Property
of, or such of the Property as would permit the transferee to
continue any one or more integral business operations of, any Person
unless, immediately after the consummation of such acquisition, and
after giving effect thereto, no Default or Event of Default exists
or would exist under any provision hereof.
SECTION 7.2.2. Liens.
(a) Negative Pledge. Seaboard will not, and will not
permit any Subsidiary to, cause or permit to exist, or agree or
consent to cause or permit to exist in the future (upon the
happening of a contingency or otherwise), any of their Property,
whether now owned or hereafter acquired, to be subject to a Lien
except:
(i) Taxes, etc. Liens securing taxes, assessments
or governmental charges or levies or the claims or demands of
materialmen, mechanics, carriers, warehousemen, landlords and
other like Persons, provided that the payment thereof is not
required by Section 7.1.5 hereof;
(ii) Court Proceedings. Liens arising from judicial
attachments and judgments, securing appeal bonds or
supersedeas bonds, or arising in connection with pending court
proceedings (including, without limitation, surety bonds and
letters of credit or any other instrument serving a similar
purpose), provided that the execution or other enforcement of
such Liens is effectively stayed and the claims secured
thereby are being actively contested in good faith and by
appropriate proceedings, and provided further that the
aggregate amount so secured (minus the amount of insurance
that is available to pay such amounts and over which no
dispute regarding coverage has occurred or is threatened) will
not at any time exceed six percent (6%) of Consolidated
Shareholders' Equity;
(iii) Ordinary Course Business Liens. Liens incurred
or deposits made in the ordinary course of business
(A) in connection with workers'
compensation, unemployment insurance, social security
and other like laws, and
(B) to secure the performance of letters
of credit, bids, tenders, sales contracts, leases,
statutory obligations, surety and performance bonds
(of a type other than set forth in Section
7.2.2(a)(ii) hereof) and other similar obligations
not incurred in connection with the borrowing of money, the
obtaining of advances or the payment of the deferred purchase
price of Property;
(iv) Real Property Liens. Liens in the nature of
reservations, exceptions, encroachments, easements, rights-of-way,
covenants, conditions, restrictions, leases and other
similar title exceptions or encumbrances affecting real
property, provided that such exceptions and encumbrances do
not in the aggregate materially detract from the value of said
Properties or materially interfere with the use of such
Property in the ordinary conduct of the business of Seaboard
and the Subsidiaries;
(v) Existing Liens.
(A) Liens in existence on the date hereof
and described on Item 7.2.2 of the Disclosure
Schedule, and
(B) Liens securing renewals, extensions
(as to time) and refinancings of indebtedness secured
by the Liens described on Schedule 7.2.2 hereto,
provided that the amount of Indebtedness secured by
each such Lien is not increased in excess of the
amount of Indebtedness outstanding on the date of such
renewal, extension or refinancing, and none of such
Liens is extended to include any additional Property
of Seaboard or any Subsidiary;
(vi) Intergroup Liens. Liens on Property of a
Subsidiary, provided that such Liens secure only obligations
owing to Seaboard or a Wholly-Owned Subsidiary;
(vii) Purchase Money Liens. Purchase Money Liens,
provided that, after giving effect thereto and to any
concurrent transactions, no Default or Event of Default would
exist under any provision hereof; and
(viii) Basket Liens. Liens ("Basket Liens") not
otherwise permitted by clause (i) through (vii), inclusive, of
this Section 7.2.2(a) provided that Seaboard will not at any
time permit the sum, without duplication, of
(A) the aggregate amount of Indebtedness
("Basket Secured Debt") secured by Basket Liens, plus
(B) Combined Subsidiary Funded Debt minus
the aggregate amount of Existing Subsidiary Debt,
determined in each case at such time, to exceed twenty percent
(20%) of Consolidated Tangible Net Worth determined as of the
end of the then most recently ended Fiscal Quarter.
Nothing in this Section 7.2.2 shall be construed to permit the
incurrence or existence of any Indebtedness not otherwise permitted
by this Agreement.
(b) Equal and Ratable Lien; Equitable Lien. In case any
Property shall be subjected to a Lien in violation of this Section
7.2.2, Seaboard will forthwith make or cause to be made, to the
fullest extent permitted by applicable law, provision whereby the
Obligations will be secured equally and ratably with all other
obligations secured thereby pursuant to such agreements and
instruments as shall be approved by the Required Lenders, and
Seaboard will cause to be delivered to the Documentation Agent and
each Lender an opinion of independent counsel satisfactory to the
Required Lenders to the effect that such agreements and instruments
are enforceable in accordance with their terms subject to applicable
bankruptcy laws and equitable principles, and in any such case the
Obligations shall have the benefit, to the full extent that, and
with such priority as, the Lenders may be entitled under applicable
law, of an equitable Lien on such Property (and any proceeds
thereof) securing the Obligations. Such violation of this Section
7.2.2 will constitute an Event of Default hereunder, whether or not
any such provision is made pursuant to this Section 7.2.2(b).
(c) Financing Statements. Seaboard will not, and will not
permit any Subsidiary to, sign or file a financing statement under
the Uniform Commercial Code of any jurisdiction that names Seaboard
or such Subsidiary as debtor, or sign any security agreement
authorizing any secured party thereunder to file any such financing
statement, except, in any such case, a financing statement filed or
to be filed to perfect or protect a security interest that Seaboard
or such Subsidiary is entitled to create, assume or incur, or permit
to exist, under the provisions of Section 7.2.2 or to evidence for
informational purposes a lessor's interest in Property leased to
Seaboard or any such Subsidiary.
SECTION 7.2.3. Consolidated Tangible Net Worth. Seaboard will not
at any time permit Consolidated Tangible Net Worth to be less than Two Hundred
Fifty Million Dollars ($250,000,000).
SECTION 7.2.4. Funded Debt. Seaboard will not at any time permit
Consolidated Funded Debt to be greater than ninety percent (90%) of Consolidated
Shareholders' Equity, determined in each case at such time.
SECTION 7.2.5. Transfer of Property. Seaboard will not, and will not
permit any Subsidiary, to sell, lease as lessor, transfer or otherwise dispose
of Property (including, without limitation, Subsidiary Stock) (each such
transaction a "Transfer") provided that the foregoing restriction does not apply
to a Transfer of Property if:
(a) Ordinary Course Transfers. Such Property constitutes
inventory held for sale, or obsolete equipment, fixtures and
supplies, and in each case is Transferred in the ordinary course of
business (an "Ordinary Course Transfer");
(b) Basket Transfers. Such Property is Transferred (the
date of the Transfer of such Property referred to as the "Property
Disposition Date") to a Person other than an Affiliate of Seaboard,
such Transfer is not an Ordinary Course Transfer, an Intergroup
Transfer, a Merger Transfer, a Reinvested Transfer or a Lender
Approved Transfer (such transfers collectively referred to as
"Excluded Transfers"), and all of the following conditions shall
have been satisfied with respect thereto,
(i) the sum of
(A) the Disposition Value of such
Property, plus
(B) the Disposition Value of all other
Property Transferred by Seaboard and the Subsidiaries
during the three hundred sixty-five (365) day period
ending on and including such Property Disposition Date
(excluding therefrom Excluded Transfers occurring
during such period),
does not exceed twenty percent (20%) of Consolidated Total
Assets determined as of the end of the then most recently
ended Fiscal Quarter,
(ii) the sum of
(A) the Disposition Value of such
Property, plus
(B) the Disposition Value of all other
Property Transferred by Seaboard and the Subsidiaries
during the period beginning on June 1, 1995 and ending
on such Property Disposition Date, inclusive
(excluding therefrom Excluded Transfers occurring
during such period),
does not exceed thirty percent (30%) of Consolidated Total
Assets determined as of the end of the then most recently
ended Fiscal Quarter of Seaboard,
(iii) in the good faith opinion of the board of
directors of Seaboard, the Transfer is for Fair Market Value
and is in the best interests of Seaboard, and
(iv) immediately before and immediately after the
consummation of the transaction, and after giving effect
thereto, no Default or Event of Default exists or would exist
under any provision hereof;
(c) Intergroup Transfers. Such Transfer is from a
Subsidiary to Seaboard or a Wholly-Owned Subsidiary (an "Intergroup
Transfer");
(d) Merger-Related Transfers. Such Transfer meets the
requirements of Section 7.2.1 hereof (a "Merger Transfer");
(e) Reinvested Transfers. Such Transfer shall satisfy each
of the following conditions (upon the satisfaction of all of the
conditions set forth in this Section 7.2.5(e) such Transfer shall be
a "Reinvested Transfer" and such Transfer shall be deemed to have
occurred on the date of the satisfaction of all of such conditions),
(i) Seaboard will deliver a written notice to each
Lender contemporaneously with the consummation of the Transfer
in which Seaboard will
(A) identify such Property;
(B) state the nature and terms of the
transaction and the nature and use of the proceeds of
the transaction, and
(C) state that, within three hundred and
sixty-five (365) days following the consummation of
such Transfer, the entire proceeds of such Transfer,
net of reasonable and ordinary transaction costs and
expenses incurred in connection with such Transfer,
shall be applied to the acquisition by Seaboard or any
Subsidiary of tangible property (or a group of related
items of Property the substantial portion of which is
tangible) properly classifiable under GAAP as long-term to be
used in the ordinary course of business of Seaboard and the
Subsidiaries, and
(ii) the proceeds of such Transfer shall have been
applied as described in such writing;
(f) Lender Approved Transfers. Such Transfer shall satisfy
each of the following conditions (upon the satisfaction of all of
the conditions set forth in this Section 7.2.5(f) such Transfer
shall be a "Lender Approved Transfer" and such Transfer shall be
deemed to have occurred on the date of the satisfaction of all of
such conditions),
(i) Seaboard will deliver a written notice to each
Lender not more than sixty (60) days or less than thirty (30)
days prior to the consummation of such Transfer in which
Seaboard will
(A) identify such Property, and
(B) state the nature and terms of the
transaction (including, without limitation, a
description of the consideration payable by the
purchaser) and the nature and use of the proceeds of
the transaction,
(ii) provide pro forma financial statements covering
at least the then succeeding two (2) Fiscal Years giving
effect to such Transfer, the use of the proceeds thereof and
any contemporaneous transactions,
(iii) immediately before and immediately after the
consummation of the transaction, and after giving effect
thereto, no Default or Event of Default exists or would exist
under any provision hereof other than under Section 7.2.5(b)
hereof,
(iv) in the good faith opinion of the board of
directors of Seaboard, the Transfer is for Fair Market Value
and is in the best interests of Seaboard,
(v) the Transfer will not be likely, in the
reasonable judgment of the Required Lenders, to have a
Material Adverse Effect at the time of the consummation
thereof or at any time thereafter, and
(vi) the Required Lenders shall have consented in
writing to such Transfer (including, without limitation, the
consideration therefor), prior to the consummation thereof,
which consent shall not be unreasonably withheld.
SECTION 7.2.6. Subsidiary Debt.
(a) Subsidiary Debt. Seaboard will not permit any
Subsidiary to create, assume, incur, or otherwise become obligated
with respect to any Funded Debt, except:
(i) Funded Debt outstanding on the date hereof and
described on Item 7.2.6 of the Disclosure Schedule (the
"Existing Subsidiary Debt"); and
(ii) Funded Debt (including, without limitation,
extensions, renewals and refundings of Existing Subsidiary
Debt), if immediately after giving effect to such transaction,
the sum (without duplication) of
(A) the aggregate amount of Basket Secured
Debt, plus
(B) Combined Subsidiary Funded Debt minus
the aggregate amount of Existing Subsidiary Debt,
determined at such time does not exceed twenty percent (20%)
of Consolidated Tangible Net Worth determined as of the end of
the then most recently ended Fiscal Quarter.
(b) New Subsidiaries. Each Person which becomes a
Subsidiary after the date hereof will be deemed to have incurred all
Indebtedness of such Person on the date such Person becomes a
Subsidiary.
(c) Disposition of Subsidiary Indebtedness. Each
Subsidiary any of whose outstanding Indebtedness is at any time
sold, transferred or otherwise disposed of by Seaboard or another
Subsidiary shall be deemed to have incurred such Indebtedness, and
all Liens securing such Indebtedness (if any), at the time of such
sale, transfer or other disposition.
SECTION 7.2.7. ERISA Prohibited Actions. Seaboard will not, and will
not permit any member of the Controlled Group to:
(i) engage in any "prohibited transaction" (as such
term is defined in section 406 of ERISA or section 4975 of the
Code) or "reportable event" (as such term is defined in
section 4043 of ERISA) that could result in the imposition of
a tax or penalty;
(ii) incur with respect to any Pension Plan any
"accumulated funding deficiency" (as such term is defined in
section 302 of ERISA), whether or not waived;
(iii) terminate any Pension Plan in a manner that
could result in the imposition of a Lien on the Property of
Seaboard or any Subsidiary pursuant to section 4068 of ERISA
or the creation of any liability under section 4062 of ERISA;
(iv) fail to make any payment required by section
515 of ERISA; or
(v) incur any withdrawal liability under Title IV
of ERISA with respect to any Multiemployer Plan or any
liability resulting from the termination of any Multiemployer
Plan;
if the aggregate amount of the taxes, penalties, funding
deficiencies, interest, amounts secured by Liens, and other
liabilities in respect of any of the foregoing at any time exceed,
in the aggregate, more than three percent (3%) of Consolidated
Shareholders' Equity at such time.
SECTION 7.2.8. Line of Business.
Seaboard will at all time cause,
(a) the amount of revenues of Seaboard and the Subsidiaries
derived from Permitted Lines of Business to be at least sixty-six
and two-thirds percent (66-2/3%) of the amount of all revenues of
Seaboard and the Subsidiaries, determined in each case for the then
most recently ended period of thirteen (13) Fiscal Periods on a
consolidated basis, or
(b) the net book value of assets of Seaboard and the
Subsidiaries used in Permitted Lines of Business to be at least
sixty-six and two-thirds percent (66-2/3%) of the amount of the net
book value of all assets of Seaboard and the Subsidiaries, in each
case determined as of the end of the then most recently ended Fiscal
Period on a consolidated basis.
SECTION 7.2.9. Transactions with Affiliates.
Seaboard will not, and will not permit any Subsidiary to, enter into any
transaction, including, without limitation, the purchase, sale or exchange of
Property or the rendering of any service, with any Affiliate, except in the
ordinary course of and pursuant to the reasonable requirements of Seaboard's or
such Subsidiary's business and upon fair and reasonable terms no less favorable
to Seaboard or such Subsidiary than would be obtained in a comparable arm's-
length transaction with a Person not an Affiliate.
SECTION 7.2.10. Guaranties. Neither Seaboard nor any Subsidiary
will become liable for, or permit any of its Property to become subject to, any
Guaranty (except for the Seaboard Guaranty), unless:
(a) the maximum dollar amount of the obligation being
guaranteed is readily ascertainable by the terms of such obligation,
or the agreement or instrument evidencing such Guaranty specifically
limits the dollar amount of the maximum exposure of the guarantor
thereunder; and
(b) after giving effect thereto and to any concurrent
transactions, no Default or Event of Default exists or would exist
under any provision hereof.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following
events or occurrences described in this Section 8.1 shall constitute an "Event
of Default".
SECTION 8.1.1. Non-Payment of Obligations. Any Borrower shall default
in the payment or prepayment when due of any principal of or interest on any
Loan, or Seaboard shall default (and such default shall continue unremedied
for a period of five days) in the payment when due of any commitment fee or of
any other Obligation.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty
of any Borrower made or deemed to be made hereunder or in any other Loan
Document executed by it or any other writing or certificate furnished by or on
behalf of any Borrower to the Syndication Agent, or any Lender for the purposes
of or in connection with this Agreement or any such other Loan Document
(including any certificates delivered pursuant to Article V) is or shall be
incorrect when made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
Seaboard shall default in the due performance and observance of any of its
obligations under Subsections 7.1.1(d) and (e), Sections 7.2.3 through 7.2.6,
inclusive, and Section 7.2.10.
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations.
Any Borrower shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to Seaboard by the Documentation Agent or any
Lender.
SECTION 8.1.5. Default on Other Indebtedness. A default shall occur
in the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness (other than Indebtedness
described in Section 8.1.1) of Seaboard or any of its Subsidiaries having a
principal amount, individually or in the aggregate, in excess of $5,000,000,
or a default shall occur in the performance or observance of any obligation
or condition with respect to such Indebtedness if the effect of such default
is to accelerate the maturity of any such Indebtedness or such default shall
continue unremedied for any applicable period of time sufficient to permit the
holder or holders of such Indebtedness, or any trustee or agent for such
holders, to cause such Indebtedness to become due and payable prior to its
expressed maturity.
SECTION 8.1.6. Judgments. A final, non-appealable, judgment or
final, non-appealable, judgments for the payment of money aggregating in
excess of Fifty Thousand Dollars ($50,000) is or are outstanding against one
or more of Seaboard and the Subsidiaries and any one of such judgments shall
have been outstanding for more than thirty (30) days from the date of its
entry and shall not have been discharged in full or stayed.
SECTION 8.1.7. Bankruptcy, Insolvency, etc. Seaboard or any of its
Material Subsidiaries shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness to pay, debts as they become
due;
(b) apply for, consent to, or acquiesce in, the appointment
of a trustee, receiver, sequestrator or other custodian for Seaboard
or any of its Material Subsidiaries or any property of any thereof,
or make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a
trustee, receiver, sequestrator or other custodian for Seaboard or
any of its Material Subsidiaries or for a substantial part of the
property of any thereof, and such trustee, receiver, sequestrator or
other custodian shall not be discharged within 60 days, provided
that Seaboard and each Material Subsidiary hereby expressly
authorizes the Documentation Agent and each Lender to appear in any
court conducting any relevant proceeding during such 60-day period
to preserve, protect and defend their rights under the Loan
Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any
dissolution, winding up or liquidation proceeding, in respect of
Seaboard or any of its Material Subsidiaries and, if any such case
or proceeding is not commenced by Seaboard or such Material
Subsidiary, such case or proceeding shall be consented to or
acquiesced in by Seaboard or such Material Subsidiary or shall
result in the entry of an order for relief or shall remain for 60
days undismissed, provided that Seaboard and each Material
Subsidiary hereby expressly authorizes the Documentation Agent and
each Lender to appear in any court conducting any such case or
proceeding during such 60-day period to preserve, protect and defend
their rights under the Loan Documents; or
(e) take any corporate action authorizing, or in
furtherance of, any of the foregoing.
SECTION 8.2. Action if Bankruptcy. If any Event of Default described
in clauses (a) through (d) of Section 8.1.7 shall occur, the Commitments (if
not theretofore terminated) shall automatically terminate and the outstanding
principal amount of all outstanding Loans and all other Obligations shall
automatically be and become immediately due and payable, without notice or
demand.
SECTION 8.3. Action if Other Event of Default. If any Event of
Default (other than any Event of Default described in clauses (a) through (d)
of Section 8.1.7) shall occur for any reason, whether voluntary or involuntary,
and be continuing, the Documentation Agent, upon the direction of the Required
Lenders, shall by notice to Seaboard declare all or any portion of the
outstanding principal amount of the Loans and other Obligations to be due and
payable and/or the Commitments (if not theretofore terminated) to be terminated,
whereupon the full unpaid amount of such Loans and other Obligations which shall
be so declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the case may be, the
Commitments shall terminate.
ARTICLE IX
THE AGENTS
SECTION 9.1. Actions. Each Lender hereby appoints each of Scotiabank
and Chase as its Co-Managing Agent, Chase as its Syndication Agent, and
Scotiabank as its Documentation Agent under and for purposes of this Agreement,
the Notes, the Seaboard Guaranty and each other Loan Document. Each Lender
authorizes each Agent to act on behalf of such Lender under this Agreement, the
Notes, the Seaboard Guaranty and each other Loan Document and, in the absence
of other written instructions from the Required Lenders received from time to
time by such Agent (with respect to which such Agent agrees that it will comply,
except as otherwise provided in this Section or as otherwise advised by
counsel), to exercise such powers hereunder and thereunder as are specifically
delegated to or required of such Agent by the terms hereof and thereof, together
with such powers as may be reasonably incidental thereto. Each Lender hereby
indemnifies (which indemnity shall survive any termination of this Agreement)
each Agent, pro rata according to such Lender's Percentage, from and against
any and all liabilities, obligations, losses, damages, claims, costs or expenses
of any kind or nature whatsoever which may at any time be imposed on, incurred
by, or asserted against, such Agent in any way relating to or arising out of
this Agreement, the Notes, the Seaboard Guaranty and any other Loan Document,
including reasonable attorneys' fees, and as to which such Agent is not
reimbursed by the Borrowers; provided, however, that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, claims, costs or expenses which are determined by a court of competent
jurisdiction in a final proceeding to have resulted solely from any Agent's
gross negligence or wilful misconduct. Each Agent shall not be required to take
any action hereunder, under the Notes, the Seaboard Guaranty or under any other
Loan Document, or to prosecute or defend any suit in respect of this Agreement,
the Notes, the Seaboard Guaranty or any other Loan Document, unless it is
indemnified hereunder to its satisfaction. If any indemnity in favor of any
Agent shall be or become, in such Agent's determination, inadequate, such Agent
may call for additional indemnification from the Lenders and cease to do the
acts indemnified against hereunder until such additional indemnity is given.
SECTION 9.2. Funding Reliance, etc. Unless the Syndication Agent shall
have been notified by telephone, confirmed in writing, by any Lender by 5:00
p.m. (New York City time), on the day prior to a Borrowing of other than Base
Rate Loans that are to be made on the same date requested by a Borrower that
such Lender will not make available the amount which would constitute its
Percentage of such Borrowing in the case of Revolving Loans, or the amount of
its Competitive Bid Loan Offer that has been accepted by a Borrower pursuant to
clause (e)(ii) of Section 2.6, in the case of Competitive Bid Loans, in each
case on the date specified therefor, the Syndication Agent may assume that such
Lender has made such amount available to the Syndication Agent and, in reliance
upon such assumption, make available to such Borrower a corresponding amount.
In the case of a Borrowing of Base Rate Loans that are to be made on the same
date requested by a Borrower, the Syndication Agent may assume that each Lender
will make available to the Syndication Agent the amount which would constitute
its Percentage of such Borrowing in the case of Revolving Loans, or the amount
of its Competitive Bid Loan Offer that has been accepted by such Borrower
pursuant to clause (e)(ii) of Section 2.6, in the case of Competitive Bid
Loans, and, in reliance upon such assumption, make available to such Borrower a
corresponding amount. If and to the extent that such Lender shall not have made
such amount available to the Syndication Agent, such Lender and the applicable
Borrower severally agree to repay the Syndication Agent forthwith on demand,
without duplication, such corresponding amount together with interest thereon,
for each day from the date the Syndication Agent made such amount available to
such Borrower to the date such amount is repaid to the Syndication Agent, in the
case of such Borrower, at the interest rate applicable at the time to Loans
comprising such Borrowing, and in the case of such Lender, for the period from
the date such funds were advanced to such Borrower to (and including) three days
thereafter, at the rate customarily charged for inter-bank loans in the U.S.,
and following such third day, at the interest rate applicable at the time to
Loans comprising such Borrowing.
SECTION 9.3. Exculpation. Each Agent and all of such Agent's
directors, officers, employees and agents shall not be liable to any Lender for
any action taken or omitted to be taken by it under this Agreement or any other
Loan Document, or in connection herewith or therewith, except for such Agent's
own wilful misconduct or gross negligence, or responsible for any recitals or
warranties herein or therein, or for the effectiveness, enforceability, validity
or due execution of this Agreement or any other Loan Document, or to make any
inquiry respecting the performance by any Borrower of its obligations hereunder
or under any other Loan Document. Any such inquiry which may be made by any
Agent shall not obligate it to make any further inquiry or to take any action.
Each Agent shall be entitled to rely upon advice of counsel concerning legal
matters and upon any notice, consent, certificate, statement or writing which
such Agent believes to be genuine and to have been presented by a proper Person.
SECTION 9.4. Successor. Each Agent may resign as such at any time upon
at least 30 days' prior notice to Seaboard and all Lenders. If any Agent at any
time shall resign, Seaboard may appoint another Lender as a successor Agent
which shall thereupon become such Agent hereunder. If no successor Agent shall
have been so appointed by Seaboard, and shall have accepted such appointment,
within 15 days after such retiring Agent's giving notice of such resignation,
then the Required Lenders may appoint another Lender as a successor Agent which
shall thereupon become such Agent hereunder. If no successor Agent shall have
been so appointed by Seaboard or by the Required Lenders, and shall have
accepted such appointment, within 30 days after such retiring Agent's giving
notice of resignation, then such retiring Agent may, on behalf of the Lenders,
appoint a successor Agent, which shall be one of the Lenders or a commercial
banking institution organized under the laws of the U.S. (or any State thereof)
or a U.S. branch or agency of a commercial banking institution, and having a
combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as an Agent hereunder by a successor Agent, such successor
Agent shall be entitled to receive from such retiring Agent such documents of
transfer and assignment as such successor Agent may reasonably request, and
shall thereupon succeed to and become vested with all rights, powers, privileges
and duties of such retiring Agent, and such retiring Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring
Agent's resignation hereunder as the Agent, the provisions of
(a) this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was such Agent
under this Agreement; and
(b) Section 10.3 and Section 10.4 shall continue to inure
to its benefit.
SECTION 9.5. Credit Extensions by an Agent. Each Agent shall have the
same rights and powers with respect to (x) the Credit Extensions made by it or
any of its respective Affiliates, and (y) the Notes held by it or any of its
Affiliates as any other Lender and may exercise the same as if it were not an
Agent. Each Agent and its respective Affiliates may accept deposits from, lend
money to, and generally engage in any kind of business with Seaboard or any
Subsidiary or Affiliate of Seaboard as if such Agent were not an Agent
hereunder.
SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Co-Managing Agent, the Syndication Agent, the
Documentation Agent, and each other Lender, and based on such Lender's review
of the financial information of Seaboard, this Agreement, the other Loan
Documents (the terms and provisions of which being satisfactory to such Lender)
and such other documents, information and investigations as such Lender has
deemed appropriate, made its own credit decision to extend its Commitments.
Each Lender also acknowledges that it will, independently of the Documentation
Agent and each other Lender, and based on such other documents, information and
investigations as it shall deem appropriate at any time, continue to make its
own credit decisions as to exercising or not exercising from time to time any
rights and privileges available to it under this Agreement or any other Loan
Document.
SECTION 9.7. Copies, etc. Each Agent shall give prompt notice to each
Lender of each notice or request required or permitted to be given to such Agent
by any Borrower pursuant to the terms of this Agreement (unless concurrently
delivered to the Lenders by such Borrower). Each Agent will distribute to each
Lender each document or instrument received for its account and copies of all
other communications received by such Agent from any Borrower for distribution
to the Lenders by such Agent in accordance with the terms of this Agreement.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this
Agreement and of each other Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to by the Borrowers and the Required Lenders; provided, however, that
no such amendment, modification or waiver which would:
(a) modify any requirement hereunder or under any other
Loan Document that any particular action be taken by all the Lenders
or by the Required Lenders shall be effective unless consented to by
each Lender;
(b) modify this Section 10.1, change the definition of
"Required Lenders", increase any Commitment Amount or the Percentage
of any Lender, reduce any fees described in Article III, or extend
the Revolving Loan Commitment Termination Date shall be made without
the consent of each Lender and each Lender of a Note;
(c) extend the due date for, or reduce the amount of, any
scheduled repayment or prepayment of principal of or interest on any
Loan (or reduce the principal amount of or rate of interest on any
Loan) shall be made without the consent of the Lender of that Note
evidencing such Loan;
(d) affect adversely the interests, rights or obligations
of an Agent qua such Agent, shall be made unless consented to by
such Agent; or
(e) release Seaboard from any of its duties and obligations
pursuant to the Seaboard Guaranty shall be made without the consent of
each Lender.
No failure or delay on the part of any Agent or any Lender in exercising any
power or right under this Agreement or any other Loan Document shall operate as
a waiver thereof, nor shall any single or partial exercise of any such power or
right preclude any other or further exercise thereof or the exercise of any
other power or right. No notice to or demand on any Borrower in any case shall
entitle it to any notice or demand in similar or other circumstances. No waiver
or approval by any Agent, any Lender or the holder of any Note under this
Agreement or any other Loan Document shall, except as may be otherwise stated
in such waiver or approval, be applicable to subsequent transactions. No waiver
or approval hereunder shall require any similar or dissimilar waiver or approval
thereafter to be granted hereunder.
SECTION 10.2. Notices. All notices and other communications
provided to any party hereto under this Agreement or any other Loan Document
shall be in writing or by facsimile and addressed, delivered or transmitted to
such party at its address or facsimile number set forth below its signature
hereto or set forth in the Lender Assignment Agreement or at such other address
or facsimile number as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with postage prepaid or
if properly addressed and sent by pre-paid courier service, shall be deemed
given when received; any notice, if transmitted by facsimile, shall be deemed
given when transmitted.
SECTION 10.3. Payment of Costs and Expenses. Seaboard agrees to pay
on demand all reasonable expenses of the Agents (including the fees and
out-of-pocket expenses of counsel to the Agents and of local counsel, if any,
who may be retained by counsel to the Agents) in connection with
(a) the negotiation, preparation, execution and delivery
of this Agreement and of each other Loan Document, including
schedules and exhibits, and any amendments, waivers, consents,
supplements or other modifications to this Agreement or any other
Loan Document as may from time to time hereafter be required,
whether or not the transactions contemplated hereby are consummated,
and
(b) the preparation and review of the form of any document
or instrument relevant to this Agreement or any other Loan Document.
Seaboard further agrees to pay, and to save each Agent and the Lenders harmless
from all liability for, any stamp or other taxes which may be payable in
connection with the execution or delivery of this Agreement, the Credit
Extensions made hereunder, or the issuance of the Notes or any other Loan
Documents. Seaboard also agrees to reimburse each Agent and each Lender upon
demand for all reasonable out-of-pocket expenses (including attorneys' fees and
legal expenses) incurred by the Documentation Agent or such Lender in connection
with (x) the negotiation of any restructuring or "work-out", whether or not
consummated, of any Obligations and (y) the enforcement of any Obligations.
SECTION 10.4. Indemnification. In consideration of the execution
and delivery of this Agreement by each Lender and the extension of the
Commitments, Seaboard hereby indemnifies, exonerates and holds each Agent and
each Lender and each of their respective officers, directors, employees and
agents (collectively, the "Indemnified Parties") free and harmless from and
against any and all actions, causes of action, suits, losses, costs, liabilities
and damages, and expenses incurred in connection therewith (irrespective of
whether any such Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable attorneys' fees and
disbursements (collectively, the "Indemnified Liabilities"), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole or
in part, directly or indirectly, with the proceeds of any Credit
Extension;
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties (including
any action brought by or on behalf of any Borrower as the result of
any determination by the Required Lenders pursuant to Article V not
to fund any Credit Extension);
(c) any investigation, litigation or proceeding related to
any environmental cleanup, audit, compliance or other matter
relating to the protection of the environment or the Release by
Seaboard or any of its Subsidiaries of any Hazardous Material; or
(d) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or releases
from, any real property owned or operated by Seaboard or any
Subsidiary thereof of any Hazardous Material (including any losses,
liabilities, damages, injuries, costs, expenses or claims asserted
or arising under any Environmental Law), regardless of whether
caused by, or within the control of, Seaboard or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or wilful misconduct. Seaboard and its successors and assigns hereby
waive, release and agree not to make any claim or bring any cost recovery action
against, any Agent or any Lender under CERCLA or any state equivalent, or any
similar law now existing or hereafter enacted. It is expressly understood and
agreed that to the extent that any of such Persons is strictly liable under any
Environmental Laws, Seaboard's obligation to such Person under this indemnity
shall likewise be without regard to fault on the part of Seaboard with respect
to the violation or condition which results in liability of such Person. If and
to the extent that the foregoing undertaking may be unenforceable for any
reason, Seaboard hereby agrees to make the maximum contribution to the payment
and satisfaction of each of the Indemnified Liabilities which is permissible
under applicable law.
SECTION 10.5. Survival. The obligations of Seaboard and each other
Borrower under Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations
of the Lenders under Section 9.1, shall in each case survive any termination of
this Agreement, the payment in full of all the Obligations and the termination
of all the Commitments.
SECTION 10.6. Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this Agreement and
of each other Loan Document are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or such other Loan
Document or any provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts. This Agreement may be
executed by the parties hereto in several counterparts, each of which shall be
executed by each Borrower and each Agent and be deemed to be an original and all
of which shall constitute together but one and the same agreement.
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE
NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. This
Agreement, the Notes, the Seaboard Guaranty and the other Loan Documents
constitute the entire understanding among the parties hereto with respect to the
subject matter hereof and supersede any prior agreements, written or oral, with
respect thereto.
SECTION 10.10. Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that:
(a) the Borrowers may not assign or transfer their rights
or obligations hereunder without the prior written consent of the
Syndication Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the
Lenders are subject to Section 10.11.
SECTION 10.11. Sale and Transfer of Loans and Notes; Participation
in Loans and Notes. Each Lender may assign, or sell participation in, its Loans
and Commitments to one or more other Persons in accordance with this Section
10.11.
SECTION 10.11.1. Assignments. Any Lender,
(a) with the written consents of Seaboard and the
Syndication Agent (which consents shall not be unreasonably delayed
or withheld and which consent, in the case of Seaboard, shall be
deemed to have been given in the absence of a written notice
delivered by Seaboard to the Syndication Agent, on or before the
fifth Business Day after receipt by Seaboard of such Lender's
request for consent, stating, in reasonable detail, the reasons why
Seaboard proposes to withhold such consent) may at any time assign
and delegate to one or more commercial banks or other financial
institutions, and
(b) with notice to Seaboard and the Syndication Agent, but
without the consent of Seaboard or the Syndication Agent, may assign
and delegate to any of its Affiliates or to any other Lender;
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "Assignee Lender"), all or any fraction of such Lender's total Loans and
Commitments (which assignment and delegation shall be of a constant, and not a
varying, percentage of all the assigning Lender's Loans and Commitments) in a
minimum aggregate amount of $5,000,000; provided, however, that any such
Assignee Lender will comply, if applicable, with the provisions contained in
the penultimate sentence of Section 4.6; further provided, however, that if any
Agent assigns and delegates all of such Agent's total Loans and Commitments,
such Agent shall resign as Agent pursuant to Section 9.4; and still further,
provided, however, that, Seaboard and the Syndication Agent shall be entitled
to continue to deal solely and directly with such Lender in connection with the
interests so assigned and delegated to an Assignee Lender until
(x) written notice of such assignment and delegation,
together with payment instructions, addresses and related
information with respect to such Assignee Lender, shall have been
given to Seaboard and the Syndication Agent by such Lender and such
Assignee Lender;
(y) such Assignee Lender shall have executed and delivered
to Seaboard and the Syndication Agent a Lender Assignment Agreement,
accepted by the Syndication Agent; and
(z) the processing fees described below shall have been
paid.
From and after the date that the Syndication Agent accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Within five Business Days after its receipt of notice that the
Syndication Agent has received an executed Lender Assignment Agreement, the
applicable Borrower shall execute and deliver to the Syndication Agent (for
delivery to the relevant Assignee Lender) new Notes evidencing such Assignee
Lender's assigned Loans and Commitments and, if the assignor Lender has retained
Loans and Commitments hereunder, replacement Notes in the principal amount of
the Loans and Commitments retained by the assignor Lender hereunder (such Notes
to be in exchange for, but not in payment of, those Notes then held by such
assignor Lender). Each such Note shall be dated the date of the predecessor
Notes. The assignor Lender shall mark the predecessor Notes "exchanged" and
deliver them to such Borrower. Accrued interest on that part of the predecessor
Notes evidenced by the new Notes, and accrued fees, shall be paid as provided
in the Lender Assignment Agreement. Accrued interest on that part of the
predecessor Notes evidenced by the replacement Notes shall be paid to the
assignor Lender. Accrued interest and accrued fees shall be paid at the same
time or times provided in the predecessor Notes and in this Agreement. Such
assignor Lender or such Assignee Lender must also pay a processing fee to the
Syndication Agent upon delivery of any Lender Assignment Agreement in the
amount of $3,000. Any attempted assignment and delegation not made in
accordance with this Section 10.11.1 shall be null and void. Notwithstanding
any other provision in this Agreement, any Lender may at any time create a
security interest in, or pledge, all or any portion of its rights under and
interest in this Agreement and any Note held by it in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System or U.S. Treasury Regulation 31 CFR Sec. 203.14, and such
Federal Reserve Bank may enforce such pledge or security interest in any manner
permitted under applicable law.
SECTION 10.11.2. Participation. Any Lender may at any time sell to one
or more commercial banks or other Persons (each of such commercial banks and
other Persons being herein called a "Participant") participating interests in
any of the Loans, Commitments, or other interests of such Lender hereunder,
subject to applicable state and federal securities laws; provided, however,
that
(a) no participation contemplated in this Section 10.11
shall relieve such Lender from its Commitments or its other
obligations hereunder or under any other Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(c) Seaboard and the Agents shall continue to deal solely
and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and each of the other
Loan Documents;
(d) no Participant, unless such Participant is an Affiliate
of such Lender, or is itself a Lender, shall be entitled to require
such Lender to take or refrain from taking any action hereunder or
under any other Loan Document, except that such Lender may agree
with any Participant that such Lender will not, without such
Participant's consent, take any actions of the type described in
clause (b) or (c) of Section 10.1; and
(e) no Borrower shall be required to pay any amount under
Section 4.6 that is greater than the amount which it would have been
required to pay had no participating interest been sold.
Each Borrower acknowledges and agrees that each Participant, for purposes of
Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3 and 10.4, shall be considered a
Lender.
SECTION 10.12. Other Transactions. Nothing contained herein shall
preclude any Agent or any other Lender from engaging in any transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with any Borrower or any of its Affiliates in which such Borrower or such
Affiliate is not restricted hereby from engaging with any other Person.
SECTION 10.13. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EACH AGENT, THE
LENDERS OR ANY BORROWER SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE
COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
AGENTS' OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. EACH OF EACH BORROWER, EACH LENDER, AND EACH
AGENT HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET
FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH SUCH LITIGATION. EACH BORROWER HEREBY IRREVOCABLY APPOINTS
CT CORPORATION SYSTEMS (THE "PROCESS AGENT"), WITH AN OFFICE ON THE DATE HEREOF
AT 1633 BROADWAY, NEW YORK, NEW YORK 10019, UNITED STATES, AS ITS AGENT TO
RECEIVE, ON SUCH BORROWER'S BEHALF AND ON BEHALF OF SUCH BORROWER'S PROPERTY,
SERVICE OF COPIES OF THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY
BE SERVED IN ANY SUCH ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE BY
MAILING OR DELIVERING A COPY OF SUCH PROCESS TO SUCH BORROWER IN CARE OF THE
PROCESS AGENT AT THE PROCESS AGENT'S ABOVE ADDRESS, AND EACH BORROWER HEREBY
IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS AGENT TO ACCEPT SUCH SERVICE
ON ITS BEHALF. AS AN ALTERNATIVE METHOD OF SERVICE, EACH BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH
OF EACH BORROWER, EACH LENDER, AND EACH AGENT HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE
OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY BORROWER HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OF FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, EACH BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF
ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 10.14. Waiver of Jury Trial. EACH AGENT, THE LENDERS AND
EACH BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS
THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF SUCH AGENT, THE LENDERS OR SUCH BORROWER. EACH
BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR EACH AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH
SUCH OTHER LOAN DOCUMENT.
SECTION 10.15. Designated Borrowers.
(a) Addition of a Designated Borrower. Seaboard may at any time
designate any Material Subsidiary (an "Applicant Borrower") as a Designated
Borrower hereunder by delivering to the Syndication Agent (which shall promptly
deliver counterparts thereof to each other Agent and to each Lender) a
Designated Borrower Certificate executed by the Applicant Borrower and Seaboard
together with such supporting resolutions, incumbency certificates and opinions
of counsel as the Syndication Agent may reasonably request. Any such addition
of a Designated Borrower shall be effective ten Business Days after the delivery
of such Designated Borrower Certificate to the Syndication Agent. Such
Applicant Borrower shall thereupon become a party hereto and a Designated
Borrower hereunder and shall (i) entitled to all rights and benefits of a
Borrower hereunder and under each instrument executed pursuant hereto and (ii)
subject to all obligations of a Borrower hereunder and thereunder.
(b) Removal of a Borrower. Seaboard may at any time request that any
Borrower hereunder cease to be a Borrower by delivering to the Syndication
Agent (which shall promptly deliver counterparts thereof to each other Agent
and to each Lender) a written notice to such effect. Such Borrower shall cease
to be a Borrower hereunder on the later to occur of (i) the date the Syndication
Agent receives such request, and (ii) the date such Borrower has paid all of its
Loans and all accrued and unpaid interest, fees or other Obligations of such
Borrower hereunder. Nothing in this Section 10.15(b) shall restrict Seaboard
from thereafter designating such a Borrower as a Designated Borrower pursuant
to the terms of Section 10.15(a).
SECTION 10.16. Judgment Currency. Each Borrower, each Agent, and
each Lender hereby agree that if, in the event that a judgment is given in
relation to any sum due to any Agent or any Lender hereunder, such judgment is
given in a currency (the "Judgment Currency") other than Dollars (the "Original
Currency"), such Borrower agrees to indemnify such Agent or such Lender, as the
case may be, to the extent that the amount of the Original Currency which could
have been purchased by the Syndication Agent in accordance with normal banking
procedures on the Business Day following receipt of such sum is less than the
sum which could have been so purchased by the Syndication Agent had such
purchase been made on the day on which such judgment was given or, if such day
is not a Business Day, on the Business Day immediately preceding the giving of
such judgment. IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
SEABOARD CORPORATION
By:________________________________
Name:
Title:
Address: 9000 West 67th Street
P.O. Box 2972
Shawnee Mission, KS 66201
Telecopy No.: 913/676-8976
Telephone No.: 913/676-8833
Attention: Robert Steer
H&O SHIPPING LTD.
By:________________________________
Name:
Title:
Address: 900 West 67th Street
P.O. Box 2972
Shawnee Mission, KS 66201
Telecopy No.: 913/676-8976
Telephone No.: 913/676-8833
Attention: Robert Steer
SEABOARD MARINE LTD.
By:________________________________
Name:
Title:
Address: 9000 West 67th Street
P.O. Box 2972
Shawnee Mission, KS 66201
Telecopy No.: 913/676-8976
Telephone No.: 913/676-8833
Attention: Robert Steer
Percentage
THE BANK OF NOVA SCOTIA,
13.2% as Co-Managing Agent, as the
Documentation Agent and as a Lender
By:________________________________
Name:
Title:
Notice Address:
600 Peachtree Street
Atlanta, Georgia 30383
For Credit Issues:
Pearl Jackson
600 Peachtree Street
Atlanta, Georgia 30383
Telecopy No.: 404/888-8998
Telephone No.: 404/877-1539
Lisa Garling
181 West Madison Street
Chicago, Illinois 60602
Telecopy No.: 312/201-4108
Telephone No.: 312/201-4135
For Operations Issues:
Gibson Lowrey
600 Peachtree Street
Atlanta, Georgia 30383
Telecopy No.: 404/888-8998
Telephone No.: 404/877-1540
Payment Instructions:
Fed Funds to Bank of Nova Scotia
New York
ABA # 026002532
Account Number: 0606634
Reference: Seaboard
LIBOR
Office: Same as above
Percentage
THE CHASE MANHATTAN BANK, N.A.,
13.2% as Co-Managing Agent, as the
Syndication Agent and as a
Lender
By:________________________________
Name:
Title:
Notice Address:
Andrea Grullon
4 Chase Metrotech Center,
13th Floor,
Brooklyn, New York 11245
Telecopy No.: 718/242-6909
Telephone No.: 718/242-7962
Payment Instructions:
Fed Funds to
The Chase Manhattan Bank, N.A., New York
ABA No. 021000021
Credit to Account # 900-9-000002
Percentage
THE DAI-ICHI KANGYO BANK, LTD., as a
Lender
11.2%
By:________________________________
Name:
Title:
Notice Address:
Corporate Finance Department
One World Trade Center
Suite 4911
New York, New York 10042
For Credit Issues:
Bertram H. Tang
One World Trade Center
Suite 4911
New York, New York 10042
Telecopy No.: 212/912-1879
Telephone No.: 212/432-8839
For Operations Issues:
Tina Brucculari
One World Trade Center
Suite 4911
New York, New York 10042
Telecopy No.: 212/912-0579
Telephone No.: 212/432-6643
Payment Instructions:
Fed Fund to Dai-Ichi Kangyo Bank
Fedwire ABA No. 026004307
Attn: Loan Admin. Asst. General Manager
Re: Seaboard
LIBOR
Office: Same as above
Percentage
THE SANWA BANK, LIMITED, CHICAGO BRANCH, as a
Lender
7.2%
By:________________________________
Name:
Title:
Notice Address:
For Credit Issues:
Kenneth C. Eichwald
10 S. Wacker Drive
Chicago, Illinois 60606
Telecopy No.: 312/346-6677
Telephone No.: 312/368-3006
For Operations Issues:
Dina Tucci-Albro
10 S. Wacker Drive
Chicago, Illinois 60606
Telecopy No.: 312/346-6677
Telephone No.: 312/368-3049
Payment Instructions:
Fed Fund to The Sanwa Bank, Ltd., Chicago Branch
ABA No. 071001805
Attn: Loan Admin.
Reference: Seaboard
LIBOR
Office: Same as above
Percentage
SUNTRUST BANK, ATLANTA, as a Lender
9.6%
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
Notice Address:
25 Park Place, 25th Floor
Atlanta, Georgia 30303 or
P.O. Box 4418, MC 176
Atlanta, Georgia 30302
For Credit Issues:
Gregory L. Cannon
25 Park Place, 25th Floor
Atlanta, Georgia 30303
Telecopy No.: 404/230-5305
Telephone No.: 404/827-6887
For Operations Issues:
Kate Stevenson
25 Park Place, 25th Floor
Atlanta, Georgia 30303
Telecopy No.: 404/230-5305
Telephone No.: 404/827-4237
Payment Instructions:
Fed Funds to SunTrust Bank, Atlanta
ABA No. 061000104
Beneficiary: Wire Clearing Account
No. 970100000000013
Ref: Seaboard Corporation
LIBOR
Office: Same as above
Percentage
NATIONSBANK OF TEXAS, N.A., as a Lender
9.6%
By: ____________________________
Name:
Title:
Notice Address:
901 Main Street
Dallas, TX 75202
For Credit Issues:
Perry Stephenson
901 Main Street
Dallas, TX 75202
Telecopy No.: 214/508-0980
Telephone No.: 214/508-0913
For Operations Issues:
Stacey Smith
901 Main Street
Dallas, TX 75202
Telecopy No.: 214/508-0944
Telephone No.: 214/508-1864
Payment Instructions:
Fed Funds to NationsBank of Texas, N.A.
ABA No. 111000025
Corporate Loans Account No. 1292000883
Ref: Seaboard Corp
Attn: Stacey Smith
LIBOR
Office: Same as above
Percentage
THE BANK OF NEW YORK, as a Lender
7.2%
By:___________________________
Name:
Title:
Notice Address:
One Wall Street, 19th Flr.
New York, N.Y. 10286
Administrator Contact:
Pilar Kinzie
One Wall Street, 19th Flr.
New York, N.Y. 10286
Telecopy No.: 212/635-7923 or 7924
Telephone No.: 212/635-7607
Payment Instructions:
Fed Funds to The Bank of New York
ABA No. 0210-00018
Commercial Loan Dept.
GLA #111556
Ref: Seaboard Corp.
LIBOR
Office: Same as above
Percentage
BOATMEN'S FIRST NATIONAL BANK OF
9.6% KANSAS CITY, as a Lender
By: ____________________________
Name:
Title:
Notice Address:
Ellen Isch
10th & Baltimore
Kansas City, MO 64105
For Credit Issues:
Ellen Isch
10th & Baltimore
Kansas City, MO 64105
Telecopy No.: 816/691-7426
Telephone No.: 816/691-7748
For Operations Issues:
Julia Gann
10th & Baltimore
Kansas City, MO 64105
Telecopy No.: 816/691-7426
Telephone No.: 816/691-7740
Payment Instructions:
Fed Funds to
Boatmen's First National Bank of Kansas City
ABA No. 101000035
Attn: Commercial Loan Dept.
Ref: Seaboard Corporation
LIBOR Office: Same as above
Percentage
UMB BANK, N.A., as a Lender
4.0%
By:_____________________________
Name:
Title:
Notice Address:
1010 Grand Blvd.
Kansas City, MO 64106
Attn: Discount Department
For Credit Issues:
David A. Proffitt
1010 Grand Blvd.
Kansas City, MO 64106
Telecopy No.: 816/860-7143
Telephone No.: 816/860-7935
For Operations Issues:
Bev Puglisi
1010 Grand Blvd.
Kansas City, MO 64106
Telecopy No.: 816/860-3772
Telephone No.: 816/860-3677
Payment Instructions:
Fed Funds to
UMB Bank, N.A.
ABA No. 101000695
Commercial Discount/0010600226500
Re: Seaboard
LIBOR
Office: Same as above
Percentage
4.0% CAISSE NATIONALE DE CREDIT AGRICOLE,
as a Lender
By: _____________________________
Name:
Title:
Notice Address:
Laura Schmuck
55 E. Monroe Street
Suite 4700
Chicago, IL 60603
Telecopy No.: 312/372-4421
Telephone No.: 312/917-7428
For Credit Issues:
Brad Peterson
55 E. Monroe Street
Suite 4700
Chicago, IL 60603
Telecopy No.: 312/372-3455
Telephone No.: 312/917-7568
For Operations Issues:
Laura Schmuck
55 E. Monroe Street
Suite 4700
Chicago, IL 60603
Telecopy No.: 312/372-4421
Telephone No.: 312/917-7428
Payment Instructions:
Fed Funds to Morgan Guaranty Trust Co.
New York
ABA No. 021000238
A/C 630 00 205
A/C Name: CNCA: Chicago Branch
Ref: Seaboard Corp.
LIBOR
Office: Same as above
Percentage
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND" NEW YORK BRANCH,
as a Lender
11.2%
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
Notice Address:
Brenda Lyew
245 Park Avenue
New York, NY 10167
For Credits Matters:
Gordon E. Arnold
Telecopy No.: 214/419-6315
Telephone No.: 214/419-6320
For Operations Issues:
Brenda Lyew
245 Park Avenue
New York, NY 10167
Telecopy No.: 212/916-7930
Telephone No.: 212/916-7928
Payment Instructions:
Fed Funds (or CHIPS if coming from NY)
to Bank of New York
ABA No. 021 000 018
Account Name: Rabobank Nederland
Account No. : 802-6002-533
Attn: Corporate Services
Ref: Seaboard Corp.
LIBOR
Office: Same as above
SCHEDULE I
DISCLOSURE SCHEDULE
ITEM 6.2(a) Financial Statements.
[Financial Statements for year ended 12/31/94 and quarter ended 06/30/95]
ITEM 6.2(b) Indebtedness.
Obligor Holder Outstanding Amount
Current Portion Collateral (if any)
ITEM 6.3 Subsidiaries and Affiliates.
Subsidiary Jurisdiction % Owned
Affiliate Nature of Affiliation
ITEM 6.10 Restrictions.
ITEM 6.12 Foreign Pension Plans.
ITEM 7.2.2 Existing Liens.
ITEM 7.2.6 Existing Subsidiary Debt.
TABLE OF CONTENTS
Section Page
||
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms. . . . . . . . . . . . . . . . . . . . 1
1.2. Use of Defined Terms . . . . . . . . . . . . . . . . 27
1.3. Cross-References . . . . . . . . . . . . . . . . . . 27
1.4. Accounting and Financial Determinations. . . . . . . 27
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
2.1. Commitments. . . . . . . . . . . . . . . . . . . . . 27
2.1.1. Revolving Loan Commitment. . . . . . . . . 28
2.1.2. Swing Line Loan Commitment . . . . . . . . 28
2.1.3. Lenders Not Permitted or
Required to Make Revolving Loans
or Swing Line Loans. . . . . . . . . . . . 28
2.2. Reduction of Commitments . . . . . . . . . . . . . . 28
2.3. Revolving Loan and Swing Line Loan Borrowing
Procedure and Funding Maintenance. . . . . . . . . . 29
2.4. Continuation and Conversion Elections. . . . . . . . 30
2.5. Funding. . . . . . . . . . . . . . . . . . . . . . . 31
2.6. Competitive Bid Loans. . . . . . . . . . . . . . . . 31
2.7. Notes. . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments . . . . . . . . . . . . . 38
3.2. Interest Provisions. . . . . . . . . . . . . . . . . 39
3.2.1. Rates. . . . . . . . . . . . . . . . . . . 39
3.2.2. Post-Maturity Rates. . . . . . . . . . . . 40
3.2.3. Payment Dates. . . . . . . . . . . . . . . 40
3.2.4. Interest Rate Determination. . . . . . . . . 40
3.3. Fees . . . . . . . . . . . . . . . . . . . . . . . . 41
3.3.1. Facility Fee . . . . . . . . . . . . . . . 41
3.3.2. Co-Managing Agents' Fees . . . . . . . . . 41
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful . . . . . . . . . . . . . 41
4.2. Deposits Unavailable . . . . . . . . . . . . . . . . 42
4.3. Increased LIBO Rate Loan Costs, etc. . . . . . . . . 42
4.4. Funding Losses . . . . . . . . . . . . . . . . . . . 42
4.5. Increased Capital Costs. . . . . . . . . . . . . . . 43
4.6. Taxes. . . . . . . . . . . . . . . . . . . . . . . . 44
4.7. Payments, Computations, etc. . . . . . . . . . . . . 45
4.8. Sharing of Payments. . . . . . . . . . . . . . . . . 45
4.9. Setoff . . . . . . . . . . . . . . . . . . . . . . . 46
4.10. Use of Proceeds. . . . . . . . . . . . . . . . . . . 47
ARTICLE V
CONDITIONS TO RESTATEMENT
5.1. Restated Agreement Effective Date. . . . . . . . . . 47
5.1.1. Resolutions, etc.. . . . . . . . . . . . . 47
5.1.2. Delivery of Notes. . . . . . . . . . . . . 47
5.1.3. Opinion of Counsel . . . . . . . . . . . . 48
5.1.4. Closing Fees, Expenses, etc. . . . . . . . 48
5.1.5. No Material Adverse Change . . . . . . . . 48
5.1.6. Closing Certificate. . . . . . . . . . . . 48
5.1.7. Seaboard Guaranty. . . . . . . . . . . . . 49
5.2. All Credit Extensions. . . . . . . . . . . . . . . . 49
5.2.1. Compliance with Warranties, No
Default, etc.. . . . . . . . . . . . . . . 49
5.2.2. Credit Extension Request . . . . . . . . . 50
5.2.3. Satisfactory Legal Form. . . . . . . . . . 50
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Nature of Business . . . . . . . . . . . . . . . . . 51
6.2. Financial Statements; Indebtedness;
Material Adverse Change. . . . . . . . . . . . . . . 51
6.3. Subsidiaries and Affiliates. . . . . . . . . . . . . 51
6.4. Title to Properties. . . . . . . . . . . . . . . . . 52
6.5. Taxes. . . . . . . . . . . . . . . . . . . . . . . . 52
6.6. Pending Litigation . . . . . . . . . . . . . . . . . 53
6.7. Full Disclosure. . . . . . . . . . . . . . . . . . . 54
6.8. Corporate Organization and Authority . . . . . . . . 54
6.9. Charter Instruments, Other Agreements. . . . . . . . 54
6.10. Restrictions on Seaboard and Subsidiaries. . . . . . 55
6.11. Compliance with Law. . . . . . . . . . . . . . . . . 55
6.12. ERISA. . . . . . . . . . . . . . . . . . . . . . . . 55
6.13. Environmental Compliance . . . . . . . . . . . . . . 56
6.14. Due Authorization, Non-conflict; Obligations
are Enforceable. . . . . . . . . . . . . . . . . . . 57
6.15. Governmental Consent . . . . . . . . . . . . . . . . 58
6.16. No Defaults under Notes. . . . . . . . . . . . . . . 58
6.17. Use of Proceeds of Notes . . . . . . . . . . . . . . 58
6.18. Borrower Subsidiaries. . . . . . . . . . . . . . . . 59
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants. . . . . . . . . . . . . . . . 60
7.1.1. Financial and Business Information . . . . 60
7.1.2. Officers' Certificates . . . . . . . . . . 64
7.1.3. Accountants' Certificates. . . . . . . . . 64
7.1.4. Inspection . . . . . . . . . . . . . . . . 65
7.1.5. Payment of Taxes and Claims. . . . . . . . 66
7.1.6. Maintenance of Properties;
Corporate Existence; etc.. . . . . . . . . 66
7.1.7. ERISA Compliance . . . . . . . . . . . . . 67
7.2. Negative Covenants . . . . . . . . . . . . . . . . . 67
7.2.1. Merger; Acquisition. . . . . . . . . . . . 67
7.2.2. Liens. . . . . . . . . . . . . . . . . . . 68
7.2.3. Consolidated Tangible Net Worth. . . . . . 71
7.2.4. Funded Debt. . . . . . . . . . . . . . . . 72
7.2.5. Transfer of Property . . . . . . . . . . . 72
7.2.6. Subsidiary Debt. . . . . . . . . . . . . . 75
7.2.7. ERISA Prohibited Actions . . . . . . . . . 76
7.2.8. Line of Business . . . . . . . . . . . . . 76
7.2.9. Transactions with Affiliates . . . . . . . 77
7.2.10. Guaranties . . . . . . . . . . . . . . . . 77
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default . . . . . . . . . . . . 77
8.1.1. Non-Payment of Obligations . . . . . . . . 78
8.1.2. Breach of Warranty . . . . . . . . . . . . 78
8.1.3. Non-Performance of Certain
Covenants and Obligations. . . . . . . . . 78
8.1.4. Non-Performance of Other Covenants
and Obligations. . . . . . . . . . . . . . 78
8.1.5. Default on Other Indebtedness. . . . . . . 78
8.1.6. Judgments. . . . . . . . . . . . . . . . . 78
8.1.7. Bankruptcy, Insolvency, etc. . . . . . . . 79
8.2. Action if Bankruptcy . . . . . . . . . . . . . . . . 79
8.3. Action if Other Event of Default . . . . . . . . . . 80
ARTICLE IX
THE AGENTS
9.1. Actions. . . . . . . . . . . . . . . . . . . . . . . 80
9.2. Funding Reliance, etc. . . . . . . . . . . . . . . . 81
9.3. Exculpation. . . . . . . . . . . . . . . . . . . . . 81
9.4. Successor. . . . . . . . . . . . . . . . . . . . . . 82
9.5. Credit Extensions by an Agent. . . . . . . . . . . . 82
9.6. Credit Decisions . . . . . . . . . . . . . . . . . . 83
9.7. Copies, etc. . . . . . . . . . . . . . . . . . . . . 83
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc.. . . . . . . . . . . . . . 83
10.2. Notices. . . . . . . . . . . . . . . . . . . . . . . 84
10.3. Payment of Costs and Expenses. . . . . . . . . . . . 84
10.4. Indemnification. . . . . . . . . . . . . . . . . . . 85
10.5. Survival . . . . . . . . . . . . . . . . . . . . . . 86
10.6. Severability . . . . . . . . . . . . . . . . . . . . 86
10.7. Headings . . . . . . . . . . . . . . . . . . . . . . 86
10.8. Execution in Counterparts. . . . . . . . . . . . . . 87
10.9. Governing Law; Entire Agreement. . . . . . . . . . . 87
10.10. Successors and Assigns . . . . . . . . . . . . . . . 87
10.11. Sale and Transfer of Loans and Notes;
Participation in Loans and Notes . . . . . . . . . . 87
10.11.1. Assignments. . . . . . . . . . . . . . . . 87
10.11.2. Participation. . . . . . . . . . . . . . . 89
10.12. Other Transactions . . . . . . . . . . . . . . . . . 90
10.13. Forum Selection and Consent to Jurisdiction. . . . . 90
10.14. Waiver of Jury Trial . . . . . . . . . . . . . . . . 91
10.15. Designated Borrowers . . . . . . . . . . . . . . . . 91
10.16. Judgment Currency. . . . . . . . . . . . . . . . . . 92
||
SCHEDULE I - Disclosure Schedule
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Competitive Bid Loan Note
EXHIBIT A-3 - Form of Swing Line Note
EXHIBIT B-1 - Form of Revolving Loan Borrowing Request
EXHIBIT B-2 - Form of Competitive Bid Loan Borrowing Request
EXHIBIT C-1 - Form of Invitation for Competitive Bid Loan Offers
EXHIBIT C-2 - Form of Competitive Bid Loan Offer
EXHIBIT C-3 - Form of Competitive Bid Loan Acceptance
EXHIBIT D - Form of Continuation/Conversion Notice
EXHIBIT E - Form of Lender Assignment Agreement
EXHIBIT F - Form of Opinion of Counsel to Seaboard
EXHIBIT G - [Reserved]
EXHIBIT H - Form of Seaboard Guaranty
EXHIBIT I - Form of Designated Borrower Certificate
U.S. $75,000,000
AMENDED AND RESTATED
SHORT TERM REVOLVING CREDIT AGREEMENT,
dated as of March 28, 1996,
(amending and restating the Short Term Revolving
Credit Agreement dated as of March 1, 1996)
among
SEABOARD CORPORATION
and CERTAIN OF ITS SUBSIDIARIES
as the Borrowers,
CERTAIN COMMERCIAL LENDING INSTITUTIONS,
as the Lenders,
THE BANK OF NOVA SCOTIA,
as Co-Managing Agent and as the Documentation Agent
and
THE CHASE MANHATTAN BANK, N.A.,
as Co-Managing Agent and as the Syndication Agent
AMENDED AND RESTATED
SHORT TERM REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED SHORT TERM REVOLVING CREDIT AGREEMENT, dated as
of March 28, 1996 (amending and restating the Short Term Revolving Credit
Agreement dated as of March 1, 1996), among SEABOARD CORPORATION, a Delaware
corporation ("Seaboard"), H&O SHIPPING LTD., a Liberia corporation ("H&O"),
SEABOARD MARINE LTD., a Liberia corporation ("Marine"), the various financial
institutions as are or may become parties hereto (collectively, the "Lenders"),
THE BANK OF NOVA SCOTIA ("Scotiabank") and THE CHASE MANHATTAN BANK, N.A.
("Chase") as co-managing agents (in such capacity, individually referred to as
a "Co-Managing Agent" and collectively referred to as the "Co-Managing Agents"),
Scotiabank as documentation agent (in such capacity, the "Documentation Agent")
and Chase as syndication agent (in such capacity, the "Syndication Agent").
W I T N E S S E T H:
WHEREAS, certain of the parties hereto entered into a Short Term Revolving
Credit Agreement dated as of March 1, 1996 (the "Original Agreement"), which
provides for aggregate Commitments of $75,000,000 from the Lenders pursuant to
which Short Term Revolving Loans and Short Term Swing Line Loans would be made
to Seaboard and for a procedure pursuant to which Seaboard may invite the
Lenders to bid for (on an uncommitted basis) and to make short-term loans (in
the form of Short Term Competitive Bid Loans) to Seaboard;
WHEREAS, the parties hereto desire to add H&O and Marine as Borrowers
hereunder and to provide a procedure by which other Material Subsidiaries of
Seaboard may become Borrowers hereunder; and
WHEREAS, the parties hereto desire to amend and restate the Original
Agreement to reflect the changes referred to above and to make certain other
changes;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Absolute Rate" means, with respect to an Absolute Rate Loan made by a
given Lender, a fixed rate of interest per annum (rounded to the nearest
1/10,000th of 1%) offered by such Lender and accepted by a Borrower.
"Absolute Rate Auction" means a solicitation of Short Term Competitive Bid
Loan quotes at an Absolute Rate pursuant to Section 2.6.
"Absolute Rate Loan" means a Short Term Competitive Bid Loan which bears
interest at an Absolute Rate.
"Adjusted Consolidated Shareholders' Equity" means, at any time,
(a) the sum of (i) the amount of shareholders' equity of
Seaboard and the Subsidiaries (but excluding, without limitation,
all Preferred Stock other than perpetual Preferred Stock and, to the
extent included therein, minority interests), plus
(ii) the amount of Unamortized Tax Incentive Grants
and Tax Incentive Financings, plus
(iii) the amount of the Code 447(i) Suspense Account
Amount, minus
(b) The sum of (i) the Restricted Basket Transfer Proceeds
Amount, plus
(ii) the Restricted Subsidiary Net Worth Amount,
all determined on a consolidated basis at such time.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully
diluted basis) having ordinary voting power for the election of
directors or managing general partners; or
(b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agent" means as the context may require, either Co-Managing Agent, the
Documentation Agent or the Syndication Agent.
"Agreement" means, on any date, this Amended and Restated Short Term
Revolving Credit Agreement as originally in effect on the Restated Agreement
Effective Date and as thereafter from time to time amended, supplemented,
amended and restated, or otherwise modified and in effect on such date.
"Alternate Base Rate" means, on any date and with respect to all Base Rate
Loans, a fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently established by the Syndication
Agent at its Domestic Office as its base rate for Dollar loans; and
(b) the Federal Funds Rate most recently determined by the
Syndication Agent plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Syndication Agent in connection with extensions of
credit. Changes in the rate of interest on that portion of any Loans maintained
as Base Rate Loans will take effect simultaneously with each change in the
Alternate Base Rate. The Syndication Agent will give notice promptly to
Seaboard and the Lenders of changes in the Alternate Base Rate.
"Applicable Facility Fee Rate" means 0.08% per annum.
"Applicable Margin" means 0.27% per annum.
"Applicant Borrower" is defined in Section 10.15.
"Assignee Lender" is defined in Section 10.11.1.
"Authorized Officer" means, relative to each Borrower, those of its
officers, including without limitation, its Senior Financial Officer (if
applicable), whose signatures and incumbency shall have been certified to the
Documentation Agent and the Lenders pursuant to Section 5.1.1.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Basket Liens" is defined in Section 7.2.2(a)(viii).
"Basket Secured Debt" is defined in Section 7.2.2(a)(viii)(A).
"Borrower" means any of Seaboard, H&O, Marine, and any Material Subsidiary
that from time to time becomes a party hereto pursuant to Section 10.15.
"Borrowing" means, as the context may require, either a Short Term
Competitive Bid Loan Borrowing, a Short Term Swing Line Loan Borrowing or a
Short Term Revolving Loan Borrowing.
"Borrowing Request" means, as the context may require, either a Short Term
Revolving Loan Borrowing Request or a Short Term Competitive Bid Loan Borrowing
Request.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a
legal holiday on which banks are authorized or required to be closed
in New York, New York; and
(b) relative to the making, continuing, prepaying or
repaying of any LIBO Rate Loans, any day on which dealings in
Dollars are carried on in the London interbank market.
"Capital Lease" means, at any time, a lease with respect to which the
lessee is required to recognize the acquisition of an asset and the incurrence
of a liability at such time.
"Cash Equivalents" means (a) the following short-term (less than six
months) investment vehicles:
(i) Money market mutual funds rated Vmigl by Moody's or A1
by S&P.
(ii) 0 - 7 day repurchase agreements collateralized by U.S.
government securities.
(iii) 0 - 6 month certificates of deposit from banks rated
C or better by Thomson BankWatch, Inc. or II or better by IBCA
Banking, Ltd.
(iv) Variable rate demand notes that are secured by
irrevocable, direct-pay letters of credit rated A through C by
Thomson BankWatch, Inc. or rated in one of the top three rating
categories by Moody's or S&P. In the case of foreign banks, the
letter of credit must be rated in one of the top two rating
categories by Moody's or S&P. The underlying obligor must be rated
3A, 4A or 5A by Dun & Bradstreet. If the underlying obligor is not
rated by Dun & Bradstreet, the letter of credit securing the issue
must be rated in one of the top two rating categories by Moody's or
S&P.
and (b) the following long-term investment vehicles:
(i) Securities that are exempt from U.S. Federal income tax
("Municipals") with maximum maturity of five (5) years rated Aa, P-1
or Vmig1 or better by Moody's or AA, A-1 or better by S&P.
(ii) Negotiable Deposits (including time deposits and
certificates of deposit) with entities carrying on banking business
in the United States rated C or better by Thomson BankWatch, Inc. or
II or better by IBCA Banking, Ltd. The maximum maturity may not
exceed two (2) years.
(iii) Original-issue discount ("OID") obligations that are
either direct obligations of, or obligations guaranteed as to
interest and principal by, the United States of America, or, are
direct obligations of any agency or corporate instrumentality of the
United States of America. The maximum maturity of any OID shall not
exceed five (5) years.
(iv) Interest of publicly traded obligations of U.S.
corporations, the U.S. government, its agencies and
instrumentalities. This includes commercial paper, corporate notes
and bonds, collateralized mortgage obligations ("CMO"), and asset-backed
securities ("ABS"); provided that with respect to bonds and
floating rate notes, such instruments are rated A- or better by S&P
or A3 by Moody's and, with respect to commercial paper, such
instruments are rated A-1 or better by S&P or P-1 by Moody's. The
maximum maturity shall not exceed five (5) years.
For securities which have put dates, reset dates or trade based on their average
maturity, the put, reset date or average maturity will be used instead of the
final maturity date for the determination of maximum maturity.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Chase" is defined in the preamble.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Code 447(i) Suspense Account Amount" means, at any time, the amount
included in deferred tax liabilities on a consolidated balance sheet of Seaboard
and the Subsidiaries prepared in accordance with GAAP at such time in respect of
deferred tax liabilities incurred in connection with section 447(i) of the Code.
"Co-Managing Agent" is defined in the preamble.
"Combined Subsidiary Funded Debt" means, at any time, the aggregate amount
of Subsidiary Funded Debt of all Subsidiaries determined on a combined basis at
such time.
"Commitment" means as the context may require, a Lender's Short Term
Revolving Loan Commitment or Short Term Swing Line Loan Commitment.
"Commitment Amount" means, as the context may require, the Short Term
Revolving Loan Commitment Amount or the Short Term Swing Line Loan Commitment
Amount.
"Commitment Termination Date" means the Short Term Revolving Loan
Commitment Termination Date.
"Commitment Termination Event" means
(a) the occurrence of any Default described in clauses (a)
through (d) of Section 8.1.7; or
(b) the occurrence and continuance of any other Event of
Default and either
(i) the declaration of the Loans to be due and
payable pursuant to Section 8.3, or
(ii) in the absence of such declaration, the giving
of notice by the Documentation Agent, acting at the direction
of the Required Lenders, to Seaboard that the Commitments have
been terminated.
"Competitive Bid Outstanding Balance" means, at any time, the then
aggregate outstanding principal amount of all Short Term Competitive Bid Loans.
"Competitive Bid Rate" means, as the context may require, either the
Absolute Rate or the LIBO Rate (plus the LIBO Rate Bid Margin) offered by a
Lender in a Short Term Competitive Bid Loan Offer in respect of a Short Term
Competitive Bid Loan proposed pursuant to Section 2.6.
"Consolidated Funded Debt" means, at any time, the amount of Funded Debt
of Seaboard, and the amount of Subsidiary Funded Debt of all Subsidiaries,
determined on a consolidated basis at such time.
"Consolidated Net Debt Ratio" means the ratio, expressed as a percentage,
of Consolidated Funded Debt less Unrestricted Cash to Adjusted Consolidated
Shareholders' Equity.
"Consolidated Shareholders' Equity" means, at any time,
(a) the amount of shareholders' equity of Seaboard and the
Subsidiaries (but excluding, without limitation, all Preferred Stock
other than perpetual Preferred Stock and, to the extent included
therein, minority interest), minus
(b) (i) the Restricted Basket Transfer Proceeds Amount,
plus
(ii) the Restricted Subsidiary Net Worth Amount,
all determined on a consolidated basis at such time.
"Consolidated Tangible Net Worth" means, at any time, the amount equal to
(a) the sum of
(i) the par value or stated value (as the case may
be) at such time of all authorized, issued and outstanding
capital stock of Seaboard and the Subsidiaries (excluding
capital stock held in treasury), plus (or minus in each case
of a deficit),
(ii) the amount of the paid-in capital and retained
earnings at such time of Seaboard and the Subsidiaries, plus
(iii) the amount of Unamortized Tax Incentive Grants
and Tax Incentive Financings, plus
(iv) the amount of the Code 447(i) Suspense Account
Amount,
minus
(b) (i) the net book value (after deducting related
depreciation, obsolescence, amortization, valuation and other
proper reserves) of all Intangible Assets of Seaboard and the
Subsidiaries, plus
(ii) the Restricted Basket Transfer Proceeds Amount,
plus
(iii) the Restricted Subsidiary Net Worth Amount,
all determined on a consolidated basis at such time.
"Consolidated Total Assets" means, at any time, an amount equal to the net
book value (net of related depreciation, obsolescence, amortization, valuation,
and other proper reserves) of all assets of Seaboard and the Subsidiaries minus
the amount of minority interest of Seaboard and the Subsidiaries, determined on
a consolidated basis at such time.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer a Borrower,
substantially in the form of Exhibit D hereto.
"Controlled Group" means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with Seaboard, are treated as
a single employer under Section 414(b) or 414(c) of the Code or Section 4001 of
ERISA.
"Credit Extension" means the making of a Loan by a Lender.
"Credit Extension Request" means any Borrowing Request.
"Default" means any Event of Default or any condition, occurrence or event
which, after notice or lapse of time or both, would constitute an Event of
Default.
"Designated Borrower" means any Applicant Borrower which becomes a
Borrower party hereto in accordance with Section 10.15.
"Designated Borrower Certificate" means a Designated Borrower Certificate
substantially in the form of Exhibit I hereto.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented or otherwise modified from time
to time by Seaboard with the written consent of the Documentation Agent and the
Required Lenders.
"Disposition Value" means, at any time, with respect to any Property
(a) in the case of Property that does not constitute
Subsidiary Stock, the net book value thereof at such time, and
(b) in the case of Property that constitutes Subsidiary
Stock, an amount equal to that percentage of the net book value of
the assets of the Subsidiary that issued such stock as is equal to
the percentage of all of the outstanding Voting Stock of such
Subsidiary represented by such Subsidiary Stock (assuming, in the
case of Subsidiary Stock that is convertible into such Voting Stock,
conversion of such Subsidiary Stock), determined at such time.
"Documentation Agent" is defined in the preamble.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of such Lender
designated as such below its signature hereto or designated in the Lender
Assignment Agreement or such other office of a Lender (or any successor or
assign of such Lender) within the United States as may be designated from time
to time by notice from such Lender, as the case may be, to Seaboard and the
Syndication Agent.
"Environmental Laws" means all applicable federal, state or local statutes,
laws, ordinances, codes, rules, regulations and guidelines (including consent
decrees and administrative orders) relating to public health and safety and
protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
"Event of Default" is defined in Section 8.1.
"Excluded Transfers" is defined in Section 7.2.5(b).
"Existing Subsidiary Debt" is defined in Section 7.2.6(a)(i).
"Extension Request" means an extension request duly executed by an
Authorized Officer of Seaboard, substantially in the form of Exhibit H hereto.
"Fair Market Value" means, with respect to any Property, the sale value of
such Property that would be realized in an arm's-length sale at such time
between an informed and willing buyer, and an informed and willing seller,
under no compulsion to buy or sell, respectively.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published for such day (or, if
such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York; or
(b) if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on such
transactions received by Chase from three federal funds brokers of
recognized standing selected by it.
"Fee Letter" means the confidential fee letter, dated as of December 13,
1995, between Seaboard and the Co-Managing Agents.
"Fiscal Period" means either the four-week period beginning on January 1
of any calendar year or any consecutive four-week period thereafter in that
calendar year; provided, however, that the thirteenth Fiscal Period in any
calendar year shall be composed of all of the remaining days in that calendar
year.
"Fiscal Quarter" means either the period composed of the first three Fiscal
Periods in any Fiscal Year or any consecutive period of three Fiscal Periods
thereafter in that Fiscal Year; provided, however, that the fourth Fiscal
Quarter in any Fiscal Year shall be composed of the four remaining Fiscal
Periods in that Fiscal Year.
"Fiscal Year" means any period of thirteen consecutive Fiscal Periods
ending on December 31; references to a Fiscal Year with a number corresponding
to any calendar year (e.g., the "1988 Fiscal Year") refer to the Fiscal Year
ending on the December 31 occurring during such calendar year.
"Foreign Pension Plan" means any plan, fund or other similar program
(a) established or maintained outside of the United States
of America by any one or more of Seaboard or the Subsidiaries
primarily for the benefit of the employees (substantially all of
whom are aliens not residing in the United States of America) of
Seaboard or such Subsidiaries, which plan, fund or other similar
program provides for retirement income for such employees or results
in a deferral of income for such employees in contemplation of
retirement, and
(b) not otherwise subject to ERISA.
"F.R.S. Board" means the Board of Governors of the Federal Reserve System
or any successor thereto.
"Funded Debt" means, at any time, with respect to any Person, Indebtedness
of such Person having a final maturity of more than one (1) year from such time
or that is renewable or extendable at the option of such Person for a period
more than one (1) year from the date of determination.
"GAAP" is defined in Section 1.4.
"Governmental Authority" means
(a) the government of
(i) the United States of America and any State or
other political subdivision thereof, or
(ii) any other jurisdiction in which Seaboard or any
Subsidiary conducts all or any part of its business, or that
asserts any jurisdiction over the conduct of the affairs of,
or the Property of Seaboard or any Subsidiary, and
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any
such government.
"Guaranty" means with respect to any Person (for the purposes of this
definition, the "Guarantor") any obligation (except the endorsement in the
ordinary course of business of negotiable instruments for deposit or collection)
of such Person guaranteeing or in effect guaranteeing any indebtedness, dividend
or other obligation of any other Person (the "Primary Obligor") in any manner,
whether directly or indirectly, including, without limitation, obligations
incurred through an agreement, contingent or otherwise, by the Guarantor:
(a) to purchase such indebtedness or obligation or any
Property constituting security therefor;
(b) to advance or supply funds
(i) for the purchase or payment of such
indebtedness or obligation, or
(ii) to maintain working capital or other balance
sheet condition or any income statement condition of the
Primary Obligor or otherwise to advance or make available
funds for the purchase or payment of such indebtedness or
obligation;
(c) to lease Property or to purchase Securities or other
Property or services primarily for the purpose of assuring the owner
of such indebtedness or obligation of the ability of the Primary
Obligor to make payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of the indebtedness or
obligation of the Primary Obligor against loss in respect thereof.
For purposes of computing the amount of any Guaranty, in connection with any
computation of indebtedness or other liability, it shall be assumed that the
indebtedness or other liabilities that are the subject of such Guaranty are
direct obligations of the issuer of such Guaranty, and the amount of the
Guaranty is the amount of the direct obligation then outstanding.
"H&O" is defined in the preamble.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous
or toxic chemical, material or substance within the meaning of any
other applicable federal, state or local law, regulation, ordinance
or requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning
any hazardous, toxic or dangerous waste, substance or material, all
as amended or hereafter amended.
"herein", "hereof", "hereto", "hereunder" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Indebtedness" means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money (whether or not evidenced by
a Security) and its obligations in respect of mandatorily redeemable
preferred stock;
(b) any liabilities for borrowed money secured by any Lien
existing on Property owned by such Person (whether or not such
liabilities have been assumed);
(c) any obligations in respect of any Capital Lease of such
Person;
(d) the present value of all payments due under any
arrangement for retention of title or any conditional sale agreement
(other than a Capital Lease) discounted at the implicit rate, if
known, with respect thereto or, if unknown, at 8% per annum;
(e) obligations of such Person in respect of letters of
credit or instruments serving a similar function issued or accepted
by banks and other financial institutions for the account of such
Person (whether or not representing obligations for borrowed money);
(f) the aggregate net obligation under Swaps of such
Person; and
(g) any Guaranty of such Person of any obligation or
liability of another person.
As used in this definition of Indebtedness only, Swaps shall mean, with respect
to any Person, obligations with respect to interest rate swaps and currency
swaps and similar obligations obligating such Person to make payments, whether
periodically or upon the happening of a contingency, except that if any
agreement relating to such obligation provides for the netting of amounts
payable by and to such Person thereunder or if any such agreement provides for
the simultaneous payment of amounts by and to such Person, then in each such
case, the amount of such obligations shall be the net amount thereof. The
aggregate net obligation of Swaps at any time shall be the aggregate amount of
the obligations of such Person under all Swaps assuming all such Swaps had been
terminated by such Person as of the end of the then most recently ended fiscal
quarter of such Person. If such net aggregate obligation shall be an amount
owing to such Person, then the amount shall be deemed to be Zero Dollars ($0).
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Information Memorandum" is defined in Section 6.1.
"Intangible Assets" with respect to any Person, means the following:
(a) deferred assets (including, without limitation,
insurance and prepaid taxes), other than prepaid expenses which are
refundable;
(b) patents, copyrights, trademarks, trade names, service
marks, brand names, franchises, goodwill, experimental expenses and
other similar intangibles;
(c) unamortized debt discount and expense; and
(d) all other Property which would be considered to be
intangible under generally accepted accounting principles.
"Interest Period" means,
(a) relative to any LIBO Rate Loans, the period beginning
on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to
Section 2.3 or 2.4 and shall end on (but exclude) the day which
numerically corresponds to such date one, two, three or six months
thereafter (or, if such month has no numerically corresponding day,
on the last Business Day of such month), in either case as a
Borrower may select in its relevant notice pursuant to Section 2.3
or 2.4; provided, however, that
(i) if such Interest Period would otherwise end on
a day which is not a Business Day, such Interest Period shall
end on the next following Business Day (unless such next
following Business Day is the first Business Day of the next
calendar month, in which case such Interest Period shall end
on the Business Day next preceding such numerically
corresponding day); and
(ii) no Interest Period may end later than the date
set forth in clause (a) of the definition of "Short Term
Revolving Loan Commitment Termination Date,"
(b) relative to each Short Term Competitive Bid Loan made
at a LIBOR Auction, the period commencing on the date of such
Borrowing and ending one, two, three or six months thereafter, as a
Borrower may elect in accordance with Section 2.4; provided that:
(i) if such Interest Period would otherwise end on
a day which is not a Business Day, such Interest Period shall
end on the next following Business Day; provided, however,
that if such next following Business Day is the first Business
Day of a calendar month, such Interest Period shall end on the
next preceding Business Day, and
(ii) no Interest Period may end later than the date
set forth in clause (a) of the definition of "Short Term
Revolving Loan Commitment Termination Date."
No more than five Interest Periods shall be in effect at any one time.
"Intergroup Transfer" is defined in Section 7.2.5(c).
"Investment" means, investments made in cash or by delivery of Property by
Seaboard or a Subsidiary in any Person, whether by acquisition of stock,
indebtedness or other obligation or Security, or by loan, Guaranty, advance or
capital contribution, or otherwise, or in any Property.
"Invitation for Short Term Competitive Bid Loan Offers" means an invitation
by the Syndication Agent to the Lenders to submit Short Term Competitive Bid
Loan Offers pursuant to clause (b) of Section 2.6, substantially in the form of
Exhibit C-1 attached hereto.
"Lender Approved Transfer" is defined in Section 7.2.5(f).
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit E hereto.
"Lenders" is defined in the preamble.
The "LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/16 of
1%) determined pursuant to the following formula:
LIBO Rate = LIBO Rate
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be determined by the Syndication Agent on the basis of the LIBOR
Reserve Percentage in effect on, and the applicable rates furnished to and
received by the Syndication Agent from the Reference Lenders, two Business Days
before the first day of such Interest Period, subject, however, to the
provisions of Section 3.2.4.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate Loans, the
rate of interest equal to the average (rounded upwards, if necessary, to the
nearest 1/16 of 1%) of the rates per annum at which Dollar deposits in
immediately available funds are offered to each Reference Lender's LIBOR Office
in the London interbank market as at or about 11:00 a.m. London time two
Business Days prior to the beginning of such Interest Period for delivery on the
first day of such Interest Period, and in an amount approximately equal to the
amount of the applicable LIBO Rate Loan or Short Term Competitive Bid Loan based
on a LIBOR Auction and for a period approximately equal to such Interest Period.
"LIBO Rate Bid Margin" means, in respect of Short Term Competitive Bid
Loans based on a LIBOR Auction, the margin above or below the applicable LIBO
Rate offered for each such Short Term Competitive Bid Loan, expressed as a
percentage (rounded to the nearest 1/10,000th of 1%) to be added to such rate.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
"LIBOR Auction" means a solicitation of Short Term Competitive Bid Loan
Offers pursuant to Section 2.6, hereof based on the LIBO Rate.
"LIBOR Office" means, relative to any Lender, the office of such Lender
designated as such below its signature hereto or designated in the Lender
Assignment Agreement or such other office of a Lender as designated from time to
time by notice from such Lender to Seaboard and the Syndication Agent, whether
or not outside the United States, which shall be making or maintaining LIBO Rate
Loans of such Lender hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for LIBO
Rate Loans, the reserve percentage (expressed as a decimal) equal to the maximum
aggregate reserve requirements (including all basic, emergency, supplemental,
marginal and other reserves and taking into account any transitional adjustments
or other scheduled changes in reserve requirements) specified under regulations
issued from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of and including "Eurocurrency Liabilities", as currently
defined in Regulation D of the F.R.S. Board, having a term approximately equal
or comparable to such Interest Period; provided, however, that if no such
reserve percentage is so specified, the LIBOR Reserve Percentage shall be zero.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other), or
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the Uniform Commercial Code or comparable law
of any jurisdiction).
"Loan" means, as the context may require, either a Short Term Revolving
Loan, a Short Term Competitive Bid Loan or a Short Term Swing Line Loan.
"Loan Document" means this Agreement, the Notes, the Seaboard Guaranty, the
Fee Letter and each other agreement, document or instrument delivered in
connection with this Agreement and such other agreements, whether or not
specifically mentioned herein or therein.
"Long Term Credit Agreement" means the Amended and Restated Long Term
Revolving Credit Agreement, dated as of the date hereof (amending and restating
the Long Term Revolving Credit Agreement dated as of March 1, 1996) (as amended,
supplemented, amended and restated or otherwise modified from time to time),
among Seaboard, H&O, Marine, the various financial institutions as are or may
become parties thereto, Scotiabank, as co-managing agent and as the
documentation agent, and Chase, as co-managing agent and as the syndication
agent.
"Marine" is defined in the preamble.
"Material Adverse Effect" means a material adverse effect on the business,
prospects, profits, Properties or condition (financial or otherwise) of Seaboard
and the Subsidiaries, in the aggregate, the ability of any Borrower to perform
its obligations set forth herein and in the Notes executed by it or the ability
of Seaboard to perform its obligations set forth herein and in the Seaboard
Guaranty.
"Material Subsidiary" means, at any time a Subsidiary that,
(a) at any time during the then current Fiscal Year or the
two (2) then preceding Fiscal Years of Seaboard, constituted more
than three percent (3%) of Consolidated Total Assets or Consolidated
Shareholders' Equity, or
(b) accounted for more than three percent (3%) of the
revenues or net income of Seaboard and its consolidated
Subsidiaries, determined on a consolidated basis, in respect of any
one or more of the then preceding twelve (12) Fiscal Quarters of
Seaboard.
"Merger Transfer" is defined in Section 7.2.5(d).
"Money Market Loan" means a Short Term Swing Line Loan that bears interest
based upon the Money Market Rate.
"Money Market Loan Maturity Date" means the maturity date for repayment of
a Money Market Loan as agreed upon by a Borrower and the Swing Line Lender;
provided, however, that such maturity date may not be later than the Stated
Maturity Date.
"Money Market Rate" means the rate of interest quoted to a Borrower by the
Swing Line Lender with respect to a Short Term Swing Line Loan as the rate of
interest at which the Swing Line Lender is prepared to make a Money Market Loan
for such Short Term Swing Line Loan for the period ending on the Money Market
Loan Maturity Date.
"Monthly Payment Date" means the last day of each calendar month or, if any
such day is not a Business Day, the next succeeding Business Day.
"Moody's" means Moody's Investors Service Inc. and its successors and
assigns.
"Multiemployer Plan" means any "multiemployer plan" (as defined in section
3(37) of ERISA) in respect of which Seaboard or any member of the Controlled
Group is an "employer" (as such term is defined in section 3 of ERISA).
"Net Transfer Proceeds" means the Fair Market Value of the proceeds (of
whatever type) paid or payable to Seaboard and the Subsidiaries in respect of
the Transfer of any of their respective Properties, determined as of the date
of the substantial completion of such Transfer, net of ordinary and customary
expenses incurred by Seaboard and the Subsidiaries in connection with such
Transfer and paid to Persons other than Seaboard, a Subsidiary or an Affiliate.
"Non-Consenting Lender" is defined in clause (d) of Section 2.8.2.
"Note" means, as the context may require, either a Short Term Revolving
Loan Note, a Short Term Competitive Bid Loan Note or a Swing Line Loan Note.
"Obligations" means all obligations (monetary or otherwise) of Seaboard and
each other Borrower arising under or in connection with this Agreement, the
Notes, and each other Loan Document.
"Ordinary Course Transfer" is defined in Section 7.2.5(a).
"Original Agreement" is defined in the recitals.
"Participant" is defined in Section 10.11.2.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in section
3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer
plan as defined in section 4001(a)(3) of ERISA), and to which Seaboard or any
corporation, trade or business that is, along with Seaboard, a member of a
Controlled Group, may have liability, including any liability by reason of
having been a substantial employer within the meaning of section 4063 of ERISA
at any time during the preceding five years, or by reason of being deemed to be
a contributing sponsor under section 4069 of ERISA.
"Percentage" means, relative to any Lender, the percentage set forth
opposite its signature hereto or set forth in the Lender Assignment Agreement,
as such percentage may be adjusted from time to time pursuant to Lender
Assignment Agreement(s) executed by such Lender and its Assignee Lender(s) and
delivered pursuant to Section 10.11.
"Permitted Lines of Business" means,
(a) Meat (including chicken, turkey, beef, lamb and pork),
poultry and seafood production and processing,
(b) Fruit and vegetable production and processing,
(c) Ocean transportation and related ground transportation
and support,
(d) Animal feed production and processing,
(e) Bag production,
(f) Flour and feed milling,
(g) Commercial and residential construction,
(h) Power production,
(i) Textile production,
(j) Short-line railroad transportation,
(k) Commodity merchandising,
(l) Baking, and
(m) Cash and investments held for future use by Seaboard
and the Subsidiaries in connection with any of the aforementioned
Permitted Lines of Business.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or any other entity, whether
acting in an individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Preferred Stock" means, with respect to any corporation, capital shares
or capital stock of such corporation that are entitled to preference or priority
over any other capital shares or capital stock of such corporation in respect of
either or both of the payment of dividends or the distribution of assets upon
liquidation.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, and whether tangible or intangible.
"Property Disposition Date" is defined in Section 7.2.5(b).
"Purchase Money Lien" means,
(a) a Lien on tangible Property (or a group of related
items of Property the substantial portion of which are tangible),
property classifiable in accordance with GAAP as long-term, acquired
or constructed by Seaboard or any Subsidiary, which Lien secures
Indebtedness used by the owner of such Property to pay for all or a
portion of the related purchase price or construction costs of such
Property, provided that
(i) such Lien shall not extend to or cover any
Property other than Property acquired or constructed after the
date hereof with the proceeds of the Indebtedness secured
thereby, and shall not secure Indebtedness other than such
Indebtedness,
(ii) such Lien shall be imposed on such Property
within one hundred twenty (120) days after the acquisition
thereof or the substantial completion thereof, and
(iii) such Lien shall secure Indebtedness in an
amount not exceeding one hundred percent (100%) of the cost of
acquisition or construction of the Property to which such
Indebtedness relates, and
(b) Liens existing on Property of any corporation at the
time it becomes a Subsidiary or merges with or consolidates into
Seaboard or a Subsidiary, and Liens existing on Property acquired by
Seaboard or any Subsidiary that were in existence at the time of
such acquisition, provided that
(i) such Lien shall not extend to or cover any
Property other than the Property subject to such Lien at the
time of such transaction, and shall not secure indebtedness
other than the indebtedness secured at the time of such
transaction,
(ii) such Lien shall not secure indebtedness in an
amount exceeding one hundred percent (100%) of the Fair Market
Value of such Property measured at the time of such
transaction, and
(iii) such Lien shall not have been created in
contemplation of any such transaction, and shall not have been
created by Seaboard or a Subsidiary.
"Quarterly Payment Date" means the last day of each March, June, September,
and December or, if any such day is not a Business Day, the next succeeding
Business Day.
"Reference Lenders" means Chase, Scotiabank and The Dai-Ichi Kangyo Bank,
Ltd.
"Reinvested Transfer" is defined in Section 7.2.5(e).
"Release" means a "release", as such term is defined in CERCLA.
"Required Lenders" means, (a) before the Commitment Termination Date, one
or more Lenders having at least 66-2/3% of the Commitments, and (b) on or after
the Commitment Termination Date, one or more Lenders holding at least 66-2/3% of
the then aggregate outstanding principal amount of the Loans.
"Resource Conservation and Recovery Act" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect from time to
time.
"Restated Agreement Effective Date" is defined in Section 5.1.
"Restricted Basket Transfer Proceeds Amount" means, at any time, the net
book value of all Restricted Basket Transfer Proceeds of Seaboard and the
Subsidiaries, determined at such time.
"Restricted Basket Transfer Proceeds" means all consideration other than
cash received by Seaboard or any Subsidiary in respect of any Transfer of
Property of Seaboard or any Subsidiary permitted solely by Section 7.2.5(b)
hereof and in which the Fair Market Value of the aggregate consideration payable
for such Transfer and all related Transfers is greater than Seven Million Five
Hundred Thousand Dollars ($7,500,000).
"Restricted Subsidiary Net Worth Amount" means, at any time, with respect
to any Subsidiary, the amount of the shareholders' equity of such Subsidiary
that cannot at such time be paid as a dividend on the capital stock of such
Subsidiary by virtue of restrictions, direct or indirect, on the payment of such
dividends imposed by the terms of any indebtedness, whether or not such
indebtedness is recourse or non-recourse to such Subsidiary.
"S&P" means Standard & Poor's Corporation and its successors and assigns.
"Scotiabank" is defined in the preamble.
"Seaboard" is defined in the preamble.
"Seaboard Guaranty" means the guaranty by Seaboard of all of the
Obligations of each other Borrower, in the form of Exhibit H hereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" means "security" as defined in section 2(1) of the Securities
Act.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer, director of finance, or comptroller of a
Borrower.
"Short Term Competitive Bid Loan" means a loan made by a Lender to a
Borrower based on the LIBO Rate or the Absolute Rate as part of a Short Term
Competitive Bid Loan Borrowing resulting from the procedure described in Section
2.6.
"Short Term Competitive Bid Loan Acceptance" means an acceptance by a
Borrower of a Short Term Competitive Bid Loan Offer pursuant to clause (e) of
Section 2.6, substantially in the form of Exhibit C-3 attached hereto.
"Short Term Competitive Bid Loan Borrowing" means Short Term Competitive
Bid Loans made pursuant to the same Short Term Competitive Bid Loan Borrowing
Request by the Lender or each of the Lenders whose offer to make such Short Term
Competitive Bid Loans as part of such requested Borrowing has been accepted by
a Borrower pursuant to clause (e) of Section 2.6.
"Short Term Competitive Bid Loan Borrowing Request" means a certificate
requesting that the Lenders extend offers to make Short Term Competitive Bid
Loans, duly executed by an Authorized Officer of a Borrower substantially in the
form of Exhibit B-2 attached hereto.
"Short Term Competitive Bid Loan Maturity Date" is defined in
clause (a)(iii) of Section 2.6.
"Short Term Competitive Bid Loan Note" means any promissory note of a
Borrower, in the form of Exhibit A-2 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of such Borrower to such Lender resulting from Short Term
Competitive Bid Loans outstanding from such Lender, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"Short Term Competitive Bid Loan Offer" means an offer by a Lender to make
a Short Term Competitive Bid Loan to a Borrower pursuant to clause (c) of
Section 2.6, substantially in the form of Exhibit C-2 attached hereto.
"Short Term Revolving Loan" is defined in Section 2.1.1.
"Short Term Revolving Loan Borrowing" means Short Term Revolving Loans of
the same type and, in the case of LIBO Rate Loans, having the same Interest
Period, made by all Lenders on the same Business Day pursuant to the same Short
Term Revolving Loan Borrowing Request in accordance with Section 2.1.
"Short Term Revolving Loan Borrowing Request" means a certificate
requesting Short Term Revolving Loans or Short Term Swing Line Loans duly
executed by an Authorized Officer of a Borrower, substantially in the form of
Exhibit B-1 hereto.
"Short Term Revolving Loan Commitment" means, relative to any Lender, such
Lender's obligation to make Short Term Revolving Loans pursuant to Section
2.1.1.
"Short Term Revolving Loan Commitment Amount" means, on any date,
$75,000,000, as such amount may be reduced from time to time pursuant to Section
2.2.
"Short Term Revolving Loan Commitment Termination Date" means the earliest
of
(a) the Stated Maturity Date;
(b) the date on which the Short Term Revolving Loan
Commitment Amount is terminated in full or reduced to zero pursuant
to Section 2.2; and
(c) the date on which any Commitment Termination Event
occurs.
Upon the occurrence of any event described in clause (b) or (c), the Short Term
Revolving Loan Commitments shall terminate automatically and without any further
action.
"Short Term Revolving Loan Note" means a promissory note of a Borrower
payable to any Lender, in the form of Exhibit A-1 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of such Borrower to such Lender resulting
from outstanding Short Term Revolving Loans, and also means all other promissory
notes accepted from time to time in substitution therefor or renewal thereof.
"Short Term Swing Line Loan Borrowing" means Short Term Swing Line Loans
made by the Swing Line Lender on the same Business Day pursuant to a Short Term
Revolving Loan Borrowing Request in accordance with Section 2.1.
"Short Term Swing Line Loan Commitment" is defined in Section 2.1.2.
"Short Term Swing Line Loan Commitment Amount" means, on any day,
$15,000,000, as such amount may be reduced from time to time pursuant to Section
2.2.
"Short Term Swing Line Loan Note" means any promissory note of a Borrower
in the form of Exhibit A-3 hereto (as such promissory note may be amended,
endorsed or otherwise modified from time to time), evidencing the aggregate
Indebtedness of such Borrower to the Swing Line Lender resulting from Short Term
Swing Line Loans outstanding from the Swing Line Lender, and also means all
other promissory notes accepted from time to time in substitution therefor or
renewal thereof.
"Short Term Swing Line Loans" is defined in Section 2.1.2.
"Stated Maturity Date" means February 27, 1997, as such date may be
extended pursuant to Section 2.8, provided, that in no event shall the Stated
Maturity Date be extended beyond the Stated Maturity Date (as such date is
defined in the Long Term Credit Agreement) of the Indebtedness outstanding under
the Long Term Credit Agreement.
"Subsidiary" means, at any time, a corporation that, in accordance with
GAAP, is properly included in a consolidated balance sheet of Seaboard and its
consolidated subsidiaries prepared at such time, as a subsidiary of Seaboard.
"Subsidiary Funded Debt" means, at any time, with respect to any
Subsidiary,
(a) Funded Debt of such Subsidiary, and
(b) Preferred Stock of such Subsidiary.
For purposes of determining the amount of Subsidiary Funded Debt at any time,
the amount of Subsidiary Funded Debt shall include the amount of the principal
of all indebtedness constituting Subsidiary Funded Debt, the amount of accrued
and unpaid interest thereon, the par or stated value of all Preferred Stock
constituting Subsidiary Funded Debt, and the amount of declared but unpaid
dividends thereon, and any other amounts due in respect of such indebtedness
and Preferred Stock.
"Subsidiary Stock" means the capital stock of any Subsidiary and any
security exchangeable for, or convertible into, such capital stock.
"Successor Corporation" is defined in Section 7.2.1.
"Swing Line Lender" means Chase, in its individual capacity hereunder (and
not in its capacity as a Co-Managing Agent or the Syndication Agent). At the
request of Chase another Lender consented to by Seaboard (such consent not to be
unreasonably withheld) may become a successor Swing Line Lender.
"Syndication Agent" is defined in the preamble.
"Taxes" is defined in Section 4.6.
"Transfer" is defined in Section 7.2.5.
"type" means, relative to any Short Term Revolving Loan, the portion
thereof, if any, being maintained as a Base Rate Loan or a LIBO Rate Loan, and
relative to any Short Term Swing Line Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a Money Market Loan.
"Unamortized Tax Incentive Grants and Tax Incentive Financings" means, at
any time, the amount included in liabilities on a consolidated balance sheet of
Seaboard and the Subsidiaries prepared in accordance with GAAP at such time in
respect of all monies granted by political subdivisions as contractual
concessions for economic development by Seaboard or its Subsidiaries in such
political subdivisions.
"United States" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"Unrestricted Cash" means, with respect to any Person, the aggregate amount
of cash and Cash Equivalents on hand, and all cash and Cash Equivalents on
deposit in a bank which are not subject to any Lien or other restriction and are
not dedicated to any specific use or purpose.
"Voting Stock" means capital stock of any class or classes of a corporation
the holders of which are ordinarily, in the absence of contingencies, entitled
to vote in the election of corporate directors (or Persons performing similar
functions).
"Welfare Plan" means a "welfare plan", as such term is defined in section
3(1) of ERISA.
"Wholly-Owned Subsidiaries" means, at any time, a Subsidiary all of the
capital stock of which, and securities convertible into, exchangeable for, or
representing the right to purchase, such capital stock (other than directors'
qualifying shares) is owned at such time by any one or more of Seaboard and the
other Wholly-Owned Subsidiaries, free of any Lien.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each Note, Borrowing Request, Continuation/Conversion Notice, Loan Document,
notice and other communication delivered from time to time in connection with
this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.2 through Section 7.2.6, inclusive, and
Section 7.2.8) shall be made, and all financial statements required to be
delivered hereunder or thereunder shall be prepared, in accordance with those
generally accepted accounting principles ("GAAP") applied in the preparation of
the financial statements referred to in Section 6.2.
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION 2.1. Commitments. On the terms and subject to the conditions
of this Agreement (including Article V),
(a) each Lender severally agrees to make Short Term
Revolving Loans pursuant to the Short Term Revolving Loan
Commitments described in Section 2.1.1; and
(b) the Swing Line Lender agrees to make Short Term Swing
Line Loans pursuant to the Swing Loan Commitment described in
Section 2.1.2.
SECTION 2.1.1. Short Term Revolving Loan Commitment. From time to
time on any Business Day occurring prior to the Short Term Revolving Loan
Commitment Termination Date, each Lender will make Loans (relative to such
Lender, its "Short Term Revolving Loans") to any Borrower equal to such Lender's
Percentage of the aggregate amount of the Borrowing of the Short Term Revolving
Loans requested by such Borrower to be made on such day. The Commitment of each
Lender described in this Section 2.1.1 is herein referred to as its "Short Term
Revolving Loan Commitment". On the terms and subject to the conditions hereof,
a Borrower may from time to time borrow, prepay and reborrow the Short Term
Revolving Loans.
SECTION 2.1.2. Short Term Swing Line Loan Commitment. From time to
time on any Business Day occurring prior to the Short Term Revolving Loan
Commitment Termination Date, the Swing Line Lender will make Loans (referred to
herein as "Short Term Swing Line Loans") to any Borrower as Base Rate Loans or
Money Market Loans equal to the aggregate amount of Short Term Swing Line Loans
being requested by such Borrower to be made on such day. The commitment of the
Swing Line Lender described in this Section 2.1.2 is herein referred to as its
"Short Term Swing Line Loan Commitment." On the terms and subject to the
conditions hereof, a Borrower may from time to time prior to the Short Term
Revolving Loan Commitment Termination Date, borrow, prepay and reborrow Short
Term Swing Line Loans.
SECTION 2.1.3. Lenders Not Permitted or Required to Make Short Term
Revolving Loans or Short Term Swing Line Loans. No Lender shall be permitted or
required to make any Short Term Revolving Loan or Short Term Swing Line Loan if,
after giving effect thereto and to any repayment of Credit Extensions to be made
with the proceeds thereof, the aggregate unpaid principal amount of
(a) all Loans outstanding to all Lenders would exceed the
Loan Commitment Amount; or
(b) all Short Term Swing Line Loans outstanding to the
Swing Line Lender would exceed the Short Term Swing Line Loan
Commitment Amount.
SECTION 2.2. Reduction of Commitments. Seaboard may, from time to time
on any Business Day occurring after the time of the initial Borrowing hereunder,
voluntarily reduce the Short Term Revolving Loan Commitment Amount or the Short
Term Swing Line Loan Commitment Amount; provided, however, that (i) all such
reductions shall require at least three Business Days' prior written irrevocable
notice to the Agents and be permanent, and (ii) any partial reduction of (A) the
Short Term Revolving Loan Commitment Amount shall be in a minimum amount of
$5,000,000 and in an integral multiple of $500,000, and (B) the Short Term Swing
Line Loan Commitment Amount shall be in a minimum amount of $1,000,000 and in an
integral multiple of $250,000; and provided, further, that Seaboard may
terminate the Commitments in whole if, at the time of and as a condition of such
termination, the Borrowers shall have repaid in full the aggregate outstanding
principal amount of all Short Term Revolving Loans and Short Term Swing Line
Loans, together with all accrued interest and fees thereon to the date of
termination.
SECTION 2.3. Short Term Revolving Loan and Short Term Swing Line Loan
Borrowing Procedure and Funding Maintenance.
(a) Short Term Revolving Loans. By delivering a Short Term
Revolving Loan Borrowing Request to the Syndication Agent, on a
Business Day, any Borrower may from time to time irrevocably
request, (x) on not less than three nor more than five Business
Days' notice, at or before 10:00 a.m. (New York City time), in the
case of LIBO Rate Loans, and (y) at or before 10:30 a.m. (New York
City time) on the date of the proposed Short Term Revolving Loan
Borrowing, but not more than five Business Days prior to such date,
in the case of Base Rate Loans, that a Short Term Revolving Loan
Borrowing be made by all the Lenders in a minimum amount of
$5,000,000 and an integral multiple of $500,000, or, if less, in the
unused amount of the Short Term Revolving Loan Commitment. The
Syndication Agent shall promptly notify each Lender of the receipt
of a Short Term Revolving Loan Borrowing Request. On the terms and
subject to the conditions of this Agreement, each Short Term
Revolving Loan Borrowing shall be comprised of the type of Short
Term Revolving Loans, and shall be made on the Business Day,
specified in such Short Term Revolving Loan Borrowing Request. On
or before 11:00 a.m. (New York City time), in the case of LIBO Rate
Loans, and 12:00 (noon) (New York City time), in the case of Base
Rate Loans, on the Business Day that such Short Term Revolving Loan
Borrowing is to be made, each Lender shall deposit with the
Syndication Agent immediately available funds in an amount equal to
such Lender's Percentage of the requested Short Term Revolving Loan
Borrowing. Such deposit will be made to an account which the
Syndication Agent shall specify from time to time by notice to the
Lenders. To the extent funds are received from the Lenders, the
Syndication Agent shall make such funds available to the applicable
Borrower by wire transfer to the accounts such Borrower shall have
specified in its Short Term Revolving Loan Borrowing Request. No
Lender's obligation to make any Short Term Revolving Loan shall be
affected by any other Lender's failure to make any Short Term
Revolving Loan.
(b) Short Term Swing Line Loans. By written or telephonic
notice to the Swing Line Lender on or before 3:00 p.m. (New York
City time), on a Business Day any Borrower may from time to time
request that a Short Term Swing Line Loan Borrowing be made by the
Swing Line Lender on such Business Day (or the next succeeding
Business Day) in an aggregate minimum principal amount of $1,000,000
and an integral multiple of $250,000. All telephonic notices shall
be confirmed on the same Business Day by the delivery to the
Syndication Agent of an appropriately completed Short Term Revolving
Loan Borrowing Request. On the terms and subject to the conditions
of this Agreement, each Short Term Swing Line Loan Borrowing shall
be comprised of the type of Short Term Swing Line Loans specified in
such Short Term Revolving Loan Borrowing Request. The proceeds of
the Short Term Swing Line Loans shall be made available by the Swing
Line Lender to such Borrower by wire transfer of such proceeds to
such transferees, or to such accounts of such Borrower, as such
Borrower shall have specified in its Short Term Revolving Loan
Borrowing Request.
(c) Failure to Repay Short Term Swing Line Loans. If the
outstanding principal amount of any Short Term Swing Line Loan is
not repaid when due pursuant to the terms of this Agreement, each
Lender (other than the Swing Line Lender) irrevocably agrees that it
will, upon receipt of a notice from the Swing Line Lender, promptly
(and in any event within one Business Day) transfer to the Swing
Line Lender, in immediately available funds, an amount equal to such
Lender's Percentage of the then aggregate outstanding amount of all
Short Term Swing Line Loans, and thereafter such Loans shall
constitute a Short Term Revolving Loan made by such Lender
thereunder; provided, however, that the obligation of each Lender to
make such Short Term Revolving Loans shall not be subject to the
satisfaction of any of the conditions precedent set forth in Section
5.2.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Syndication Agent on or before 10:00 a.m.,
New York time, on a Business Day, any Borrower may from time to time irrevocably
elect, on not less than three nor more than five Business Days' notice that all,
or any portion in an aggregate minimum amount of $5,000,000 and an integral
multiple of $500,000, of any Short Term Revolving Loans made to such Borrower
be, in the case of Base Rate Loans, converted into LIBO Rate Loans or, in the
case of LIBO Rate Loans, be converted into a Base Rate Loan or continued as a
LIBO Rate Loan (in the absence of delivery of a Continuation/ Conversion Notice
with respect to any LIBO Rate Loan at least three Business Days before the last
day of the then current Interest Period with respect thereto, such LIBO Rate
Loan shall, on such last day, automatically convert to a Base Rate Loan);
provided, however, that (x) each such conversion or continuation shall be pro
rated among the applicable outstanding Short Term Revolving Loans of all
Lenders, and (y) no portion of the outstanding principal amount of any Short
Term Revolving Loans may be continued as, or be converted into, LIBO Rate Loans
when any Default has occurred and is continuing.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder, or to make a
Short Term Competitive Bid Loan based on a LIBOR Auction, by causing one of its
foreign branches or Affiliates (or an international banking facility created by
such Lender) to make or maintain such LIBO Rate Loan or Short Term Competitive
Bid Loan, as the case may be; provided, however, that such LIBO Rate Loan or
Short Term Competitive Bid Loan, as the case may be, shall nonetheless be deemed
to have been made and to be held by such Lender, and the obligation of a
Borrower to repay such LIBO Rate Loan or Short Term Competitive Bid Loan, as the
case may be, shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility; and provided,
further, that no Lender shall cause any such foreign branch, Affiliate or
international banking facility to make or maintain any LIBO Rate Loan or Short
Term Competitive Bid Loan that would subject a Borrower to costs beyond what
its costs would be if such Lender itself had made or maintained such LIBO Rate
Loan or Short Term Competitive Bid Loan at that time, except that such foreign
branch, Affiliate or international banking facility may maintain a LIBO Rate
Loan or Short Term Competitive Bid Loan that it made or already has been
maintaining itself. In addition, each Borrower hereby consents and agrees
that, for purposes of any determination to be made for purposes of Sections
4.1, 4.2, 4.3 or 4.4, it shall be conclusively assumed that each Lender elected
to fund all LIBO Rate Loans and Short Term Competitive Bid Loans based on a
LIBOR Auction by purchasing Dollar deposits in its LIBOR Office's interbank
eurodollar market.
SECTION 2.6. Short Term Competitive Bid Loans. Subject to the terms
and conditions of this Agreement (including Article V), each Lender severally
agrees that any Borrower may request that Short Term Competitive Bid Loan
Borrowings under this Section 2.6 be made from time to time on any Business Day
prior to the date occurring 15 Business Days prior to the Short Term Revolving
Loan Commitment Termination Date in the manner set forth below; provided,
however, that following the making of each Short Term Competitive Bid Loan
Borrowing, the aggregate amount of all Loans then outstanding shall not exceed
the Short Term Revolving Loan Commitment Amount.
(a) Short Term Competitive Bid Loan Borrowing Request. A
Borrower may request Short Term Competitive Bid Loan Borrowings
under this Section 2.6 by delivering to the Syndication Agent, not
later than 10:00 a.m. (New York City time) at least (x) five
Business Days prior to the date of the proposed Short Term
Competitive Bid Loan Borrowing (in the case of LIBOR Auctions) or
(y) one Business Day prior to the date of the proposed Short Term
Competitive Bid Loan Borrowing (in the case of an Absolute Rate
Auction), a revocable Short Term Competitive Bid Loan Borrowing
Request (which shall constitute an invitation to the Lenders to
extend Short Term Competitive Bid Loan Offers to such Borrower, and
which may contain requests for up to three different Short Term
Competitive Bid Loan Borrowings), specifying
(i) the proposed date (which shall be a Business
Day) and aggregate principal amount or amounts of each Short
Term Competitive Bid Loan to be made as part of such proposed
Short Term Competitive Bid Loan Borrowing (each of which such
Short Term Competitive Bid Loan shall be in a minimum
principal amount of $5,000,000 and in an integral multiple of
$1,000,000 (and, subject to the proviso contained in the first
sentence of this Section, which principal amount may exceed
the Short Term Revolving Loan Commitment Amount then available
to be borrowed),
(ii) whether the Short Term Competitive Bid Loan
Offers requested are to set forth a LIBO Rate Bid Margin or an
Absolute Rate (or a combination thereof),
(iii) the proposed maturity date or dates (each a
"Short Term Competitive Bid Loan Maturity Date") for repayment
of each Short Term Competitive Bid Loan to be made as part of
such Short Term Competitive Bid Loan Borrowing (which maturity
date or dates may not be later than the earlier of (A) the
date occurring six months after the date of such Short Term
Competitive Bid Loan Borrowing or (B) the Short Term Revolving
Loan Commitment Termination Date),
(iv) in the case of Short Term Competitive Bid Loans
based on the LIBOR Auction, the proposed duration of the
Interest Period applicable thereto, and
(v) how the proceeds of the Short Term Competitive
Bid Loans will be applied.
(b) Invitation for Short Term Competitive Bid Loan Offers.
Promptly upon receipt of a Short Term Competitive Bid Loan Borrowing
Request but in no event later than 2:30 p.m. (New York City time) on
the date of such receipt, the Syndication Agent shall send to the
Lenders by facsimile an Invitation for Short Term Competitive Bid
Loan Offers containing the information contained in the applicable
Short Term Competitive Bid Loan Request and which shall constitute
an invitation by the applicable Borrower to each Lender to submit
Short Term Competitive Bid Loan Offers in response thereto.
(c) Submission and Contents of Short Term Competitive Bid
Loan Offers.
(i) If any Lender, in its sole discretion, elects
to offer to make a Short Term Competitive Bid Loan to the
applicable Borrower as part of such proposed Short Term
Competitive Bid Loan Borrowing at a rate of interest specified
by such Lender in its sole discretion, it shall deliver to the
Syndication Agent not later than (x) 11:00 a.m. (New York City
time) on the fourth Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) 9:30 a.m.
(New York City time) on the proposed date of Borrowing, in the
case of an Absolute Rate Auction, a Short Term Competitive Bid
Loan Offer, which must comply with the requirements of this
clause, and be in the form of Exhibit C-2 hereto; provided,
that Short Term Competitive Bid Loan Offers submitted by the
Syndication Agent (or any Affiliate of the Syndication Agent)
in the capacity of a Lender may be submitted, and may only be
submitted, if the Syndication Agent or such Affiliate notifies
such Borrower of the terms of the offer or offers contained
therein not later than (x) 10:45 a.m. (New York City time) on
the fourth Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) 9:15 a.m.
(New York City time) on the proposed date of Borrowing, in the
case of an Absolute Rate Auction. Subject to Articles V and
VIII, such Short Term Competitive Bid Loan Offer shall be
irrevocable except with the written consent of the Syndication
Agent, given on the instructions of the applicable Borrower,
and shall specify
(A) the proposed date of Borrowing, which
shall be the same as that set forth in the applicable
Invitation for Short Term Competitive Bid Loan Offers,
(B) the principal amount of the Short Term
Competitive Bid Loan which such Lender would be
willing to make as part of such proposed Short Term
Competitive Bid Loan Borrowing, which principal amount
may be greater than, less than or equal to such
Lender's Percentage of the Short Term Revolving Loan
Commitment Amount, but which amount shall be in a
minimum principal amount of $5,000,000 and in an
integral multiple of $1,000,000,
(C) in the case of a LIBOR Auction, the
LIBO Rate Bid Margin, and in the case of an Absolute
Rate Auction, the Absolute Rate therefor, and
(D) the identity of the quoting Lender.
(ii) Any Short Term Competitive Bid Loan Offer that:
(A) is not substantially in the form of
Exhibit C-2 hereto or does not specify all of the
information required in clause (c) of this Section;
(B) contains qualifying, conditional or
similar language;
(C) contains proposed terms other than or
in addition to those set forth in the applicable
Invitation for Short Term Competitive Bid Loan Offers;
or
(D) arrives after the time set forth in
clause (c) of this Section
shall be disregarded by the Syndication Agent.
(d) Notice to Borrower. The Syndication Agent shall (by
telephone confirmed by telecopy), by 1:00 p.m. (New York City time)
(on the fourth Business Day prior to the proposed date of Borrowing,
in the case of a LIBOR Auction) and 10:00 a.m. (New York City time)
(on the proposed date of Borrowing, in the case of an Absolute Rate
Auction) notify the applicable Borrower of the terms of any Short
Term Competitive Bid Loan Offer submitted by a Lender that is in
accordance with clause (c) of this Section. Any subsequent Short
Term Competitive Bid Loan Offer of a Lender shall be disregarded by
the Syndication Agent unless such subsequent Short Term Competitive
Bid Loan Offer is submitted solely to correct a manifest error in
such earlier Short Term Competitive Bid Loan Offer. The Syndication
Agent's notice to such Borrower shall specify (A) the aggregate
principal amount of Short Term Competitive Bid Loans for which
offers have been received in respect of the related Invitation for
Short Term Competitive Bid Loan Offers, (B) the respective principal
amounts and Competitive Bid Rates so offered, and (C) the identity
of such quoting Lenders.
(e) Short Term Competitive Bid Loan Acceptance. The
applicable Borrower shall, in turn, before (x) 4:00 p.m. (New York
City time) on the fourth Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction, or (y) 12:00 (noon) (New
York City time) on the date of such proposed Short Term Competitive
Bid Loan Borrowing, in the case of an Absolute Rate Auction, either
(i) irrevocably cancel the Short Term Competitive
Bid Loan Borrowing Request that requested such Short Term
Competitive Bid Loan Borrowing by giving the Syndication Agent
(which shall promptly notify each Lender) telephonic notice
(promptly confirmed in writing) to that effect (and, for
purposes of this Section, a failure on the part of such
Borrower to timely notify the Syndication Agent under the
terms of this clause shall be deemed to be non-acceptance of
all offers so notified to it pursuant to clause (d) above), or
(ii) irrevocably accept one or more of the offers
made by any Lender or Lenders pursuant to clause (d) above, in
its sole discretion, by giving the Syndication Agent
telephonic notice (and the Syndication Agent shall, promptly
upon receiving such telephonic notice from such Borrower,
notify each Lender whose Short Term Competitive Bid Loan Offer
has been accepted) (promptly confirmed in writing by delivery
to the Syndication Agent of a Short Term Competitive Bid Loan
Acceptance, copies of which shall thereafter be forwarded to
each of the Lenders) of
(A) the amount of the Short Term
Competitive Bid Loan Borrowing to be made on such
date,
and
(B) the amount of the Short Term
Competitive Bid Loan (which amount shall not be
greater than, but which may be less than, the amount
offered by such Lender for such Short Term Competitive
Bid Loan pursuant to clause (d) above) to be made by
such Lender as part of such Short Term Competitive Bid
Loan Borrowing,
and reject any remaining offers made by Lenders pursuant to
clause (d) above by giving the Syndication Agent (which shall
promptly give to the Lenders) notice to that effect;
provided, however, that
(A) the aggregate amount of the Short Term
Competitive Bid Loan Offers accepted by such Borrower
shall not exceed the principal amount specified in the
applicable Short Term Competitive Bid Loan Borrowing
Request,
(B) if Short Term Competitive Bid Loan
Offers are made by two or more Lenders at the same
rate and acceptance of all such equal Short Term
Competitive Bid Loan Offers would result in a greater
principal amount of Short Term Competitive Bid Loan
Offers being accepted than the aggregate principal
amount specified in the applicable Short Term
Competitive Bid Loan Borrowing Request, if such
Borrower elects to accept any of such Short Term
Competitive Bid Loan Offers such Borrower shall accept
such Short Term Competitive Bid Loan Offers pro rata
from such Lenders (on the basis of the maximum amounts
of such Short Term Competitive Bid Loan Offers) unless
any such Lender's pro rata share would be less than
the minimum amount specified by such Lender in its
Short Term Competitive Bid Loan Offer, in which case
such Borrower shall have the right to accept one or
more such equal Short Term Competitive Bid Loan Offers
in their entirety and reject the other equal Short
Term Competitive Bid Loan Offer or Short Term
Competitive Bid Loan Offers or to allocate acceptance
among all such equal Short Term Competitive Bid Loan
Offers (but giving effect to the minimum and maximum
amounts specified for each such Short Term Competitive
Bid Loan Offer), as such Borrower may elect in its
sole discretion.
(C) no bid shall be accepted for a Short
Term Competitive Bid Loan unless such Short Term
Competitive Bid Loan is in a minimum principal amount
of $5,000,000 (except as provided in clause (B) above)
and an integral multiple of $1,000,000 (except as
provided in clause (B) above) and is part of a Short
Term Competitive Bid Loan Borrowing in a minimum
principal amount of $5,000,000, and
(D) such Borrower may not accept any offer
that is described in clause (c)(ii) of this Section,
or that otherwise fails to comply with the
requirements of this Agreement.
(f) Funding of Short Term Competitive Bid Loans. Not later
than 11:00 a.m. (New York City time) (in the case of a Borrowing
based on a LIBOR Auction) and 1:00 p.m. (New York City time) (in the
case of a Borrowing based on an Absolute Rate Auction), in each case
on the date specified for each Short Term Competitive Bid Loan
hereunder, each Lender participating therein shall make available
the amount of the Short Term Competitive Bid Loan to be made by it
on such date to the Syndication Agent in immediately available
funds, for the account of the applicable Borrower, such deposit to
be made to an account maintained by the Syndication Agent, as the
Syndication Agent shall specify from time to time by notice to the
Lenders or as otherwise agreed to in writing by the Syndication
Agent and such Borrower. The amount so received by the Syndication
Agent shall promptly be made available to such Borrower by
depositing the same in immediately available funds in an account of
such Borrower's notified to the Syndication Agent in writing.
SECTION 2.7. Notes. Each Lender's Loans to each Borrower under its
Commitments shall be evidenced by a Note of such Borrower payable to the order
of such Lender in a maximum principal amount equal to
(a) in the case of Short Term Revolving Loans, such
Lender's Percentage of the original Short Term Revolving Loan
Commitment Amount;
(b) in the case of Short Term Competitive Bid Loans,
$75,000,000; and
(c) in the case of the Swing Line Lender with respect to
Short Term Swing Line Loans, $15,000,000.
Each Borrower hereby irrevocably authorizes each Lender to make (or cause to be
made) appropriate notations on the grid attached to such Lender's Note (or on
any continuation of such grid), which notations, if made, shall evidence, inter
alia, the date of, the outstanding principal amount of, and the interest rate
and Interest Period (in the case of Short Term Revolving Loan Notes) and the
Short Term Competitive Bid Loan Maturity Dates and Interest Period (if
applicable) (in the case of Short Term Competitive Bid Loan Notes) applicable
to the Loans evidenced thereby. Such notations shall be prima facie evidence
of the matters stated therein, absent manifest error; provided, however, that
the failure of any Lender to make any such notations shall not limit or
otherwise affect any Obligations of the applicable Borrower.
SECTION 2.8. Extension of Stated Maturity Date and Maturity of Loans.
Each of (i) the Stated Maturity Date and (ii) the obligation, pursuant to
Section 3.1, to make a mandatory repayment of the outstanding principal amount
of Loans on the Stated Maturity Date, shall be subject to extension or
postponement, as the case may be, as set forth in this Section.
SECTION 2.8.1. Request for Extension of Stated Maturity Date and
Maturity of Loans. Any term or provision of this Agreement to the contrary
notwithstanding, no earlier than 60 days nor later than 45 days prior to the
then Stated Maturity Date (if the Short Term Revolving Loan Commitment then
remains in effect), Seaboard may, by delivery of a duly completed Extension
Request to the Agents, irrevocably request that each Lender and the Swing Line
Lender extend for an additional 364 day period (such period to commence on the
day immediately following the then Stated Maturity Date) the Stated Maturity
Date relating to such Lender's Short Term Revolving Loan Commitment (which
shall also be deemed to be a request that the Swing Line Lender extend for such
period the Short Term Swing Line Loan Commitment); provided, that the Stated
Maturity Date shall not be extended beyond the Stated Maturity Date (as such
term is defined in the Long Term Credit Agreement). The failure of Seaboard
to request such an extension hereunder shall automatically terminate Seaboard's
rights to request additional such extensions.
SECTION 2.8.2. Consent to Extension of Stated Maturity Date and
Maturity of Loans. (a) The Syndication Agent shall, promptly after receipt
of any such Extension Request pursuant to Section 2.8.1, notify each Lender
thereof by providing them a copy of such Extension Request.
(b) Each Lender shall, within 30 days of receipt of the
notice described in clause (a), notify the Agents whether or not it
consents to the request of Seaboard set forth in such Extension
Request, such consent to be in the sole discretion of such Lender.
If any Lender does not so notify the Agents of its decision within
such 30 day period, such Lender shall be deemed not to have
consented to such request of Seaboard.
(c) The Syndication Agent shall promptly notify Seaboard
whether the Lenders have consented to such request. If the
Syndication Agent does not so notify Seaboard within 5 days prior to
the then existing Stated Maturity Date, the Syndication Agent shall
be deemed to have notified Seaboard that the Lenders have not
consented to Seaboard's request.
(d) Each Lender that elects not to extend the Stated
Maturity Date relating to such Lender's Short Term Revolving Loan
Commitment upon the expiration of the then effective Stated Maturity
Date or that fails to so notify the Agents of such consent (a
"Non-Consenting Lender") hereby agrees that if, on or prior to the then
effective Stated Maturity Date, any other Lender or other financial
institution acceptable to Seaboard and the Agents offers to purchase
such Non-Consenting Lender's Percentage of the Short Term Revolving
Loan Commitment for a purchase price equal to the sum of all amounts
then owing with respect to the Short Term Revolving Loans and all
other amounts accrued for the account of such Non-Consenting Lender,
such Non-Consenting Lender will assign, sell and transfer on the
then effective Stated Maturity Date all of its right, title,
interest and obligations with respect to the foregoing to such other
Lender or financial institution pursuant to the terms of Section
10.11.1 and the fee payable pursuant to Section 10.11.1 shall be
payable by such Assignee Lender.
(e) On the date that would have been the Stated Maturity
Date had the Short Term Revolving Loan Commitment not been extended
pursuant to the terms of this Section, the Short Term Revolving
Loans of any Non-Consenting Lender that were not purchased pursuant
to clause (d) will mature and be due and payable on the then
scheduled Stated Maturity Date, and the Commitments of such Non-Consenting
Lender will thereupon terminate. On such Stated Maturity
Date, the Short Term Revolving Loan Commitment Amount will be
automatically reduced by an amount equal to the product of
(i) the sum of the Percentages of all Non-Consenting Lenders
that were not purchased pursuant to clause (d), and
(ii) the Short Term Revolving Loan Commitment Amount
(whether used or unused) on such Stated Maturity Date
immediately prior to such calculation.
(f) The Percentages of the remaining Lenders which have
consented to an extension of their Commitment hereunder shall be
adjusted accordingly by the Syndication Agent, based on such
Lenders' pro rata share of the remaining Short Term Revolving Loan
Commitment Amount.
Notwithstanding anything to the contrary contained in this Section, the Stated
Maturity Date of those Lenders consenting to such an extension shall not be
extended for an additional 364 day period unless Lenders whose Percentages
equal or exceed 75% (after giving effect to the operation of clause (d)), agree
to such an extension.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments. Each Borrower shall repay in
full the unpaid principal amount of each Short Term Revolving Loan and each
Short Term Swing Line Loan made as a Base Rate Loan taken by such Borrower upon
the Stated Maturity Date therefor, each Money Market Loan taken by such
Borrower upon the Money Market Loan Maturity Date therefor and each Short Term
Competitive Bid Loan taken by such Borrower upon the Short Term Competitive Bid
Loan Maturity Date therefor. Prior thereto, each Borrower
(a) may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding
principal amount of any Short Term Revolving Loans or Short Term
Swing Line Loans; provided, however, that
(i) any such prepayment of Short Term Revolving
Loans shall be made pro rata among Short Term Revolving Loans
of the same type and, if applicable, having the same Interest
Period of all Lenders;
(ii) no such prepayment of any LIBO Rate Loan or a
Short Term Competitive Bid Loan may be made on any day other
than the last day of the Interest Period for such Loan, unless
such Borrower has paid any costs required pursuant to Section
4.4;
(iii) all such voluntary prepayments shall require at
least one but no more than five Business Days' prior written
notice to the Syndication Agent, which shall promptly notify
the Lenders; and
(iv) all such voluntary partial prepayments shall be
in an aggregate minimum amount of $5,000,000 and an integral
multiple of $500,000, and in the case of Short Term Swing Line
Loans, be in an aggregated minimum amount of $1,000,000 and an
integral multiple of $250,000; and
(b) shall, on each date when any reduction in the Short
Term Revolving Loan Commitment Amount shall become effective,
including pursuant to Section 2.2 or 2.8.2, make a mandatory
prepayment (i) first, of all Short Term Swing Line Loans, and (ii)
second, if necessary, of all Loans other than Short Term Swing Line
Loans, equal to the excess, if any, of the aggregate, outstanding
principal amount of all Loans over the Short Term Revolving Loan
Commitment Amount as so reduced.
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 4.4. No voluntary
prepayment of principal of any Short Term Revolving Loans or Short Term Swing
Line Loans shall cause a reduction in the Short Term Revolving Loan Commitment
Amount or the Short Term Swing Line Loan Commitment Amount, as the case may be.
SECTION 3.2. Interest Provisions. Interest on the outstanding
principal amount of Loans shall accrue and be payable in accordance with this
Section 3.2.
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered
Borrowing Request or Continuation/Conversion Notice, the applicable Borrower
may elect that Loans comprising a Borrowing accrue interest at a rate per
annum:
(a) on that portion maintained from time to time as a Base
Rate Loan, equal to the Alternate Base Rate from time to time in
effect;
(b) on that portion maintained as a LIBO Rate Loan, during
each Interest Period applicable thereto, equal to the sum of the
LIBO Rate (Reserve Adjusted) for such Interest Period plus the
Applicable Margin;
(c) on that portion maintained as a Money Market Loan,
equal to the applicable Money Market Rate quoted by the Swing Line
Lender for such Money Market Loan; and
(d) on that portion of such Borrowing maintained as Short
Term Competitive Bid Loans, equal to the applicable Competitive Bid
Rate specified by the Lender making such Short Term Competitive Bid
Loan in its Short Term Competitive Bid Loan Offer with respect
thereto delivered by such Lender and accepted by such Borrower
pursuant to Section 2.6.
All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such LIBO Rate Loan.
The Syndication Agent shall promptly notify the applicable Borrower and the
Lenders of its determination of the interest rate applicable to each LIBOR
Rate Loan and each Short Term Competitive Bid Loan based upon a LIBOR Auction,
which determination shall be conclusive, absent manifest error. Upon the
request of any Borrower, the Syndication Agent shall advise such Borrower of
the Alternate Base Rate from time to time in effect.
SECTION 3.2.2. Post-Maturity Rates. After the date any
principal amount of any Loan is due and payable (whether on the Stated Maturity
Date, upon acceleration or otherwise), or after any other monetary Obligation
of any Borrower shall have become due and payable, such Borrower shall pay, but
only to the extent permitted by law, interest (after as well as before
judgment) on such amounts at a rate per annum equal to the Alternate Base Rate
plus a margin of 2%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall
be payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or
in part, of principal outstanding on such Loan;
(c) with respect to Base Rate Loans and Money Market Loans,
on each Monthly Payment Date occurring after the date of the initial
Borrowing hereunder;
(d) with respect to Short Term Competitive Bid Loans based
on an Absolute Rate, on each Short Term Competitive Bid Loan
Maturity Date and, with respect to Short Term Competitive Bid Loans
based on an Absolute Rate with a Short Term Competitive Bid Loan
Maturity Date in excess of three months, on each Quarterly Payment
Date occurring after the making of such Loan;
(e) with respect to LIBO Rate Loans and Short Term
Competitive Bid Loans based on a LIBOR Auction, the last day of each
applicable Interest Period (and, if such Interest Period shall
exceed 90 days, on the 90th day of such Interest Period);
(f) with respect to any Base Rate Loans converted into LIBO
Rate Loans on a day when interest would not otherwise have been
payable pursuant to clause (c), on the date of such conversion; and
(g) on that portion of any Loans the Stated Maturity Date
of which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.2.4. Interest Rate Determination. Each reference Lender
agrees to furnish to the Syndication Agent timely information for the purpose of
determining each LIBO Rate. If any one or more of the Reference Lenders shall
fail timely to furnish such information to the Syndication Agent for any such
interest rate, the Syndication Agent shall determine such interest rate on the
basis of the information furnished by the remaining Reference Lenders.
SECTION 3.3. Fees. Seaboard agrees to pay the fees set forth in this
Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Facility Fee. Seaboard agrees to pay to the
Syndication Agent for the account of each Lender, for the period (including any
portion thereof when any of its Commitments are suspended by reason of Seaboard
or any other Borrower's inability to satisfy any condition of Article V)
commencing on the date hereof and continuing through the Short Term Revolving
Loan Commitment Termination Date, a facility fee at the Applicable Facility Fee
Rate on such Lender's Percentage of the Short Term Revolving Loan Commitment
Amount. Such facility fees shall be payable by Seaboard in arrears on each
Quarterly Payment Date, commencing with the first such day following the date
hereof, on the Short Term Revolving Loan Commitment Termination Date, and in
the case of a Non-Consenting Lender, on the date the Commitment of such Non-
Consenting Lender terminates pursuant to Section 2.8(e).
SECTION 3.3.2. Co-Managing Agents' Fees. Seaboard agrees to pay to
each Co-Managing Agent, for its own account, the non-refundable fees in the
amounts and on the dates set forth in the Fee Letter.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to Seaboard and the Syndication
Agent, be conclusive and binding on the applicable Borrowers) that the
introduction of or any change in or in the interpretation of any law makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for such Lender to make, continue or maintain any Loan as, or to
convert any Loan into, a LIBO Rate Loan, or to make or maintain any Short Term
Competitive Bid Loan based on a LIBOR Auction, the obligations of all Lenders to
make, continue, maintain or convert any such Loans shall, upon such
determination, forthwith be suspended until such Lender shall notify the
Syndication Agent that the circumstances causing such suspension no longer
exist, and all LIBO Rate Loans shall automatically convert into Base Rate
Loans at the end of the then current Interest Periods with respect thereto or
sooner, if required by such law or assertion. If any Lender shall make such
determination with respect to the making or maintaining of a Short Term
Competitive Bid Loan based on a LIBOR Auction and such Short Term Competitive
Bid Loan is required by law or assertion to be prepaid on a date prior to the
end of the Interest Period therefor, then the applicable Borrower shall prepay
such Short Term Competitive Bid Loan on such date.
SECTION 4.2. Deposits Unavailable. If the Syndication Agent shall
have determined that
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to Chase in its relevant
market; or
(b) by reason of circumstances affecting the Reference
Lenders or the relevant market, adequate means do not exist for
ascertaining the interest rate applicable hereunder to LIBO Rate
Loans or Short Term Competitive Bid Loans based on a LIBOR Auction,
then, upon notice from the Syndication Agent to Seaboard and the Lenders, the
obligations of all Lenders under Section 2.4 and Section 2.5 to make or
continue any Loans as, or to convert any Loans into, LIBO Rate Loans or the
right of any Borrower to solicit any Short Term Competitive Bid Loans based
on a LIBOR Auction shall forthwith be suspended until the Syndication Agent
shall notify Seaboard and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. Each Borrower
agrees to reimburse each Lender for any increase in the cost to such Lender of,
or any reduction in the amount of any sum receivable by such Lender in respect
of, making, continuing or maintaining (or of its obligation to make, continue
or maintain) any Loans as, or of converting (or of its obligation to convert)
any Short Term Revolving Loans into, LIBO Rate Loans or Short Term Competitive
Bid Loans based on LIBOR Auctions. Such Lender shall notify the Syndication
Agent and the applicable Borrower in writing of the occurrence of any such
event within five (5) days of such Lender becoming aware of any such event,
such notice to state, in reasonable detail, the reasons therefor and the
additional amount required fully to compensate such Lender for such increased
cost or reduced amount. Such additional amounts shall be payable by such
Borrower directly to such Lender within five days of its receipt of such
notice.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as a LIBO Rate Loan or a Short Term Competitive Bid Loan based on a LIBOR
Auction, or to convert any portion of the principal amount of any Short Term
Revolving Loan into, a LIBO Rate Loan) as a result of
(a) any repayment or prepayment of the principal amount of
any LIBO Rate Loans or Short Term Competitive Bid Loans based on
LIBOR Auctions or any conversion of a LIBO Rate Loan on a date other
than the scheduled last day of the Interest Period applicable
thereto, whether pursuant to Section 3.1 or otherwise;
(b) any Loans (i) not being made as, or (ii) being made as
Loans other than as, LIBO Rate Loans or Short Term Competitive Bid
Loans based on LIBOR Auctions, in each case, in accordance with the
Short Term Revolving Loan Borrowing Request or Short Term
Competitive Bid Loan Acceptance therefor, as the case may be; or
(c) any Short Term Revolving Loans not being continued as,
or converted into, LIBO Rate Loans in accordance with the
Continuation/ Conversion Notice therefor,
then, upon the written notice of such Lender to the applicable Borrower (with a
copy to the Syndication Agent), such Borrower shall, within five days of its
receipt thereof, pay directly to such Lender such amount as will (in the
reasonable determination of such Lender) reimburse such Lender for such loss or
expense. Each Lender shall furnish such Borrower with a certificate setting
forth the basis for determining any additional amount or amounts to be paid to
it hereunder.
SECTION 4.5. Increased Capital Costs. If any change in, or
the introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority affects or would affect the amount of capital
required or expected to be maintained by any Lender or any Person controlling
such Lender, and such Lender determines (in its sole and absolute discretion)
that the rate of return on its or such controlling Person's capital as a
consequence of its Commitments or the Loans made by such Lender is reduced to a
level below that which such Lender or such controlling Person could have
achieved but for the occurrence of any such circumstance, then, such Lender
shall notify the Syndication Agent and Seaboard in writing of the occurrence
of any such circumstance within five (5) Business Days of such Lender becoming
aware of such circumstance, and Seaboard shall within five (5) Business Days
of its receipt of such notice pay directly to such Lender additional amounts
sufficient to compensate such Lender or such controlling Person for such
reduction in rate of return. Each Lender shall furnish Seaboard with a
certificate setting forth the basis for determining any additional amount or
amounts to be paid to it hereunder.
SECTION 4.6. Taxes. All payments by the Borrowers of principal of,
and interest on, the Loans and all other amounts payable hereunder (including
fees) shall be made free and clear of and without deduction for any present
or future income, excise, stamp or franchise taxes and other taxes, fees,
duties, withholdings or other charges of any nature whatsoever imposed by any
taxing authority, but excluding franchise taxes and taxes imposed on or
measured by any Lender's net income or receipts by the jurisdiction where such
Lender is organized or maintains a place of business (such non-excluded items
being called "Taxes"). Seaboard represents and warrants that any payments to
be made by H&O or Marine hereunder are not subject to any withholding or
deduction therefrom in respect of any Taxes pursuant to any law, rule or
regulation of Liberia. In the event that any withholding or deduction from
any payment to be made by a Borrower hereunder is required in respect of any
Taxes pursuant to any applicable law, rule or regulation, then such Borrower
will
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to the Syndication Agent an official
receipt or other documentation satisfactory to the Syndication Agent
evidencing such payment to such authority; and
(c) pay to the Syndication Agent for the account of the
Lenders such additional amount or amounts as is necessary to ensure
that the net amount actually received by each Lender will equal the
full amount such Lender would have received had no such withholding
or deduction been required.
Moreover, if any Taxes are directly asserted against the Syndication Agent or
any Lender with respect to any payment received by the Syndication Agent or
such Lender hereunder, the Syndication Agent or such Lender may pay such Taxes
and the applicable Borrower will promptly pay such additional amounts
(including any penalties, interest or expenses) as is necessary in order that
the net amount received by such person after the payment of such Taxes
(including any Taxes on such additional amount) shall equal the amount such
person would have received had not such Taxes been asserted.
If a Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Syndication Agent, for the account of the
respective Lenders, the required receipts or other required documentary
evidence, such Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure. For purposes of this Section 4.6, a distribution hereunder by the
Syndication Agent or any Lender to or for the account of any Lender shall be
deemed a payment by the applicable Borrower.
Upon the request of Seaboard or the Syndication Agent, each Lender that is
organized under the laws of a jurisdiction other than the United States shall,
prior to the due date of any payments under the Notes, execute and deliver to
Seaboard and the Syndication Agent, on or about the first scheduled payment date
in each Fiscal Year, one or more (as Seaboard or the Syndication Agent may
reasonably request) United States Internal Revenue Service Forms 4224 or Forms
1001 or such other forms or documents (or successor forms or documents),
appropriately completed, as may be applicable to establish the extent, if any,
to which a payment to such Lender is exempt from withholding or deduction of
Taxes.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by any Borrower pursuant to this Agreement, the Notes, or
any other Loan Document shall be made by such Borrower to the Syndication Agent
for the pro rata account of the Lenders entitled to receive such payment. All
such payments required to be made to the Syndication Agent shall be made,
without setoff, deduction or counterclaim, not later than 11:00 a.m., New York
time, on the date due, in same day or immediately available funds, to such
account as the Syndication Agent shall specify from time to time by notice to
Seaboard. Funds received after that time shall be deemed to have been received
by the Syndication Agent on the next succeeding Business Day. The Syndication
Agent shall promptly remit in same day funds to each Lender its share, if any,
of such payments received by the Syndication Agent for the account of such
Lender. All interest and fees shall be computed on the basis of the actual
number of days (including the first day but excluding the last day) occurring
during the period for which such interest or fee is payable over a year
comprised of 360 days. Whenever any payment to be made shall otherwise be due
on a day which is not a Business Day, such payment shall (except as otherwise
required by clause (a)(ii) of the definition of the term "Interest Period" with
respect to LIBO Rate Loans and clause (b)(i) of the definition of "Interest
Period" with respect to Short Term Competitive Bid Loans based on the LIBOR
Auction) be made on the next succeeding Business Day and such extension of time
shall be included in computing interest and fees, if any, in connection with
such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Short Term Revolving Loan or Short Term
Swing Line Loan (other than pursuant to the terms of Sections 4.3, 4.4 and 4.5)
in excess of its pro rata share of payments then or therewith obtained by all
Lenders entitled thereto, such Lender shall purchase from the other Lenders
such participation in Short Term Revolving Loans or Short Term Swing Line Loans
made by them as shall be necessary to cause such purchasing Lender to share the
excess payment or other recovery ratably with each of them; provided, however,
that if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Lender, the purchase shall be
rescinded and each Lender which has sold a participation to the purchasing
Lender shall repay to the purchasing Lender the purchase price to the ratable
extent of such recovery together with an amount equal to such selling Lender's
ratable share (according to the proportion of
(a) the amount of such selling Lender's required repayment
to the purchasing Lender
to
(b) total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. Each Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with respect to such participation as fully
as if such Lender were the direct creditor of such Borrower in the amount of
such participation. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Lenders entitled under this Section to share in the benefits of
any recovery on such secured claim.
SECTION 4.9. Setoff. Each Lender shall, upon the occurrence of any
Default described in clauses (a) through (d) of Section 8.1.7 or, with the
consent of the Required Lenders, upon the occurrence of any other Event of
Default, have the right to appropriate and apply to the payment of the
Obligations owing to it (whether or not then due) any and all balances,
credits, deposits, accounts or moneys of each such Borrower then or thereafter
maintained with such Lender; provided, however, that any such appropriation and
application shall be subject to the provisions of Section 4.8. Each Lender
agrees promptly to notify the applicable Borrower and the Syndication Agent
after any such setoff and application made by such Lender; provided, however,
that the failure to give such notice shall not affect the validity of such
setoff and application. The rights of each Lender under this Section are in
addition to other rights and remedies (including other rights of setoff under
applicable law or otherwise) which such Lender may have.
SECTION 4.10. Use of Proceeds. Each Borrower shall apply the
proceeds of the Credit Extensions for the general corporate purposes of such
Borrower and its subsidiaries.
Without limiting the foregoing, no proceeds of any Loan will be used to
acquire any equity security of a class which is registered pursuant to Section
12 of the Securities Exchange Act of 1934 or any "margin stock", as defined in
F.R.S. Board Regulation U.
ARTICLE V
CONDITIONS TO RESTATEMENT
SECTION 5.1. Restated Agreement Effective Date. This Agreement shall
become effective on the date (the "Restated Agreement Effective Date") on which
counterparts hereof executed on behalf of each Borrower, each Agent and each
Lender (or notice thereof satisfactory to the Syndication Agent) shall have
been received by the Syndication Agent and notice thereof shall have been given
by the Syndication Agent to Seaboard, and each Lender and each of the
conditions precedent set forth in this Section 5.1 shall have been satisfied.
SECTION 5.1.1. Resolutions, etc. The Documentation Agent shall have
received from each Borrower a certificate, dated the Restated Agreement
Effective Date, of its Secretary or Assistant Secretary as to
(a) resolutions of its Board of Directors then in full
force and effect authorizing the execution, delivery and performance
of this Agreement, the Notes and each other Loan Document to be
executed by it (including, without limitation, in the case of
Seaboard, the Seaboard Guaranty); and
(b) the incumbency and signatures of those of its officers
including, without limitation, the Senior Financial Officer,
authorized to act with respect to this Agreement, the Notes and each
other Loan Document executed by it (including, without limitation,
in the case of Seaboard, the Seaboard Guaranty),
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary of such Borrower canceling or
amending such prior certificate.
SECTION 5.1.2. Delivery of Notes. The Syndication Agent shall have
received, for the account of each Lender, its Notes duly executed and delivered
by each Borrower.
SECTION 5.1.3. Opinion of Counsel. The Documentation Agent shall
have received an opinion, dated the Restated Agreement Effective Date and
addressed to the Co-Managing Agents, the Documentation Agent, the Syndication
Agent and all Lenders, from Sullivan & Worcester, counsel to Seaboard
substantially in the form of Exhibit F hereto.
SECTION 5.1.4. Closing Fees, Expenses, etc. Each of the Co-Managing
Agents shall have received for its own account, and the Syndication Agent shall
have received for its own account, or for the account of each Lender and each
Agent other than the Co-Managing Agents, as the case may be, all fees, costs
and expenses due and payable pursuant to Sections 3.3 and 10.3, if then
invoiced.
SECTION 5.1.5. No Material Adverse Change. No material adverse
change in each Borrower's business or financial condition shall have occurred
since December 31, 1994.
SECTION 5.1.6. Closing Certificate. The Syndication Agent shall have
received from Seaboard:
(a) (i) a consolidated balance sheet of Seaboard and
its consolidated subsidiaries, as at the end of the Fiscal
Quarter ended September 9, 1995, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of Seaboard and its
consolidated subsidiaries for such Fiscal Quarter and for the
portion of the Fiscal Year ending with such Fiscal Quarter,
setting forth in each case, in comparative form, the figures
for the corresponding periods in the previous Fiscal Year, all
in reasonable detail, prepared in accordance with GAAP
applicable to quarterly financial statements generally, and
certified as of the Restated Agreement Effective Date as
complete and correct, subject to changes resulting from year-end
adjustments, by a Senior Financial Officer; provided, that
delivery of copies of Seaboard's Quarterly Report on Form 10-Q
filed with the Securities and Exchange Commission shall be
deemed to satisfy the requirements of this Section 5.1.6(a) so
long as such Quarterly Report contains or is accompanied by
the information specified in this Section 5.1.6(a); and
(b) a certificate dated the Restated Agreement Effective
Date of a Senior Financial Officer of Seaboard, setting forth:
(i) Covenant Compliance. The information
(including detailed calculations) required in order to
establish whether Seaboard was in compliance with the
requirements of Section 7.2.3 and Section 7.2.4, and to
calculate the Consolidated Net Debt Ratio for the Fiscal
Quarter ended September 9, 1995 (including with respect to
each such Section, where applicable, the calculations of the
maximum or minimum amount, ratio or percentage, as the case
may be, permissible under the terms of such Sections, and the
calculation of the amount, ratio or percentage then in
existence);
(ii) a statement that the representations and
warranties contained in Article VI are true and correct on and
as of such date, as though made on and as of such date; and
(iii) a statement that no Default or Event of Default
has occurred and is continuing.
SECTION 5.1.7. Seaboard Guaranty. The Syndication Agent shall have
received the Seaboard Guaranty, duly executed and delivered by Seaboard.
SECTION 5.2. All Credit Extensions. The obligation of each Lender to
make any Credit Extension shall be subject to the satisfaction of each of the
conditions precedent set forth in this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both
before and after giving effect to any Credit Extension (but, if any Default of
the nature referred to in Section 8.1.5 shall have occurred with respect to any
other Indebtedness, without giving effect to the application, directly or
indirectly, of the proceeds thereof) the following statements shall be true and
correct:
(a) the representations and warranties set forth in Article
VI (excluding, however, those contained in Section 6.6) shall be
true and correct with the same effect as if then made (unless stated
to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct as of such
earlier date).
(b) except as disclosed by Seaboard to the Documentation
Agent and the Lenders pursuant to Section 6.6,
(i) no labor controversy, litigation, arbitration
or governmental investigation or proceeding shall be pending
or, to the knowledge of Seaboard, threatened against Seaboard
or any of its Subsidiaries which might materially adversely
affect Seaboard's consolidated business, operations, assets,
revenues, properties or prospects or which purports to affect
the legality, validity or enforceability of this Agreement,
the Notes, the Seaboard Guaranty or any other Loan Document;
and
(ii) no development shall have occurred in any labor
controversy, litigation, arbitration or governmental
investigation or proceeding disclosed pursuant to Section 6.6
which might materially adversely affect the consolidated
businesses, operations, assets, revenues, properties or
prospects of Seaboard and its Subsidiaries; and
(c) no Default shall have then occurred and be continuing,
and neither Seaboard nor any of its Subsidiaries are in material
violation of any law or governmental regulation or court order or
decree.
SECTION 5.2.2. Credit Extension Request. In connection with any and
each Credit Extension, the Syndication Agent shall have received a Borrowing
Request. The delivery of a Borrowing Request and the acceptance by the
applicable Borrower of the proceeds of such Credit Extension shall constitute a
representation and warranty by such Borrower that on the date of such Credit
Extension (both immediately before and after giving effect to such Credit
Extension and the application of the proceeds thereof) the statements made in
Section 5.2.1 are true and correct.
SECTION 5.2.3. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of Seaboard or any of its Subsidiaries
shall be satisfactory in form and substance to the Agents and their counsel; the
Agents and their counsel shall have received all information, approvals,
opinions, documents or instruments as the Agents or their counsel may reasonably
request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, each Co-Managing Agent, the Syndication
Agent and the Documentation Agent to enter into this Agreement and to make
Credit Extensions hereunder, Seaboard, and to the extent relating thereto, each
other Borrower represents and warrants unto the Documentation Agent, the
Syndication Agent, each Co-Managing Agent and each Lender as set forth in this
Article VI.
SECTION 6.1. Nature of Business. The Information Memorandum (together
with all exhibits and annexes thereto, the "Information Memorandum"), dated
January 1996, and prepared by the Agents, correctly describes the general
nature of the business and principal Properties of Seaboard and the
Subsidiaries as of the date hereof.
SECTION 6.2. Financial Statements; Indebtedness; Material Adverse
Change.
(a) Financial Statements. Seaboard has provided the
Documentation Agent with the financial statements described in Item
6.2(a) of the Disclosure Schedule. Such financial statements have
been prepared in accordance with generally accepted accounting
principles consistently applied, and present fairly, in all material
respects, the consolidated financial position of Seaboard and its
consolidated Subsidiaries as of such dates and the results of their
operations and cash flows for such periods.
(b) Indebtedness. Item 6.2(b) of the Disclosure Schedule
hereto lists all Indebtedness of Seaboard and the Subsidiaries as of
the date hereof, and provides the following information with respect
to each item of such Indebtedness: the obligor, the holder thereof,
the outstanding amount, the current portion, and the collateral
securing such Indebtedness, if any.
(c) Material Adverse Change. Since December 31, 1994 there
has been no change in the business, prospects, profits, Properties
or condition (financial or otherwise) of Seaboard or any of the
Subsidiaries except changes in the ordinary course of business that,
in the aggregate for all such changes, could not reasonably be
expected to have a Material Adverse Effect.
SECTION 6.3. Subsidiaries and Affiliates. Item 6.3 of the Disclosure
Schedule hereto states
(a) the name of each of the Subsidiaries, its jurisdiction
of incorporation and the percentage of its Voting Stock owned by
Seaboard and each other Subsidiary, and
(b) the name of each Affiliate of Seaboard or any of the
Subsidiaries (other than natural persons who are Affiliates solely
as a result of their membership in the families of officers or
directors) and the nature of the affiliation.
Each of Seaboard and the Subsidiaries has good and marketable title to all of
the shares it purports to own of the stock of each Subsidiary, free and clear
in each case of any Lien. All such shares have been duly issued and are fully
paid and nonassessable.
SECTION 6.4. Title to Properties.
(a) Each of Seaboard and the Subsidiaries has good title
to all of the Property reflected in the most recent balance sheet
referred to in Section 6.2 hereof (except as sold or otherwise
disposed of in the ordinary course of business), except for such
failures to have good title as are immaterial to such financial
statements and that, in the aggregate for all such failures, could
not reasonably be expected to have a Material Adverse Effect. All
such Property is free from Liens not permitted by Section 7.2.2
hereof.
(b) Each of Seaboard and the Subsidiaries owns, possesses
or has the right to use all of the patents, trademarks, service
marks, trade names, copyrights, licenses, and rights with respect
thereto, necessary for the present and currently planned future
conduct of its business, without any known conflict with the rights
of others, except for such failures to own, possess, or have the
right to use, that, in the aggregate for all such failures, could
not reasonably be expected to have a Material Adverse Effect.
SECTION 6.5. Taxes.
(a) Returns Filed; Taxes Paid.
(i) All tax returns required to be filed by
Seaboard and each Subsidiary and any other Person with which
Seaboard or any Subsidiary files or has filed a consolidated
return in any jurisdiction have been filed on a timely basis,
and all taxes, assessments, fees and other governmental
charges upon each of Seaboard, such Subsidiary and any such
Person, and upon any of their respective Properties, income or
franchises, that are due and payable have been paid, except
for such tax returns and such tax payments that could not, in
the aggregate for all such tax returns and payments,
reasonably be expected to have a Material Adverse Effect.
(ii) All liabilities of each of Seaboard, the
Subsidiaries and the other Persons referred to in Section
6.5(a)(i) hereof with respect to federal income taxes have
been finally determined except for the Fiscal Years 1992
through 1995, the only years not closed by the completion of
an audit or the expiration of the statute of limitations.
(b) Book Provisions Adequate.
(i) The amount of the liability for taxes reflected
in each of the consolidated balance sheets referred to in
Section 6.2 hereof is in each case an adequate provision for
taxes as of the date of such balance sheets (including,
without limitation, any payment due pursuant to any tax
sharing agreement) as are or may become payable by any one or
more of Seaboard and the other Persons consolidated with
Seaboard in such financial statements in respect of all tax
periods ending on or prior to such dates.
(ii) Seaboard does not know of any proposed
additional tax assessment against it or any such Person that
is not reflected in full in the most recent balance sheet
referred to in Section 6.2 hereof.
SECTION 6.6. Pending Litigation.
(a) There are no proceedings, actions or investigations
pending or, to the knowledge of Seaboard, threatened against or
affecting Seaboard or any Subsidiary in any court or before any
Governmental Authority or arbitration board or tribunal that, in the
aggregate for all such proceedings, actions and investigations,
could reasonably be expected to have a Material Adverse Effect.
(b) Neither Seaboard nor any Subsidiary is in default with
respect to any judgment, order, writ, injunction or decree of any
court, Governmental Authority, arbitration board or tribunal that,
in the aggregate for all such defaults, could reasonably be expected
to have a Material Adverse Effect.
SECTION 6.7. Full Disclosure. The financial statements referred to in
Section 6.2 hereof do not, nor does this Agreement, the Information Memorandum
or any written statement furnished by or on behalf of any Borrower in connection
with the negotiation, execution, delivery or performance of any of the Loan
Documents contain any untrue statement of a material fact or omit a material
fact necessary to make the statements contained therein and herein not
misleading. There is no fact that any Borrower has not disclosed in writing
that has had or, so far as such Borrower can now reasonably foresee, could
reasonably be expected to have, a Material Adverse Effect.
SECTION 6.8. Corporate Organization and Authority. Each of Seaboard
and the Material Subsidiaries
(a) is a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of
incorporation,
(b) has all legal and corporate power and authority to own
and operate its Properties and to carry on its business as now
conducted and as presently proposed to be conducted,
(c) has all licenses, certificates, permits, franchises and
other governmental authorizations necessary to own and operate its
Properties and to carry on its business as now conducted and as
presently proposed to be conducted, except where the failure to have
such licenses, certificates and permits, franchises and other
governmental authorizations, in the aggregate for all such failures,
could not reasonably be expected to have a Material Adverse Effect,
and
(d) has duly qualified or has been duly licensed, and is
authorized to do business and is in good standing, as a foreign
corporation, in each state in the United States of America and in
each other jurisdiction where the failure to be so qualified or
licensed and authorized and in good standing, in the aggregate for
all such failures, could reasonably be expected to have a Material
Adverse Effect.
SECTION 6.9. Charter Instruments, Other Agreements. Neither Seaboard
nor any Subsidiary is in violation in any respect of any term of any charter
instrument or bylaw. Neither Seaboard nor any Subsidiary is in violation in
any respect of any term in any agreement or other instrument to which it is a
party or by which it or any of its Property may be bound except for such
violations that, in the aggregate for all such failures, could not reasonably
be expected to have a Material Adverse Effect.
SECTION 6.10. Restrictions on Seaboard and Subsidiaries. Neither
Seaboard nor any Subsidiary:
(a) is a party to any contract or agreement, or subject to
any charter or other corporate restriction that, in the aggregate
for all such contracts, agreements, charters and corporate
restrictions, could reasonably be expected to have a Material
Adverse Effect;
(b) is a party to any contract or agreement that restricts
the right or ability of such corporation to incur Indebtedness,
other than the Loan Documents and the agreements listed in Item 6.10
of the Disclosure Schedule, none of which restricts the execution,
delivery and performance by Seaboard or any other Borrower of this
Agreement, the Notes executed by such Borrower and each other Loan
Document executed or to be executed by it (including, without
limitation, in the case of Seaboard, the Seaboard Guaranty), and
true, correct and complete copies of each of which have been
provided to the Documentation Agent; and
(c) has agreed or consented to cause or permit in the
future (upon the happening of a contingency or otherwise) any of its
Property, whether now owned or hereafter acquired, to be subject to
a Lien not permitted by Section 7.2.2 hereof.
SECTION 6.11. Compliance with Law. Neither Seaboard nor any
Subsidiary is in violation of any law, ordinance, governmental rule or
regulation to which it is subject, which violations, in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
SECTION 6.12. ERISA.
(a) Compliance with ERISA. Seaboard and each member of the
Controlled Group are in compliance with ERISA, except for such
failures to comply that, in the aggregate for all such failures,
could not reasonably be expected to have a Material Adverse Effect.
(b) Funding Status. No accumulated funding deficiency (as
defined in section 302 of ERISA and section 412 of the Code),
whether or not waived, exists with respect to any Pension Plan.
(c) PBGC. No liability to the PBGC has been or is expected
to be incurred by Seaboard or any member of the Controlled Group
with respect to any Pension Plan that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect. No circumstance exists that constitutes grounds under
section 4042 of ERISA entitling the PBGC to institute proceedings to
terminate, or appoint a trustee to administer, any Pension Plan or
trust created thereunder, nor has the PBGC instituted any such
proceeding.
(d) Multiemployer Plans. Neither Seaboard nor any member
of the Controlled Group has incurred or presently expects to incur
any withdrawal liability under Title IV of ERISA with respect to any
Multiemployer Plan. There have been no "reportable events" (as such
term is defined in section 4043 of ERISA) with respect to any
Multiemployer Plan that could result in the termination of such
Multiemployer Plan and give rise to a liability of Seaboard or any
member of the Controlled Group in respect thereof.
(e) Foreign Pension Plan. Except as disclosed on Item 6.12
of the Disclosure Schedule, the present value of all benefits vested
under each Foreign Pension Plan, determined as of the most recent
valuation date in respect thereof, does not exceed the value of the
assets of such Foreign Pension Plan, and all required payments in
respect of the funding of such Foreign Pension Plan have been made.
SECTION 6.13. Environmental Compliance.
(a) Compliance. Each of Seaboard and the Subsidiaries is
in compliance with all Environmental Laws in effect in each
jurisdiction where it is currently doing business and in which the
failure so to comply, in the aggregate for all such failures, could
reasonably be expected to have a Material Adverse Effect.
(b) Liability. Neither Seaboard nor any Subsidiary is
subject to any liability under any Environmental Laws that, in the
aggregate for all such liabilities, could reasonably be expected to
have a Material Adverse Effect.
(c) Notices. Neither Seaboard nor any Subsidiary has
received any
(i) notice from any Governmental Authority by which
any of its currently or previously owned or leased Properties
has been identified in any manner by any Governmental
Authority as a hazardous substance disposal or removal site,
"Super Fund" clean-up site, or candidate for removal or
closure pursuant to any Environmental Law,
(ii) notice of any Lien arising under or in
connection with any Environmental Law that has attached to any
revenues of, or to, any of its currently or previously owned
or leased Properties, or
(iii) any communication, written or oral, from any
Governmental Authority concerning action or omission by
Seaboard or such Subsidiary in connection with its currently
or previously owned or leased Properties resulting in the
release of any hazardous substance resulting in any violation
of any Environmental Law,
in each case where the effect of which, in the aggregate for all
such notices and communications, could reasonably be expected to
have a Material Adverse Effect.
SECTION 6.14. Due Authorization, Non-conflict; Obligations are
Enforceable.
(a) Due Authorization, Non-conflict. The execution,
delivery and performance by each Borrower of this Agreement, the
Notes executed by such Borrower and each other Loan Document
executed or to be executed by it (including, without limitation, in
the case of Seaboard, the Seaboard Guaranty):
(i) is within the corporate powers of such
Borrower; and
(ii) is legal and does not conflict with, result in
any breach of any of the provisions of, constitute a default
under, or result in the creation of any Lien upon any Property
of such Borrower or any Subsidiary under the provisions of,
any agreement, charter instrument, bylaw or other instrument
to which it is a party or by which it or any of its Property
may be bound.
(b) Obligations are Enforceable. Each of this Agreement,
the Notes executed by each Borrower and each other Loan Document
executed or to be executed by such Borrower (including, without
limitation, in the case of Seaboard, the Seaboard Guaranty) has been
duly authorized by all necessary action on the part of such
Borrower, has been, or will be, executed and delivered by duly
authorized officers of such Borrower, and constitutes, or will
constitute upon the due execution and delivery thereof, a legal,
valid and binding obligation of such Borrower, enforceable in
accordance with its terms, except that the enforceability of the
Loan Documents may be:
(i) limited by applicable bankruptcy,
reorganization, arrangement, insolvency, moratorium, or other
similar laws affecting the enforceability of creditors' rights
generally; and
(ii) subject to the availability of equitable
remedies.
SECTION 6.15. Governmental Consent. Neither the nature of Seaboard
or any Subsidiary, or of any of their respective businesses or Properties, nor
any relationship between Seaboard or any Subsidiary and any other Person, nor
any circumstance in connection with the execution, delivery or performance of
this Agreement, the Notes, or any other Loan Document (including, without
limitation, in the case of Seaboard, the Seaboard Guaranty) by any Borrower,
is such as to require a consent, approval or authorization of, or filing,
registration or qualification with, any Governmental Authority on the part of
any Borrower as a condition to the execution, delivery or performance of this
Agreement, the Notes, or any other Loan Document (including, without
limitation, in the case of Seaboard, the Seaboard Guaranty) by any Borrower.
Neither Seaboard nor any Subsidiary is subject to regulation under the
Investment Company Act of 1940 as amended, the Public Utility Holding Company
Act of 1935 as amended, the Interstate Commerce Act as amended or the Federal
Power Act as amended.
SECTION 6.16. No Defaults under Notes. No event has occurred and
no condition exists that, upon the execution, delivery and performance of this
Agreement, the Notes, or any other Loan Document (including, without limitation,
in the case of Seaboard, the Seaboard Guaranty) by any Borrower would constitute
a Default or an Event of Default.
SECTION 6.17. Use of Proceeds of Notes.
(a) Use of Proceeds. Each Borrower shall use the proceeds
of the Credit Extensions extended to it for general corporate
purposes.
(b) Margin Securities. None of the transactions
contemplated herein and in the Notes and each other Loan Document
(including, without limitation, the use of the proceeds from the
Credit Extensions) violates, will violate or will result in a
violation of section 7 of the Exchange Act, or any regulations
issued pursuant thereto, including, without limitation, Regulation
G, Regulation T and Regulation X of the Board of Governors of the
Federal Reserve System, 12 C.F.R., Chapter II. Neither any Borrower
nor any Subsidiary, with the proceeds of the Credit Extensions,
intends to carry or purchase, or refinance borrowings that were used
to carry or purchase, any "margin stock" (as defined by said
Regulation G), including margin stock originally issued by such
Borrower or such Subsidiary.
(c) Absence of Foreign or Enemy Status. Neither the Credit
Extensions nor the use of proceeds therefrom will result in a
violation of any of the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended), or any ruling issued thereunder or any enabling
legislation or Presidential Executive Order in connection therewith.
SECTION 6.18. Borrower Subsidiaries. (a) Each Borrower, other than
Seaboard, is a Material Subsidiary;
(b) Each Designated Borrower will be a Material Subsidiary; and
(c) Each Designated Borrower will have, on the effectiveness of the
applicable Designated Borrower Certificate, full right and authority to
enter into this Agreement, the Notes and each other Loan Document to which
it is a party; all of the foregoing actions will have been, prior to any
Borrowing Request by such Borrower, duly authorized by all necessary
action on the part of such Borrower; and on the effectiveness of the
applicable Designated Borrower Certificate and the execution and delivery
by such Borrower of its Notes, this Agreement, such Notes and each other
Loan Document to which it is a party will constitute, valid and binding
obligations of such Borrower enforceable in accordance with their
respective terms except as such terms may be limited by the application of
bankruptcy, moratorium, insolvency and similar laws affecting the rights
of creditors generally and by equitable principles affecting the
availability of specific performance and other remedies.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. Seaboard agrees with each Agent
and each Lender that, until all Commitments have terminated and all Obligations
have been paid and performed in full, Seaboard will perform the obligations set
forth in this Section 7.1.
SECTION 7.1.1. Financial and Business Information. Seaboard shall
deliver to each Lender and the Syndication Agent:
(a) Quarterly Statements. As soon as practicable after the
end of each Fiscal Quarter (other than the last Fiscal Quarter of
each Fiscal Year), and in any event within sixty (60) days
thereafter, duplicate copies of,
(i) a consolidated balance sheet of Seaboard and
its consolidated subsidiaries, as at the end of such Fiscal
Quarter, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of Seaboard and its
consolidated subsidiaries for such Fiscal Quarter and (in the
case of the second and third Fiscal Quarters) for the portion
of the Fiscal Year ending with such Fiscal Quarter,
setting forth in each case, in comparative form, the figures for the
corresponding periods in the previous Fiscal Year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified as complete and
correct, subject to changes resulting from year-end adjustments, by
a Senior Financial Officer of Seaboard, and accompanied by the
certificate required by Section 7.1.2 hereof; provided, that
delivery of copies of Seaboard's Quarterly Report on Form 10-Q filed
with the Securities and Exchange Commission within the time period
specified above shall be deemed to satisfy the requirements of this
Section 7.1.1(a) so long as such Quarterly Report contains or is
accompanied by the information specified in this Section 7.1.1(a);
(b) Annual Statements. As soon as practicable after the
end of each Fiscal Year, and in any event within one hundred (100)
days thereafter, duplicate copies of,
(i) a consolidated and consolidating balance sheet
of Seaboard and its consolidated Subsidiaries as at the end of
such Fiscal Year, and
(ii) a consolidated and consolidating statement of
income, and consolidated statements of changes in
shareholders' equity and cash flows of Seaboard and the
Subsidiaries, for such Fiscal Year,
setting forth in the case of each consolidated financial statement,
in comparative form, the figures for the previous Fiscal Year, all
in reasonable detail, prepared in accordance with GAAP, and
accompanied by
(A) (I) in the case of the consolidated
financial statements of Seaboard and its consolidated
subsidiaries, an opinion thereon of independent
certified public accountants of recognized national
standing, which opinion shall, without qualification
(including, without limitation, qualifications related
to the scope of the audit or the ability of Seaboard
or a subsidiary thereof to continue as a going
concern), state that such financial statements present
fairly, in all material respects, the financial
position of the companies being reported upon and
their results of operations and cash flows and have
been prepared in conformity with GAAP, and that the
examination of such accountants in connection with
such financial statements has been made in accordance
with generally accepted auditing standards, and that
such audit provides a reasonable basis for such
opinion in the circumstances, and
(II) in the case of such consolidating
statements, a statement from such independent
certified public accountants that such statements were
prepared using the same work papers as were used in
the preparation of such consolidated statements of
Seaboard and its consolidated subsidiaries, and
(B) a certification by a Senior Financial Officer
of Seaboard that such consolidated and consolidating
statements are complete and correct,
provided that the delivery of Seaboard's Annual Report on Form 10-K
for such Fiscal Year (together with Seaboard's annual report to
shareholders, if any, prepared pursuant to Rule 14a-3 under the
Exchange Act) filed with the Securities and Exchange Commission
within the time period specified above shall be deemed to satisfy
the requirements of this Section 7.1.1(b) so long as such Annual
Report contains or is accompanied by the opinions and other
information otherwise specified in this Section 7.1.1(b);
(c) SEC and Other Reports. Promptly upon their becoming
available one copy of each financial statement, report, notice or
proxy statement sent by Seaboard or any Subsidiary to stockholders
generally, and of each regular or periodic report and any
registration statement, prospectus or written communication, and
each amendment thereto, in respect thereof filed by Seaboard or any
Subsidiary with, or received by, such Person in connection therewith
from, the National Association of Securities Dealers, any securities
exchange or the Securities and Exchange Commission or any successor
agency;
(d) Notice of Default or Event of Default. Immediately,
and in any event within three (3) days, upon becoming aware of the
existence of any condition or event which constitutes a Default or
an Event of Default, a written notice specifying the nature and
period of existence thereof and what action the applicable Borrower
is taking or proposes to take with respect thereto;
(e) Notice of Claimed Default. Immediately, and in any
event within three (3) days, upon becoming aware that any Lender or
a holder of any Indebtedness or other Security of Seaboard, any
other Borrower or any other Subsidiary, shall have given notice or
taken any other action with respect to a claimed Default, Event of
Default or default or event of default, a written notice specifying
the notice given or action taken by such Lender or holder, as the
case may be, and the nature of the claimed Default, Event of Default
or default or event of default and what action Seaboard or the
applicable Borrower is taking or proposes to take with respect
thereto;
(f) ERISA.
(i) immediately upon becoming aware of the
occurrence of any "reportable event" (as such term is defined
in section 4043 of ERISA) or "prohibited transaction) (as such
term is defined in section 406 of ERISA or section 4975 of the
Code) in connection with any Pension Plan or any trust created
thereunder, a written notice specifying the nature thereof,
what action Seaboard is taking or proposes to take with
respect thereto, and, when known, any action taken by the
Internal Revenue Service, the Department of Labor or the PBGC
with respect thereto; and
(ii) prompt written notice of and, where applicable,
a description of
(A) any notice from the PBGC in respect of
the commencement of any proceedings pursuant to
section 4042 of ERISA to terminate any Pension Plan or
for the appointment of a trustee to administer any
Pension Plan,
(B) any distress termination notice
delivered to the PBGC under section 4041 of ERISA in
respect of any Pension Plan, and any determination of
the PBGC in respect thereto,
(C) the placement of any Multiemployer
Plan in reorganization status under Title IV of ERISA,
(D) any Multiemployer Plan becoming
"insolvent" (as such term is defined in section 4245
of ERISA) under Title IV of ERISA, and
(E) the whole or partial withdrawal of
Seaboard or any member of the Controlled Group from
any Multiemployer Plan and the withdrawal liability
incurred in connection therewith,
provided that Seaboard shall not be required to deliver any such
notice at any time when the aggregate amount of the actual or
potential liability of Seaboard and the Subsidiaries in respect of
all such events is at such time less than two percent (2%) of
Consolidated Shareholders' Equity determined at such time; and
(g) Requested Information. With reasonable promptness,
such other data and information as from time to time may be
requested by any Lender or any Agent, including, without limitation,
(i) a copy of each report submitted to Seaboard or
any Subsidiary by independent accountants in connection with
any annual, interim or special audit made by them of the books
of Seaboard or any Subsidiary;
(ii) copies of any statement, report or certificate
furnished to any holder of indebtedness of Seaboard or any
Subsidiary; and
(iii) information requested to comply with 17 C.F.R.
Sec. 230.144A, as amended, from time to time.
SECTION 7.1.2. Officers' Certificates. Each set of financial
statements delivered to each Lender and the Syndication Agent pursuant to
Section 7.1.1(a) or Section 7.1.1(b) hereof shall be accompanied by a
certificate of a Senior Financial Officer of Seaboard, setting forth:
(a) Covenant Compliance. The information (including
detailed calculations) required in order to establish whether
Seaboard was in compliance with the requirements of Section 7.2.3
and Section 7.2.4, and to calculate the Consolidated Net Debt Ratio
for the period covered by the financial statement then being
furnished (including with respect to each such Section, where
applicable, the calculations of the maximum or minimum amount, ratio
or percentage, as the case may be, permissible under the terms of
such Sections, and the calculation of the amount, ratio or
percentage then in existence); and
(b) Event of Default. A statement that the signers have
reviewed the relevant terms hereof and have made, or caused to be
made, under their supervision, a review of the transactions and
conditions of Seaboard and the Subsidiaries from the beginning of
the accounting period covered by the income statements being
delivered therewith to the date of the certificate and that such
review shall not have disclosed the existence during such period of
any condition or event that constitutes a Default or an Event of
Default or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof and what
action the applicable Borrower shall have taken or proposes to take
with respect thereto.
SECTION 7.1.3. Accountants' Certificates. Each set of annual
financial statements delivered pursuant to Section 7.1.1(b) shall be
accompanied by a certificate of the accountants who certify such financial
statements, stating that they have reviewed this Agreement and stating further,
whether, in making their audit, such accountants have become aware of any
condition or event that then constitutes a Default or an Event of Default, and,
if such accountants are aware that any such condition or event then exists,
specifying the nature and period of existence thereof.
SECTION 7.1.4. Inspection. Seaboard will permit the representatives
of each Lender and the Agents to visit and inspect any of the Properties of
Seaboard or any Subsidiary, to examine all their respect books of account,
records, reports and other papers, to make copies and extracts therefrom, and to
discuss their respective affairs, finances and accounts with their respective
officers, employees and independent public accounts (and by this provision
Seaboard authorizes said accountants to discuss the finances and affairs of
Seaboard and the Subsidiaries) all at such reasonable times and as often as may
be reasonably requested. Each Agent and each Lender hereby agree to take and to
cause its Affiliates to take normal and reasonable precautions and exercise due
care to maintain the confidentiality of all non-public information obtained
pursuant to this Section, and neither such Agent or such Lender nor any of its
Affiliates shall use any such information other than in connection with or in
enforcement of this Agreement and the other Loan Documents or in connection with
the other business now or hereafter existing or contemplated with Seaboard or
any Subsidiary; except to the extent such information (i) was or becomes
generally available to the public other than as a result of disclosure by such
Agent or such Lender, or (ii) was or becomes available on a non-confidential
basis from a source other than Seaboard, provided that such source is not bound
by a confidentiality agreement with Seaboard known to such Agent or such
Lender; provided, however, that any Agent and any Lender may disclose such
information (A) at the request or pursuant to any requirement of any
Governmental Authority to which such Agent or such Lender is subject or in
connection with an examination of such Agent or such Lender by any such
authority; (B) pursuant to subpoena or other court process; (C) when required
to do so in accordance with the provisions of any applicable law, ordinance,
governmental rule or regulation; (D) to the extent reasonably required in
connection with any litigation or proceeding to which any Agent, any Lender
or their respective Affiliates may be party; (E) to the extent reasonably
required in connection with the exercise of any remedy hereunder or under any
other Loan Document; (F) to such Agent's or such Lender's independent auditors
and other professional advisors; (G) to any Participant or Assignee Lender,
actual or potential, provided that such Person agrees in writing to keep such
information confidential to the same extent required of the Agents and Lenders
hereunder; (H) as to any Agent or Lender or its Affiliate, as expressly
permitted under the terms of any other document or agreement regarding
confidentiality to which Seaboard or any Subsidiary is party or is deemed party
with such Agent or Lender or such Affiliate; and (I) to its Affiliates.
SECTION 7.1.5. Payment of Taxes and Claims.
Seaboard will, and will cause each Subsidiary to, pay before they come
delinquent,
(a) all taxes, assessments and governmental charges or
levies imposed upon it or its Property, and
(b) all claims or demands of materialmen, mechanics,
carriers, warehousemen, vendors, landlords and other like Persons
that, if unpaid, might result in the creation of a Lien upon its
Property,
provided, that items of the foregoing description need not be paid so long as
(i) such items are being actively contested in good
faith and by appropriate proceedings,
(ii) adequate book reserves have been established
and maintained with respect thereto, and
(iii) such items, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
SECTION 7.1.6. Maintenance of Properties; Corporate Existence; etc.
Seaboard will, and will cause each Material Subsidiary to:
(a) Property. Maintain its Property in a condition
sufficient to permit its ordinary operation, ordinary wear and tear
and obsolescence excepted, and make all necessary renewals,
replacements, additions, betterments and improvements thereto;
(b) Insurance. Maintain, with financially sound and
reputable insurers, insurance with respect to its Property and
business against such casualties and contingencies, of such types
and in such amounts as is customary in the case of corporations of
established reputations engaged in the same or a similar business
and similarly situated;
(c) Financial Records. Keep accurate and complete books
of records and accounts that permit the provision of accurate and
complete financial statements in accordance with GAAP;
(d) Corporate Existence and Rights. Do or cause to be done
all things necessary to preserve and keep in full force and effect
its corporate existence, rights (charter and statutory) and
franchises, except where the failure to do so, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect;
and
(e) Compliance with Law. Not be in violation of any law,
ordinance or governmental rule or regulation to which it is subject
(including, without limitation, any Environmental Law) and not fail
to obtain any license, certificate, permit, franchise or other
governmental authorization necessary to the ownership of its
Properties or to the conduct of its business if such violations or
failures to obtain, in the aggregate, could reasonably be expected
to have a Material Adverse Effect or, in the aggregate, a material
adverse effect on the ability of Seaboard or any Subsidiary to
conduct in the future the business it conducts at the time of such
violation or failure to obtain.
SECTION 7.1.7. ERISA Compliance. Seaboard will, and will cause each
member of the Controlled Group to, at all times with respect to each Pension
Plan, make timely payments of contributions required to meet the minimum funding
standard set forth in ERISA or the Code with respect thereto, and to comply with
all other applicable provisions of ERISA. Seaboard will, and will cause each
Subsidiary to, at all times with respect to each Foreign Pension Plan,
maintained by any of them, comply with all laws of any Governmental Authority
with jurisdiction over such Foreign Pension Plans.
SECTION 7.2. Negative Covenants. Seaboard agrees with each Agent and
each Lender that, until all Commitments have terminated and all Obligations
have been paid and performed in full, Seaboard will perform the obligations set
forth in this Section 7.2.
SECTION 7.2.1. Merger; Acquisition.
(a) Merger and Consolidation. Seaboard will not merge into
or consolidate with, or sell, lease, transfer or otherwise dispose
of all or substantially all of its Property to, any other Person or
permit any other Person to consolidate with or merge into it;
provided that the foregoing restriction does not apply to the merger
or consolidation of Seaboard with, or the sale, lease, transfer or
other disposition by Seaboard of all or substantially all of its
Property to, another corporation, if:
(i) the corporation that results from such merger
or consolidation or that purchases, leases, or acquires all or
substantially all of such Property (the "Successor
Corporation") is organized under the laws of the United States
of America or any jurisdiction thereof;
(ii) all of the obligations of Seaboard under this
Agreement, the Notes, the Seaboard Guaranty and the other Loan
Documents including the due and punctual performance and
observance of all the covenants herein and therein contained,
are expressly assumed by the Successor Corporation pursuant to
such agreements and instruments with respect to such
assumption as shall be approved by the Required Lenders, and
Seaboard causes to be delivered to each Lender and the
Documentation Agent an opinion of independent counsel
satisfactory to the Required Lenders to the effect that such
agreements and instruments are enforceable in accordance with
their terms and the terms hereof;
(iii) the Obligations rank at least pari passu with
all other Indebtedness of the Successor Corporation (provided
that this Section 7.2.1(a)(iii) shall not prohibit the
existence of Indebtedness secured by Liens that do not violate
Section 7.2.2 hereof); and
(iv) immediately prior to, and immediately after the
consummation of the transaction, and after giving effect
thereto, no Default or Event of Default would exist under any
provision hereof.
(b) Acquisition of Stock. Seaboard will not acquire any
stock of any corporation if upon completion of such acquisition such
corporation would be a Subsidiary, or acquire all of the Property
of, or such of the Property as would permit the transferee to
continue any one or more integral business operations of, any Person
unless, immediately after the consummation of such acquisition, and
after giving effect thereto, no Default or Event of Default exists
or would exist under any provision hereof.
SECTION 7.2.2. Liens.
(a) Negative Pledge. Seaboard will not, and will not
permit any Subsidiary to, cause or permit to exist, or agree or
consent to cause or permit to exist in the future (upon the
happening of a contingency or otherwise), any of their Property,
whether now owned or hereafter acquired, to be subject to a Lien
except:
(i) Taxes, etc. Liens securing taxes, assessments
or governmental charges or levies or the claims or demands of
materialmen, mechanics, carriers, warehousemen, landlords and
other like Persons, provided that the payment thereof is not
required by Section 7.1.5 hereof;
(ii) Court Proceedings. Liens arising from judicial
attachments and judgments, securing appeal bonds or
supersedeas bonds, or arising in connection with pending court
proceedings (including, without limitation, surety bonds and
letters of credit or any other instrument serving a similar
purpose), provided that the execution or other enforcement of
such Liens is effectively stayed and the claims secured
thereby are being actively contested in good faith and by
appropriate proceedings, and provided further that the
aggregate amount so secured (minus the amount of insurance
that is available to pay such amounts and over which no
dispute regarding coverage has occurred or is threatened) will
not at any time exceed six percent (6%) of Consolidated
Shareholders' Equity;
(iii) Ordinary Course Business Liens. Liens incurred
or deposits made in the ordinary course of business
(A) in connection with workers'
compensation, unemployment insurance, social security
and other like laws, and
(B) to secure the performance of letters
of credit, bids, tenders, sales contracts, leases,
statutory obligations, surety and performance bonds
(of a type other than set forth in Section
7.2.2(a)(ii) hereof) and other similar obligations
not incurred in connection with the borrowing of money, the
obtaining of advances or the payment of the deferred purchase
price of Property;
(iv) Real Property Liens. Liens in the nature of
reservations, exceptions, encroachments, easements, rights-of-way,
covenants, conditions, restrictions, leases and other
similar title exceptions or encumbrances affecting real
property, provided that such exceptions and encumbrances do
not in the aggregate materially detract from the value of said
Properties or materially interfere with the use of such
Property in the ordinary conduct of the business of Seaboard
and the Subsidiaries;
(v) Existing Liens.
(A) Liens in existence on the date hereof
and described on Item 7.2.2 of the Disclosure
Schedule, and
(B) Liens securing renewals, extensions
(as to time) and refinancings of indebtedness secured
by the Liens described on Schedule 7.2.2 hereto,
provided that the amount of Indebtedness secured by
each such Lien is not increased in excess of the
amount of Indebtedness outstanding on the date of such
renewal, extension or refinancing, and none of such
Liens is extended to include any additional Property
of Seaboard or any Subsidiary;
(vi) Intergroup Liens. Liens on Property of a
Subsidiary, provided that such Liens secure only obligations
owing to Seaboard or a Wholly-Owned Subsidiary;
(vii) Purchase Money Liens. Purchase Money Liens,
provided that, after giving effect thereto and to any
concurrent transactions, no Default or Event of Default would
exist under any provision hereof; and
(viii) Basket Liens. Liens ("Basket Liens") not
otherwise permitted by clause (i) through (vii), inclusive, of
this Section 7.2.2(a) provided that Seaboard will not at any
time permit the sum, without duplication, of
(A) the aggregate amount of Indebtedness
("Basket Secured Debt") secured by Basket Liens, plus
(B) Combined Subsidiary Funded Debt minus
the aggregate amount of Existing Subsidiary Debt,
determined in each case at such time, to exceed twenty percent
(20%) of Consolidated Tangible Net Worth determined as of the
end of the then most recently ended Fiscal Quarter.
Nothing in this Section 7.2.2 shall be construed to permit the
incurrence or existence of any Indebtedness not otherwise permitted
by this Agreement.
(b) Equal and Ratable Lien; Equitable Lien. In case any
Property shall be subjected to a Lien in violation of this Section
7.2.2, Seaboard will forthwith make or cause to be made, to the
fullest extent permitted by applicable law, provision whereby the
Obligations will be secured equally and ratably with all other
obligations secured thereby pursuant to such agreements and
instruments as shall be approved by the Required Lenders, and
Seaboard will cause to be delivered to the Documentation Agent and
each Lender an opinion of independent counsel satisfactory to the
Required Lenders to the effect that such agreements and instruments
are enforceable in accordance with their terms, subject to
applicable bankruptcy laws and equitable remedies, and in any such
case the Obligations shall have the benefit, to the full extent
that, and with such priority as, the Lenders may be entitled under
applicable law, of an equitable Lien on such Property (and any
proceeds thereof) securing the Obligations. Such violation of this
Section 7.2.2 will constitute an Event of Default hereunder, whether
or not any such provision is made pursuant to this Section 7.2.2(b).
(c) Financing Statements. Seaboard will not, and will not
permit any Subsidiary to, sign or file a financing statement under
the Uniform Commercial Code of any jurisdiction that names Seaboard
or such Subsidiary as debtor, or sign any security agreement
authorizing any secured party thereunder to file any such financing
statement, except, in any such case, a financing statement filed or
to be filed to perfect or protect a security interest that Seaboard
or such Subsidiary is entitled to create, assume or incur, or permit
to exist, under the provisions of Section 7.2.2 or to evidence for
informational purposes a lessor's interest in Property leased to
Seaboard or any such Subsidiary.
SECTION 7.2.3. Consolidated Tangible Net Worth. Seaboard will not
at any time permit Consolidated Tangible Net Worth to be less than Two Hundred
Fifty Million Dollars ($250,000,000).
SECTION 7.2.4. Funded Debt. Seaboard will not at any time permit
Consolidated Funded Debt to be greater than ninety percent (90%) of Consolidated
Shareholders' Equity, determined in each case at such time.
SECTION 7.2.5. Transfer of Property. Seaboard will not, and will not
permit any Subsidiary, to sell, lease as lessor, transfer or otherwise dispose
of Property (including, without limitation, Subsidiary Stock) (each such
transaction a "Transfer") provided that the foregoing restriction does not apply
to a Transfer of Property if:
(a) Ordinary Course Transfers. Such Property constitutes
inventory held for sale, or obsolete equipment, fixtures and
supplies, and in each case is Transferred in the ordinary course of
business (an "Ordinary Course Transfer");
(b) Basket Transfers. Such Property is Transferred (the
date of the Transfer of such Property referred to as the "Property
Disposition Date") to a Person other than an Affiliate of Seaboard,
such Transfer is not an Ordinary Course Transfer, an Intergroup
Transfer, a Merger Transfer, a Reinvested Transfer or a Lender
Approved Transfer (such transfers collectively referred to as
"Excluded Transfers"), and all of the following conditions shall
have been satisfied with respect thereto,
(i) the sum of
(A) the Disposition Value of such
Property, plus
(B) the Disposition Value of all other
Property Transferred by Seaboard and the Subsidiaries
during the three hundred sixty-five (365) day period
ending on and including such Property Disposition Date
(excluding therefrom Excluded Transfers occurring
during such period),
does not exceed twenty percent (20%) of Consolidated Total
Assets determined as of the end of the then most recently
ended Fiscal Quarter,
(ii) the sum of
(A) the Disposition Value of such
Property, plus
(B) the Disposition Value of all other
Property Transferred by Seaboard and the Subsidiaries
during the period beginning on June 1, 1995 and ending
on such Property Disposition Date, inclusive
(excluding therefrom Excluded Transfers occurring
during such period),
does not exceed thirty percent (30%) of Consolidated Total
Assets determined as of the end of the then most recently
ended Fiscal Quarter.
(iii) in the good faith opinion of the board of
directors of Seaboard, the Transfer is for Fair Market Value
and is in the best interests of Seaboard, and
(iv) immediately before and immediately after the
consummation of the transaction, and after giving effect
thereto, no Default or Event of Default exists or would exist
under any provision hereof;
(c) Intergroup Transfers. Such Transfer is from a
Subsidiary to Seaboard or a Wholly-Owned Subsidiary (an "Intergroup
Transfer");
(d) Merger-Related Transfers. Such Transfer meets the
requirements of Section 7.2.1 hereof (a "Merger Transfer");
(e) Reinvested Transfers. Such Transfer shall satisfy each
of the following conditions (upon the satisfaction of all of the
conditions set forth in this Section 7.2.5(e) such Transfer shall be
a "Reinvested Transfer" and such Transfer shall be deemed to have
occurred on the date of the satisfaction of all of such conditions),
(i) Seaboard will deliver a written notice to each
Lender contemporaneously with the consummation of the Transfer
in which Seaboard will
(A) identify such Property;
(B) state the nature and terms of the
transaction and the nature and use of the proceeds of
the transaction, and
(C) state that, within three hundred and
sixty-five (365) days following the consummation of
such Transfer, the entire proceeds of such Transfer,
net of reasonable and ordinary transaction costs and
expenses incurred in connection with such Transfer,
shall be applied to the acquisition by Seaboard or any
Subsidiary of tangible property (or a group of related
items of Property the substantial portion of which is
tangible) properly classifiable under GAAP as long-term to be
used in the ordinary course of business of Seaboard and the
Subsidiaries, and
(ii) the proceeds of such Transfer shall have been
applied as described in such writing;
(f) Lender Approved Transfers. Such Transfer shall satisfy
each of the following conditions (upon the satisfaction of all of
the conditions set forth in this Section 7.2.5(f) such Transfer
shall be a "Lender Approved Transfer" and such Transfer shall be
deemed to have occurred on the date of the satisfaction of all of
such conditions),
(i) Seaboard will deliver a written notice to each
Lender not more than sixty (60) days or less than thirty (30)
days prior to the consummation of such Transfer in which
Seaboard will
(A) identify such Property, and
(B) state the nature and terms of the
transaction (including, without limitation, a
description of the consideration payable by the
purchaser) and the nature and use of the proceeds of
the transaction,
(ii) provide pro forma financial statements covering
at least the then succeeding two (2) Fiscal Years giving
effect to such Transfer, the use of the proceeds thereof and
any contemporaneous transactions,
(iii) immediately before and immediately after the
consummation of the transaction, and after giving effect
thereto, no Default or Event of Default exists or would exist
under any provision hereof other than under Section 7.2.5(b)
hereof,
(iv) in the good faith opinion of the board of
directors of Seaboard, the Transfer is for Fair Market Value
and is in the best interests of Seaboard,
(v) the Transfer will not be likely, in the
reasonable judgment of the Required Lenders, to have a
Material Adverse Effect at the time of the consummation
thereof or at any time thereafter, and
(vi) the Required Lenders shall have consented in
writing to such Transfer (including, without limitation, the
consideration therefor), prior to the consummation thereof,
which consent shall not be unreasonably withheld.
SECTION 7.2.6. Subsidiary Debt.
(a) Subsidiary Debt. Seaboard will not permit any
Subsidiary to create, assume, incur, or otherwise become obligated
with respect to any Funded Debt, except:
(i) Funded Debt outstanding on the date hereof and
described on Item 7.2.6 of the Disclosure Schedule (the
"Existing Subsidiary Debt"); and
(ii) Funded Debt (including, without limitation,
extensions, renewals and refundings of Existing Subsidiary
Debt), if immediately after giving effect to such transaction,
the sum (without duplication) of
(A) the aggregate amount of Basket Secured
Debt, plus
(B) Combined Subsidiary Funded Debt minus
the aggregate amount of Existing Subsidiary Debt,
determined at such time does not exceed twenty percent (20%)
of Consolidated Tangible Net Worth determined as of the end of
the then most recently ended Fiscal Quarter.
(b) New Subsidiaries. Each Person which becomes a
Subsidiary after the date hereof will be deemed to have incurred all
Indebtedness of such Person on the date such Person becomes a
Subsidiary.
(c) Disposition of Subsidiary Indebtedness. Each
Subsidiary any of whose outstanding Indebtedness is at any time
sold, transferred or otherwise disposed of by Seaboard or another
Subsidiary shall be deemed to have incurred such Indebtedness, and
all Liens securing such Indebtedness (if any), at the time of such
sale, transfer or other disposition.
SECTION 7.2.7. ERISA Prohibited Actions. Seaboard will not, and will
not permit any member of the Controlled Group to:
(i) engage in any "prohibited transaction" (as such
term is defined in section 406 of ERISA or section 4975 of the
Code) or "reportable event" (as such term is defined in
section 4043 of ERISA) that could result in the imposition of
a tax or penalty;
(ii) incur with respect to any Pension Plan any
"accumulated funding deficiency" (as such term is defined in
section 302 of ERISA), whether or not waived;
(iii) terminate any Pension Plan in a manner that
could result in the imposition of a Lien on the Property of
Seaboard or any Subsidiary pursuant to section 4068 of ERISA
or the creation of any liability under section 4062 of ERISA;
(iv) fail to make any payment required by section
515 of ERISA; or
(v) incur any withdrawal liability under Title IV
of ERISA with respect to any Multiemployer Plan or any
liability resulting from the termination of any Multiemployer
Plan;
if the aggregate amount of the taxes, penalties, funding
deficiencies, interest, amounts secured by Liens, and other
liabilities in respect of any of the foregoing at any time exceed,
in the aggregate, more than three percent (3%) of Consolidated
Shareholders' Equity at such time.
SECTION 7.2.8. Line of Business.
Seaboard will at all time cause,
(a) the amount of revenues of Seaboard and the Subsidiaries
derived from Permitted Lines of Business to be at least sixty-six
and two-thirds percent (66-2/3%) of the amount of all revenues of
Seaboard and the Subsidiaries, determined in each case for the then
most recently ended period of thirteen (13) Fiscal Periods on a
consolidated basis, or
(b) the net book value of assets of Seaboard and the
Subsidiaries used in Permitted Lines of Business to be at least
sixty-six and two-thirds percent (66-2/3%) of the amount of the net
book value of all assets of Seaboard and the Subsidiaries, in each
case determined as of the end of the then most recently ended Fiscal
Period on a consolidated basis.
SECTION 7.2.9. Transactions with Affiliates.
Seaboard will not, and will not permit any Subsidiary to, enter into any
transaction, including, without limitation, the purchase, sale or exchange of
Property or the rendering of any service, with any Affiliate, except in the
ordinary course of and pursuant to the reasonable requirements of Seaboard's or
such Subsidiary's business and upon fair and reasonable terms no less favorable
to Seaboard or such Subsidiary than would be obtained in a comparable arm's-
length transaction with a Person not an Affiliate.
SECTION 7.2.10. Guaranties. Neither Seaboard nor any Subsidiary
will become liable for, or permit any of its Property to become subject to, any
Guaranty (except for the Seaboard Guaranty), unless:
(a) the maximum dollar amount of the obligation being
guaranteed is readily ascertainable by the terms of such obligation,
or the agreement or instrument evidencing such Guaranty specifically
limits the dollar amount of the maximum exposure of the guarantor
thereunder; and
(b) after giving effect thereto and to any concurrent
transactions, no Default or Event of Default exists or would exist
under any provision hereof.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following
events or occurrences described in this Section 8.1 shall constitute an "Event
of Default".
SECTION 8.1.1. Non-Payment of Obligations. Any Borrower shall
default in the payment or prepayment when due of any principal of or interest on
any Loan, or Seaboard shall default (and such default shall continue unremedied
for a period of five days) in the payment when due of any commitment fee or of
any other Obligation.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty
of any Borrower made or deemed to be made hereunder or in any other Loan
Document executed by it or any other writing or certificate furnished by or on
behalf of any Borrower to the Syndication Agent, or any Lender for the purposes
of or in connection with this Agreement or any such other Loan Document
(including any certificates delivered pursuant to Article V) is or shall be
incorrect when made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
Seaboard shall default in the due performance and observance of any of its
obligations under Subsections 7.1.1(d) and (e), Sections 7.2.3 through 7.2.6,
inclusive, and Section 7.2.10.
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations.
Any Borrower shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to Seaboard by the Documentation Agent or any
Lender.
SECTION 8.1.5. Default on Other Indebtedness. A default shall occur
in the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness (other than Indebtedness
described in Section 8.1.1) of Seaboard or any of its Subsidiaries having a
principal amount, individually or in the aggregate, in excess of $5,000,000,
or a default shall occur in the performance or observance of any obligation or
condition with respect to such Indebtedness if the effect of such default is to
accelerate the maturity of any such Indebtedness or such default shall continue
unremedied for any applicable period of time sufficient to permit the holder
or holders of such Indebtedness, or any trustee or agent for such holders, to
cause such Indebtedness to become due and payable prior to its expressed
maturity.
SECTION 8.1.6. Judgments. A final, non-appealable, judgment or
final, non-appealable, judgments for the payment of money aggregating in excess
of Fifty Thousand Dollars ($50,000) is or are outstanding against one or more of
Seaboard and the Subsidiaries and any one of such judgments shall have been
outstanding for more than thirty (30) days from the date of its entry and shall
not have been discharged in full or stayed.
SECTION 8.1.7. Bankruptcy, Insolvency, etc. Seaboard or any of its
Material Subsidiaries shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness to pay, debts as they become
due;
(b) apply for, consent to, or acquiesce in, the appointment
of a trustee, receiver, sequestrator or other custodian for Seaboard
or any of its Material Subsidiaries or any property of any thereof,
or make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a
trustee, receiver, sequestrator or other custodian for Seaboard or
any of its Material Subsidiaries or for a substantial part of the
property of any thereof, and such trustee, receiver, sequestrator or
other custodian shall not be discharged within 60 days, provided
that Seaboard and each Material Subsidiary hereby expressly
authorizes the Documentation Agent and each Lender to appear in any
court conducting any relevant proceeding during such 60-day period
to preserve, protect and defend their rights under the Loan
Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any
dissolution, winding up or liquidation proceeding, in respect of
Seaboard or any of its Material Subsidiaries and, if any such case
or proceeding is not commenced by Seaboard or such Material
Subsidiary, such case or proceeding shall be consented to or
acquiesced in by Seaboard or such Material Subsidiary or shall
result in the entry of an order for relief or shall remain for 60
days undismissed, provided that Seaboard and each Material
Subsidiary hereby expressly authorizes the Documentation Agent and
each Lender to appear in any court conducting any such case or
proceeding during such 60-day period to preserve, protect and defend
their rights under the Loan Documents; or
(e) take any corporate action authorizing, or in
furtherance of, any of the foregoing.
SECTION 8.2. Action if Bankruptcy. If any Event of Default described
in clauses (a) through (d) of Section 8.1.7 shall occur, the Commitments (if
not theretofore terminated) shall automatically terminate and the outstanding
principal amount of all outstanding Loans and all other Obligations shall
automatically be and become immediately due and payable, without notice or
demand.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in clauses (a) through (d) of Section
8.1.7) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Documentation Agent, upon the direction of the Required Lenders,
shall by notice to Seaboard declare all or any portion of the outstanding
principal amount of the Loans and other Obligations to be due and payable and/or
the Commitments (if not theretofore terminated) to be terminated, whereupon the
full unpaid amount of such Loans and other Obligations which shall be so
declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the case may be, the
Commitments shall terminate.
ARTICLE IX
THE AGENTS
SECTION 9.1. Actions. Each Lender hereby appoints each of Scotiabank
and Chase as its Co-Managing Agent, Chase as its Syndication Agent, and
Scotiabank as its Documentation Agent under and for purposes of this Agreement,
the Notes, the Seaboard Guaranty and each other Loan Document. Each Lender
authorizes each Agent to act on behalf of such Lender under this Agreement,
the Notes, the Seaboard Guaranty and each other Loan Document and, in the
absence of other written instructions from the Required Lenders received from
time to time by such Agent (with respect to which such Agent agrees that it
will comply, except as otherwise provided in this Section or as otherwise
advised by counsel), to exercise such powers hereunder and thereunder as are
specifically delegated to or required of such Agent by the terms hereof and
thereof, together with such powers as may be reasonably incidental thereto.
Each Lender hereby indemnifies (which indemnity shall survive any termination
of this Agreement) each Agent, pro rata according to such Lender's Percentage,
from and against any and all liabilities, obligations, losses, damages, claims,
costs or expenses of any kind or nature whatsoever which may at any time be
imposed on, incurred by, or asserted against, such Agent in any way relating
to or arising out of this Agreement, the Notes, the Seaboard Guaranty and any
other Loan Document, including reasonable attorneys' fees, and as to which such
Agent is not reimbursed by the Borrowers; provided, however, that no Lender
shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, claims, costs or expenses which are determined
by a court of competent jurisdiction in a final proceeding to have resulted
solely from any Agent's gross negligence or wilful misconduct. Each Agent
shall not be required to take any action hereunder, under the Notes, the
Seaboard Guaranty or under any other Loan Document, or to prosecute or defend
any suit in respect of this Agreement, the Notes, the Seaboard Guaranty or any
other Loan Document, unless it is indemnified hereunder to its satisfaction.
If any indemnity in favor of any Agent shall be or become, in such Agent's
determination, inadequate, such Agent may call for additional indemnification
from the Lenders and cease to do the acts indemnified against hereunder until
such additional indemnity is given.
SECTION 9.2. Funding Reliance, etc. Unless the Syndication Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
5:00 p.m. (New York City time), on the day prior to a Borrowing of other than
Base Rate Loans that are to be made on the same date requested by a Borrower
that such Lender will not make available the amount which would constitute its
Percentage of such Borrowing in the case of Short Term Revolving Loans, or the
amount of its Short Term Competitive Bid Loan Offer that has been accepted by
a Borrower pursuant to clause (e)(ii) of Section 2.6, in the case of Short Term
Competitive Bid Loans, in each case on the date specified therefor, the
Syndication Agent may assume that such Lender has made such amount available
to the Syndication Agent and, in reliance upon such assumption, make available
to such Borrower a corresponding amount. In the case of a Borrowing of Base
Rate Loans that are to be made on the same date requested by a Borrower, the
Syndication Agent may assume that each Lender will make available to the
Syndication Agent the amount which would constitute its Percentage of such
Borrowing in the case of Short Term Revolving Loans, or the amount of its
Short Term Competitive Bid Loan Offer that has been accepted by such Borrower
pursuant to clause (e)(ii) of Section 2.6, in the case of Short Term
Competitive Bid Loans, and, in reliance upon such assumption, make available
to such Borrower a corresponding amount. If and to the extent that such
Lender shall not have made such amount available to the Syndication Agent,
such Lender and the applicable Borrower severally agree to repay the Syndication
Agent forthwith on demand, without duplication, such corresponding amount
together with interest thereon, for each day from the date the Syndication
Agent made such amount available to such Borrower to the date such amount is
repaid to the Syndication Agent, in the case of such Borrower, at the interest
rate applicable at the time to Loans comprising such Borrowing, and in the case
of such Lender, for the period from the date such funds were advanced to such
Borrower to (and including) three days thereafter, at the rate customarily
charged for inter-bank loans in the U.S., and following such third day, at the
interest rate applicable at the time to Loans comprising such Borrowing.
SECTION 9.3. Exculpation. Each Agent and all of such Agent's
directors, officers, employees and agents shall not be liable to any Lender
for any action taken or omitted to be taken by it under this Agreement or any
other Loan Document, or in connection herewith or therewith, except for such
Agent's own wilful misconduct or gross negligence, or responsible for any
recitals or warranties herein or therein, or for the effectiveness,
enforceability, validity or due execution of this Agreement or any other Loan
Document, or to make any inquiry respecting the performance by any Borrower
of its obligations hereunder or under any other Loan Document. Any such
inquiry which may be made by any Agent shall not obligate it to make any
further inquiry or to take any action. Each Agent shall be entitled to rely
upon advice of counsel concerning legal matters and upon any notice, consent,
certificate, statement or writing which such Agent believes to be genuine and
to have been presented by a proper Person.
SECTION 9.4. Successor. Each Agent may resign as such at any time
upon at least 30 days' prior notice to Seaboard and all Lenders. If any Agent
at any time shall resign, Seaboard may appoint another Lender as a successor
Agent which shall thereupon become such Agent hereunder. If no successor Agent
shall have been so appointed by Seaboard, and shall have accepted such
appointment, within 15 days after such retiring Agent's giving notice of such
resignation, then the Required Lenders may appoint another Lender as a
successor Agent which shall thereupon become such Agent hereunder. If no
successor Agent shall have been so appointed by Seaboard or by the Required
Lenders, and shall have accepted such appointment, within 30 days after such
retiring Agent's giving notice of resignation, then such retiring Agent may,
on behalf of the Lenders, appoint a successor Agent, which shall be one of the
Lenders or a commercial banking institution organized under the laws of the
U.S. (or any State thereof) or a U.S. branch or agency of a commercial banking
institution, and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as an Agent hereunder by
a successor Agent, such successor Agent shall be entitled to receive from such
retiring Agent such documents of transfer and assignment as such successor
Agent may reasonably request, and shall thereupon succeed to and become vested
with all rights, powers, privileges and duties of such retiring Agent, and
such retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation hereunder as the Agent,
the provisions of
(a) this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was such Agent
under this Agreement; and
(b) Section 10.3 and Section 10.4 shall continue to inure
to its benefit.
SECTION 9.5. Credit Extensions by an Agent. Each Agent shall have the
same rights and powers with respect to (x) the Credit Extensions made by it or
any of its respective Affiliates, and (y) the Notes held by it or any of its
Affiliates as any other Lender and may exercise the same as if it were not an
Agent. Each Agent and its respective Affiliates may accept deposits from, lend
money to, and generally engage in any kind of business with Seaboard or any
Subsidiary or Affiliate of Seaboard as if such Agent were not an Agent
hereunder.
SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Co-Managing Agent, the Syndication Agent, the
Documentation Agent, and each other Lender, and based on such Lender's review
of the financial information of Seaboard, this Agreement, the other Loan
Documents (the terms and provisions of which being satisfactory to such Lender)
and such other documents, information and investigations as such Lender has
deemed appropriate, made its own credit decision to extend its Commitments.
Each Lender also acknowledges that it will, independently of the Documentation
Agent and each other Lender, and based on such other documents, information and
investigations as it shall deem appropriate at any time, continue to make its
own credit decisions as to exercising or not exercising from time to time any
rights and privileges available to it under this Agreement or any other Loan
Document.
SECTION 9.7. Copies, etc. Each Agent shall give prompt notice to each
Lender of each notice or request required or permitted to be given to such Agent
by any Borrower pursuant to the terms of this Agreement (unless concurrently
delivered to the Lenders by such Borrower). Each Agent will distribute to each
Lender each document or instrument received for its account and copies of all
other communications received by such Agent from any Borrower for distribution
to the Lenders by such Agent in accordance with the terms of this Agreement.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this
Agreement and of each other Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to by the Borrowers and the Required Lenders; provided, however, that
no such amendment, modification or waiver which would:
(a) modify any requirement hereunder or under any other
Loan Document that any particular action be taken by all the Lenders
or by the Required Lenders shall be effective unless consented to by
each Lender;
(b) modify this Section 10.1, change the definition of
"Required Lenders", increase any Commitment Amount or the Percentage
of any Lender, reduce any fees described in Article III, or extend
the Short Term Revolving Loan Commitment Termination Date shall be
made without the consent of each Lender and each Lender of a Note;
(c) extend the due date for, or reduce the amount of, any
scheduled repayment or prepayment of principal of or interest on any
Loan (or reduce the principal amount of or rate of interest on any
Loan) shall be made without the consent of the Lender of that Note
evidencing such Loan;
(d) affect adversely the interests, rights or obligations
of an Agent qua such Agent, shall be made unless consented to by
such Agent; or
(e) release Seaboard from any of its duties and obligations
pursuant to the Seaboard Guaranty shall be made without the consent of
each Lender.
No failure or delay on the part of any Agent or any Lender in exercising any
power or right under this Agreement or any other Loan Document shall operate as
a waiver thereof, nor shall any single or partial exercise of any such power or
right preclude any other or further exercise thereof or the exercise of any
other power or right. No notice to or demand on any Borrower in any case shall
entitle it to any notice or demand in similar or other circumstances. No
waiver or approval by any Agent, any Lender or the holder of any Note under
this Agreement or any other Loan Document shall, except as may be otherwise
stated in such waiver or approval, be applicable to subsequent transactions.
No waiver or approval hereunder shall require any similar or dissimilar waiver
or approval thereafter to be granted hereunder.
SECTION 10.2. Notices. All notices and other communications
provided to any party hereto under this Agreement or any other Loan Document
shall be in writing or by facsimile and addressed, delivered or transmitted to
such party at its address or facsimile number set forth below its signature
hereto or set forth in the Lender Assignment Agreement or at such other address
or facsimile number as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with postage prepaid or
if properly addressed and sent by pre-paid courier service, shall be deemed
given when received; any notice, if transmitted by facsimile, shall be deemed
given when transmitted.
SECTION 10.3. Payment of Costs and Expenses. Seaboard agrees to pay
on demand all reasonable expenses of the Agents (including the fees and
out-of-pocket expenses of counsel to the Agents and of local counsel, if any,
who may be retained by counsel to the Agents) in connection with
(a) the negotiation, preparation, execution and delivery
of this Agreement and of each other Loan Document, including
schedules and exhibits, and any amendments, waivers, consents,
supplements or other modifications to this Agreement or any other
Loan Document as may from time to time hereafter be required,
whether or not the transactions contemplated hereby are consummated,
and
(b) the preparation and review of the form of any document
or instrument relevant to this Agreement or any other Loan Document.
Seaboard further agrees to pay, and to save each Agent and the Lenders harmless
from all liability for, any stamp or other taxes which may be payable in
connection with the execution or delivery of this Agreement, the Credit
Extensions made hereunder, or the issuance of the Notes or any other Loan
Documents. Seaboard also agrees to reimburse each Agent and each Lender upon
demand for all reasonable out-of-pocket expenses (including attorneys' fees and
legal expenses) incurred by the Documentation Agent or such Lender in connection
with (x) the negotiation of any restructuring or "work-out", whether or not
consummated, of any Obligations and (y) the enforcement of any Obligations.
SECTION 10.4. Indemnification. In consideration of the execution
and delivery of this Agreement by each Lender and the extension of the
Commitments, Seaboard hereby indemnifies, exonerates and holds each Agent and
each Lender and each of their respective officers, directors, employees and
agents (collectively, the "Indemnified Parties") free and harmless from and
against any and all actions, causes of action, suits, losses, costs, liabilities
and damages, and expenses incurred in connection therewith (irrespective of
whether any such Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable attorneys' fees and
disbursements (collectively, the "Indemnified Liabilities"), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole or
in part, directly or indirectly, with the proceeds of any Credit
Extension;
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties (including
any action brought by or on behalf of any Borrower as the result of
any determination by the Required Lenders pursuant to Article V not
to fund any Credit Extension);
(c) any investigation, litigation or proceeding related to
any environmental cleanup, audit, compliance or other matter
relating to the protection of the environment or the Release by
Seaboard or any of its Subsidiaries of any Hazardous Material; or
(d) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or releases
from, any real property owned or operated by Seaboard or any
Subsidiary thereof of any Hazardous Material (including any losses,
liabilities, damages, injuries, costs, expenses or claims asserted
or arising under any Environmental Law), regardless of whether
caused by, or within the control of, Seaboard or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or wilful misconduct. Seaboard and its successors and assigns hereby
waive, release and agree not to make any claim or bring any cost recovery action
against, any Agent or any Lender under CERCLA or any state equivalent, or any
similar law now existing or hereafter enacted. It is expressly understood and
agreed that to the extent that any of such Persons is strictly liable under any
Environmental Laws, Seaboard's obligation to such Person under this indemnity
shall likewise be without regard to fault on the part of Seaboard with respect
to the violation or condition which results in liability of such Person. If and
to the extent that the foregoing undertaking may be unenforceable for any
reason, Seaboard hereby agrees to make the maximum contribution to the payment
and satisfaction of each of the Indemnified Liabilities which is permissible
under applicable law.
SECTION 10.5. Survival. The obligations of Seaboard and each other
Borrower under Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations
of the Lenders under Section 9.1, shall in each case survive any termination of
this Agreement, the payment in full of all the Obligations and the termination
of all the Commitments.
SECTION 10.6. Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this Agreement and
of each other Loan Document are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or such other Loan
Document or any provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts. This Agreement may be
executed by the parties hereto in several counterparts, each of which shall be
executed by each Borrower and each Agent and be deemed to be an original and all
of which shall constitute together but one and the same agreement.
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE
NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. This
Agreement, the Notes, the Seaboard Guaranty and the other Loan Documents
constitute the entire understanding among the parties hereto with respect to the
subject matter hereof and supersede any prior agreements, written or oral, with
respect thereto.
SECTION 10.10. Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that:
(a) the Borrowers may not assign or transfer their rights
or obligations hereunder without the prior written consent of the
Syndication Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the
Lenders are subject to Section 10.11.
SECTION 10.11. Sale and Transfer of Loans and Notes; Participation
in Loans and Notes. Each Lender may assign, or sell participation in, its Loans
and Commitments to one or more other Persons in accordance with this Section
10.11.
SECTION 10.11.1. Assignments. Any Lender,
(a) with the written consents of Seaboard and the
Syndication Agent (which consents shall not be unreasonably delayed
or withheld and which consent, in the case of Seaboard, shall be
deemed to have been given in the absence of a written notice
delivered by Seaboard to the Syndication Agent, on or before the
fifth Business Day after receipt by Seaboard of such Lender's
request for consent, stating, in reasonable detail, the reasons why
Seaboard proposes to withhold such consent) may at any time assign
and delegate to one or more commercial banks or other financial
institutions, and
(b) with notice to Seaboard and the Syndication Agent, but
without the consent of Seaboard or the Syndication Agent, may assign
and delegate to any of its Affiliates or to any other Lender;
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "Assignee Lender"), all or any fraction of such Lender's total Loans and
Commitments (which assignment and delegation shall be of a constant, and not a
varying, percentage of all the assigning Lender's Loans and Commitments) in a
minimum aggregate amount of $5,000,000; provided, however, that any such
Assignee Lender will comply, if applicable, with the provisions contained in
the penultimate sentence of Section 4.6; further provided, however, that if any
Agent assigns and delegates all of such Agent's total Loans and Commitments,
such Agent shall resign as Agent pursuant to Section 9.4; and still further,
provided, however, that, Seaboard and the Syndication Agent shall be entitled
to continue to deal solely and directly with such Lender in connection with
the interests so assigned and delegated to an Assignee Lender until
(x) written notice of such assignment and delegation,
together with payment instructions, addresses and related
information with respect to such Assignee Lender, shall have been
given to Seaboard and the Syndication Agent by such Lender and such
Assignee Lender;
(y) such Assignee Lender shall have executed and delivered
to Seaboard and the Syndication Agent a Lender Assignment Agreement,
accepted by the Syndication Agent; and
(z) the processing fees described below shall have been
paid.
From and after the date that the Syndication Agent accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights
and obligations of a Lender hereunder and under the other Loan Documents, and
(y) the assignor Lender, to the extent that rights and obligations hereunder
have been assigned and delegated by it in connection with such Lender
Assignment Agreement, shall be released from its obligations hereunder and
under the other Loan Documents. Within five Business Days after its receipt of
notice that the Syndication Agent has received an executed Lender Assignment
Agreement, the applicable Borrower shall execute and deliver to the Syndication
Agent (for delivery to the relevant Assignee Lender) new Notes evidencing such
Assignee Lender's assigned Loans and Commitments and, if the assignor Lender
has retained Loans and Commitments hereunder, replacement Notes in the
principal amount of the Loans and Commitments retained by the assignor Lender
hereunder (such Notes to be in exchange for, but not in payment of, those
Notes then held by such assignor Lender). Each such Note shall be dated the
date of the predecessor Notes. The assignor Lender shall mark the predecessor
Notes "exchanged" and deliver them to such Borrower. Accrued interest on that
part of the predecessor Notes evidenced by the new Notes, and accrued fees,
shall be paid as provided in the Lender Assignment Agreement. Accrued interest
on that part of the predecessor Notes evidenced by the replacement Notes shall
be paid to the assignor Lender. Accrued interest and accrued fees shall be
paid at the same time or times provided in the predecessor Notes and in this
Agreement. Such assignor Lender or such Assignee Lender must also pay a
processing fee to the Syndication Agent upon delivery of any Lender Assignment
Agreement in the amount of $3,000. Any attempted assignment and delegation not
made in accordance with this Section 10.11.1 shall be null and void.
Notwithstanding any other provision in this Agreement, any Lender may at
any time create a security interest in, or pledge, all or any portion of its
rights under and interest in this Agreement and any Note held by it in favor of
any Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System or U.S. Treasury Regulation 31 CFR
Sec. 203.14, and such Federal Reserve Bank may enforce such pledge or security
interest in any manner permitted under applicable law.
SECTION 10.11.2. Participation. Any Lender may at any time sell to one
or more commercial banks or other Persons (each of such commercial banks and
other Persons being herein called a "Participant") participating interests in
any of the Loans, Commitments, or other interests of such Lender hereunder,
subject to applicable state and federal securities laws; provided, however,
that
(a) no participation contemplated in this Section 10.11
shall relieve such Lender from its Commitments or its other
obligations hereunder or under any other Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(c) Seaboard and the Agents shall continue to deal solely
and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and each of the other
Loan Documents;
(d) no Participant, unless such Participant is an Affiliate
of such Lender, or is itself a Lender, shall be entitled to require
such Lender to take or refrain from taking any action hereunder or
under any other Loan Document, except that such Lender may agree
with any Participant that such Lender will not, without such
Participant's consent, take any actions of the type described in
clause (b) or (c) of Section 10.1; and
(e) no Borrower shall be required to pay any amount under
Section 4.6 that is greater than the amount which it would have been
required to pay had no participating interest been sold.
Each Borrower acknowledges and agrees that each Participant, for purposes of
Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3 and 10.4, shall be considered a
Lender.
SECTION 10.12. Other Transactions. Nothing contained herein shall
preclude any Agent or any other Lender from engaging in any transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with any Borrower or any of its Affiliates in which such Borrower or such
Affiliate is not restricted hereby from engaging with any other Person.
SECTION 10.13. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EACH AGENT, THE
LENDERS OR ANY BORROWER SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE
COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
AGENTS' OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. EACH OF EACH BORROWER, EACH LENDER, AND EACH
AGENT HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET
FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH SUCH LITIGATION. EACH BORROWER HEREBY IRREVOCABLY APPOINTS
CT CORPORATION SYSTEMS (THE "PROCESS AGENT"), WITH AN OFFICE ON THE DATE HEREOF
AT 1633 BROADWAY, NEW YORK, NEW YORK 10019, UNITED STATES, AS ITS AGENT TO
RECEIVE, ON SUCH BORROWER'S BEHALF AND ON BEHALF OF SUCH BORROWER'S PROPERTY,
SERVICE OF COPIES OF THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY
BE SERVED IN ANY SUCH ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE BY
MAILING OR DELIVERING A COPY OF SUCH PROCESS TO SUCH BORROWER IN CARE OF THE
PROCESS AGENT AT THE PROCESS AGENT'S ABOVE ADDRESS, AND EACH BORROWER HEREBY
IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS AGENT TO ACCEPT SUCH SERVICE
ON ITS BEHALF. AS AN ALTERNATIVE METHOD OF SERVICE, EACH BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH
OF EACH BORROWER, EACH LENDER, AND EACH AGENT HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE
OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY BORROWER HAS
OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OF FROM
ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO
JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF
OR ITS PROPERTY, EACH BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 10.14. Waiver of Jury Trial. EACH AGENT, THE LENDERS AND
EACH BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS
THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF SUCH AGENT, THE LENDERS OR SUCH BORROWER. EACH
BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR EACH AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH
SUCH OTHER LOAN DOCUMENT.
SECTION 10.15. Designated Borrowers.
(a) Addition of a Designated Borrower. Seaboard may at any time
designate any Material Subsidiary (an "Applicant Borrower") as a Designated
Borrower hereunder by delivering to the Syndication Agent (which shall promptly
deliver counterparts thereof to each other Agent and to each Lender) a
Designated Borrower Certificate executed by the Applicant Borrower and Seaboard
together with such supporting resolutions, incumbency certificates and opinions
of counsel as the Syndication Agent may reasonably request. Any such addition
of a Designated Borrower shall be effective ten Business Days after the
delivery of such Designated Borrower Certificate to the Syndication Agent.
Such Applicant Borrower shall thereupon become a party hereto and a Designated
Borrower hereunder and shall be (i) entitled to all rights and benefits of a
Borrower hereunder and under each instrument executed pursuant hereto and (ii)
subject to all obligations of a Borrower hereunder and thereunder.
(b) Removal of a Borrower. Seaboard may at any time request that any
Borrower hereunder cease to be a Borrower by delivering to the Syndication Agent
(which shall promptly deliver counterparts thereof to each other Agent and to
each Lender) a written notice to such effect. Such Borrower shall cease to be
a Borrower hereunder on the later to occur of (i) the date the Syndication Agent
receives such request, and (ii) the date such Borrower has paid all of its Loans
and all accrued and unpaid interest, fees or other Obligations of such Borrower
hereunder. Nothing in this Section 10.15(b) shall restrict Seaboard from
thereafter designating such a Borrower as a Designated Borrower pursuant to the
terms of Section 10.15(a).
SECTION 10.16. Judgment Currency. Each Borrower, each Agent, and
each Lender hereby agree that if, in the event that a judgment is given in
relation to any sum due to any Agent or any Lender hereunder, such judgment is
given in a currency (the "Judgment Currency") other than Dollars (the "Original
Currency"), such Borrower agrees to indemnify such Agent or such Lender, as the
case may be, to the extent that the amount of the Original Currency which could
have been purchased by the Syndication Agent in accordance with normal banking
procedures on the Business Day following receipt of such sum is less than the
sum which could have been so purchased by the Syndication Agent had such
purchase been made on the day on which such judgment was given or, if such day
is not a Business Day, on the Business Day immediately preceding the giving of
such judgment.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
SEABOARD CORPORATION
By:________________________________
Name:
Title:
Address: 9000 West 67th Street
P.O. Box 2972
Shawnee Mission, KS 66201
Telecopy No.: 913/676-8976
Telephone No.: 913/676-8833
Attention: Robert Steer
H & O SHIPPING LTD.
By:________________________________
Name:
Title:
Address: 9000 West 67th Street
P.O. Box 2972
Shawnee Mission, KS 66201
Telecopy No.: 913/676-8976
Telephone No.: 913/676-8833
Attention: Robert Steer
SEABOARD MARINE LTD.
By:________________________________
Name:
Title:
Address: 9000 West 67th Street
P.O. Box 2972
Shawnee Mission, KS 66201
Telecopy No.: 913/676-8976
Telephone No.: 913/676-8833
Attention: Robert Steer
Percentage
THE BANK OF NOVA SCOTIA,
13.2% as Co-Managing Agent, as the
Documentation Agent and as a Lender
By:________________________________
Name:
Title:
Notice Address:
600 Peachtree Street
Atlanta, Georgia 30383
For Credit Issues:
Pearl Jackson
600 Peachtree Street
Atlanta, Georgia 30383
Telecopy No.: 404/888-8998
Telephone No.: 404/877-1539
Lisa Garling
181 West Madison Street
Chicago, Illinois 60602
Telecopy No.: 312/201-4108
Telephone No.: 312/201-4135
For Operations Issues:
Gibson Lowrey
600 Peachtree Street
Atlanta, Georgia 30383
Telecopy No.: 404/888-8998
Telephone No.: 404/877-1540
Payment Instructions:
Fed Funds to Bank of Nova Scotia
New York
ABA # 026002532
Account Number: 0606634
Reference: Seaboard
LIBOR
Office: Same as above
Percentage
THE CHASE MANHATTAN BANK, N.A.,
13.2% as Co-Managing Agent, as the
Syndication Agent and as a Lender
By:________________________________
Name:
Title:
Notice Address:
Andrea Grullon
4 Chase Metrotech Center,
13th Floor,
Brooklyn, New York 11245
Telecopy No.: 718/242-6909
Telephone No.: 718/242-7962
Payment Instructions:
Fed Funds to
The Chase Manhattan Bank, N.A., New York
ABA No. 021000021
Credit to Account # 900-9-000002
Percentage
THE DAI-ICHI KANGYO BANK, LTD., as a Lender
11.2%
By:________________________________
Name:
Title:
Notice Address:
Corporate Finance Department
One World Trade Center
Suite 4911
New York, New York 10048
For Credit Issues:
Bertram H. Tang
One World Trade Center
Suite 4911
New York, New York 10048
Telecopy No.: 212/912-1879
Telephone No.: 212/432-8839
For Operations Issues:
Tina Brucculari
One World Trade Center
Suite 4911
New York, New York 10042
Telecopy No.: 212/912-1879
Telephone No.: 212/432-6643
Payment Instructions:
Fed Fund to Dai-Ichi Kangyo Bank
Fedwire ABA No. 026004307
Attn: Loan Admin. Asst. General Manager
Re: Seaboard
LIBOR
Office: Same as above
Percentage
THE SANWA BANK, LIMITED, CHICAGO BRANCH,
as a Lender
7.2%
By:________________________________
Name:
Title:
Notice Address:
For Credit Issues:
Kenneth C. Eichwald
10 S. Wacker Drive
Chicago, Illinois 60606
Telecopy No.: 312/346-6677
Telephone No.: 312/368-3006
For Operations Issues:
Dina Tucci-Albro
10 S. Wacker Drive
Chicago, Illinois 60606
Telecopy No.: 312/346-6677
Telephone No.: 312/368-3049
Payment Instructions:
Fed Fund to The Sanwa Bank, Ltd., Chicago Branch
ABA No. 071001805
Attn: Loan Admin.
Reference: Seaboard
LIBOR
Office: Same as above
Percentage
SUNTRUST BANK, ATLANTA, as a Lender
9.6%
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
Notice Address:
25 Park Place, 25th Floor
Atlanta, Georgia 30303 or
P.O. Box 4418, MC 176
Atlanta, Georgia 30302
For Credit Issues:
Gregory L. Cannon
25 Park Place, 25th Floor
Atlanta, Georgia 30303
Telecopy No.: 404/230-5305
Telephone No.: 404/827-6887
For Operations Issues:
Kate Stevenson
25 Park Place, 25th Floor
Atlanta, Georgia 30303
Telecopy No.: 404/230-5305
Telephone No.: 404/827-4237
Payment Instructions:
Fed Funds to SunTrust Bank, Atlanta
ABA No. 061000104
Beneficiary: Wire Clearing Account
No. 970100000000013
Ref: Seaboard Corporation
LIBOR
Office: Same as above
Percentage
NATIONSBANK OF TEXAS, N.A., as a Lender
9.6%
By: ____________________________
Name:
Title:
Notice Address:
901 Main Street
Dallas, TX 75202
For Credit Issues:
Perry Stephenson
901 Main Street
Dallas, TX 75202
Telecopy No.: 214/508-0980
Telephone No.: 214/508-0913
For Operations Issues:
Stacey Smith
901 Main Street
Dallas, TX 75202
Telecopy No.: 214/508-0944
Telephone No.: 214/508-1864
Payment Instructions:
Fed Funds to NationsBank of Texas, N.A.
ABA No. 111000025
Corporate Loans Account No. 1292000883
Ref: Seaboard Corp
Attn: Stacey Smith
LIBOR
Office: Same as above
Percentage
THE BANK OF NEW YORK, as a Lender
7.2%
By:___________________________
Name:
Title:
Notice Address:
One Wall Street, 19th Flr.
New York, N.Y. 10286
Administrator Contact:
Pilar Kinzie
One Wall Street, 19th Flr.
New York, N.Y. 10286
Telecopy No.: 212/635-7923 or 7924
Telephone No.: 212/635-7607
Payment Instructions:
Fed Funds to The Bank of New York
ABA No. 0210-00018
Commercial Loan Dept.
GLA #111556
Ref: Seaboard Corp.
LIBOR
Office: Same as above
Percentage
BOATMEN'S FIRST NATIONAL BANK OF
9.6% KANSAS CITY, as a Lender
By: ____________________________
Name:
Title:
Notice Address:
Ellen Isch
10th & Baltimore
Kansas City, MO 64105
For Credit Issues:
Ellen Isch
10th & Baltimore
Kansas City, MO 64105
Telecopy No.: 816/691-7426
Telephone No.: 816/691-7748
For Operations Issues:
Julia Gann
10th & Baltimore
Kansas City, MO 64105
Telecopy No.: 816/691-7426
Telephone No.: 816/691-7740
Payment Instructions:
Fed Funds to
Boatmen's First National Bank of Kansas City
ABA No. 101000035
Attn: Commercial Loan Dept.
Ref: Seaboard Corporation
LIBOR
Office: Same as above
Percentage
UMB BANK, N.A., as a Lender
4.0%
By:_____________________________
Name:
Title:
Notice Address:
1010 Grand Blvd.
Kansas City, MO 64106
Attn: Discount Department
For Credit Issues:
David A. Proffitt
1010 Grand Blvd.
Kansas City, MO 64106
Telecopy No.: 816/860-7143
Telephone No.: 816/860-7935
For Operations Issues:
Bev Puglisi
1010 Grand Blvd.
Kansas City, MO 64106
Telecopy No.: 816/860-3772
Telephone No.: 816/860-3677
Payment Instructions:
Fed Funds to UMB Bank, N.A.
ABA No. 101000695
Commercial Discount/0010600226500
Re: Seaboard
LIBOR
Office: Same as above
Percentage
4.0% CAISSE NATIONALE DE CREDIT AGRICOLE,
as a Lender
By: _____________________________
Name:
Title:
Notice Address:
Laura Schmuck
55 E. Monroe Street
Suite 4700
Chicago, IL 60603
Telecopy No.: 312/372-4421
Telephone No.: 312/917-7428
For Credit Issues:
Brad Peterson
55 E. Monroe Street
Suite 4700
Chicago, IL 60603
Telecopy No.: 312/372-3455
Telephone No.: 312/917-7568
For Operations Issues:
Laura Schmuck
55 E. Monroe Street
Suite 4700
Chicago, IL 60603
Telecopy No.: 312/372-4421
Telephone No.: 312/917-7428
Payment Instructions:
Fed Funds to Morgan Guaranty Trust Co.
New York
ABA No. 021000238
A/C 630 00 205
A/C Name: CNCA: Chicago Branch
Ref: Seaboard Corp.
LIBOR
Office: Same as above
Percentage COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND" NEW YORK BRANCH,
as a Lender
11.2%
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
Notice Address:
Brenda Lyew
245 Park Avenue
New York, NY 10167
For Credit Matters:
Gordon E. Arnold
Telecopy No.: 214/419-6315
Telephone No.: 214/419-6320
For Operations Issues:
Brenda Lyew
245 Park Avenue
New York, NY 10167
Telecopy No.: 212/916-7930
Telephone No.: 212/916-7928
Payment Instructions:
Fed Funds (or CHIPS if coming from NY)
to Bank of New York
ABA No. 021 000 018
Account Name: Rabobank Nederland
Account No. : 802-6002-533
Attn: Corporate Services
Ref: Seaboard Corp.
LIBOR
Office: Same as above
SCHEDULE I
DISCLOSURE SCHEDULE
ITEM 6.2(a) Financial Statements.
[Financial Statements for year ended 12/31/94 and quarter ended 06/30/95]
ITEM 6.2(b) Indebtedness.
Obligor Holder Outstanding Amount
Current Portion Collateral (if any)
ITEM 6.3 Subsidiaries and Affiliates.
Subsidiary Jurisdiction % Owned
Affiliate Nature of Affiliation
ITEM 6.10 Restrictions.
ITEM 6.12 Foreign Pension Plans.
ITEM 7.2.2 Existing Liens.
ITEM 7.2.6 Existing Subsidiary Debt.
TABLE OF CONTENTS
Section Page
||
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms. . . . . . . . . . . . . . . . . . . . 1
1.2. Use of Defined Terms . . . . . . . . . . . . . . . . 26
1.3. Cross-References . . . . . . . . . . . . . . . . . . 26
1.4. Accounting and Financial Determinations. . . . . . . 27
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
2.1. Commitments. . . . . . . . . . . . . . . . . . . . . 27
2.1.1. Short Term Revolving Loan Commitment . . . . 27
2.1.2. Short Term Swing Line Loan Commitment. . . . 27
2.1.3. Lenders Not Permitted or Required to Make
Short Term Revolving Loans or Short Term
Swing Line Loans . . . . . . . . . . . . . . 28
2.2. Reduction of Commitments . . . . . . . . . . . . . . 28
2.3. Short Term Revolving Loan and Short Term Swing Line
Loan Borrowing Procedure and Funding Maintenance . . 28
2.4. Continuation and Conversion Elections. . . . . . . . 30
2.5. Funding. . . . . . . . . . . . . . . . . . . . . . . 30
2.6. Short Term Competitive Bid Loans . . . . . . . . . . 31
2.7. Notes. . . . . . . . . . . . . . . . . . . . . . . . 37
2.8. Extension of Stated Maturity Date and Maturity of Loans 38
2.8.1. Request for Extension of Stated Maturity Date
and Maturity of Loans. . . . . . . . . . . . 38
2.8.2. Consent to Extension of Stated Maturity Date
and Maturity of Loans. . . . . . . . . . . . 38
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments . . . . . . . . . . . . . 40
3.2. Interest Provisions. . . . . . . . . . . . . . . . . 41
3.2.1. Rates. . . . . . . . . . . . . . . . . . . . 41
3.2.2. Post-Maturity Rates. . . . . . . . . . . . . 42
3.2.3. Payment Dates. . . . . . . . . . . . . . . . 42
3.2.4. Interest Rate Determination. . . . . . . . . 43
3.3. Fees . . . . . . . . . . . . . . . . . . . . . . . . 43
3.3.1. Facility Fee . . . . . . . . . . . . . . . . 43
3.3.2. Co-Managing Agents' Fees . . . . . . . . . . 43
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful . . . . . . . . . . . . . 43
4.2. Deposits Unavailable . . . . . . . . . . . . . . . . 44
4.3. Increased LIBO Rate Loan Costs, etc. . . . . . . . . 44
4.4. Funding Losses . . . . . . . . . . . . . . . . . . . 45
4.5. Increased Capital Costs. . . . . . . . . . . . . . . 45
4.6. Taxes. . . . . . . . . . . . . . . . . . . . . . . . 46
4.7. Payments, Computations, etc. . . . . . . . . . . . . 47
4.8. Sharing of Payments. . . . . . . . . . . . . . . . . 47
4.9. Setoff . . . . . . . . . . . . . . . . . . . . . . . 48
4.10. Use of Proceeds. . . . . . . . . . . . . . . . . . . 49
ARTICLE V
CONDITIONS TO RESTATEMENT
5.1. Restated Agreement Effective Date. . . . . . . . . . 49
5.1.1. Resolutions, etc.. . . . . . . . . . . . . . 49
5.1.2. Delivery of Notes. . . . . . . . . . . . . . 50
5.1.3. Opinion of Counsel . . . . . . . . . . . . . 50
5.1.4. Closing Fees, Expenses, etc. . . . . . . . . 50
5.1.5. No Material Adverse Change . . . . . . . . . 50
5.1.6. Closing Certificate. . . . . . . . . . . . . 50
5.1.7. Seaboard Guaranty. . . . . . . . . . . . . . 51
5.2. All Credit Extensions. . . . . . . . . . . . . . . . 51
5.2.1. Compliance with Warranties, No Default, etc. 51
5.2.2. Credit Extension Request . . . . . . . . . . 52
5.2.3. Satisfactory Legal Form. . . . . . . . . . . 52
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Nature of Business . . . . . . . . . . . . . . . . . 53
6.2. Financial Statements; Indebtedness; Material Adverse
Change . . . . . . . . . . . . . . . . . . . . . . . 53
6.3. Subsidiaries and Affiliates. . . . . . . . . . . . . 54
6.4. Title to Properties. . . . . . . . . . . . . . . . . 54
6.5. Taxes. . . . . . . . . . . . . . . . . . . . . . . . 54
6.6. Pending Litigation . . . . . . . . . . . . . . . . . 55
6.7. Full Disclosure. . . . . . . . . . . . . . . . . . . 56
6.8. Corporate Organization and Authority . . . . . . . . 56
6.9. Charter Instruments, Other Agreements. . . . . . . . 57
6.10. Restrictions on Seaboard and Subsidiaries. . . . . . 57
6.11. Compliance with Law. . . . . . . . . . . . . . . . . 57
6.12. ERISA. . . . . . . . . . . . . . . . . . . . . . . . 57
6.13. Environmental Compliance . . . . . . . . . . . . . . 58
6.14. Due Authorization, Non-conflict; Obligations are
Enforceable. . . . . . . . . . . . . . . . . . . . . 59
6.15. Governmental Consent . . . . . . . . . . . . . . . . 60
6.16. No Defaults under Notes. . . . . . . . . . . . . . . 60
6.17. Use of Proceeds of Notes . . . . . . . . . . . . . . 61
SECTION 6.18. Borrower Subsidiaries. . . . . . . . . . . . 61
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants. . . . . . . . . . . . . . . . 62
7.1.1. Financial and Business Information . . . . . 62
7.1.2. Officers' Certificates . . . . . . . . . . . 66
7.1.3. Accountants' Certificates. . . . . . . . . . 67
7.1.4. Inspection . . . . . . . . . . . . . . . . . 67
7.1.5. Payment of Taxes and Claims. . . . . . . . . 68
7.1.6. Maintenance of Properties; Corporate
Existence; etc.. . . . . . . . . . . . . . . 68
7.1.7. ERISA Compliance . . . . . . . . . . . . . . 69
7.2. Negative Covenants . . . . . . . . . . . . . 69
7.2.1. Merger; Acquisition. . . . . . . . . . . . . 69
7.2.2. Liens. . . . . . . . . . . . . . . . . . . . 71
7.2.3. Consolidated Tangible Net Worth. . . . . . . 74
7.2.4. Funded Debt. . . . . . . . . . . . . . . . . 74
7.2.5. Transfer of Property . . . . . . . . . . . . 74
7.2.6. Subsidiary Debt. . . . . . . . . . . . . . . 77
7.2.7. ERISA Prohibited Actions . . . . . . . . . . 78
7.2.8. Line of Business . . . . . . . . . . . . . . 79
7.2.9. Transactions with Affiliates . . . . . . . . 79
7.2.10. Guaranties . . . . . . . . . . . . . . . . . 79
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default . . . . . . . . . . . . 80
8.1.1. Non-Payment of Obligations . . . . . . . . . 80
8.1.2. Breach of Warranty . . . . . . . . . . . . . 80
8.1.3. Non-Performance of Certain Covenants and
Obligations. . . . . . . . . . . . . . . . . 80
8.1.4. Non-Performance of Other Covenants and
Obligations. . . . . . . . . . . . . . . . . 80
8.1.5. Default on Other Indebtedness. . . . . . . . 80
8.1.6. Judgments. . . . . . . . . . . . . . . . . . 81
8.1.7. Bankruptcy, Insolvency, etc. . . . . . . . . 81
8.2. Action if Bankruptcy . . . . . . . . . . . . . . . . 82
8.3. Action if Other Event of Default . . . . . . . . . . 82
ARTICLE IX
THE AGENTS
9.1. Actions. . . . . . . . . . . . . . . . . . . . . . . 82
9.2. Funding Reliance, etc. . . . . . . . . . . . . . . . 83
9.3. Exculpation. . . . . . . . . . . . . . . . . . . . . 84
9.4. Successor. . . . . . . . . . . . . . . . . . . . . . 84
9.5. Credit Extensions by an Agent. . . . . . . . . . . . 85
9.6. Credit Decisions . . . . . . . . . . . . . . . . . . 85
9.7. Copies, etc. . . . . . . . . . . . . . . . . . . . . 85
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc.. . . . . . . . . . . . . . 85
10.2. Notices. . . . . . . . . . . . . . . . . . . . . . . 86
10.3. Payment of Costs and Expenses. . . . . . . . . . . . 87
10.4. Indemnification. . . . . . . . . . . . . . . . . . . 87
10.5. Survival . . . . . . . . . . . . . . . . . . . . . . 88
10.6. Severability . . . . . . . . . . . . . . . . . . . . 88
10.7. Headings . . . . . . . . . . . . . . . . . . . . . . 89
10.8. Execution in Counterparts. . . . . . . . . . . . . . 89
10.9. Governing Law; Entire Agreement. . . . . . . . . . . 89
10.10. Successors and Assigns . . . . . . . . . . . . . . . 89
10.11. Sale and Transfer of Loans and Notes; Participation in
Loans and Notes. . . . . . . . . . . . . . . . . . . 89
10.11.1. Assignments . . . . . . . . . . . . . . 89
10.11.2. Participation . . . . . . . . . . . . . 91
10.12. Other Transactions . . . . . . . . . . . . . . . . . 92
10.13. Forum Selection and Consent to Jurisdiction. . . . . 92
10.14. Waiver of Jury Trial . . . . . . . . . . . . . . . . 93
10.15. Designated Borrowers.. . . . . . . . . . . . . . . . 93
10.16. Judgment Currency. . . . . . . . . . . . . . . . . . 94
||
SCHEDULE I - Disclosure Schedule
EXHIBIT A-1 - Form of Short Term Revolving Note
EXHIBIT A-2 - Form of Short Term Competitive Bid Loan Note
EXHIBIT A-3 - Form of Short Term Swing Line Loan Note
EXHIBIT B-1 - Form of Short Term Revolving Loan Borrowing Request
EXHIBIT B-2 - Form of Short Term Competitive Bid Loan Borrowing Request
EXHIBIT C-1 - Form of Invitation for Short Term Competitive Bid Loan Offers
EXHIBIT C-2 - Form of Short Term Competitive Bid Loan Offer
EXHIBIT C-3 - Form of Short Term Competitive Bid Loan Acceptance
EXHIBIT D - Form of Continuation/Conversion Notice
EXHIBIT E - Form of Lender Assignment Agreement
EXHIBIT F - Form of Opinion of Counsel to Seaboard
EXHIBIT G - [Reserved]
EXHIBIT H - Form of Seaboard Guaranty
EXHIBIT I - Form of Designated Borrower Certificate
EXHIBIT J - Form of Extension Request
SEABOARD CORPORATION
NOTE AGREEMENT
DATED AS OF DECEMBER 1, 1993
$100,000,000 SENIOR NOTES DUE DECEMBER 1, 2005
FIRST AMENDMENT TO NOTE AGREEMENT
Dated as of March 31, 1994
To Each of the Persons Set Forth
on the Attached Distribution List
Ladies and Gentlemen:
SEABOARD CORPORATION (together with its successors and assigns, the
"Company"), a Delaware corporation, hereby agrees with you as follows:
1. PRELIMINARY STATEMENT.
1.1 The Company entered into those certain separate Note Agreements,
each dated as of December 1, 1993 (collectively, as in effect immediately
prior to the Effective Date, the "Existing Note Agreement," and, as amended
hereby, the "Amended Note Agreement"), with each of the purchasers set forth
on Annex 1 to the Existing Note Agreement (individually, a "Purchaser," and
collectively, the "Purchasers"), pursuant to which the Company issued and sold
to the Purchasers, and the Purchasers purchased from the Company, an
aggregate principal amount of One Hundred Million Dollars ($100,000,000) of
the Company's Senior Notes due December 1, 2005 (collectively, the "Notes").
1.2 Set forth on the attached Distribution List are the holders (the
"Holders") of one hundred percent (100%) of the Notes outstanding as of the
Effective Date.
1.3 The Company and each of the Holders desire to amend clause (ii) of
Section 7.1(b) of the Existing Note Agreement and to execute this Amendment
(the "Amendment") to effect such amendment.
1.4 The terms used herein and not defined herein have the meanings
specified in the Existing Note Agreement.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
2. AMENDMENT TO THE EXISTING NOTE AGREEMENT.
Clause (ii) of the Existing Note Agreement is hereby amended, effective
March 31, 1994, to read as follows:
(ii) a consolidated and consolidating statement of income of the
Company and the Subsidiaries for such year and consolidated statements of
changes in shareholders' equity and cash flows of the Company and the
Subsidiaries for such year,
3. WAIVER AND AFFIRMATION OF OBLIGATIONS.
The terms of this Amendment shall not operate as a waiver by the Holders
of, or otherwise prejudice the Holders' rights, remedies or powers under,
the Existing Note Agreement, the Notes or under applicable law, except to the
extent provided herein. Except as expressly provided herein and in the
Amended Note Agreement:
(a) no terms and provisions of any agreement (including, without
limitation, the Existing Note Agreement and the Notes) are
modified or changed by this Amendment; and
(b) the terms and provisions of the Existing Note Agreement and the
Notes shall continue in full force and effect.
The Company hereby acknowledges and affirms all of its obligations and duties
under the Amended Note Agreement.
4. MISCELLANEOUS.
4.1 Governing Law.
THIS AMENDMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, INTERNAL NEW YORK LAW.
4.2 Duplicate Originals; Execution in Counterpart.
Two or more duplicate originals of the Amendment may be signed by the
parties, each of which shall be an original but all of which together shall
constitute one and the same instrument. This Amendment may be executed in
one or more counterparts and shall become effective when at least one
counterpart shall have been executed by each party hereto, and each set of
counterparts which, collectively, show execution by each party hereto shall
constitute one duplicate original.
-2-
4.3 Successors and Assigns.
This Amendment shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties hereto. The provisions hereof
are intended to be for the benefit of all holders, from time to time, of Notes,
and shall be enforceable by any such holder, whether or not an express
assignment to such holder of rights hereunder shall have been made by you or
your successor or assign.
4.4 Entire Agreement.
This Amendment constitutes the final written expression of all of the
terms hereof and is a complete and exclusive statement of those terms.
If this Amendment is satisfactory to you, please so indicate by signing
the acceptance at the foot of a counterpart hereof and returning such
counterpart to the Company, whereupon this Amendment shall become binding
between us in accordance with its terms.
SEABOARD CORPORATION
By: ________________________________
Rick Hoffman
Vice President--Finance
Agreed and Accepted by the
Holders of the Notes:
By: ____________________________
Name: _____________________
Title: _____________________
Date of Execution: ________________
SIGNATURE PAGE to AMENDMENT NO. 1, dated as of March 31, 1994, to SEABOARD
CORPORATION'S NOTE AGREEMENT dated as of DECEMBER 1, 1993.
-3-
SEABOARD CORPORATION
NOTE AGREEMENT
DATED AS OF JUNE 1, 1995
$125,000,000 SENIOR NOTES DUE JUNE 1, 2007
FIRST AMENDMENT TO NOTE AGREEMENT
Dated as of December 15, 1995
To Each of the Persons Set Forth
on the Attached Distribution List
Ladies and Gentlemen:
SEABOARD CORPORATION (together with its successors and assigns, the
"Company"), a Delaware corporation, hereby agrees with you as follows:
1. PRELIMINARY STATEMENT.
1.1 The Company entered into those certain separate Note Agreements,
each dated as of June 1, 1995 (collectively, as in effect immediately prior
to the Effective Date, the "Existing Note Agreement," and, as amended hereby,
the "Amended Note Agreement"), with each of the purchasers set forth on Annex
1 to the Existing Note Agreement (individually, a "Purchaser," and
collectively, the "Purchasers"), pursuant to which the Company issued and
sold to the Purchasers, and the Purchasers purchased from the Company, an
aggregate principal amount of One Hundred Twenty-Five Million Dollars
($125,000,000) of the Company's Senior Notes due June 1, 2007 (collectively,
the "Notes").
1.2 Set forth on the attached Distribution List are the holders (the
"Holders") of one hundred percent (100%) of the Notes outstanding as of the
Effective Date.
1.3 The Company and each of the Holders desire to amend clause (ii) of
Section 7.1(b) of the Existing Note Agreement and to execute this Amendment
(the "Amendment") to effect such amendment.
1.4 The terms used herein and not defined herein have the meanings
specified in the Existing Note Agreement.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
2. AMENDMENT TO THE EXISTING NOTE AGREEMENT.
Clause (ii) of the Existing Note Agreement is hereby amended, effective
December 15, 1995, to read as follows:
(ii) a consolidated and consolidating statement of income of the
Company and the Subsidiaries for such year and consolidated statements of
changes in shareholders' equity and cash flows of the Company and the
Subsidiaries for such year,
3. WAIVER AND AFFIRMATION OF OBLIGATIONS.
The terms of this Amendment shall not operate as a waiver by the Holders
of, or otherwise prejudice the Holders' rights, remedies or powers under, the
Existing Note Agreement, the Notes or under applicable law, except to the
extent provided herein. Except as expressly provided herein and in the Amended
Note Agreement:
(a) no terms and provisions of any agreement (including, without
limitation, the Existing Note Agreement and the Notes) are
modified or changed by this Amendment; and
(b) the terms and provisions of the Existing Note Agreement and
the Notes shall continue in full force and effect.
The Company hereby acknowledges and affirms all of its obligations and duties
under the Amended Note Agreement.
4. MISCELLANEOUS.
4.1 Governing Law.
THIS AMENDMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, INTERNAL NEW YORK LAW.
4.2 Duplicate Originals; Execution in Counterpart.
Two or more duplicate originals of the Amendment may be signed by the
parties, each of which shall be an original but all of which together shall
constitute one and the same instrument. This Amendment may be executed in one
or more counterparts and shall become effective when at least one counterpart
shall have been executed by each party hereto, and each set of counterparts
which, collectively, show execution by each party hereto shall constitute one
duplicate original.
-2-
4.3 Successors and Assigns.
This Amendment shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties hereto. The provisions hereof
are intended to be for the benefit of all holders, from time to time, of Notes,
and shall be enforceable by any such holder, whether or not an express
assignment to such holder of rights hereunder shall have been made by you or
your successor or assign.
4.4 Entire Agreement.
This Amendment constitutes the final written expression of all of the
terms hereof and is a complete and exclusive statement of those terms.
If this Amendment is satisfactory to you, please so indicate by signing
the acceptance at the foot of a counterpart hereof and returning such
counterpart to the Company, whereupon this Amendment shall become binding
between us in accordance with its terms.
SEABOARD CORPORATION
By: ________________________________
Rick Hoffman
Vice President--Finance
Agreed and Accepted by the
Holders of the Notes:
By: ____________________________
Name: _____________________
Title: _____________________
Date of Execution: ________________
SIGNATURE PAGE to AMENDMENT NO. 1, dated as of December 15, 1995, to SEABOARD
CORPORATION'S NOTE AGREEMENT dated as of June 1, 1995.
-3-
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THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE FIRST
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