Exhibit 10.1


 


AMENDED AND RESTATED CREDIT AGREEMENT


 


by and between


 


NATIONAL BEEF PACKING COMPANY, LLC,


 


CERTAIN OF ITS SUBSIDIARIES,


 


VARIOUS ISSUERS AND LENDERS,


 


COÖPERATIEVE CENTRALE RAIFFEISEN BOERENLEENBANK
B.A., 


“RABOBANK NEDERLAND”, NEW YORK BRANCH

and 

U.S. BANK NATIONAL ASSOCIATION,

as Documentation Agents,


 


BANK OF AMERICA, N.A.

and 

BANK OF MONTREAL,

as Syndication Agents,


 


and


 


COBANK, ACB, as Lead Arranger, 

Sole Bookrunner, Swing Line Lender

and Administrative Agent


 


Dated as of June 4, 2010


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
  ARTICLE I

  	
  DEFINITIONS

  	
  2

  
	
  1.1

  	
  Terms Defined in Colorado Uniform Commercial Code

  	
  2

  
	
  1.2

  	
  Defined Terms

  	
  2

  
	
  1.3

  	
  Accounting Terms

  	
  25

  
	
  ARTICLE II

  	
  LOANS, SWING
  LINE AND LETTERS OF CREDIT

  	
  26

  
	
  2.1

  	
  Loan Facilities

  	
  26

  
	
  2.2

  	
  Letters of Credit

  	
  31

  
	
  ARTICLE III

  	
  INTEREST

  	
  34

  
	
  3.1

  	
  Interest

  	
  34

  
	
  3.2

  	
  Voluntary Conversion of Advance

  	
  35

  
	
  ARTICLE IV

  	
  PAYMENTS;
  PREPAYMENTS; ETC

  	
  36

  
	
  4.1

  	
  Payment of Loans and Swing Line Loans

  	
  36

  
	
  4.2

  	
  Optional Prepayments of the Loans

  	
  36

  
	
  4.3

  	
  Term Loan Installments

  	
  37

  
	
  4.4

  	
  Mandatory Prepayments of Notes

  	
  37

  
	
  4.5

  	
  Termination of the Commitments

  	
  38

  
	
  ARTICLE V

  	
  LIBOR RATE
  LOANS; INCREASED COSTS; TAXES, ETC.

  	
  38

  
	
  5.1

  	
  LIBOR Rate Advances

  	
  38

  
	
  5.2

  	
  Increased Costs

  	
  39

  
	
  5.3

  	
  Funding Losses

  	
  39

  
	
  5.4

  	
  Capital Adequacy Requirements

  	
  40

  
	
  5.5

  	
  Taxes

  	
  41

  
	
  ARTICLE VI

  	
  FEES

  	
  43

  
	
  6.1

  	
  Non-Use Fee

  	
  43

  
	
  6.2

  	
  LC Fees

  	
  43

  
	
  6.3

  	
  Upfront Fees

  	
  43

  
	
  6.4

  	
  Calculation of Fees

  	
  44

  
	
  6.5

  	
  Fees Not Interest; Nonpayment

  	
  44

  
	
  ARTICLE VII

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  44

  
	
  7.1

  	
  Judgments, Claims Litigation and Proceedings

  	
  44

  
	
  7.2

  	
  Contract Defaults and Disputes

  	
  44

  
	
  7.3

  	
  Licenses, Patents, Etc.

  	
  45

  
	
  7.4

  	
  Title to Assets

  	
  45

  



 


i

















 


	
  7.5

  	
  Tax Liabilities

  	
  45

  
	
  7.6

  	
  Indebtedness and Producer Payables

  	
  45

  
	
  7.7

  	
  Other Fictitious Names

  	
  46

  
	
  7.8

  	
  Affiliates

  	
  46

  
	
  7.9

  	
  Environmental Matters

  	
  46

  
	
  7.10

  	
  Bank Accounts

  	
  47

  
	
  7.11

  	
  Other Agreements or Restrictions

  	
  47

  
	
  7.12

  	
  [Intentionally Omitted]

  	
  47

  
	
  7.13

  	
  Existence

  	
  47

  
	
  7.14

  	
  Authority

  	
  48

  
	
  7.15

  	
  Binding Effect

  	
  48

  
	
  7.16

  	
  Correctness of Financial Statements

  	
  48

  
	
  7.17

  	
  Employee Controversies

  	
  48

  
	
  7.18

  	
  Compliance with Laws and Regulations

  	
  49

  
	
  7.19

  	
  Solvency

  	
  49

  
	
  7.20

  	
  ERISA Matters

  	
  49

  
	
  7.21

  	
  Margin Security

  	
  50

  
	
  7.22

  	
  Investment Company Act Not Applicable

  	
  50

  
	
  7.23

  	
  [Intentionally Omitted]

  	
  50

  
	
  7.24

  	
  No Consent

  	
  50

  
	
  7.25

  	
  Full Disclosure

  	
  51

  
	
  7.26

  	
  Intellectual Property

  	
  51

  
	
  7.27

  	
  Compliance with Federal Food Security Act

  	
  51

  
	
  7.28

  	
  Survival of Warranties

  	
  51

  
	
  7.29

  	
  CoBank Equity Interests

  	
  52

  
	
  ARTICLE VIII

  	
  CONDITIONS

  	
  52

  
	
  8.1

  	
  Conditions to the Restatement Date and the Initial
  Borrowing

  	
  52

  
	
  8.2

  	
  Conditions Precedent to All Borrowings, Conversions,
  Roll Overs and Issuances of Letters of Credit

  	
  54

  
	
  ARTICLE IX

  	
  AFFIRMATIVE
  COVENANTS

  	
  55

  
	
  9.1

  	
  Financial Statements

  	
  55

  
	
  9.2

  	
  Conduct of Business

  	
  56

  
	
  9.3

  	
  Maintenance of Properties

  	
  56

  



 


ii

















 


	
  9.4

  	
  Liability Insurance

  	
  57

  
	
  9.5

  	
  Property Insurance

  	
  57

  
	
  9.6

  	
  [Intentionally Omitted]

  	
  58

  
	
  9.7

  	
  Pension Plans

  	
  58

  
	
  9.8

  	
  Notice of Suit, Adverse Change, ERISA Event or
  Default

  	
  58

  
	
  9.9

  	
  [Intentionally Omitted]

  	
  59

  
	
  9.10

  	
  Books and Records; Separate Existence

  	
  59

  
	
  9.11

  	
  Laws and Obligations

  	
  59

  
	
  9.12

  	
  Environmental Laws

  	
  59

  
	
  9.13

  	
  Trade Accounts Payable and Producer Payables

  	
  60

  
	
  9.14

  	
  Compliance with National Security Laws

  	
  60

  
	
  9.15

  	
  Post Closing Matters

  	
  60

  
	
  9.16

  	
  Funded Debt to EBITDA Ratio

  	
  61

  
	
  9.17

  	
  Adjusted Net Worth

  	
  62

  
	
  9.18

  	
  Fixed Charge Coverage Ratio

  	
  62

  
	
  9.19

  	
  Additional Collateral

  	
  62

  
	
  ARTICLE X

  	
  NEGATIVE
  COVENANTS

  	
  63

  
	
  10.1

  	
  Encumbrances

  	
  63

  
	
  10.2

  	
  Consolidations, Mergers or Acquisitions

  	
  64

  
	
  10.3

  	
  Deposits, Investments, Advances or Loans

  	
  64

  
	
  10.4

  	
  Indebtedness

  	
  65

  
	
  10.5

  	
  Guarantees and Other Contingent Obligations

  	
  66

  
	
  10.6

  	
  Disposition of Property

  	
  66

  
	
  10.7

  	
  Change in Nature of Business

  	
  66

  
	
  10.8

  	
  ERISA Matters

  	
  66

  
	
  10.9

  	
  [Intentionally Omitted]

  	
  66

  
	
  10.10

  	
  Equity Distributions

  	
  66

  
	
  10.11

  	
  Amendment of Organizational Documents

  	
  67

  
	
  10.12

  	
  Lease Limitations

  	
  67

  
	
  10.13

  	
  Use of Other Fictitious Names

  	
  67

  
	
  10.14

  	
  [Intentionally Omitted.]

  	
  68

  
	
  10.15

  	
  Fiscal Year

  	
  68

  
	
  10.16

  	
  Limitations on Bank Accounts

  	
  68

  



 


iii

















 


	
  10.17

  	
  Use of Trademarks

  	
  68

  
	
  10.18

  	
  Amendments of Other Documents

  	
  68

  
	
  10.19

  	
  Ownership of Cattle and Deposits on Cattle with
  Feeders

  	
  68

  
	
  10.20

  	
  Enforcement of Certain Documents

  	
  68

  
	
  ARTICLE XI

  	
  DEFAULT REMEDIES

  	
  69

  
	
  11.1

  	
  Acceleration

  	
  69

  
	
  11.2

  	
  Other Remedies

  	
  69

  
	
  11.3

  	
  Right to Cure

  	
  69

  
	
  ARTICLE XII

  	
  THE AGENT

  	
  70

  
	
  12.1

  	
  Authorization and Action

  	
  70

  
	
  12.2

  	
  Agent’s Reliance, Etc.

  	
  71

  
	
  12.3

  	
  Notices of Defaults

  	
  72

  
	
  12.4

  	
  The Agent as a Lender, Fiduciary

  	
  72

  
	
  12.5

  	
  Non Reliance on Agent and Other Lenders

  	
  73

  
	
  12.6

  	
  Indemnification of the Agent

  	
  73

  
	
  12.7

  	
  Successor Agent

  	
  74

  
	
  12.8

  	
  Verification of Borrowing Notices

  	
  74

  
	
  12.9

  	
  Action Upon Instructions of the Lenders

  	
  74

  
	
  12.10

  	
  Action Upon Request of the Borrower

  	
  75

  
	
  12.11

  	
  Additional Functions of Certain Lenders

  	
  75

  
	
  ARTICLE XIII

  	
  MISCELLANEOUS

  	
  75

  
	
  13.1

  	
  Timing of Payments

  	
  75

  
	
  13.2

  	
  Attorneys’ Fees and Costs

  	
  76

  
	
  13.3

  	
  Expenditures by the Agent

  	
  76

  
	
  13.4

  	
  The Agent’s Costs as Additional Liabilities

  	
  77

  
	
  13.5

  	
  Indemnification

  	
  77

  
	
  13.6

  	
  Inspection

  	
  79

  
	
  13.7

  	
  Examination of Banking Records

  	
  79

  
	
  13.8

  	
  Governmental Reports

  	
  80

  
	
  13.9

  	
  Reliance by the Agent, the Issuers and the Lenders

  	
  80

  
	
  13.10

  	
  Parties

  	
  80

  
	
  13.11

  	
  Applicable Law; Severability

  	
  80

  



 


iv

















 


	
  13.12

  	
  SUBMISSION TO JURISDICTION; WAIVER OF BOND AND TRIAL
  BY JURY

  	
  80

  
	
  13.13

  	
  Application of Payments

  	
  81

  
	
  13.14

  	
  Marshaling; Payments Set Aside

  	
  83

  
	
  13.15

  	
  Section Titles

  	
  83

  
	
  13.16

  	
  Continuing Effect

  	
  83

  
	
  13.17

  	
  No Waiver

  	
  83

  
	
  13.18

  	
  Notices

  	
  84

  
	
  13.19

  	
  Maximum Interest

  	
  85

  
	
  13.20

  	
  Representations by the Lenders and Swing Line Lender

  	
  86

  
	
  13.21

  	
  Counterparts and Facsimile Signatures

  	
  86

  
	
  13.22

  	
  Set-off

  	
  86

  
	
  13.23

  	
  Assignments and Participation

  	
  87

  
	
  13.24

  	
  Loan Agreement Controls

  	
  89

  
	
  13.25

  	
  Obligations Several

  	
  89

  
	
  13.26

  	
  Pro Rata Treatment

  	
  90

  
	
  13.27

  	
  Confidentiality

  	
  90

  
	
  13.28

  	
  Independence of Covenants

  	
  91

  
	
  13.29

  	
  Amendments and Waivers; Commitment Increases

  	
  91

  
	
  13.30

  	
  Binding Effect

  	
  92

  
	
  13.31

  	
  FINAL AGREEMENT

  	
  92

  
	
  13.32

  	
  [Intentionally Omitted.]

  	
  92

  
	
  13.33

  	
  USA Patriot Act Notice

  	
  92

  
	
  13.34

  	
  Subsidiaries

  	
  92

  
	
  13.35

  	
  Amendment and Restatement; Renewal Notes.

  	
  93

  



 


v

















 


List of Exhibits


 


	
  Exhibit 1A

  	
  Loan Commitment Amounts and Percentages

  
	
  Exhibit 1B

  	
  Borrowing Base Calculation

  
	
  Exhibit 1C

  	
  Borrowing Base Certificate

  
	
  Exhibit 1D

  	
  Form of NB, Inc. Acknowledgment

  
	
  Exhibit 1E

  	
  Letters of Credit*

  
	
  Exhibit 2A

  	
  Line of Credit Note

  
	
  Exhibit 2B

  	
  Term Note

  
	
  Exhibit 2C

  	
  Swing Line Note

  
	
  Exhibit 3A(i)

  	
  Account Debtors of Borrower*

  
	
  Exhibit 3B(i)

  	
  Borrower’s Inventory Locations*

  
	
  Exhibit 7A

  	
  Litigation*

  
	
  Exhibit 7B

  	
  Material Contract Defaults*

  
	
  Exhibit 7C

  	
  Intellectual Property*

  
	
  Exhibit 7D

  	
  Existing Liens*

  
	
  Exhibit 7E

  	
  Tax Liability Issues*

  
	
  Exhibit 7F

  	
  Indebtedness*

  
	
  Exhibit 7G

  	
  Prior Names*

  
	
  Exhibit 7H

  	
  Affiliates*

  
	
  Exhibit 7I

  	
  Environmental*

  
	
  Exhibit 7J

  	
  Bank Accounts*

  
	
  Exhibit 7K

  	
  Other Agreements*

  
	
  Exhibit 7L

  	
  Employee Controversies*

  
	
  Exhibit 7M

  	
  ERISA Matters*

  
	
  Exhibit 7N

  	
  Intellectual Property Litigation*

  
	
  Exhibit 8A

  	
  List of Closing Documents*

  
	
  Exhibit 9A

  	
  Compliance Certificate

  
	
  Exhibit 9B

  	
  Property Insurance*

  
	
  Exhibit 13A

  	
  Form of Assignment

  
	
  Exhibit 13B

  	
  List of Farm Credit System Voting Participants*

  
	
  Exhibit 13C

  	
  Form of
  Voting Participant Notice and Consent

  



 






* Schedule omitted. Registrant agrees to furnish supplementally a copy
of any omitted schedule to the Commission upon request.


 


vi






 












 


AMENDED AND RESTATED CREDIT AGREEMENT


 


THIS AMENDED AND RESTATED
CREDIT AGREEMENT (as amended, amended and restated, supplemented, renewed or
otherwise modified from time to time, this “Agreement”) is made as of June 4,
2010, by and between NATIONAL BEEF PACKING COMPANY, LLC, a Delaware limited
liability company (together with its successors as permitted herein, the “Borrower”),
certain of its Subsidiaries, as Subsidiary Loan Parties, the lenders from time
to time party hereto (collectively, the “Lenders” and individually, a “Lender”),
COÖPERATIEVE CENTRALE RAIFFEISEN BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW
YORK BRANCH and U.S. BANK NATIONAL ASSOCIATION, as Documentation Agents, BANK
OF AMERICA, N.A. and BANK OF MONTREAL, as Syndication Agents, and COBANK, ACB,
an agricultural credit bank (“CoBank”), as Lead Arranger, Sole
Bookrunner, Swing Line Lender and administrative agent for the Lenders, the
Issuers and the Swing Line Lender hereunder (in its capacity as administrative
agent, together with its successors and assigns in such capacity, the “Agent”).


 


RECITALS


 


WHEREAS, the Borrower,
Rabobank, the Agent, and the lenders from time to time party thereto
(collectively, the “Existing Lenders”) are parties to a Sixth Amended
and Restated Credit Agreement dated as of July 25, 2007, as amended by a
First Amendment to Sixth Amended and Restated Credit Agreement dated as of June 27,
2008, a Second Amendment to Sixth Amended and Restated Credit Agreement dated
as of April 13, 2009, and a Third Amendment to Sixth Amended and Restated
Credit Agreement dated as of October 8, 2009 (as so amended, together with
its predecessor agreements, the “Existing Credit Agreement”), pursuant
to which the Existing Lenders have extended certain revolving credit loans and
term loans to the Borrower;


 


WHEREAS, the Borrower has
requested that the Existing Lenders and certain new Lenders increase and extend
the Line of Credit Loan Facility and the Term Loan Facility in the Existing
Credit Agreement, and that other changes be made to the terms of the Existing
Credit Agreement; and


 


WHEREAS, as of and on, but
subject to the occurrence of, the Restatement Date, the Existing Line of Credit
Notes will be extended and renewed by the Line of Credit Notes, the Existing
Term Notes will be extended and renewed by the Term Notes and the Existing
Credit Agreement shall be amended and restated as set forth in this Agreement;


 


NOW, THEREFORE, in
consideration of the foregoing and of the terms and conditions contained in
this Agreement, and for any loans or extensions of credit or other financial
accommodations at any time made to or for the benefit of the Borrower by the
Agent or the Lenders, the parties hereto agree that as of and on, but subject
to the occurrence of, the Restatement Date, the Existing Credit Agreement shall
be amended and restated in its entirety to read as follows:


 


1

















 


ARTICLE
I

DEFINITIONS


 


1.             Terms Defined in Colorado
Uniform Commercial Code


 


All capitalized terms
contained in this Agreement or any of the other Financing Documents which are
not specifically defined herein or therein shall have the meanings set forth in
the Uniform Commercial Code of Colorado (“Code”) to the extent the same
are used or defined therein, specifically including, but not limited to the
following: Accounts, Account Debtor, Chattel Paper, Commercial Tort Claims,
Commodity Accounts, Commodity Contracts, Deposit Accounts, General Intangibles,
Goods, Investment Property, Instruments, Letter of Credit Rights, Money,
Payment Intangibles, Securities Accounts and Tangible Chattel Paper.


 


2.             Defined Terms.


 


When used herein, the
following capitalized terms shall have the meanings indicated, whether used in
the singular or the plural:


 


“$150 Million Basket”
has the meaning set forth in Section 10.10 hereof.


 


“Adjusted Net Worth”
means, on any date of determination, an amount equal to the Net Worth of
Borrower and its consolidated Subsidiaries adjusted to exclude any negative
impact occurring as a result of Borrower making any Equity Distributions in
accordance with the $150 Million Basket.


 


“Advance” means any
portion of the outstanding Line of Credit Loans or Term Loans by a Lender as to
which one of the available interest rate options and, if pertinent, an Interest
Period, is applicable.  An Advance may be
a Base Rate Advance or a LIBOR Rate Advance.


 


“Affiliate” means any
Person: (a) that directly or indirectly, through one or more
intermediaries, controls or is controlled by, or is under common control with,
the Borrower; (b) that directly or beneficially owns or holds ten percent
(10%) or more of any class of the Borrower’s equity; (c) ten percent (10%)
or more of the equity interest of which is owned directly or beneficially or
held by the Borrower; or (d) that is a member of the Borrower.


 


“Agent” has the
meaning set forth in the introduction hereof and shall include any successor
agent which has been appointed in accordance with Section 12.7.


 


“Agent’s Letter”
means the letter agreement between the Borrower and CoBank dated April 13,
2010.


 


“Applicable Margin”
means, with respect to Line of Credit Loans, Swing Line Loans, Term Loans, LC
Fees or Non-Use Fees, as the case may be, the rates per annum set forth below
for the then applicable “Financial Performance Level” referenced in the first
column below (each being called a “Financial Performance Level”):


 


National Beef Packing Company Credit Agreement


 


2

















 


	
  Financial

  Performance 

  Level:

  	
   

  	
  Funded Debt to 

  EBITDA Ratio:

  	
   

  	
  Base Rate Advance

  Line of Credit Loans,

  Swing Line Loans

  and Term Loans:

  	
   

  	
  LIBOR Rate 

  Line of Credit

  Loans and

  Term Loans:

  	
   

  	
  LC Fee:

  	
   

  	
  Non-Use

  Fee:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level I

  	
   

  	
  Less than 1.00: 1.00

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  	
  2.25

  	
  %

  	
  0.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level II

  	
   

  	
  Greater than or equal to
  1.00:1.00 and less than 2.00:1.00

  	
   

  	
  1.50

  	
  %

  	
  2.50

  	
  %

  	
  2.50

  	
  %

  	
  0.375

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level III

  	
   

  	
  Greater than or equal to
  2.00:1.00 and less than 3.00:1.00

  	
   

  	
  1.75

  	
  %

  	
  2.75

  	
  %

  	
  2.75

  	
  %

  	
  0.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level IV

  	
   

  	
  Greater than or equal to
  3.00:1.00

  	
   

  	
  2.25

  	
  %

  	
  3.25

  	
  %

  	
  3.25

  	
  %

  	
  0.625

  	
  %

  



 


The initial Financial
Performance Level shall be Level II until the Borrower’s consolidated financial
statements (and the related Compliance Certificate) in respect of the first
full fiscal quarter ending after the Closing Date are delivered pursuant to Section 9.1(b) and,
thereafter, upon Agent’s receipt of the Borrower’s consolidated financial
statements (and the related Compliance Certificate) for each subsequent fiscal
quarter.  The Agent will review each of
the Borrower’s Compliance Certificates to determine the Funded Debt to EBITDA
Ratio as of the end of the applicable fiscal quarter.  Any change in the Financial Performance Level
will be effective five (5) days after receipt of the relevant Compliance
Certificate; provided, however, that if the Borrower’s
consolidated financial statements (and the related Compliance Certificate) are
not delivered on a timely basis in accordance with Section 9.1(b),
the Agent may, at its option, deem the Borrower’s Financial Performance Level
to be Level IV until ten (10) Business Days after the Agent’s receipt of
such financial statements (and the Compliance Certificate).


 


Notwithstanding the
foregoing, if at any time while any Commitment is in effect or any of the
Liabilities remain outstanding, any financial statement or Compliance
Certificate delivered by the Borrower is shown to be inaccurate, and such
inaccuracy, if it had been corrected prior to the Borrower’s delivery, would
have caused the application of a higher Applicable Margin (as defined above)
for any period than the Applicable Margin that was actually applied for such
period, then (a) within five (5) Business Days of discovery or notice
of discovery of such inaccuracy the Borrower shall deliver to the Agent for
distribution to the Lenders a corrected financial statement or Compliance
Certificate, as applicable, for such period, (b) the Applicable Margin for
such period shall be recalculated and applied as if the higher Applicable
Margin had originally been applicable, and (c) within five (5) Business
Days of such recalculation the Borrower shall pay to the Agent the additional
amount of interest and fees owed as a result of such higher Applicable Margin
for such period to the extent accrued through the last applicable payment date,
and any subsequent payments required to be made on any subsequent payment 


 


3

















 


date
shall be adjusted accordingly.  Nothing
contained in this paragraph shall limit or otherwise prejudice any of the other
rights and remedies of the Agent or the Lenders under this Agreement.


 


“Application” has the
meaning set forth in Section 2.2(b) hereof.


 


“Assignee” has the
meaning set forth in Section 13.23(a) hereof.


 


“Assignment and
Acceptance” has the meaning set forth in Section 13.23(a) hereof.


 


“Attributable
Indebtedness” means, on any date, (a) in respect of any capitalized
lease of any Person, the capitalized amount thereof that would appear on such
Person’s balance sheet prepared as of such date in accordance with GAAP, and (b) in
respect of any Synthetic Lease Obligation, the capitalized amount of the
remaining lease payments under the relevant lease that would appear on such
Person’s balance sheet prepared as of such date in accordance with GAAP if such
lease were accounted for as a capitalized lease.


 


“Available Amount”
means, at any time, an amount equal to (a) the aggregate Line of Credit
Loan Commitments minus (b) the sum of (i) the aggregate outstanding
principal amount of the Line of Credit Loans, (ii) the aggregate
outstanding amount of the LC Obligations and (iii) the aggregate
outstanding principal amount of all Swing Line Loans.


 


“Base Rate” means a
rate per annum announced by the Agent on
the first Business Day of each week, which shall be the highest of (a) 150
basis points (1.50 percent) greater than the higher of the one week or one
month LIBOR Rate, (b) the Prime Rate; or (c) the Federal Funds Rate
plus one half of one percent (0.5%).


 


“Base Rate Advance”
means an Advance with respect to which the interest rate is determined by
reference to the Base Rate.


 


“Bill of Sale” means
that certain Bill of Sale dated as of December 1, 2004 from the Borrower
to the City together with any and all amendments, modifications, supplements,
renewals or restatements thereof.


 


“Bond Documents”
means, collectively, the Indenture, the Bonds, the Bond Purchase Agreement, the
Deed, the Bill of Sale, the Payment in Lieu of Tax Agreement and the Lease.


 


“Bond Pledge Agreement”
means that certain Bond Pledge Agreement dated December 29, 2004, executed
by the Borrower in favor of the Agent, and any and all amendments,
modifications, supplements, renewals or restatements thereof.


 


“Bond Purchase Agreement”
means that certain Bond Purchase Agreement dated as of December 1, 2004
between the City and the Borrower, together with any and all amendments,
modifications, supplements, renewals or restatements thereof.


 


“Bonds” means the
Industrial Development Revenue Bonds (National Beef Packing Company, LLC
Project), Series 2004, issued by the City.


 


“Borrower” has the
meaning set forth in the introduction hereof.


 


4

















 


“Borrowing Base”
means an amount determined as of the most recent date of the Borrowing Base
Certificate delivered pursuant to Section 9.1 and computed as set
forth in Exhibit 1B.


 


“Borrowing Base
Availability” means, at any time, an amount (if positive) equal to (a) the
Borrowing Base minus (b) the sum of (i) the aggregate outstanding
principal amount of the Line of Credit Loans, (ii) the aggregate
outstanding amount of the LC Obligations and (iii) the aggregate
outstanding principal amount of the Swing Line Loans.


 


“Borrowing Base
Certificate” means a certificate in substantially the form of Exhibit 1C,
signed as indicated thereon, setting forth the amount of the Borrower’s
Borrowing Base.


 


“Borrowing Base
Deficiency” means, at any time, the amount, if any, by which  (a) the sum of (i) the aggregate
outstanding principal amount of the Line of Credit Loans, (ii) the
aggregate outstanding amount of the LC Obligations and (iii) the aggregate
outstanding principal amount of the Swing Line Loans exceeds (b) the
Borrowing Base.


 


“Business Day” means
any day of the year, other than a Saturday or Sunday, on which commercial banks
in New York, New York and Denver, Colorado are not required or authorized to
close and, if such day relates to any LIBOR Rate Advance, a day on which
dealing in Dollar deposits is occurring among banks in the London interbank
market.


 


“California Property” means
the real property located in Brawley, California, as more particularly
described in the Intercompany Deed of Trust.


 


“Cash Equivalent
Investments” means, at any time:


 


(a)           any evidence of
Indebtedness, maturing not more than one year after such time, issued or guaranteed
by the United States Treasury;


 


(b)           commercial paper, maturing
not more than nine months from the date of issue, which is issued by a
corporation (other than an Affiliate of the Borrower) organized under the laws
of any state of the United States or of the District of Columbia and rated A-l
by Standard & Poor’s Rating Services, a division of The McGraw Hill
Companies, Inc. or P-l by Moody’s Investors Service;


 


(c)           any certificate of deposit
or banker’s acceptance, maturing not more than one year after such time, which
is issued by a commercial banking institution that is a member of the Federal
Reserve System and has a combined capital and surplus and undivided profits of
not less than $500,000,000 (or the equivalent thereof in any other currency); or


 


(d)           any repurchase agreement
entered into with any Lender or other commercial banking institution of the
stature referred to in clause (c) which


 


(i)            is secured by a fully
perfected security interest in any obligation of the type described in any of clauses
(a) through (c); and


 


5

















 


(ii)           has a market value at the
time such repurchase agreement is entered into of not less than 100% of the
repurchase obligation of such Lender or other commercial banking institution
thereunder.


 


“Change of Control”
means the occurrence of any of the following events: (a) at any time prior
to the consummation of a Permitted IPO, the Existing Equity Holders cease to
hold, collectively, directly or indirectly, a controlling interest in the
Borrower, and (b) at any time from and after the consummation of a
Permitted IPO, (i) any “person” or “group” (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934,
but excluding any employee benefit plan of such person or its Subsidiaries, and
any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) becomes the “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934,
except that a person or group shall be deemed to have “beneficial ownership” of
all securities that such person or group has the right to acquire (such right,
an “option right”), whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of the equity securities of NB, Inc.
entitled to cast thirty-five percent (35%) or more of the votes for members of
the board of directors or equivalent governing body of NB, Inc. on a
fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right), other
than the Existing Equity Holders, (ii) during any period of 12 consecutive
months, a majority of the members of the board of directors or other equivalent
governing body of NB, Inc. ceases to be composed of individuals (A) who
were members of that board or equivalent governing body on the first day of
such period, (B) whose election or nomination to that board or equivalent
governing body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority of
that board or equivalent governing body or (C) whose election or
nomination to that board or other equivalent governing body was approved by
individuals referred to in clauses (A) and (B) above
constituting at the time of such election or nomination at least a majority of
that board or equivalent governing body (excluding, in the case of both clause
(B) and clause (C), any individual whose initial nomination
for, or assumption of office as, a member of that board or equivalent governing
body occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or
group other than a solicitation for the election of one or more directors by or
on behalf of the board of directors), (iii) the Existing Equity Holders
cease to own, directly or indirectly, equity of NB, Inc. entitled to cast
thirty-five percent (35%) or more of the votes for members of the board of
directors or equivalent governing body of NB, Inc., or (iv) NB, Inc.
ceases to be the sole manager of the Borrower. 
It being understood and agreed that, in the event the Permitted IPO
occurs but not pursuant to the structure contemplated on the date hereof, then
the term “Change of Control” shall be modified in the reasonable discretion of
the Agent and Borrower in order to address such changes and to preserve the
original intent of the parties hereto.


 


“City” means the City
of Dodge City, Kansas, a municipal corporation organized under the law of the
State of Kansas.


 


“Closing Date” means
the date of this Agreement.


 


“CoBank” has the
meaning set forth in the introduction hereof.


 


6

















 


“Code” has the
meaning set forth in Section 1.1 hereof.


 


“Collateral” means
all real and personal property in which, pursuant to the terms of the
respective Security Documents, the Borrower, any Subsidiary Loan Party or any
third Person has granted to the Agent a security interest or assigned to the
Agent its right, title and interest to secure the Liabilities.  The Borrower acknowledges and agrees that all
of its right, title and interest in and to the Intercompany Financing Documents
and its limited liability company interests in KC Steak constitute collateral
under the Security Documents.


 


“Collateral Accounts”
means Deposit Accounts established and maintained in accordance with Section 4.07
of the Security Agreement.


 


“Commitment” means,
as to any Lender, such Lender’s (a) Line of Credit Loan Commitment, (b) Term
Loan Commitment, (c) obligation to purchase participations in LC
Obligations, and/or (d) obligation to purchase participations in Swing
Line Loans, and, as the context requires “Commitments” shall mean,
collectively, such Commitments for all the Lenders.


 


“Compliance Certificate”
has the meaning set forth in Section 9.1(b) hereof.


 


“Deed” means that
certain Kansas Special Warranty Deed dated as of December 1, 2004 from the
Borrower to the City, together with any and all amendments, modifications,
supplements, renewals or restatements thereof.


 


“Default” means the
occurrence or existence of: (a) an event which, through the passage of
time or the service of notice or both, would (assuming no action is taken by
the Borrower or any other Person to cure the same) mature into a Matured
Default; or (b) an event which requires neither the passage of time nor
the service of notice to mature into a Matured Default.


 


“Default Rate” has
the meaning set forth in Section 3.1(c) hereof.


 


“Defaulting Lender”
means any Lender that (a) has failed to fund any portion of the Loans or
participations in LC Obligations or Swing Line Loans required to be funded by
such Lender within three (3) Business Days after the date required to be
funded by it, (b) has otherwise failed to pay over to the Agent or any
other Lender any other amount required to be paid by it within three (3) Business
Days after the date when due, unless the subject of a good faith dispute, or (c) has
been deemed insolvent or become the subject of an insolvency proceeding (or
such parent or holding company of such Lender that has been deemed insolvent or
become the subject of an insolvency proceeding).


 


“Dodge City Facilities”
means the beef processing facilities located in Dodge City, Kansas, as further
described in the Kansas Mortgage.


 


“Dollars” and “$”
mean lawful currency of the United States of America.


 


“Domestic Subsidiary”
means any Subsidiary that is not a Foreign Subsidiary.


 


7

















 


“Draft Prospectus”
means that certain draft Preliminary Prospectus relating to the initial public
offering of shares of Class A common stock of NB, Inc. dated April 21,
2010.


 


“EBITDA” means, for
any period of determination, the consolidated net income of the Borrower and
its Subsidiaries before provision for income taxes, interest expense (including
without limitation, implicit interest expense on capitalized leases),
depreciation, amortization and other noncash expenses or charges, excluding (to
the extent otherwise included): (a) nonoperating gains (including without
limitation, extraordinary or nonrecurring gains, gains from discontinuance of
operations and gains arising from the sale of assets other than Inventory or
property, plant and equipment) during the applicable period; and (b) similar
nonoperating losses during such period.


 


“Eligible Accounts”
means Accounts of the Loan Parties which the Agent determines in the exercise
of the Agent’s reasonable discretion are eligible for inclusion in the
Borrowing Base at any particular time. 
Without limiting the Agent’s right to determine that Accounts do not
constitute Eligible Accounts, but without duplication, the following Accounts
of the Loan Parties shall not be Eligible Accounts:  (a) all Accounts which are at that time
unpaid for a period exceeding twenty one (21) days after the original invoice
date of the original invoice related thereto, except for Accounts which are
covered by a letter of credit; (b) all Accounts owing by an Account Debtor
if more than twenty-five percent (25%) of the Accounts owing by such Account
Debtor are at that time unpaid for a period exceeding that allowed by the
preceding clause, except, in each case, Accounts which are covered by a letter
of credit in amount, form and substance satisfactory to, and from an issuer
acceptable to the Agent; (c)(i) those Accounts, except Accounts owing from
the Account Debtors listed on Exhibit 3A(i), of an Account Debtor,
the aggregate face amount of which is in excess of five percent (5%) of the
aggregate face amount of all Eligible Accounts of all Account Debtors (prior to
eliminations based on concentration), (ii) those Accounts of an Account
Debtor listed on Exhibit 3A(i), the aggregate face amount of which
is in excess of ten percent (10%) of the aggregate face amount of all Eligible
Accounts of all Account Debtors (prior to eliminations based on concentration),
and (iii) those Accounts of Wal-Mart and Affiliates thereof (Sam’s Club,
etc.), the aggregate face amount of which is in excess of fifteen percent (15%)
of the aggregate face amount of all Eligible Accounts of all Account Debtors
(prior to eliminations based on concentration), but in each case only to the
extent of such excess; (d) those Accounts owing from the United States or
any department, agency or instrumentality thereof unless the Borrower shall
have complied with the Assignment of Claims Act to the satisfaction of the
Agent; (e) Accounts which arise out of transactions with Affiliates of the
Borrower, except Accounts owing from Beef Products, Inc. up to the
aggregate face amount of $4,000,000; (f) Accounts, except Accounts owing
from the Account Debtors listed on Exhibit 3A(i), of an Account
Debtor that are located outside the United States, unless such Accounts are
covered by a letter of credit issued or confirmed by a bank acceptable to the
Agent; (g) Accounts which are or may be subject to rights of setoff or
counterclaim by the Account Debtor (to the extent of the amount of such setoff
or counterclaim); (h) Accounts in which the Agent does not, for any
reason, have a first priority perfected security interest; and (i) Accounts
which in the Agent’s opinion may be subject to liens or conflicting claims of
ownership, whether such liens or conflicting claims are asserted or could be
asserted by any Person except for statutory liens or encumbrances permitted by Section 10.1(a),
(b) and (d).  With
regard to Accounts included in the Borrowing Base by the Borrower in good
faith, a determination by the Agent that such Accounts are not Eligible
Accounts in accordance with the 


 


8

















 


foregoing
shall be effective on the third Business Day after notice thereof by the Agent
to the Borrower in accordance with Section 13.18.


 


“Eligible Inventory”
means Inventory of the Loan Parties which the Agent determines in the exercise
of the Agent’s reasonable discretion is eligible for inclusion in the Borrowing
Base at any particular time.  Without
limiting the Agent’s right to determine that Inventory does not constitute
Eligible Inventory, but without duplication, the following Inventory of the
Loan Parties shall not be Eligible Inventory: (a) Inventory deemed to be
out-of-condition or otherwise unmerchantable by the United States Department of
Agriculture, any state’s Department of Agriculture, or any other Governmental
Authority having regulatory authority over the Loan Parties or any of the Loan
Parties’ assets or activities; (b) Inventory for which a prepayment has
been received; (c) Inventory in the possession of third parties, unless it
is Inventory: (i) at a location (x) shown on Exhibit 3B(i) or
(y) permitted hereunder or under the Security Agreement, in each case, for
which the Agent has received a bailee letter satisfactory to the Agent, or (ii) covered
by negotiable warehouse receipts or negotiable bills of lading issued by
either: (A) a warehouseman licensed and bonded by the United States
Department of Agriculture or any state’s Department of Agriculture, or (B) a
recognized carrier having an office in the United States and in a financial
condition reasonably acceptable to the Agent, which receipts or bills of lading
designate the Agent directly or by endorsement as the only Person to which or
to the order of which the warehouseman or carrier is legally obligated to
deliver such Goods; (d) Inventory in which the Agent does not, for any
reason, have a first priority perfected security interest; and (e) Inventory
which in the Agent’s opinion may be subject to liens or conflicting claims of
ownership, whether such liens or conflicting claims are asserted or could be
asserted by any Person except for statutory liens or encumbrances permitted by Section 10.1(a),
(b) and (d). With regard to Inventory included in the
Borrowing Base by the Borrower in good faith, a determination by the Agent that
such Inventory is not Eligible Inventory in accordance with the foregoing shall
be effective on the third Business Day after notice thereof by the Agent to the
Borrower in accordance with Section 13.18.


 


“Environmental Laws”
has the meaning set forth in Section 7.9 hereof.


 


“Equipment” means any
and all Goods, other than Inventory (including without limitation, equipment,
machinery, motor vehicles, implements, tools, parts and accessories) which are
at any time owned by the Borrower, together with any and all accessions, parts
and appurtenances and any other “equipment” (as defined in the Code).


 


“Equity Cure Issuance”
has the meaning set forth in the definition of Equity Cure Proceeds.


 


“Equity Cure Proceeds”
means, with respect to any exercise of the Borrower’s rights under Section 11.3,
the net cash proceeds received by the Borrower pursuant to a capital
contribution to its common equity funded by the concurrent sale or issuance by
the Borrower of shares of its equity interests (the “Equity Cure Issuance”).


 


“Equity Distribution”
means any dividend or other distribution (whether in cash, securities or other
property) with respect to any membership interest or other equity interest in
the Borrower, or any payment (whether in cash, securities or other property),
including any 


 


9

















 


sinking
fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such membership or other equity
interest or of any option, warrant or other right to acquire any such
membership or other equity interest.


 


“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended and in effect at
any time, and all rules, regulations and rulings thereof issued by the Internal
Revenue Service or the Department of Labor thereunder.


 


“ERISA Affiliate”
means any trade or business (whether or not incorporated) under common control
with the Borrower within the meaning of Section 414(b) or (c) of
the IRC (and Sections 414(m) and (o) of the IRC for purposes of
provisions relating to Section 412 of the IRC).


 


“ERISA Event” means (a) a
Reportable Event with respect to a Pension Plan; (b) a withdrawal by the
Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial employer (as defined
in Section 4001(a)(2) of ERISA) or a cessation of operations that is
treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which might
reasonably be expected to constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability
under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007
of ERISA, upon the Borrower or any ERISA Affiliate.


 


“Excess” has the
meaning set forth in Section 13.19 hereof.


 


“Excess Disposition
Proceeds” means the Borrower’s net cash proceeds, including insurance or condemnation
proceeds, from the sale or other disposition or loss of assets (other than the
sale of Inventory in the ordinary course of business or the casualty loss of
Inventory), which are not used by the Borrower for the replacement of the
assets sold, disposed of or lost or not used for the acquisition of other
assets with similar business utility within one hundred eighty (180) days after
such sale, disposition or loss, in excess of $100,000 in the aggregate during
any rolling twelve month period.


 


“Excess Equity Proceeds”
means, during any period of determination, the Borrower’s net cash proceeds
from the sale or issuance of stock, membership, partnership or other equity
interests (or warrants or other options therefor), including capital
contributions in respect of any such interests previously issued.


 


“Existing Credit
Agreement” has the meaning set forth in the recitals hereof.


 


“Existing Equity Holders”
means, collectively, US Premium Beef, TKK Investments, LLC, TMKCo, LLC and
NBPCo Holdings, LLC.


 


10






 












 


“Existing Line of Credit
Notes” means the Line of Credit Notes of the Borrower delivered to the
Existing Lenders under the Existing Credit Agreement.


 


“Existing Term Notes”
means the Term Notes of the Borrower delivered to the Existing Lenders under
the Existing Credit Agreement.


 


“Facility” means the
Line of Credit Loan Facility, the Swing Line, the Term Loan Facility or the
Letter of Credit Sublimit, as the context may require.


 


“Farm Credit System
Participant” has the meaning set forth in Section 13.23(e) hereof.


 


“Farm Products” means
all of the Borrower’s harvested or unharvested crops of all types and
descriptions, whether annual or perennial and all other personal property of
the Borrower used or for use in farming or livestock operations, including without
limitation, native grass, grain, harvested crops, feed, feed additives, feed
ingredients, feed supplements, fertilizer, hay, silage, supplies (including
without limitation, veterinary supplies and related Goods), livestock
(including without limitation, the offspring of such livestock and livestock in
gestation) and any other “farm products” (as defined in the Code).


 


“Federal Funds Rate”
means, for any day, the rate of interest per annum (rounded upward, if
necessary, to the nearest whole multiple of 1/100th of 1%) equal to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on such day, or if no
such rate is so published on such day, on the most recent day preceding such
day on which such rate is so published.


 


“Feeder Deposits” has
the meaning set forth in Section 10.19 hereof.


 


“Financial Performance
Level” has the meaning set forth in the definition of Applicable Margin.


 


“Financing Documents”
means this Agreement, the Notes, the Agent’s Letter, the NB, Inc.
Acknowledgment, all Security Documents, and all documents, instruments,
certificates and agreements at any time executed or delivered by the Borrower
to any of the Agent or any one or more of the Lenders pursuant to or in
connection with any of the foregoing, and any and all amendments,
modifications, supplements, renewals, extensions, increases and rearrangements
of, and substitutions for, any of the foregoing.


 


“Fiscal Year” means
the Borrower’s fiscal year, which shall be the twelve month period ending on
the last Saturday in August each year; references to a Fiscal Year with a
number corresponding to any calendar year (e.g., the “Fiscal Year 2010”) refer
to the Fiscal Year ending on the last Saturday in August of such calendar
year.


 


“Fixed Charge Coverage Ratio” means , as of the end of any
fiscal quarter, the ratio of (a) EBITDA during the eight consecutive
fiscal quarters then ended, less Net Capital Expenditures during such eight
fiscal quarter period to (b) the sum of (i) the aggregate amount of
all scheduled payments of principal of and interest on Funded Debt during such
eight fiscal quarter period, (ii) Borrower’s consolidated cash income
taxes incurred and paid during such eight fiscal quarter 


 


11

















 


period
and (iii) Equity Distributions made by Borrower during such eight fiscal
quarter period (other than (x) Equity Distributions permitted under the
$150 Million Basket, (y) up to $125,484,074.72 in Equity Distributions
made by Borrower in April 2009 and (z) up to $8,000,000 in Equity
Distributions made by Borrower pursuant to the terms of the Consent to Sixth
Amended and Restated Credit Agreement dated May 27, 2010.


 


“Foreign Subsidiary”
means any direct or indirect Subsidiary of the Borrower which is organized
under the laws of any jurisdiction other than the United States (or any State
thereof) of the District of Columbia.


 


“Funded Debt” means,
for any date of determination, the then outstanding principal amount of all of
the Borrower’s consolidated interest-bearing Indebtedness (including without
limitation, capitalized leases) plus the then undrawn amount of all outstanding
letters of credit (including without limitation, the LCs); provided, however,
that (a) LCs or indemnity obligations issued to support other Indebtedness
shall not be included in Funded Debt to the extent that such other Indebtedness
is, itself, included in Funded Debt; (b) the Borrower’s Class A or B
Units subject to redemption rights shall not be included in Funded Debt; and (c) the
Borrower’s obligations under deferred compensation plans shall not be included
in Funded Debt.


 


“Funded Debt to EBITDA
Ratio” means, for any date of determination, the ratio of: (a) Funded
Debt as of such date, over (b) EBITDA during the four consecutive fiscal
quarters most recently ended.


 


“GAAP” means
generally accepted accounting principles set forth in the opinions and pronouncements
of the Accounting Principles Board of the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board, or in such other statements by such other entity as
may be in general use by significant segments of the accounting profession,
which are applicable to the circumstances as of the date of determination.


 


“Georgia Mortgage”
means that certain Deed to Secure Debt and Security Agreement between the
Borrower and the Agent, dated as of November 25, 2009 and that certain
financing statement dated as of November 25, 2009, in each case, together
with any and all amendments, modifications, supplements, renewals or
restatements thereof.


 


“Governmental Authority”
means any nation or government, any state or other political subdivision
thereof and any entity exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to government, including without
limitation, any arbitration panel, any court or any commission.


 


“Governmental Requirement”
means any material law, statute, code, ordinance, order, rule, regulation,
judgment, decree, injunction, franchise, permit, certificate, license,
authorization or other directive or requirement of any federal, state, county,
municipal, parish, provincial or other Governmental Authority or any
department, commission, board, court, agency or any other instrumentality of
any of them.


 


12

















 


“Guaranty Agreement”
means that certain Guaranty Agreement dated as of even date herewith, executed
by certain of the Borrower’s Subsidiaries in favor of the Agent, together with
any and all amendments, modifications, supplements, renewals or restatements
thereof.


 


“Guaranty Obligation”
means, as to any Person, any (a) any obligation, contingent or otherwise,
of such Person guarantying or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or
services for the purpose of assuring the obligee in respect of such
Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay such Indebtedness or
other obligation, or (iv) entered into for the purpose of assuring in any
other manner the obligees in respect of such Indebtedness or other obligation
of the payment or performance thereof or to protect such obligees against loss
in respect thereof (in whole or in part), or (b) any Lien on any assets of
such Person securing any Indebtedness or other obligation of any other Person,
whether or not such Indebtedness or other obligation is assumed by such Person;
provided, however, that the term “Guaranty Obligation” shall not
include endorsements of instruments for deposit or collection in the ordinary
course of business.  The amount of any
Guaranty Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in
respect of which such Guaranty Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
as determined by the guaranteeing Person in good faith.


 


“Highest Lawful Rate”
means, with respect to each Lender, the maximum nonusurious interest rate, if
any, that at any time or from time to time may be contracted for, taken,
reserved, charged, or received with respect to the Notes or on other amounts,
if any, payable to such Lender pursuant to this Agreement or any other
Financing Document, under laws applicable to such Lender which are presently in
effect, or, to the extent allowed by law, under such applicable laws which may
hereafter be in effect and which allow a higher maximum nonusurious interest
rate than applicable laws now allow.


 


“Holding Account”
means a deposit account belonging to the Agent into which the Borrower may be
required to make deposits pursuant to the provisions of this Agreement, such
account to be under the sole dominion and control of the Agent and not subject
to withdrawal by the Borrower, with any amounts therein to be held for
application toward payment of any outstanding LCs when drawn upon.  The Holding Account shall be a money market
savings account or substantial equivalent (or other appropriate investment
medium as the Borrower may from time to time request and to which the Agent in
its sole discretion shall have consented) and shall bear interest in accordance
with the terms of similar accounts held by the Agent for its customers.


 


“Indebtedness” shall
mean with respect to any Person and without duplication:


 


13

















 


(a)           All obligations of such
Person for borrowed money (including, without limitation, all notes payable and
drafts accepted representing extensions of credit, all obligations evidenced by
credit agreements, bonds, debentures, notes or other similar instruments and
all obligations upon which interest charges are customarily paid);


 


(b)           any direct or contingent
obligations of such Person arising under letters of credit (including standby
and commercial), banker’s acceptances, bank guaranties, surety bonds and
similar instruments;


 


(c)           whether or not so included
as liabilities in accordance with GAAP, all obligations of such Person to pay
the deferred purchase price of property or services (other than trade accounts payable
incurred in the ordinary course of the Borrower’s business), and indebtedness
(excluding prepaid interest thereon and excluding operating leases) secured by
a Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by such
Person or is limited in recourse;


 


(d)           capitalized leases and
Synthetic Lease Obligations;


 


(e)           net obligations under any
Swap Contract in an amount equal to (i) if such Swap Contract has been
closed out, the termination value thereof, or (ii) if such Swap Contract
has not been closed out, the mark-to-market value thereof determined on the
basis of readily available quotations provided by any recognized dealer in such
Swap Contract; and


 


(f)            all Guaranty Obligations of
such Person in respect of any of the foregoing.


 


For all purposes hereof, the
Indebtedness of any Person shall include the Indebtedness of any partnership or
joint venture in which such Person is a general partner or a joint venturer,
unless such Indebtedness is expressly made non-recourse to such Person except
for customary exceptions acceptable to the Required Lenders.  The amount of any capitalized lease or
Synthetic Lease Obligation as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such date.


 


“Indemnified Amounts”
has the meaning set forth in Section 13.5(b) hereof.


 


“Indemnitee” has the
meaning set forth in Section 13.5(b) hereof.


 


“Indenture” means
that certain Trust Indenture dated as of December 1, 2004 between the City
and Commerce Bank. N.A., as trustee, together with any and all amendments,
modifications, supplements, renewals or restatements thereof.


 


“Insurance Reserve”
means a collateral reserve against casualty losses that would not be covered by
insurance as a result of the self-insured retention deductible provision in the
Borrower’s property insurance (a) in an amount equal to $10,000,000 when
the self-insured retention deductible under the Borrower’s property insurance
procured in accordance with 


 


14

















 


Section 9.5 exceeds
$15,000,000; (b) in an amount equal to $5,000,000 when the self-insured
retention deductible under the Borrower’s property insurance procured in
accordance with Section 9.5 exceeds $10,000,000 but is less than or
equal to $15,000,000; and (c) in an amount equal to $0 when the
self-insured retention deductible under the Borrower’s property insurance
procured in accordance with Section 9.5 is less than or equal to
$10,000,000.


 


“Intercompany
Financing Documents” means: (a) the Loan Agreement dated as of May 30,
2006, by and between the Borrower and NBC (the “Intercompany Loan Agreement”), (b) the
Security Agreement dated as of May 30, 2006, by NBC in favor of the
Borrower, (c) the Trademark License Agreement between NBC and the Borrower
dated as of May 30, 2006, (d) the Deed of Trust, Assignment of Rents
and Leases, Security Agreement and Fixture Filing from NBC to the Borrower
dated as of June 2, 2006 (the “Intercompany Deed of Trust”), (e) the
Note (as defined in the Intercompany Loan Agreement), (f) the Security
Agreement (Security Interest in Partnership Interests) by NCI in favor of the
Borrower dated as of May 30, 2006, (g) the Loan Agreement dated as of
August 6, 2003, among NCI, NCI Leasing and the Borrower’s predecessor in
interest, (h) the Security Agreement dated as of August 6, 2003, by
NCI and NCI Leasing in favor of the Borrower’s predecessor in interest, (i) the
Promissory Note dated as of August 6, 2003, from NCI and NCI Leasing to
the Borrower’s predecessor in interest, (j) the Trademark Security
Agreement dated as of August 6, 2003, by NCI and NCI Leasing in favor of
the Borrower’s predecessor in interest, (k) the Loan Agreement dated as of
May 29, 1998, as amended by the Loan Extension Agreement dated as of May 31,
2001, the Second Amendment to Loan Agreement dated as of August 21, 2001,
the Third Amendment to Loan Agreement dated as of September 1, 2005 and
the Fourth Amendment to Loan Agreement dated as of May 30, 2006, in each
case, between KC Steak and the Borrower’s predecessor in interest, (l) the
First Amended and Restated Security Agreement dated as of August 29, 2001,
between KC Steak and the Borrower’s predecessor in interest, (m) the
Amended and Restated Promissory Note dated as of May 30, 2006, from KC
Steak to the Borrower, and any and all other agreements, chattel mortgages,
security agreements, pledges, guaranties, assignments of proceeds, assignments
of contract rights, assignments of partnership interest, assignments of
performance or other collateral assignments, trademark license agreements,
completion or surety bonds, standby agreements, subordination agreements,
undertakings and other similar documents, agreements, instruments and financing
statements at any time executed and delivered by any of the Borrower’s
Subsidiaries or a third Person in connection with, or as security for the
payment or performance of, any agreements or documents that may from time to
time incur, evidence, or govern indebtedness that any Subsidiary owes from time
to time directly or indirectly to the Borrower, as the foregoing may be
amended, supplemented or otherwise modified from time to time in accordance
with this Agreement.


 


“Interest Period”
means:  the period of time for which the
LIBOR Rate shall be in effect as to any LIBOR Rate Advance and which shall be a
one, two, three or six month period of time, commencing with the borrowing date
of such LIBOR Rate Advance or the expiration date of the immediately preceding
Interest Period, as the case may be, applicable to and ending on the effective
date of any rate change or rate continuation made as provided herein as the
Borrower may specify in a notice of borrowing or a notice of interest
conversion; provided, however, all interest periods for all LIBOR
Rate Advances outstanding under the Existing Credit Agreement as of the
Restatement Date shall be deemed to have ended on the day immediately preceding
the Restatement Date; and provided further that: (a) any Interest Period
which would otherwise end 


 


15

















 


on
a day which is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business Day, (b) no
Interest Period applicable to a Line of Credit Loan shall extend beyond the
scheduled Maturity Date applicable to the Line of Credit Loan; (c) no
Interest Period for a Term Advance shall extend beyond the Maturity Date
applicable to the Term Loan; (d) there shall be no more than five Interest
Periods for LIBOR Rate Advances outstanding at any one time under the Line of
Credit; and (e) there shall be no more than five Interest Periods for
LIBOR Rate Advances at any one time under the Term Loan.


 


“Inventory” means,
with respect to any Person, any and all Goods which shall at any time
constitute “inventory” (as defined in the Code) or Farm Products of such
Person, wherever located (including without limitation, Goods in transit and
Goods in the possession of third parties), or which from time to time are held
for sale, lease or consumption in such Person’s business, furnished under any
contract of service or held as raw materials, work in process, finished
inventory or supplies (including without limitation, packaging and/or shipping
materials).


 


“IPO Proceeds” means
the net cash proceeds, if any, received by the Borrower in connection with the
Permitted IPO.


 


“IRC” means the
Internal Revenue Code of 1986, as amended, as at any time in effect, together
with all regulations and rulings thereof or thereunder issued by the Internal
Revenue Service.


 


“Issuer” means CoBank
or, with respect to the “LCs” issued by Rabobank under (and as defined in) the
Existing Credit Agreement and listed on Exhibit 1E, Rabobank, as
issuers of LCs.


 


“Kansas Mortgage”
means the Amended and Restated Mortgage, Assignment of Rents and Leases, Security
Agreement and Fixture Filing between the Borrower and the Agent, dated December 29,
2004, and the Amended and Restated Collateral Assignment of Amended and
Restated Lease from the Borrower in favor of the Agent, dated as of December 29,
2004, in each case, together with any and all further amendments,
modifications, supplements, renewals or restatements thereof.


 


“KC Steak” means
Kansas City Steak Company, LLC, a Missouri limited liability company, a
majority owned Subsidiary of the Borrower.


 


“LC” means a
documentary, direct pay or standby letter of credit issued for the account of
the Borrower pursuant to Section 2.2, including any “LCs” issued
under (and as defined in) the Existing Credit Agreement.


 


“LC Fee” has the
meaning set forth in Section 6.2 hereof.


 


“LC Obligations”
means, at any time, an amount equal to the sum of (a) the aggregate
undrawn and unexpired amount of the outstanding LCs plus (b) the aggregate
amount of drawings under LCs which have not then been reimbursed pursuant to Section 2.2(f).


 


16

















 


“LC Sublimit” means
an amount equal to the lesser of (a) $75,000,000 and (b) the Line of
Credit Loan Commitments.  For the
avoidance of doubt, the LC Sublimit is part of, and not in addition to, the
Line of Credit Loan Commitments.


 


“Lease” means that
certain Lease dated as of December 1, 2004 between the City and the
Borrower, together with any and all amendments, modifications, supplements,
renewals or restatements thereof.


 


“Lenders” has the meaning
set forth in the introduction hereof.


 


“Liabilities” means
any and all liabilities, obligations and indebtedness of the Borrower to the
Agent, the Lenders, the Swing Line Lender, the Issuers, the Swap Parties and/or
the Indemnitees of any and every kind and nature, at any time owing, arising,
due or payable and howsoever evidenced, created, incurred, acquired or owing,
primary, secondary, direct, contingent, fixed or otherwise (including without
limitation, LC Obligations, the Borrower’s obligations under any Swap Contracts
with Swap Parties, fees, charges and obligations of performance) arising or
existing under this Agreement or any of the other Financing Documents or by
operation of law relating to this Agreement or any of the other Financing Documents.


 


“LIBOR Rate” means (a) with
respect to each day during each Interest Period applicable to a LIBOR Rate
Account, the per annum rate for the Interest Period selected by Borrower, as
quoted by the British Bankers’ Association (or if such quotation source is
unavailable, such other quotation source as may be reasonably selected by the
Administrative Agent) for the purpose of displaying London Interbank Offered
Rates for U.S. Dollar deposits, (which shall be the LIBOR rate in effect two
Business Days prior to the related Advance) rounded up to the 1/100th of 1% per
annum, or (b) with respect to the determination of the Base Rate, the
LIBOR rate, as quoted by the British Bankers’ Association (or if such quotation
source is unavailable, such other quotation source as may be reasonably
selected by the Administrative Agent) for the purpose of displaying London
Interbank Offered Rates for U.S. Dollar deposits, in each case divided by a
percentage equal to 100% minus the stated maximum rate of all reserve requirements
(including, without limitation, any marginal, emergency, supplemental, special
or other reserves) applicable on such date to any member bank of the Federal
Reserve System in respect of “Eurocurrency liabilities” as defined in
Regulation D (or any successor category of liabilities under Regulation D).


 


“LIBOR Rate Advance”
means an Advance with respect to which the interest rate is determined by
reference to the LIBOR Rate.


 


“Lien” means any
mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or other), charge, or preference, priority or other security
interest or preferential arrangement of any kind or nature whatsoever
(including 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 Code or
comparable laws of any jurisdiction), including the interest of a purchaser of
accounts.


 


“Line of Credit Loan”
has the meaning set forth in Section 2.1.1 hereof.


 


17

















 


“Line of Credit Loan
Commitment” means as to any Lender, such Lender’s obligation to make Line
of Credit Loans up to its Pro Rata Percentage of $250,000,000, as set forth
opposite such Lender’s name under the heading “Line of Credit Loan Commitments”
on Exhibit 1A, subject to Assignments and Acceptances executed and
delivered in accordance with Section 13.23, and as such amount may
be reduced or terminated from time to time pursuant to Section 4.5
or 11.1; and “Line of Credit Loan Commitments” means, collectively, the
Line of Credit Loan Commitments for all the Lenders.


 


“Line of Credit Loan
Facility” means, at any time, the aggregate amount of the Lenders’ Line of
Credit Loan Commitments.


 


“Line of Credit Notes”
has the meaning set forth in Section 2.1.1 hereof.


 


“Loan” means each
Line of Credit Loan and each Term Loan; however, unless particularly specified
in the relevant text, the term “Loan” does not include Swing Line Loans.


 


“Loan Account” has
the meaning set forth in Section 2.1.5(d) hereof.


 


“Loan Date” means the
date of the making of any Line of Credit Loan or Swing Line Loan hereunder.


 


“Loan Parties” means
the Borrower and the Subsidiary Loan Parties.


 


“Margin Accounts”
means, collectively, all Commodity Accounts and all Commodity Contracts
credited thereto.


 


“Matured Default”
means the occurrence or existence of any one or more of the following events: (a) the
Borrower fails to pay any principal or interest pursuant to any of the
Financing Documents at the time such principal or interest becomes due or is
declared due; (b)  the Borrower fails to pay any of the Liabilities (other
than principal and interest) on or before ten (10) days after such
Liabilities become due or are declared due; (c) the Borrower or any of
its  Subsidiaries fails or neglects to
perform, keep or observe any of the covenants, conditions, promises or
agreements contained in Sections 2.2(a), 9.16, 9.17, 9.18,
10.1, 10.2 or 10.4 of this Agreement; (d) the
Borrower or any of its Subsidiaries fails or neglects to perform, keep or
observe any of the covenants, conditions, promises or agreements contained in
this Agreement or in any of the other Financing Documents (other than those
covenants, conditions, promises and agreements referred to or covered in (a), (b) or
(c) above), and such failure continues for more than thirty (30) days
after such failure or neglect first occurs, provided that such grace period
shall not apply, and a Matured Default shall be deemed to have occurred and to
exist immediately if such failure or neglect is material and may not, in the
Agent’s reasonable determination, be cured by the Borrower or its Subsidiaries
during such thirty (30) day grace period; (e) the Borrower or any of its
Subsidiaries directly or indirectly contests in any manner the validity,
binding nature, or enforceability of any Financing Document, or, any Lien
securing any Liabilities; (f) any of the Borrower’s Subsidiaries directly
or indirectly contests in any manner the validity, binding nature, or
enforceability of any of the Intercompany Financing Documents or the assignment
thereof to the Agent; (g) any warranty or representation at any time made
by or on behalf of the Borrower or any of its Subsidiaries in connection with
this Agreement or any of the other Financing Documents is untrue or incorrect
in any material 


 


18

















 


respect,
or any schedule, certificate, statement, report, financial data, notice, or writing
furnished at any time by or on behalf of either the Borrower or any of its
Subsidiaries to the Agent or the Lenders is untrue or incorrect in any material
respect on the date as of which the facts set forth therein are stated or
certified; (h) a judgment in excess of $3,000,000 is rendered against the
Borrower or any of the other Loan Parties and such judgment remains unsatisfied
or undischarged and in effect for forty-five (45) consecutive days without a
stay of enforcement or execution, provided that this clause shall not apply to
any judgment for which the Borrower or any other Loan Party is fully insured
subject only to a deductible not exceeding $500,000, and with respect to which
the insurer has admitted liability in writing for such judgment; (i) all
or any part of the Borrower’s or any other Loan Party’s assets come within the
possession of any receiver, trustee, custodian or assignee for the benefit of
creditors and the same continues for a period of forty-five (45) days; (j) a
proceeding under any bankruptcy, reorganization, arrangement of debt,
insolvency, readjustment of debt or receivership law or statute is filed
against the Borrower or any of the other Loan Parties and such proceeding is
not dismissed within forty-five (45) days of the date of its filing, or a
proceeding under any bankruptcy, reorganization, arrangement of debt,
insolvency, readjustment of debt or receivership law or statute is filed by
either the Borrower or any of the other Loan Parties, or the Borrower or any of
the other Loan Parties applies for, consents to, or acquiesces in, the
appointment of a trustee, receiver, sequestrate, or other custodian for the
Borrower or any of the other Loan Parties or any of their respective property,
or the Borrower or any of the other Loan Parties makes an assignment for the
benefit of creditors; (k) the Borrower or any of the other Loan Parties
becomes insolvent or generally fails to pay, or admits in writing its inability
to pay, debts as they become due; (l) the Borrower or any of the other
Loan Parties voluntarily or involuntarily dissolves or is dissolved, terminates
or is terminated; (m) the Borrower or any of the other Loan Parties is
enjoined, restrained, or in any way prevented by the order of any court or any
administrative or regulatory agency or by the termination or expiration of any
permit or license, from conducting all or any material part of its respective
business affairs; (n) the Borrower or any of the other Loan Parties fails
to make any payment due or otherwise defaults on any other obligation for
borrowed money and the effect of such failure or default is to cause or permit
the holder of such obligation or a trustee to cause such obligation to become
due prior to its date of maturity; (o) the Agent makes an expenditure under
Section 13.3 of this Agreement and such expenditure is not
reimbursed within five (5) Business Days after the Agent notifies the
Borrower of such expenditure; (p) the occurrence of a Change of Control; (q) the
Borrower or any of its Subsidiaries fail to pay any Producer Payables in
accordance with Section 9.13, and such failure continues for a
period of more than three (3) consecutive Business Days; (r) an “event
of default” as defined in the Lease shall occur and the effect is to cause the
Trustee to accelerate the Lease Payments (as defined in the Lease) or act to
dispossess the Borrower and such acceleration or action shall continue without
waiver, cure, rescission or annulment for a period of thirty (30) days; (s) (i) an
ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which
has resulted or could reasonably be expected to result in liability of either
the Borrower or any of its Subsidiaries under Title IV of ERISA to the Pension
Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of
$1,000,000, or (ii) the Borrower or any of its Subsidiaries, or any ERISA
Affiliate of the Borrower or any of its Subsidiaries fails to pay when due,
after the expiration of any applicable grace period, any installment payment
with respect to its withdrawal liability under Section 4201 of ERISA under
a Multiemployer Plan in an aggregate amount in excess of $1,000,000; or (t) at
any time from 


 


19

















 


and
after the consummation of the Permitted IPO, NB, Inc fails to keep or observe
any of the covenants, promises or agreements set forth in the NB, Inc.
Acknowledgment.


 


“Maturity Date” means
the earliest of (a) the date on which the Commitments are terminated in
whole pursuant to Section 11.1, (b) the date on which the
Borrower voluntarily terminates the Commitments in whole and pays the
Liabilities in full, (c) in the case of the Line of Credit Loans, June 4,
2015, (d) in the case of the Term Loans, June 4, 2015, and (e) in
the case of any Swing Line Loan, June 4, 2015, or any earlier Business Day
specified by notice from the Swing Line Lender to the Borrower and the Lenders.


 


“Member” means any
Person who holds directly or indirectly, an ownership interest in the Borrower.


 


“Multiemployer Plan”
means any employee benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to
make contributions, or during the preceding three calendar years, has made or
been obligated to make contributions.


 


“NBC” means National
Beef California, LP, a Delaware limited partnership, and a wholly owned
indirect Subsidiary of the Borrower.


 


“NB, Inc.” means
National Beef, Inc., a Delaware corporation.


 


“NB, Inc.
Acknowledgment” means that certain Acknowledgment by and between NB, Inc.,
and the Agent in form of Exhibit 1D.


 


“NCI” means National
Carriers, Inc., a Kansas corporation, and a wholly owned Subsidiary of the
Borrower.


 


“NCI Leasing” means
NCI Leasing, Inc., a Kansas corporation, and a wholly owned Subsidiary of
NCI.


 


“Net Capital Expenditures”
means, during any period of determination: (a) the Borrower’s consolidated
net property, plant and equipment at the end of such period, less (b) the
Borrower’s consolidated net property, plant and equipment at the beginning of
such period, plus (c) the Borrower’s consolidated depreciation during such
period.


 


“Net Worth” means, as
of any date of determination, (a) the aggregate book value of the assets
of Borrower and its consolidated Subsidiaries as of such date prepared in
accordance with GAAP less (b) Total Liabilities (as defined below).


 


“Non-Material Domestic
Subsidiary” means any Domestic Subsidiary that, together with its
consolidated Subsidiaries, has (a) assets, as of the last day of the Borrower’s
most recently ended fiscal quarter, with a book value of less than 5% of the
total assets of the Borrower and its Subsidiaries on a consolidated basis on
such date and (b) EBITDA, as of the last day of the Borrower’s most
recently ended Fiscal Year, of less than $20,000,000; provided, that, if
the Non-Material Domestic Subsidiaries, taken as a whole, together with the
assets of their respective consolidated Subsidiaries, have assets, as of the
last day of the Borrower’s most recently ended


 


20






 












 


fiscal
quarter, valued at greater than or equal to 10% of the total assets of the
Borrower and its Subsidiaries on a consolidated basis, then the Borrower shall
cause one or more additional Domestic Subsidiaries to become Subsidiary Loan
Parties in accordance with Section 9.19; provided, further,
that if a Non-Material Domestic Subsidiary, together with its consolidated
Subsidiaries, has EBITDA, as of the last day of the Borrower’s most recently
ended Fiscal Year, greater than or equal to $20,000,000, then the Borrower
shall cause such Domestic Subsidiary to become a Subsidiary Loan Party in
accordance with Section 9.19; provided, further, that
in no event shall National Beef Leathers, LLC be or become a Subsidiary Loan
Party, except upon the consent of the Agent. 
As of the Restatement Date, each of National Beef Leathers, LLC, NCI
Leasing, National Elite Transportation LLC, National Beef aLF, LLC and NB
Finance Corp. shall be a Non-Material Domestic Subsidiary.


 


“Non-Use Fee” has the
meaning set forth in Section 6.1 hereof.


 


“Note” or “Notes”
shall mean any one or more of the Line of Credit Notes, the Term Notes and/or
the Swing Line Note, as the context may require.


 


“Owner/Operator Agreement”
means an agreement with an owner-operator of a tractor, for the use of the
tractor, which is cancelable upon not more than ninety days written notice by
either party, which agreement has been or may be considered a lease for
accounting purposes.


 


“Payment in Lieu of Tax
Agreement” means that certain Payment in Lieu of Tax Agreement dated as of December 1,
2004 between the Borrower and the City, together with any and all amendments,
modifications, supplements, renewals or restatements thereof.


 


“PBGC” means the
Pension Benefit Guaranty Corporation.


 


“Pennsylvania Mortgage”
means the Amended and Restated Open-End Mortgage, Assignment of Rents and
Leases, Security Agreement and Fixture Filing between the Borrower and the
Agent, dated December 29, 2004, together with any and all further
amendments, modifications, supplements, renewals or restatements thereof.


 


“Pension Plan” means
any “employee pension benefit plan” (as such term is defined in Section 3(2) of
ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA
and is sponsored or maintained by the Borrower or any ERISA Affiliate or to
which the Borrower or any ERISA Affiliate contributes or has an obligation to
contribute, or in the case of a multiple employer plan (as described in Section 4064(a) of
ERISA) has made contributions at any time during the immediately preceding five
plan years.


 


“Permitted IPO” means
an initial public offering of shares of common stock of NB, Inc. in a
public offering pursuant to an effective registration statement filed with the
SEC in accordance with the Securities Act and on substantially the same terms
and conditions set forth in the Draft Prospectus or otherwise on terms and
conditions satisfactory to the Required Lenders and the Agent; provided,
that (a) no Default or Matured Default shall have occurred or be continuing
or would be caused thereby, (b) the Borrower shall be in pro forma
compliance (based on assumptions and projections acceptable to the Agent) with
the financial covenants set forth in Section 9.16, 9.17 and 9.18
after giving effect thereto, (c) NB, Inc. shall substantially
simultaneously therewith execute and deliver the NB, Inc. Acknowledgment
and Secretary’s 


 


21

















 


Certificates
relating to resolutions, incumbency, etc., (d) all net cash proceeds
thereof (other than any net cash proceeds paid to the Existing Equity Holders)
shall be used to purchase new equity interests in the Borrower and (e) the
Agent shall have received opinions of counsel for NB, Inc. and such other
information, documents, agreements or instruments that the Agent or Agent’s
counsel may reasonably required in connection therewith.


 


“Person” means an
individual, sole proprietorship, partnership, joint venture, trust,
unincorporated organization, association, corporation, limited liability
company, limited liability partnership, institution, joint stock company or
government (whether national, federal, state, provincial, county, city,
municipal or otherwise, including without limitation, any instrumentality,
division, agency, body or department thereof).


 


“Plan” means any “employee
benefit plan” (as such term is defined in Section 3(3) of ERISA)
established by the Borrower or any ERISA Affiliate.


 


“Prime Rate” means a
rate of interest per annum equal to the “prime rate” as published from time to
time in the Eastern Edition of the Wall
Street Journal as the average prime lending rate for seventy-five
percent (75%) of the United States’ thirty (30) largest commercial banks, or if
the Wall Street Journal shall
cease publication or cease publishing the “prime rate’’ on a regular basis,
such other regularly published average prime rate applicable to such commercial
banks as is acceptable to the Administrative Agent in its reasonable
discretion.


 


“Pro Rata Percentage”
means with respect to any Lender at any time, a fraction (expressed as a
percentage), the numerator of which shall be the aggregate amount of the
Commitments of such Lender under the applicable Facility or Facilities at such
time, and the denominator of which shall be the aggregate Commitments of all of
the Lenders under the applicable Facility or Facilities at such time; provided,
that if the commitment of each lender to make Loans and the obligation of the
Issuer to issue, extend, renew or increase any LCs have been terminated pursuant
to Section 11.1, then the Pro Rata Percentage of each Lender shall
be determined based on the Pro Rata Percentage of such Lender immediately prior
to such termination and after giving effect to any subsequent assignments made
pursuant to the terms hereof.


 


“Producer Payables”
means with respect to any Person, all amounts at any time payable by such
Person for the purchase of cattle, feed, grain or other farm products.


 


“Rabobank” means
Coöperatieve Centrale Raiffeisen - Boerenleenbank, B.A., “Rabobank Nederland”,
New York Branch.


 


“Reportable Event”
means any of the events set forth in Section 4043(c) of ERISA, other
than events for which the 30 day notice period has been waived.


 


“Required Lenders”
means, at any time, Lenders having aggregate Total Percentages of at least 51%.


 


“Restatement Date”
means the date on or as of which the conditions precedent set forth in Section 8.1
hereof are completed to the Agent’s satisfaction.


 


22

















 


“Securities Act” has
the meaning set forth in Section 13.20 hereof.


 


“Security Agreement”
means that certain Amended and Restated Security Agreement dated as of even
date herewith, executed by the Borrower and certain of its Subsidiaries in
favor of the Agent, together with any and all amendments, modifications,
supplements, renewals or restatements thereof.


 


“Security Documents”
means the Security Agreement, the Guaranty Agreement, the Bond Pledge
Agreement, the Trademark License, the Kansas Mortgage, the Pennsylvania
Mortgage, the Georgia Mortgage, the letter agreement dated May 30, 2006,
pursuant to which the Borrower (in its capacity as a limited partner of NBC)
consented, among other things, to NCI’s pledge to the Borrower of NCI’s general
partnership interest in NBC, the Assignment dated as of May 30, 2006 of
the Deed of Trust, Assignment of Rents and Leases, Security Agreement and
Fixture Filing from NBC to the Borrower dated as of May 30, 2006, as each
may be amended, modified, renewed or extended from time to time in accordance
with this Agreement, and any and all other agreements, chattel mortgages,
security agreements, pledges, guaranties, assignments of proceeds, assignments
of contract rights, assignments of partnership interest, assignments of
performance or other collateral assignments, trademark license agreements,
completion or surety bonds, standby agreements, subordination agreements,
undertakings and other similar documents, agreements, instruments and financing
statements at any time executed and delivered by the Borrower or a third Person
in connection with, or as security for the payment or performance of, any of
the Liabilities.


 


“Specified Class A-1
Units” means up to $75,484,071 of the Class A-1 Units issued by
Borrower in April 2009 (as increased by the amount of any payment in kind
notes issued in lieu of cash distributions).


 


“Subsidiary” means,
with respect to any Person, a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of
securities or other interests having ordinary voting power for the election of
directors or other governing body (other than securities or interests having
such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise controlled,
directly, or indirectly through one or more intermediaries, or both, by such
Person.


 


“Subsidiary Loan Parties”
means each of the Borrower’s direct and indirect Subsidiaries that become party
to this Agreement and the Security Agreement as a Subsidiary Loan Party
pursuant to the terms of Section 9.19 and the permitted successors
and assigns of each such Person; it being understood and agreed that no Foreign
Subsidiary or Non-Material Domestic Subsidiary shall be required to be a
Subsidiary Loan Party and, so long as the grant of a security interest and the
guarantee of the Borrower’s Indebtedness hereunder shall be limited by KC Steak’s
constituent documents or the applicable minority interest holder, KC Steak
shall not be required to be a Subsidiary Loan Party.


 


“Swap Contract” means
(a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond or
bond price or bond index swaps or options or forward bond or forward bond price
or forward bond index 


 


23

















 


transactions,
interest rate options, forward foreign exchange transactions, cap transactions,
floor transactions, collar transactions, currency swap transactions,
cross-currency rate swap transactions, currency options, spot contracts, or any
other similar transactions or any combination of any of the foregoing (including
any options to enter into any of the foregoing), whether or not any such
transaction is governed by or subject to any master agreement, but excluding
any futures or options contracts credited to any Margin Account, and (b) any
and all transactions of any kind, and the related confirmations, which are
subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association, Inc.,
the Bond Markets Association, any International Foreign Exchange Master
Agreement, or any other master agreement reasonably acceptable to the Agent
(any such master agreement, together with any related schedules, a “Master
Agreement”), including any such obligations or liabilities under any Master
Agreement.


 


“Swap Party” means
any Lender (or affiliate thereof) that is a party to a Swap Contract with the
Borrower.


 


“Swing Line” means
the revolving credit facility made available by the Swing Line Lender pursuant
to Section 2.1.3.


 


“Swing Line Lender”
means CoBank in its capacity as provider of Swing Line Loans, or any successor
swing line lender hereunder.


 


“Swing Line Loan” has
the meaning specified in Section 2.1.3 hereof.


 


“Swing Line Note” has
the meaning set forth in Section 2.1.3 hereof.


 


“Swing Line Sublimit”
means an amount equal to the lesser of (a) $30,000,000 and (b) the
Line of Credit Loan Commitments.  The
Swing Line Sublimit is a part of, not an addition to, the Line of Credit Loan
Commitments.


 


“Synthetic Lease
Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an
agreement for the use or possession of property creating obligations that do
not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of
such Person (without regard to accounting treatment).


 


“Taxes” has the
meaning set forth in Section 5.5(a) and (b) hereof.


 


“Term Loan” has the
meaning set forth in Section 2.1.2 hereof.


 


“Term Loan Commitment”
means as to any Lender, such Lender’s obligation to make Term Loans, or
additional Term Loans, as the case may be up to its Pro Rata Percentage of
$375,000,000, as set forth opposite such Lender’s name under the heading “Term
Loan Commitments” on Exhibit 1A, subject to Assignments and
Acceptances executed and delivered in accordance with Section 13.23,
and as such amount may be reduced or terminated from time to time pursuant to Section 4.5
or 11.1; and “Term Loan Commitments” means, collectively, the Term Loan
Commitments for all the Lenders that have a Term Loan Commitment.


 


24

















 


“Term Loan Facility”
means, at any time, (a) prior to the one-year anniversary of the Closing
Date, the aggregate amount of the Lenders’ Term Loan Commitments and (b) thereafter,
the aggregate Term Loans of all Lenders at such time.


 


“Term Notes” has the
meaning set forth in Section 2.1.2 hereof.


 


“Total Liabilities”
means, as of any date of determination, all obligations of Borrower and its
consolidated Subsidiaries required by GAAP to be classified as liabilities upon
the balance sheet of such persons, including the aggregate amount of all
Indebtedness, liabilities (including tax and other proper accruals) and
reserves of such persons.


 


“Total Percentage”
means with respect to any Lender at any time, a fraction (expressed as a
percentage), the numerator of which shall be the combined amount of (a) such
Lender’s outstanding Term Loan principal balance, (b) and such Lender’s
outstanding Term Loan Commitment, and (c) such Lender’s Line of Credit
Loan Commitment (or, if such Lender’s Line of Credit Loan Commitment shall have
expired, the aggregate outstanding principal balance of such Lender’s Line of
Credit Loans, Swing Line Loans and LC Obligations) at such time, and the
denominator of which shall be the combined amount of all the outstanding Term
Loan principal balances, Term Loan Commitments and Line of Credit Loan
Commitments (or, if the relevant Lenders’ Line of Credit Loan Commitments shall
have expired, the aggregate outstanding principal balance of such Lenders’ Line
of Credit Loans, Swing Line Loans and LC Obligations) of all the Lenders at
such time.


 


“Trademark License”
means the Fourth Amended and Restated Trademark License Agreement dated as of December 29,
2004 between the Borrower and the Agent, together with any and all amendments,
modifications, supplements, renewals or restatements of such agreement.


 


“Type” means, with
respect to any Advance, whether such Advance is a Base Rate Advance or a LIBOR
Rate Advance.


 


“UCP” has the meaning
set forth in Section 2.2(c) hereof.


 


“Unfunded Pension
Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16)
of ERISA, over the current value of that Pension Plan’s assets, determined in
accordance with the assumptions used for funding the Pension Plan pursuant to Section 412
of the Code for the applicable plan year.


 


“Unhedged Cattle” has
the meaning set forth in Section 10.19 hereof.


 


“Upfront Fee” has the
meaning set forth in Section 6.3 hereof.


 


“US Premium Beef”
means U.S. Premium Beef, LLC, a Delaware limited liability company.


 


3.             Accounting Terms.  Any accounting terms used in this Agreement
which are not specifically defined in this Agreement shall have the meanings
customarily given them in accordance with GAAP. 
Except as otherwise expressly provided herein, all terms of an 


 


25

















 


accounting
or financial nature shall be construed in accordance with GAAP, as in effect
from time to time; provided, that, if the Borrower notifies the Agent
that the Borrower requests an amendment to any provision hereof to eliminate
the effect of any change occurring after the date hereof in GAAP or the
methodologies utilized thereunder or in the application thereof on the
operation of such provision (or if the Agent notifies the Borrower that the
Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or the application thereof, then the Agent and the Borrower
shall negotiate in good faith to amend such provision to preserve the original
intent thereof in light of such change (subject to the approval of the Required
Lenders); provided, further, until so amended, (a) such
provision shall continue to be computed in accordance with GAAP as in effect
prior to such change and (b) the Borrower shall provide to the Agent and
the Lenders financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculation of such provision both before and after giving effect to
such change.


 


ARTICLE
II

LOANS, SWING LINE AND LETTERS OF CREDIT


 


1.             Loan Facilities.


 


2.1.1       Line of Credit.  Each Lender severally agrees to make loans
(each a “Line of Credit Loan” and collectively, the “Line of Credit
Loans”) to the Borrower from time to time on any one or more Business Days
from and after the Restatement Date (through the Agent as set forth in Section 2.1.4)
to but excluding the Maturity Date applicable to Line of Credit Loans, during
which period the Borrower may borrow, repay and re-borrow in accordance with
the provisions hereof up to an aggregate principal amount not exceeding each
such Lender’s Pro Rata Percentage of the Available Amount on such Business Day,
in aggregate amounts up to the lesser of the Available Amount or the
then-current Borrowing Base Availability (the “Line of Credit”).  The Borrower hereby acknowledges that
$7,000,000.00 of “Line of Credit Advances” and $30,000,000.00 of “Regular Swing
Line Loans” under the Existing Credit Agreement are outstanding as of the date
hereof, which shall be deemed to be Line of Credit Loans or Swing Line Loans
under this Agreement on and after the Restatement Date. Line of Credit Loans
may be made as LIBOR Rate Advances or Base Rate Advances.  The Line of Credit Loans shall be evidenced
by and repayable in accordance with the terms of the Borrower’s promissory
notes to each of the Lenders (as the same may be amended, supplemented or
otherwise modified from time to time, together with any replacements thereof or
substitutions therefor, the “Line of Credit Notes”), the form of which
is attached as Exhibit 2A. 
The Lenders, in their unanimous, sole and absolute discretion, may elect
to make Line of Credit Loans to the Borrower in excess of the amounts available
pursuant to the terms of this Agreement, and any such Line of Credit Loans
shall also be governed by the terms hereof. The Lenders shall also have the
option, in their unanimous, sole discretion and without any obligation to do
so, to extend the Maturity Date applicable to the Line of Credit Loans.  In the event that the Lenders elect to extend
such Maturity Date, the Agent shall give notice to the Borrower pursuant to Section 13.18.


 


2.1.2       Term Loan.  The Borrower acknowledges that, as of the
date hereof, term loans are outstanding under this Section 2.1.2
and owed by the Borrower in the aggregate principal amount of
$228,801.167.00.  Each Lender with a Term
Loan Commitment as set for on Exhibit 


 


26

















 


1A severally agrees to make up to three (3) loans
to the Borrower from time to time on any one or more Business Days from (and
including) the Restatement Date (through the Agent as set forth in Section 2.1.4)
to but excluding the one-year anniversary of the date hereof, during which
period the Borrower may borrow, up to an aggregate principal amount not
exceeding each such Lender’s Pro Rata Percentage of the Term Loan Commitments
on such Business Day, in aggregate amounts up to the Term Loan
Commitments.  Each Lender’s allocation of
term loans as of the date hereof together with term loans thereafter made under
this Section 2.1.2 is herein collectively called such Lender’s “Term
Loan”, and all such loans of all of the Lenders are herein collectively
called the “Term Loans”.  The Term
Loans may be maintained as LIBOR Rate Advances or Base Rate Advances.  The Term Loans shall be evidenced by and
repayable in accordance with the terms of the Borrower’s promissory notes to
each of the Lenders (as the same may be amended, supplemented or otherwise
modified from time to time, together with any replacements thereof or
substitutions therefor, the “Term Notes”), the form of which is attached
as Exhibit 2B.  Amounts
representing Term Loans which have been repaid by the Borrower may not be
reborrowed.


 


2.1.3       Swing Line
Loans.


 


(a)           The Swing Line Lender agrees to make
loans (each a “Swing Line Loan” and collectively, the “Swing Line
Loans”) to the Borrower from time to time on any one or more Business Days
from and after the Restatement Date through the Maturity Date applicable to the
Line of Credit Loans.  The aggregate
outstanding principal amount of Swing Line Loans must not at any time exceed
the Swing Line Sublimit, and no Swing Line Loans may be made to the extent that
the sum of (i) the aggregate outstanding principal amount of the Line of
Credit Loans, (ii) the aggregate outstanding amount of the LC Obligations
and (iii) the aggregate outstanding principal amount of all Swing Line
Loans would exceed either the Borrowing Base or the aggregate Line of Credit
Loan Commitments.  All Swing Line Loans
shall bear interest as if they were Base Rate Advances; provided, however,
that Swing Line Loans that are disbursed and repaid on the same day shall bear
one day’s interest. Within the foregoing limits, and subject to the other terms
and conditions hereof, the Borrower may borrow, repay and reborrow in
accordance with the terms hereof and prepay in accordance with Section 4.2,
provided, however, that the Swing Line Lender may terminate or
suspend its commitment to make the Swing Line Loans at any time in its sole
discretion upon notice to the Borrower. 
The Swing Line Loans shall be evidenced by and repayable in accordance
with the terms of the Borrower’s promissory note to the Swing Line Lender (as
the same may be amended, supplemented or otherwise modified from time to time,
together with any replacements thereof or substitutions therefor, the “Swing
Line Note”), the form of which is attached as Exhibit 2C.  Immediately upon the making of a Swing Line
Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from Swing Line Lender a risk participation
in such Swing Line Loan in an amount equal to such Lender’s Pro Rata Percentage
of such Swing Line Loan, which risk participation shall be funded in accordance
with Section 2.1.3(b). The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to Swing
Line Lender.


 


27

















 


(b)           Refinancing of Swing Line Loans.


 


(i)            In anticipation of the Maturity Date
applicable to a Swing Line Loan, or after the occurrence and during the
continuance of any Default or Matured Default, as the case may be, the Swing
Line Lender may request, on behalf of the Borrower (which hereby irrevocably
requests the Swing Line Lender to act on its behalf), that each Lender make a
Line of Credit Loan in an amount equal to such Lender’s Pro Rata Percentage of
the amount of such Swing Line Loan. Such request shall be made in accordance
with the requirements of Article II, without regard to the minimum
and multiples specified therein for the principal amount of Base Rate
Advances.  The Swing Line Lender shall
furnish the Borrower with a copy of the applicable borrowing notice promptly
after delivering such notice to the Agent. 
Each Lender shall make an amount equal to its Pro Rata Percentage of the
amount specified in such borrowing notice available to the Agent in immediately
available funds for the account of the Swing Line Lender at the Agent’s office
not later than 11:00 a.m., Denver time, on the day specified in such
borrowing notice, whereupon, subject to clause (ii) below, each
Lender that so makes funds available shall be deemed to have made a Line of
Credit Loan to the Borrower in such amount. 
The Agent shall then remit the funds so received to the Swing Line
Lender.


 


(ii)           If for any reason any Advance cannot
be requested in accordance with clause (i) above or any Swing Line
Loan cannot be refinanced by such an Advance, the borrowing notice submitted by
the Swing Line Lender shall be deemed to be a request by the Swing Line Lender
that each of the Lenders fund its participation in the relevant Swing Line
Loan, and each Lender’s payment to the Agent for the account of the Swing Line
Lender pursuant to clause (i) above shall be deemed to be the
payment in respect of such participation.


 


(iii)          If any Lender fails to make available
to the Agent for the account of the Swing Line Lender any amount that such
Lender is required to pay pursuant to the foregoing provisions of this subsection
(b) by the time specified in clause (i) above, the Swing
Line Lender shall be entitled to recover from such Lender (acting through the
Agent), on demand, such amount with interest thereon for the period from the
date such payment is required to the date on which such payment is immediately
available to the Swing Line Lender at a rate per annum equal to the Federal
Funds Rate from time to time in effect. 
A certificate of the Swing Line Lender submitted to any Lender (directly
or through the Agent) with respect to any amounts owing under this clause (iii) shall
be conclusive absent manifest error.


 


(iv)          Each Lender’s obligation to make Line
of Credit Loans or to purchase and fund participations in Swing Line Loans
pursuant to this subsection (b) shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the Swing Line Lender, the Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default or Matured
Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing.  Any
such purchase 


 


28

















 


of participations shall not
relieve or otherwise impair Borrower’s obligation to repay the Swing Line
Loans, together with interest as provided herein.


 


(c)           Repayment of Participations.


 


(i)            At any time after any Lender has
purchased and funded a participation in a Swing Line Loan, if the Swing Line
Lender receives any payment on account of such Swing Line Loan, Swing Line
Lender will distribute to such Lender its share of such payment in accordance
with such Lender’s Pro Rata Percentage (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s
participation was outstanding and funded) in the same funds as those received
by the Swing Line Lender.


 


(ii)           If any payment received by Swing Line
Lender in respect of any Swing Line Loan is required to be returned by the
Swing Line Lender, each Lender shall pay to the Swing Line Lender its Pro Rata
Percentage thereof on demand of the Swing Line Lender (or the Agent on its
behalf), plus interest thereon from the date of such demand to the date such
amount is returned, at a rate per annum equal to the Federal Funds Rate.  The Agent will make such demand upon the
request of the Swing Line Lender.


 


2.1.4       Borrowing
Procedures.


 


(a)           Procedure for Line of Credit Loans.  Any request by the Borrower for Line of
Credit Loans hereunder must be given by the Borrower not later than 11:00 a.m.
(Denver time) on the third Business Day prior to the date of any proposed LIBOR
Rate Advance and not later than 1:00 p.m. (Denver time) on the Business
Day prior to the date any Base Rate Advance is proposed to be made.  Each request for Line of Credit Loans
hereunder shall be irrevocable and shall be deemed to be a representation by the
Borrower that on the requested Loan Date and after giving effect to the
requested Line of Credit Loans the applicable conditions specified in Article VIII
have been and will be satisfied.  Each
request for a Line of Credit Loan hereunder shall specify (i) the
requested Loan Date, (ii) the aggregate amount of the Line of Credit Loan
to be made on such date, which shall be in a minimum amount of $1,000,000 and
an integral multiple of $500,000, (iii) whether such Line of Credit Loans
is to be funded as a Base Rate Advances or LIBOR Rate Advances and (iv) in
the case of a LIBOR Rate Advance, the duration of the initial Interest Period
applicable thereto. Not later than 4:00 p.m. (Denver time) on the Business
Day a receipt of such notice is received from the Borrower, the Agent shall
advise each Lender of the requested Line of Credit Loans and of such Lender’s
ratable share of such Loans.  At or
before 10:00 a.m. (Denver time) on the date of the requested Line of
Credit Loans, each relevant Lender shall provide the Agent at the Agent’s
principal office in Denver with immediately available funds covering such
Lender’s Pro Rata Percentage of the requested Loans.  Unless the Agent determines that any
applicable condition specified in Article VIII has not been
satisfied or waived, the Agent will make available to the Borrower at the Agent’s
principal office in Denver, Colorado in immediately available funds not later
than 12:00 noon (Denver 


 


29

















 


time) on the requested Loan
Date the amount of the requested Line of Credit Loans to the extent received by
the Agent.  In accordance with Section 2.1.5(c) the
Agent shall not be obligated to provide funds to the Borrower that are not
provided to the Agent in accordance with this Section 2.1.4(a).


 


(b)           Procedure for Term Loans.  Any request by the Borrower for Term Loans
hereunder shall be made in accordance with the same procedure as required for
Line of Credit Loans as set forth in the preceding subsection (a).


 


(c)           Procedure for Swing Line Loans.  Unless the Swing Line Lender has notified the
Borrower that the Swing Line has been terminated or suspended as provided in Section 2.1.3,
each request by the Borrower for a Swing Line Loan hereunder must be given by
the Borrower to the Swing Line Lender and the Agent not later than 1:00 p.m.
(Denver time) on the Business Day on which such Swing Line Loan is proposed to
be made.  Each request for a Swing Line
Loan hereunder shall be irrevocable and shall be deemed a representation by the
Borrower that on the requested Loan Date and after giving effect to the
requested Swing Line Loan the applicable conditions specified in Article VIII
have been and will be satisfied.  Each
request for a Swing Line Loan hereunder shall specify (i) the requested
Loan Date, (ii) the amount of the Swing Line Loan to be made on such date,
which shall be in a minimum amount of $100,000 and an integral multiple of
$100,000.  Unless the Swing Line Lender
has received written notice from the Agent (i) directing the Swing Line
Lender not to make such Swing Line Loan as a result of the limitations set
forth in the first proviso to the first sentence of Section 2.1.3(a) or
(ii) that any applicable condition specified in Article VIII
has not been satisfied or waived, the Agent will make available to the Borrower
at the Agent’s principal office in Denver, Colorado in immediately available
funds not later than 2:30 p.m. (Denver time) on the requested Loan Date
the amount of the requested Swing Line Loans to the extent received from the
Swing Line Lender.


 


(d)           Notices.  All notices of the Borrower required under Section 2.1.4
shall be from such natural Persons as have been designated in a written notice
signed by the president, chief executive officer or chief financial officer of
the Borrower.  Such notice shall provide
the Agent and Swing Line Lender with a specimen signature for each such natural
Person so designated.  The natural
Persons so designated are authorized to request Loans and Swing Line Loans and
direct the disposition of any such Loans and Swing Line Loans until written
notice of the revocation of such authority is received by the Agent at its
address designated below.  Any such Loans
or Swing Line Loans shall be conclusively presumed to have been made to or for
the benefit of the Borrower when the Agent reasonably believes in good faith
that such notice was made by authorized Persons, or when said Loans are
deposited to the credit of the account of the Borrower regardless of the fact
that Persons other than those authorized hereunder may have authority to draw
against such account.


 


2.1.5       General Terms
regarding the Notes, the Loans and the Swing Line Loans.


 


(a)           The Agent shall promptly notify each
Lender of any notice that the Agent receives from the Borrower pursuant to Section 3.2.  In the case of a proposed LIBOR


 


30
















 


Rate Advance, the Agent
shall also promptly notify each Lender of the applicable interest rate.


 


(b)           Unless the Agent shall have received
notice from a Lender prior to the date of any borrowing of a Loan that such
Lender will not make available to the Agent such Lender’s pro rata share of
such Loan, the Agent may assume that such Lender will make such portion
available to the Agent in accordance with Section 2.1.3 and the
Agent may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such Lender shall
not have so made its pro rata share available to the Agent in accordance with Section 2.1.3,
such Lender and the Borrower severally agree to repay to the Agent, within five
(5) Business Days after demand therefor, such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the Agent, (i) in
the case of the Borrower, at the interest rate applicable at the time the Loans
comprising such borrowing were made, and (ii) in the case of such Lender,
at the Federal Funds Rate.  If such
Lender shall repay to the Agent such corresponding amount, such amount so
repaid shall constitute such Lender’s Loan as part of such borrowing for
purposes of this Agreement.


 


(c)           The failure of any Lender to make any
Loan or to fund any participation to be made by it as required by this
Agreement shall not relieve any other Lender of its obligation, if any, to make
its Loan on the date the same is required to be made, but no Lender shall be
responsible for the failure of any other Lender to make Loans or to fund such
other Lender’s participation.


 


(d)           The Agent shall maintain a loan
account (“Loan Account”) on its books in which the Agent will record the
date and amount of: (i) all Loans and Swing Line Loans to the Borrower
pursuant to this Agreement; (ii) all payments made by the Borrower on all
Loans and Swing Line Loans; and (iii) all other appropriate debits and
credits as provided in this Agreement, including without limitation, all fees,
charges, expenses and interest.  All
entries in the Borrower’s Loan Account shall be made in accordance with the
Agent’s customary accounting practices as in effect from time to time.  The balance in the Borrower’s Loan Account,
as set forth on the Agent’s most recent printout, shall be rebuttable
presumptive evidence of the amounts due and owing to the Agent, the Lenders,
the Swing Line Lender and the Issuers by the Borrower.


 


(e)           The proceeds of all Loans and Swing
Line Loans shall be used (i) to refinance the Indebtedness under the
Existing Credit Agreement, (ii) to pay fees and expenses incurred in
connection with this Agreement and (iii) for the Borrower’s working capital
and general corporate purposes, including financing acquisitions as permitted
hereunder, making capital expenditures within the limitation set forth herein
and making Equity Distributions pursuant to the $150 Million Basket.


 


2.             Letters of
Credit.


 


(a)           Subject to the terms and conditions
of this Agreement, the Borrower may from time to time request that an Issuer
issue LCs for the Borrower’s account for any 


 


31

















 


purpose acceptable to the
Agent in its reasonable discretion; provided, however, that no
Issuer shall issue any such LC in an amount exceeding the least of: (i) $75,000,000
minus the LC Obligations; (ii) the Available Amount or (iii) the
Borrowing Base Availability.  The
proposed expiry date for any such LC shall not be later than the earlier of one
year from the date of issuance of such LC or the scheduled Maturity Date
applicable to the Line of Credit Loans. 
The Borrower hereby acknowledges that LCs in the face amounts set forth
on Exhibit 1E are outstanding under the Existing Credit Agreement
as of the date hereof, and shall be deemed to be LCs under this Agreement on
and after the Restatement Date.


 


(b)           In order to effect the issuance of
each LC, the Borrower shall deliver to the Agent and the relevant Issuer a
letter of credit application (the “Application”) not later than 11:00 a.m.
(Denver time), five (5) Business Days prior to the proposed date of
issuance of the LC. The Application shall be duly executed by a responsible
officer of the Borrower, shall be irrevocable and shall (i) specify the
day on which such LC is to be issued (which shall be a Business Day), and (ii) be
accompanied by a certificate executed by a responsible officer setting forth
calculations evidencing availability for the LC as required pursuant to Section 2.2(a) and
stating that all conditions precedent to such issuance have been satisfied.


 


(c)           Upon receipt of the Application, and
satisfaction of the applicable terms and conditions of this Agreement, and
provided that no Default or Matured Default exists, or would, after giving
effect to the issuance of the LC, exist, the relevant Issuer shall issue such
LC no later than the close of business, in Denver, Colorado, on the date so
specified. Such Issuer shall provide the Borrower, the Agent and each Lender
with a copy of the LC which has been issued. Each LC shall (i) provide for
the payment of drafts presented for honor thereunder by the beneficiary in
accordance with the terms thereof, when such drafts are accompanied by the
documents described in the LC, if any, and (ii) to the extent not
inconsistent with the express terms hereof or the applicable Application, be
subject to the Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500 and/or
the International Standby Practices (ISP98), International Chamber of Commerce
Publication No. 590, as the relevant Issuer shall determine to be
applicable (collectively, together with any subsequent revisions thereof
approved by a Congress of the International Chamber of Commerce and adhered to
by the relevant Issuer, the “UCP”), and shall, as to matters not
governed by the UCP, be governed by, and construed and interpreted in
accordance with, the laws of the State of Colorado (in the case of CoBank) or
the State of New York (in the case of Rabobank).


 


(d)           Upon the issuance date of each LC,
the relevant Issuer shall be deemed, without further action by any party
hereto, to have sold to each other Lender, and each other Lender shall be
deemed, without further action by any party hereto, to have purchased from such
Issuer, a participation, to the extent of such Lender’s Pro Rata Percentage, in
such LC, the obligations thereunder and in the Borrower’s reimbursement obligations
due in respect of drawings made under such LC. If requested by such Issuer, the
other Lenders will execute any other documents reasonably requested by such
Issuer to evidence the purchase of such participation.


 


32

















 


(e)           Upon the relevant beneficiary’s
presentation of a draft for honor under any LC which the relevant Issuer has
determined is in compliance with the conditions for payment thereunder, such
Issuer shall promptly notify the Borrower and the Agent. Each drawing under any
LC shall (so long as no Default or Matured Default shall have occurred and be
continuing) constitute a request by the Borrower to the Agent for a borrowing
pursuant to Section 2.1.1 of a Base Rate Advance in the amount of
such drawing. If a Default or Matured Default shall have occurred and be
continuing, or if Base Rate Advances are otherwise unavailable to the Borrower,
at the time when a beneficiary presents a draft for payment under an LC, the
Borrower agrees to reimburse the relevant Issuer for the amount of such draft
immediately upon such presentation.


 


(f)            The Borrower’s obligation to
reimburse the relevant Issuer for the amount of any draft drawn under any LC
(whether directly or with the proceeds of a Base Rate Advance) shall be
absolute, unconditional and irrevocable and shall be paid immediately to the
Agent for the account of the Lenders upon demand by the Agent, and otherwise
strictly in accordance with the terms of this Agreement, under all
circumstances whatsoever, including without limitation, the following
circumstances:


 


(i)            The existence of any claim, set-off,
defense or other rights which the Borrower may have at any time against any
beneficiary or any transferee of any LC (or any Person for whom any such beneficiary
or any such transferee may be acting), any Issuer, any Lender, the Agent or any
other Person, whether in connection with this Agreement, any other Financing
Document, the transactions contemplated herein or therein or any unrelated
transaction, unless otherwise provided by the terms of such LC;


 


(ii)           Any statement or any other document
presented under any LC proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect;


 


(iii)          Payment by the relevant Issuer under
any LC against presentation of a draft or certificate which does not comply
with the terms of such LC, provided however, that such payment shall not have
constituted gross negligence or willful misconduct on the part of such Issuer;
and


 


(iv)          Any other circumstance or event
whatsoever, whether or not similar to the foregoing, provided however, that
such other circumstance or event shall not have been the result of gross
negligence or willful misconduct of the relevant Issuer.


 


(g)           The Borrower assumes all risks of the
acts or omissions of the beneficiary and any transferee of each LC with respect
to its use of such LC.  Neither the
Agent, any Issuer nor any Lender shall be liable or responsible for, and the
Borrower indemnifies and holds each Issuer, the Agent and each Lender harmless
for: (i) the use which may be made of any LC or for any acts or omissions
of the beneficiary and any transferee thereof in connection therewith, or (ii) the
validity or genuineness of documents, or of any endorsement(s) thereon,
even if such documents should, in fact 


 


33

















 


prove to be in any or all
respects invalid, fraudulent or forged, or any other circumstances whatsoever
in making or failing to make payment, against the relevant Issuer, the Agent or
any Lender, except damages determined to have been caused by gross negligence
or willful misconduct of the relevant Issuer in determining whether documents
presented under an LC comply with the terms of such LC and there shall have
been a wrongful payment as a result thereof; provided, however,
that it is the intention of the Borrower to indemnify each Issuer, the Agent
and each Lender for its own negligence, other than negligence constituting
gross negligence or willful misconduct. In furtherance and not in limitation of
the foregoing, each Issuer may accept documents that appear on their face to be
in order, without responsibility for investigation, regardless of any notice or
information to the contrary.


 


(h)           In the event that any provision of an
Application is inconsistent, or in conflict with, any provision of this
Agreement, including provisions for the rate of interest applicable to draws
thereunder, delivery of collateral or rights of set-off or any representations,
warranties, covenants or any events of default set forth therein, the
provisions of this Agreement shall govern.


 


ARTICLE
III

INTEREST


 


1.             Interest.


 


The Borrower shall pay interest on the unpaid principal amount of each
Loan and Swing Line Loan made by each Lender from the date of such Loan or
Swing Line Loan until such principal amount shall be paid in full, at the times
and at the rates per annum set forth below:


 


(a)           Base Rate Advances and Swing Line
Loans, so long as no Matured Default has occurred and is continuing, shall bear
interest at a rate per annum equal to the lesser of (i) the sum of the
Base Rate in effect from time to time plus the then Applicable Margin
(calculated according to the Borrower’s actual Financial Performance Level) and
(ii) the Highest Lawful Rate; provided, however, that with
respect to each Base Rate Advance, the rate of interest accruing shall change
concurrently with each change in the Prime Rate as announced by CoBank or with
each change in the Federal Funds Rate, as the case may be.  Such interest shall be payable (1) in
the case of a Swing Line Loan, monthly in arrears on the first day of each
month and on the Maturity Date applicable thereto, and (2) in the case of
other Base Rate Advances, monthly in arrears on the first day of each month and
on the Maturity Date applicable thereto.


 


(b)           Each LIBOR Rate Advance, so long as
no Matured Default has occurred and is continuing, shall bear interest at a
rate per annum during each day of each Interest Period for such Advance equal
to the lesser of (i) the sum of the LIBOR Rate for such Interest Period
for such Advance plus the then Applicable Margin (calculated according to the
Borrower’s actual Financial Performance Level) and (ii) the Highest Lawful
Rate.  Such interest shall be payable in
arrears on the last day of the relevant Interest Period, 


 


34

















 


and, if such Interest Period
exceeds three months, the day which is three months after the date on which the
relevant LIBOR Rate Advance was disbursed.


 


(c)           After the occurrence of a Matured
Default and for so long as such Matured Default is continuing, the Agent may
(upon the direction of the Required Lenders) notify the Borrower that any and
all amounts due hereunder, under the Notes or under any other Financing
Document, whether for principal, interest (to the extent permitted by
applicable law), fees, expenses or otherwise, shall bear interest, from the
date of such notice by the Agent and for so long as such Matured Default
continues, payable on demand, at a rate per annum (the “Default Rate”)
equal to the lesser of (A) with respect to a Base Rate Advance, (i) the
sum of two percent (2.0%) per annum plus the Base Rate in effect from time to
time plus the Applicable Margin or (ii) the Highest Lawful Rate; or (B) with
respect to a LIBOR Rate Advance, (i) during the Interest Period in which
the Matured Default has occurred, the sum of two percent (2.0%) per annum plus
the LIBOR Rate then in effect for such LIBOR Rate Advance plus the Applicable
Margin, and in Interest Periods subsequent to that in which the Matured Default
occurred, the Default Rate applicable to a Base Rate Advance as calculated
under (A) hereof, or (ii) the Highest Lawful Rate.


 


(d)           All computations of interest pursuant
to Section 3.1(a) shall be made by the Swing Line Lender or
the Agent, each, as the case may be, by reference to the actual number of days
elapsed based on a year of 360 days (in the case of fees and of LIBOR Rate
Advances) or 365 or 366 days (in the case of Base Rate Advances), as
applicable. Each determination of an interest rate by the Agent or the Swing
Line Lender shall be conclusive and binding for all purposes, absent manifest
error.  Any accrued interest unpaid on
the Maturity Date shall be due and payable on the Maturity Date.


 


(e)           The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line
Loans.  Until each Lender funds its Line
of Credit Loan or participation pursuant to Section 2.1.3 to refinance
such Lender’s Pro Rata Percentage of any Swing Line Loan, interest in respect
of such Swing Line Loan shall be solely for the account of the Swing Line
Lender.


 


2.             Voluntary
Conversion of Advance.


 


With respect to Loans, the
Borrower may, upon written notice given by the Borrower to the Agent not later
than 11:00 a.m. (Denver time) on the third Business Day prior to the date
of any proposed interest conversion or roll over, (a) convert Advances of
one Type into Advances of another Type, or (b) continue or roll over
existing LIBOR Rate Advances; provided, however, that (i) with
respect to any conversion into or roll over of a LIBOR Rate Advance, no Default
or Matured Default shall have occurred and be continuing, (ii) with
respect to any facsimile notice of interest conversion, the Borrower shall
promptly confirm such notice by sending the original notice to the Agent and (iii) any
continuation or roll over of a LIBOR Rate Advance for the same or a different
Interest Period or into a Base Rate Advance, shall be made on, and only on, the
last day of an Interest Period for such LIBOR Rate Advance.  Each such notice of interest conversion shall
specify therein the requested (x) date of such conversion, (y) the
Advances to be converted and whether such Advances constitute LIBOR Rate
Advances, and (z) if such interest conversion 


 


35

















 


is
into LIBOR Rate Advances, the duration of the Interest Period for each such
Advance.  The Agent shall promptly
deliver a copy thereof to each Lender. Each such notice shall be irrevocable
and binding on the Borrower.  If the
Borrower shall fail to give a notice of interest conversion with respect to any
LIBOR Rate Advance as set forth above, such Advance shall automatically convert
to a Base Rate Advance on the last day of the Interest Period with respect
thereto.  The provisions of this Section 3.2
shall also apply to initial Advances on Loans made as LIBOR Rate Advances.


 


ARTICLE
IV

PAYMENTS; PREPAYMENTS; ETC.


 


1.             Payment of Loans
and Swing Line Loans.


 


(a)           The outstanding principal balance of
the Term Notes, Line of Credit Notes and the Swing Line Notes shall be due and
payable on their respective Maturity Dates.


 


(b)           Subject to the definition of Interest
Period in the case of LIBOR Rate Advances, whenever any payment hereunder or
under any Note shall be due on a day other than a Business Day, the date for
payment of such amounts shall be extended to the next succeeding Business Day.


 


(c)           The Borrower shall make each payment
hereunder and under the Term Notes and Line of Credit Notes not later than
11:00 a.m. (Denver time) on the day when due in Dollars and in immediately
available funds to the Agent for the account of the Lenders, unless such
payment is scheduled to be made with the proceeds of a Line of Credit Advance
otherwise available hereunder.  Subject
to Section 2.1.3, the Agent will promptly distribute in Dollars and
in immediately available funds to each Lender its Pro Rata Percentage of each
such payment received by the Agent for the account of the Lenders.


 


(d)           The Borrower shall make each Swing
Line Loan payment not later than 1:00 p.m. (Denver time) on the day when
due in Dollars and in immediately available funds to the Swing Line Lender
unless such Swing Line Loan is being refinanced through Line of Credit Loans.


 


2.             Optional
Prepayments of the Loans.


 


The Borrower may at any time
prepay the outstanding principal amount of any Loan or Swing Line Loan, in
either case in whole or in part, in accordance with this Section 4.2.  With respect to any prepayment other than
prepayments made pursuant to the Agent’s routine collection of Accounts in
accordance with the provisions of the Security Agreement, the Borrower shall
give prior written notice of any such prepayment to the Agent, which notice
shall state the proposed date of such prepayment (which shall be a Business
Day), the Loan or Swing Line Loan to be prepaid and the aggregate amount of the
prepayment, and which notice shall be delivered to the Agent not later than 11:00 a.m.
(Denver time): (a) with respect to any Base Rate Advance, on the date of
the proposed prepayment, and (b) with respect to any LIBOR Rate 


 


36

















 


Advance,
three (3) Business Days prior to the date of the proposed prepayment. All
prepayments of Base Rate Advances shall be without premium or penalty of any
kind.  All such prepayments of LIBOR Rate
Advances shall be made together with accrued and unpaid interest (if any) to
the date of such prepayment on the principal amount prepaid without premium or
penalty thereon; provided, however, that funding losses incurred
by any Lender as described in Section 5.3 shall be payable with
respect to each such prepayment.  All
notices of prepayment shall be irrevocable and the payment amount specified in
each such notice shall be due and payable on the prepayment date described in
such notice, together with, in the case of LIBOR Rate Advances, accrued and
unpaid interest (if any) on the principal amount prepaid and any amounts due
under Section 5.3.  The
Borrower shall have no optional right to prepay the principal amount of any
LIBOR Rate Advance other than as provided in this Section 4.2.  Voluntary prepayments of the Term Notes shall
be applied pro rata to the
remaining unpaid installments described in Section 4.3.


 


3.             Term Loan
Installments.


 


The principal amount
outstanding under the Term Notes shall be payable in quarterly installments
commencing on the first day of the fourth full fiscal month following the
Closing Date and, thereafter, on each three-month anniversary thereof (each
such date, a “Term Loan Payment Date”) as follows: (a) on each Term
Loan Payment Date, in an amount calculated based upon a 10-year level
amortization of the aggregate principal amount of the Term Loans outstanding as
of such payment date and (b) on the Maturity Date, in any amount equal to
the remaining aggregate principal amount of the Term Loans outstanding on such
date.


 


4.             Mandatory
Prepayments of Notes.


 


(a)           Mandatory Prepayments—Borrowing
Base Deficiency.  If at any time a
Borrowing Base Deficiency exists, the Borrower shall immediately pay on the
principal of the Swing Line Loans and the Line of Credit Loans an aggregate
amount equal to such Borrowing Base Deficiency. Any such payments shall be
applied to the Swing Line Loans first, then to the Line of Credit Loans first
against Base Rate Advances and then to LIBOR Rate Advances in order starting
with the LIBOR Rate Advances having the shortest time to the end of the
applicable Interest Period.  Amounts paid
on the Line of Credit Loans under this Section 4.4(a) shall be
for the account of each Lender in proportion to its share of outstanding Swing
Line Loans and Line of Credit Loans.  If,
after paying all outstanding Line of Credit Loans, a Borrowing Base Deficiency
still exists, the Borrower shall pay into the Holding Account an amount equal
to the amount of the remaining Borrowing Base Deficiency.


 


(b)           Other Mandatory Prepayments.  Additional mandatory prepayments of the Term
Notes and Line of Credit Notes shall be payable as follows: (i) upon
receipt thereof, an amount equal to any Excess Disposition Proceeds; and (ii) from
and after the consummation of a Permitted IPO and on or before the second
anniversary of the Restatement Date, concurrent with the receipt by the
Existing Equity Holders of any IPO Proceeds or the making of any Equity
Distributions by the Borrower pursuant to clause (d) of Section 10.10,
an amount equal to, on a dollar-for-dollar basis, (A) the aggregate amount
of such IPO Proceeds received and such Equity Distributions paid 


 


37

















 


during such period minus (B) $275,000,000.  All prepayments under this Section 4.4
shall be applied (pro rata among the
Lenders) first to the unpaid installments due under the Term Notes in
the inverse order of their maturity until all such installments are paid,
second to the outstanding principal of the Line of Credit Notes, and third to
the outstanding principal of the Swing Line Loans.


 


5.             Termination of
the Commitments.


 


The Borrower shall have the
right, upon at least five Business Days’ written notice to the Lenders, to
terminate the Line of Credit Loan Commitments and/or the Term Loan Commitments,
(i) in whole, or (ii) in part, in a minimum amount of $5,000,000 and
an integral multiple of $5,000,000, but not to an amount less than $50,000,000;
provided, however, that any termination of the Line of Credit
Loan Commitments shall be accompanied, (i) in the case of a termination in
whole, by payment of the Liabilities in full and the return or cash coverage
(pursuant to documentation in form and substance satisfactory to the Agent) of
any LC then outstanding, or (ii) in the case of a partial termination,
payment of the Line of Credit Loans, the Swing Line Loans and/or the LC
Obligations to the extent necessary to cause the Available Amount to be not
less than zero.  Any partial reduction of
the Line of Credit Loan Commitments or the Term Loan Commitments pursuant to
this Section 4.5 shall result in a reduction pro rata of the Line
of Credit Loan Commitments or the Term Loan Commitments, as applicable, of each
of the Lenders.


 


ARTICLE
V

LIBOR RATE LOANS; INCREASED COSTS; TAXES, ETC.


 


1.             LIBOR Rate
Advances.


 


Anything in this Agreement
to the contrary notwithstanding:


 


(a)           If any Lender shall notify the Agent
that the introduction of or any change in or in the interpretation of any law
or regulation makes it unlawful, or that any central bank or other Governmental
Authority asserts that it is unlawful, for such Lender to perform its
obligations to make LIBOR Rate Advances or to fund or maintain LIBOR Rate
Advances (whether or not such assertion carries the force of law), the
obligation of such Lender to make, roll over or convert Loans into LIBOR Rate
Advances shall be suspended until the Agent shall notify the Borrower and such
Lender that the circumstances causing such suspension no longer exist, and the
existing LIBOR Rate Advances of such Lender shall automatically convert, on and
as of the date of such notification, into Base Rate Advances; provided that
each Lender represents and warrants to the Borrower that as of the later of (i) the
Closing Date or (ii) the date on which it shall have executed an
Assignment and Acceptance pursuant to Section 13.23(a), it has no
actual knowledge that it would be unlawful for such Lender to make LIBOR Rate
Advances as contemplated.


 


(b)           If the Required Lenders shall, not
later than 11:00 a.m. (Denver time) one Business Day before the date of
any requested borrowing consisting of LIBOR Rate Advances, notify the Agent
that the LIBOR Rate for LIBOR Rate Advances comprising 


 


38

















 


such borrowing will not
adequately reflect the cost to such Required Lenders of making or funding their
respective LIBOR Rate Advances for such borrowing, the Borrower’s right to
select LIBOR Rate Advances for such borrowing or any subsequent borrowing
respectively shall be suspended until the Required Lenders shall notify the
Agent that the circumstances causing such suspension no longer exist, and the
Advances comprising such requested borrowing shall be Base Rate Advances.


 


2.             Increased Costs.


 


If, due to either (a) introduction
of or any change in or in the interpretation of any law or regulation or (b) compliance
with any guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law), there shall be any increase
in the cost or reduction in yield or rate of return to any Lender of agreeing
to make or making or maintaining any LIBOR Rate Advance or maintaining its
Commitment or any to any Issuer issuing or maintaining any LC, with respect
thereto (other than any increase in income or franchise taxes imposed on it by
the jurisdiction under the laws of which such Lender is organized or the
jurisdiction in which such Lender’s relevant office is located), then the
Borrower shall from time to time, three (3) Business Days after written
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient to
compensate such Lender for such increased cost, reduction in yield or rate of
return over a period not to exceed one hundred eighty (180) days, which amounts
shall be due and payable at the end of such period, subject, however, to the
provisions of Section 12.10. 
Any request for payment under this Section 5.2 will be
submitted to the Borrower and the Agent by such Lender within sixty (60) days
of such occurrence described in this Section 5.2, identifying with
reasonable specificity the basis for and the amount of such increased cost, and
shall be conclusive and binding for all purposes, absent manifest error.


 


3.             Funding Losses.


 


The Borrower will indemnify
each Lender against, and reimburse each Lender on demand for, any loss, cost or
expense incurred or sustained by such Lender (including without limitation, any
loss or expense incurred by reason of the liquidation or redeployment of
deposits or other funds acquired by such Lender to fund or maintain any LIBOR
Rate Advance and/or loss of net yield) as a result of (a) any payment,
conversion, roll over, or prepayment of all or a portion of any LIBOR Rate
Advance on a day other than the last day of an Interest Period for such LIBOR
Rate Advance, (b) any payment, conversion, roll over or prepayment
(whether required hereunder or otherwise) of such Lender’s LIBOR Rate Advance
made after the delivery of a notice of borrowing (whether oral or written) but
before the proposed date for such LIBOR Rate Advance if such payment or
prepayment prevents the proposed borrowing from becoming fully effective, (c) after
the Agent receives a notice of borrowing, the failure of any LIBOR Rate Advance
to be made or effected by such Lender due to any condition precedent to a
borrowing not being satisfied or due to any other action or inaction of the
Borrower or (d) any rescission of a notice of borrowing or a notice of
interest conversion.  Any Lender
demanding payment under this Section 5.3 shall deliver to the
Borrower and the Agent a statement reasonably setting forth the amount and
manner of determining such loss, cost or expense, which statement shall be
conclusive and binding for all purposes, absent manifest error.  Compensation owing to a Lender as a result of
any such loss, cost or expense resulting from a payment, prepayment, conversion
or 


 


39

















 


roll
over of a LIBOR Rate Advance shall include without limitation, an amount equal
to the sum of (i) the difference between (A) the amount of interest
that, but for such event, such Lender would have earned during the period from
the date of such event to the last day of the applicable Interest Period and (B) the
amount of interest such Lender would have earned for such period at the market
interest rate which such Lender would obtain, at the commencement of such
period, for U.S. Dollar deposits of a comparable amount and period (excluding,
in the case of clauses (A) and (B) loss of the
Applicable Margin) plus (ii) any reasonable expense incurred by such
Lender in connection with such payment, prepayment, conversion or roll
over.  Notwithstanding any provision
herein to the contrary, each Lender shall be entitled to fund and maintain its
funding of all of any part of the LIBOR Rate Advance in any manner it elects;
it being understood, however, that all determinations hereunder shall be made
as if the Lender had actually funded and maintained each LIBOR Rate Advance
during the Interest Period for such Advance through the purchase of deposits
having a term corresponding to such Interest Period and bearing an interest
rate equal to the LIBOR Rate for such Interest Period (whether or not the
Lender shall have granted any participations in such Loans).


 


4.             Capital Adequacy
Requirements.


 


(a)           If any Lender or Issuer shall have
determined that the adoption after the date of this Agreement of any applicable
law, rule or regulation regarding capital adequacy, or any change therein
after the date of this Agreement, or any change in the interpretation or
administration thereof after the date of this Agreement by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Lender or Issuer with any request
or directive regarding capital adequacy (whether or not having the force of
law) of any such authority, central bank or comparable agency issued after the
date of this Agreement, affects or would affect the amount of capital required
or expected to be maintained by such Lender or Issuer or any corporation
controlling such Lender or Issuer, and that the amount of such capital
requirement is increased, or has or would have the effect of reducing the rate
of return on such Lender’s or such Issuer’s or such corporation’s capital to a
level below that which such Lender or Issuer or such corporation could have
achieved but for such adoption, change or compliance, in each case as a
consequence of its obligations hereunder (taking into consideration such Lender’s
or Issuer’s policies with respect to capital adequacy), then the Borrower shall
pay to such Lender such additional amount or amounts as such Lender or
Issuer  reasonably determines to be
sufficient to compensate such Lender or Issuer or such corporation in the light
of such circumstances, for a period not to exceed one hundred eighty (180)
days, which amounts shall be due and payable at the end of such period, subject
to the provisions of Section 12.10.


 


(b)           A certificate of such Lender or Issuer
setting forth such amount or amounts as shall be necessary to compensate such
Lender or Issuer as specified in Section 5.4(a) above shall be
delivered within sixty (60) days of such occurrence described in Section 5.4(a) above
to the Borrower and shall be conclusive and binding, absent manifest
error.  The Borrower shall pay such
Lender or Issuer the amount shown as due on any such certificate within fifteen
(15) days after such Lender or Issuer delivers such certificate. In preparing
such certificate, such Lender or Issuer may


 


40
















 


employ such assumptions and
allocations of costs and expenses as it shall in good faith deem reasonable and
may use any reasonable averaging and attribution method.


 


5.             Taxes.


 


(a)           Except as otherwise provided
in Section 5.5(d), any and all payments by the Borrower hereunder
or under the other Financing Documents shall be made free and clear of and
without deduction for any and all present or future taxes, deductions, charges
or withholdings, and all liabilities with respect thereto, including without limitation,
such taxes, deductions, charges, withholdings or liabilities whatsoever
imposed, assessed, levied or collected by any taxing authority and all (other
than to the extent due to the gross negligence or willful misconduct of the
relevant Lender, Issuer or Swing Line Lender) interest, penalties, expenses or
similar liabilities with respect thereto (“Taxes”), excluding, however,
from the definition of Taxes, in the case of each Lender, each Issuer, the
Swing Line Lender and the Agent, (i) taxes imposed on its income
(including penalties and interest payable in respect thereof), and franchise
taxes imposed on it, by the jurisdiction under the laws of which such Lender,
such Issuer, the Swing Line Lender or the Agent (as the case may be) is
organized or any political subdivision thereof and (ii) taxes imposed on
its income (including penalties and interest payable in respect thereof), and
franchise taxes imposed on it, by the applicable jurisdiction in which such
Person’s relevant office is located or any political subdivision thereof.  If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender, any Issuer, the Swing Line Lender or the Agent (other than
payments for which taxes are withheld pursuant to the last sentence of Section 5.5(d) under
circumstances in which the recipient is able to deliver the relevant forms
under applicable law), (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 5.5) such
recipient receives an amount equal to the sum it would have received had no
such deductions been made and (ii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law, less any credits due to the Borrower.


 


(b)           In addition, the Borrower
agrees to pay any present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies which arise from any
payment made hereunder or under any other Financing Document or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Financing Document (hereinafter included within the
definition of “Taxes”).


 


(c)           The Borrower will indemnify
each Lender, each Issuer, the Swing Line Lender and the Agent for the full
amount of Taxes (including without limitation, any Taxes imposed by any
jurisdiction on amounts payable under this Section 5.5) paid by
such Person and any liability arising therefrom or with respect thereto,
whether or not such Taxes were correctly or legally asserted. This
indemnification shall be made within five (5) days from the date such
Person makes written demand therefor; provided, however, that to
the extent that any such recipient is reimbursed for any Taxes that were
incorrectly or illegally asserted with respect to the Borrower, such recipient
shall 


 


41

















 


promptly return to the
Borrower the amount of such reimbursement net of any costs of recovery incurred
by such recipient, together with any interest that may have been paid by the
taxing jurisdiction with respect thereto, to the extent the Borrower has
actually paid such recipient with respect thereto.


 


(d)           Prior to the date of any
Lender becoming a Lender hereunder, and from time to time thereafter if
requested by the Borrower or the Agent (to the extent that such Person is still
able to do so under applicable law), each Lender organized outside the United
States shall provide the Agent and the Borrower with the forms prescribed by
the Internal Revenue Service of the United States (including, without
limitation, Form W-8BEN, Form W-8ECI, or Form W-9) certifying
such Lender’s exemption from United States withholding taxes with respect to
all payments to be made to such Lender hereunder and under the other Financing
Documents. Unless the Borrower and the Agent have received forms or other
documents satisfactory to them indicating that payments hereunder or under the
other Financing Documents are not subject to United States withholding tax or
are subject to such tax at a rate reduced by an applicable tax treaty, the
Borrower or the Agent shall withhold taxes from such payments for the account
and benefit of the Borrower at the applicable statutory rate in the case of
payments to or for any Lender organized under the laws of a jurisdiction
outside the United States; provided, however, that all such withholding
for such Lender shall cease upon delivery by such Lender of the applicable
forms to the Borrower and Agent.


 


(e)           Promptly after the date on
which payment of any Taxes are due pursuant to applicable law, the Borrower
will, at the request of the Agent, any Issuer or any Lender, furnish to the
Agent, such Issuer or such Lender evidence in form and substance satisfactory
to the Agent, such Issuer or such Lender, that the Borrower has met its
obligations under this Section 5.5.


 


(f)            Without prejudice to the
survival of the Borrower’s other agreements, the Borrower’s agreements and
obligations contained in this Section 5.5 shall survive the payment
in full of the Liabilities.


 


(g)           Each Lender, each Issuer and
the Swing Line Lender agrees that, upon the occurrence of any event giving rise
to any payment by the Borrower pursuant to this Section 5.5 with
respect to such Lender, it will, if requested by the Borrower, use reasonable
efforts (subject to its overall policy considerations) to designate another lending
office for any Loans and other extensions of credit affected by such event with
the object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in such Lender’s sole judgment, cause such
Lender and its lending office(s) to suffer no economic, legal or
regulatory disadvantage.


 


42

















 


ARTICLE
VI

FEES


 


1.             Non-Use Fee.


 


Commencing on the Closing
Date, the Borrower agrees to pay to the Agent for distribution to the Lenders
(based on their applicable respective Pro Rata Percentages) a quarterly non-use
fee (the “Non-Use Fee”) on the daily average unused amount of the Line
of Credit Loan Commitments and the Term Loan Commitments, as the case may be,
at the applicable rate per annum for the relevant Financial Performance Level
set forth in the definition of Applicable Margin.  The Non-Use Fee shall be due and payable in
arrears on the first day of each January, April, July and October hereafter
through the Maturity Date.  A pro-rated
Non-Use Fee shall be due and payable on the first day of the quarter following
the Closing Date and on the applicable Maturity Date.  The Non-Use Fee shall be earned as it
accrues.  Swing Line Loans shall not be
considered usage of the Line of Credit Loan Commitments for purposes of this Section 6.1.


 


2.             LC Fees.


 


The Borrower agrees to pay
to the Agent, for distribution to the Lenders (based on their respective Pro
Rata Percentages), a quarterly fee in respect of each LC issued hereunder (the “LC
Fee”), computed at the applicable rate per annum set forth in the
definition of Applicable Margin on the daily average amount available to be
drawn under such LC for as long as it is outstanding.  The quarterly letter of credit fee shall be
due and payable in arrears on the first day of each January, April, July and
October hereafter through the Maturity Date applicable to the Line of
Credit Loans.  A pro-rated letter of
credit fee shall be due and payable on the first day of the quarter following
the Closing Date and on the Maturity Date applicable to the Line of Credit
Loans.  Each quarterly letter of credit
fee shall be earned as it accrues.  The
Borrower shall also pay to the Agent for the account of each Issuer the normal
and customary processing fees that such Issuer charges in connection with the
issuance of or drawings under each such LC (to include, without limitation, a
fee in respect of the issuance, increase or renewal of any LC in an amount
equal to the greater of (x) $2,000 and (y) 0.125% of the face amount
of such LC).  A pro-rated letter of
credit fee shall be due and payable to the Lenders under the Existing Credit
Agreement on the Restatement Date.


 


3.             Upfront Fees.


 


The Borrower agreed to pay
to the Agent, for distribution to the Lenders (based on their respective
Commitments as of the Restatement Date), an upfront fee (the “Upfront Fee”),
computed as specified in the Agent’s Letter. 
The Upfront Fee shall be due and payable on the Restatement Date; provided,
that the portion of the Upfront Fee attributable to any Term Loans advanced
after the Restatement Date shall be payable in respect thereof in two equal
installments on (a) the Restatement Date and (b) the date of the
borrowing of the applicable Term Loan as a condition thereof.  Amounts paid in respect of the Term Loans on
the Restatement Date shall be fully earned whether or not the Borrower shall
draw (or shall be permitted, pursuant to the terms hereof, to draw) additional
Term Loans after the Restatement Date.


 


43

















 


4.             Calculation of
Fees.


 


The fees payable under Sections
6.1 and 6.2 shall be calculated by the Agent on the basis of a
360-day year, for the actual days (including the first day but excluding the
last day) occurring in the period for which such fee is payable. Each
determination by the Agent of fees payable under Sections 6.1 and 6.2
shall be conclusive and binding for all purposes, absent manifest error.


 


5.             Fees Not
Interest; Nonpayment.


 


The fees described in this
Agreement represent compensation for services rendered and to be rendered
separate and apart from the lending of money or the provision of credit and do
not constitute compensation for the use, detention, or forbearance of money,
and the Borrower’s obligation to pay each fee described herein shall be in
addition to, and not in lieu of, the Borrower’s obligation to pay interest and
expenses otherwise described in this Agreement. Fees shall be payable when due
in Dollars and in immediately available funds. 
All fees shall be non-refundable.


 


ARTICLE
VII

REPRESENTATIONS AND WARRANTIES


 


In order to induce the
Agent, each Issuer, the Swing Line Lender and the Lenders to enter into this
Agreement and to induce each Issuer to issue LCs under this Agreement, each of
the Borrower and the other Loan Parties represents and warrants to the Agent,
each Issuer, the Swing Line Lender and the Lenders that the following
statements are and on each date hereafter that the Borrower is required to
execute and deliver a Compliance Certificate to the Agent, will be, true and
correct:


 


1.             Judgments,
Claims Litigation and Proceedings.


 


Except as set forth on Exhibit 7A
or as disclosed in writing to the Agent from time to time hereafter, no
judgments are outstanding against the Borrower or any of its Subsidiaries, nor
is there now pending or threatened any litigation, contested claim, or
governmental proceeding by or against the Borrower or any of its Subsidiaries,
except for judgments and pending or threatened litigation, contested claims and
governmental proceedings which are not, in the aggregate, material to the
financial condition, results of operations or business of the Borrower and its
Subsidiaries, taken as a whole.


 


2.             Contract
Defaults and Disputes.


 


Except as set forth on Exhibit 7B,
none of the Borrower nor any of its Subsidiaries is in default under any
material contract, lease or commitment to which it is a party or by which it is
bound, which is material to the continued financial success and well-being of
the Borrower and its Subsidiaries, taken as a whole.  Except as set forth on Exhibit 7B
or as disclosed in writing to the Agent from time to time hereafter, none of
the Borrower nor any of its Subsidiaries knows of any material dispute relating
to any contract, lease, or commitment, which is material to the 


 


44

















 


continued
financial success and well-being of the Borrower and its Subsidiaries, taken as
a whole.


 


3.             Licenses,
Patents, Etc.


 


All of the Borrower’s and
its Subsidiaries’ licenses, patents, copyrights, trademarks and trade names and
all of the Borrower’s and its Subsidiaries’ applications for any of the
foregoing are set forth on Exhibit 7C. There is no action,
proceeding, claim or complaint pending or threatened to be brought against any
of the Borrower or its Subsidiaries by any Person which might jeopardize any of
the Borrower’s or any of its Subsidiaries interest in any of the foregoing
licenses, patents, copyrights, trademarks, trade names or applications and
which, if successful, would have a material adverse effect on the consolidated
financial condition, results of operations or business of the Borrower and its
Subsidiaries.


 


4.             Title to Assets.


 


Except for the security
interests granted in the Security Documents, as permitted under Section 10.1
or as set forth on Exhibit 7D, the Borrower and each of its
Subsidiaries owns all of their respective assets free and clear of all security
interests, liens, claims, and encumbrances. 
No Goods held by the Borrower or any of its Subsidiaries on consignment
or under sale or return contracts have been represented to be Inventory and no
amounts receivable by the Borrower or any of its Subsidiaries in respect of the
sale of such Goods (except markups or commissions which have been fully earned
by the Borrower or its Subsidiaries) have been represented to be Accounts.  The Borrower represents that all amounts in
the form of ordinary trade payables which are owing to suppliers of any of the
Inventory of the Borrower or any of its Subsidiaries have been paid when due
and that none of such suppliers has asserted any interest in the
Inventory.  The Borrower will furnish, at
the Agent’s request, the names and addresses of all Persons who supply
Inventory to the Borrower or any of its Subsidiaries or who deliver Goods to
the Borrower or any of its Subsidiaries on consignment or under sale or return
contracts.


 


5.             Tax Liabilities.


 


Each of the Borrower and its
Subsidiaries has filed all federal and all other material tax reports and
returns required by any law or regulation to be filed and each of the Borrower
and its Subsidiaries have either duly paid all taxes, duties and charges
indicated to be due on the basis of such returns and reports or have made
adequate provision for the payment thereof, and the assessment of any material
amount of additional taxes in excess of those paid and reported is not
reasonably expected.  The reserves for
taxes reflected on the Borrower’s consolidated balance sheet are materially
adequate in amount for the payment of all of the Borrower’s consolidated
liabilities for all taxes (whether or not disputed) accrued through the date of
such balance sheet.  There are no
material unresolved questions or claims concerning any tax liability of any of
the Borrower or its Subsidiaries, except as described on Exhibit 7E
or as disclosed in writing to the Agent from time to time hereafter.


 


6.             Indebtedness
and Producer Payables.


 


Except (a) for the
Loans and Swing Line Loans from the Lenders and the Swing Line Lender respectively,
and the LC Obligations, each as contemplated by this Agreement; (b) as 


 


45

















 


disclosed
on Exhibit 7F; and (c) as disclosed on the financial
statements identified in Section 7.16 of this Agreement, none of
the Borrower nor any of its Subsidiaries has any other indebtedness, known
contingent obligations or liabilities, outstanding bonds, letters of credit or
acceptances to any other Person or loan commitments from any other Person which
in the aggregate, are material to the financial position of the Borrower and
its Subsidiaries, taken as a whole.  None
of the Borrower’s nor any of its Subsidiaries’ Producer Payables, other than
those being contested in good faith by any of such Persons, are past due.


 


7.             Other
Fictitious Names.


 


During the preceding five (5) years,
neither the Borrower nor any of its Subsidiaries has been known by or used any
fictitious name, or changed its organizational form, the location of its chief
executive office, or the jurisdiction of its organization except as disclosed
on Exhibit 7G.


 


8.             Affiliates.


 


Neither the Borrower nor any
of its Subsidiaries has any Affiliates, other than those Persons disclosed on Exhibit 7H
or those disclosed in writing to the Agent from time to time hereafter, and the
legal relationships of the Borrower and its Subsidiaries to each such Affiliate
are accurately and completely described thereon.


 


9.             Environmental
Matters.


 


Except as disclosed on Exhibit 7I
or as disclosed in writing to the Agent from time to time hereafter, (a) none
of the Borrower nor any of its Subsidiaries has received any notice to the
effect, and does not have any knowledge, that their respective operations are
not in compliance with any of the requirements of applicable federal, state and
local environmental, health and safety statutes and regulations (“Environmental
Laws”) or are the subject of any federal or state investigation evaluating
whether any remedial action is needed to respond to a release of any toxic or
hazardous waste or substance into the environment, which non-compliance or
remedial action could have a material adverse effect on the consolidated
business, operations, assets or condition (financial or otherwise) of the
Borrower and its Subsidiaries, taken as a whole; (b) there have been no
releases of hazardous materials at, on or under the Borrower’s or any of its
Subsidiaries’ premises that, singly or in the aggregate, have, or may
reasonably be expected to have, a material adverse effect on the consolidated
financial condition, operations, assets, business or prospects of the Borrower
and its Subsidiaries, taken as a whole; (c) there are no underground
storage tanks, active or abandoned, including petroleum storage tanks, on or
under the Borrower’s or any of its Subsidiaries’ premises that, singly or in
the aggregate, have, or may reasonably be expected to have, a material adverse
effect on the consolidated financial condition, operations, assets, business or
prospects of the Borrower and its Subsidiaries, taken as a whole; (d) none
of the Borrower nor any of its Subsidiaries has directly transported or
directly arranged for the transportation of any hazardous material to any
location which is listed or proposed for listing on the National Priorities
List pursuant to the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended from time to time, or on any similar federal,
state or local list or which is the subject of federal, state or local
enforcement actions or other investigations which may lead to claims against
the Borrower or any of its Subsidiaries for any remedial work, damage to
natural resources or personal injury, including claims under the 


 


46

















 


Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended from
time to time, that are material in the aggregate to the consolidated financial
position of the Borrower and its Subsidiaries; and (e) to the best of the
Borrower’s and each of its Subsidiaries’ knowledge, no conditions exist at, on
or under the Borrower’s or any of its Subsidiaries’ premises which, with the
passage of time, or the giving of notice or both, would give rise to any
liability under any Environmental Laws that would be material relative to the
consolidated financial position of the Borrower and its Subsidiaries.


 


10.          Bank
Accounts.


 


Exhibit 7J sets forth, as
of the Closing Date, the account numbers and location of each of the Borrower’s
and any of its Subsidiaries bank accounts (including blocked accounts).


 


11.          Other
Agreements or Restrictions.


 


Except as disclosed on Exhibit 7K,
none of the Borrower nor any of its Subsidiaries is a party to any contract or
agreement or subject to any restriction which restricts the conduct of its
respective business which could have a material adverse effect on the
consolidated financial condition, operations, assets, business or prospects of
the Borrower and its Subsidiaries.  None
of the Borrower nor any of its Subsidiaries is in default under or in violation
of any Governmental Requirement related to the Loans, the LCs, or the Swing
Line Loans or any other Governmental Requirement which default could have a
material adverse effect on the consolidated financial condition, operations,
assets, business or prospects of the Borrower and its Subsidiaries.  Neither the execution and delivery of the
Financing Documents or the Bond Documents, nor the consummation of the
transactions contemplated thereby, nor fulfillment of and compliance with the
respective terms, conditions and provisions thereof, will conflict with or
result in a breach of any of the terms, conditions or provisions of, or
constitute a default under, or result in any material violation of, or result
in the creation or imposition of any lien or security interest on any of the
Collateral pursuant to: (a) any agreement, instrument or document
pertaining to the governance of the Borrower or any of its Subsidiaries; (b) any
Governmental Requirement applicable to the Borrower or any of its Subsidiaries;
(c) any order, writ, injunction or decree of any court; or (d) the
terms, conditions or provisions of any material agreement or instrument to
which the Borrower or any of its Subsidiaries is a party or by which the
Borrower, NBC or their respective properties is bound or to which the Borrower,
any of its Subsidiaries or their respective properties is subject in any
material respect.


 


12.          [Intentionally
Omitted].


 


13.          Existence.


 


Each of the Borrower and its
Subsidiaries is duly organized or formed, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization, except
in respect of any non-Loan Party to the extent such failure shall not have a
material adverse effect on the financial condition, results of operations or
business of the Borrower and its Subsidiaries, taken as a whole.  The Borrower and each of its Subsidiaries is
duly licensed to do business in all states where the nature and extent of the
business it transacts or the ownership of its assets make such licensing
necessary, except for those jurisdictions in which the failure to be 


 


47

















 


so
licensed would not, in the aggregate, have a material adverse effect on the
consolidated financial condition, results of operations or business of the
Borrower and its Subsidiaries.


 


14.          Authority.


 


The execution and delivery
by the Borrower and each of its Subsidiaries of this Agreement, the other
Financing Documents and the Bond Documents to which it is a party, and the
performance of their respective obligations hereunder and thereunder, (a) are
within the such Person’s powers; (b) are duly authorized by all necessary
corporate or other organizational action; (c) are not in contravention of
any material law or laws, or the terms of such Person’s operating agreement, or
other organizational documents, or of any indenture, agreement or undertaking
to which such Person is a party or by which the Borrower, any of its
Subsidiaries or any of their respective property is bound; (d) do not
require any governmental consent, registration or approval; (e) do not
contravene any contractual or governmental restriction binding upon such
Person; and (f) will not, except as contemplated or permitted by this
Agreement, result in the imposition of any lien, charge, security interest or
encumbrance upon any of the Borrower’s or any of its Subsidiaries’ property
under any existing indenture, mortgage, deed of trust, loan or credit agreement
or other material agreement or instrument to which the Borrower or any of its
Subsidiaries is a party or by which the Borrower, any of its Subsidiaries or
any of their respective property may be bound or affected.


 


15.          Binding Effect.


 


This Agreement, the other
Financing Documents and the Bond Documents set forth the legal, valid and
binding obligations of the Borrower and each of its Subsidiaries party thereto
and are enforceable against the Borrower and its Subsidiaries in accordance
with their respective terms.


 


16.          Correctness of
Financial Statements.


 


The financial statements
delivered by the Borrower to the Agent, the Swing Line Lender and the Lenders
present fairly the consolidated financial condition of the Borrower and its
Subsidiaries, and have been prepared in accordance with GAAP consistently applied.  Since the end of the Borrower’s Fiscal Year
2009, there has been no materially adverse change in the condition or
operations of the Borrower and its Subsidiaries, taken as a whole, and none of
the Borrower or any of its Subsidiaries has granted a Lien on any of their
respective assets or properties since such date other than pursuant to the
Security Documents, as permitted under Section 10.1 or as set forth
on Exhibit 7D.  As of each
date hereafter that the Borrower is required to execute and deliver a
compliance certificate to the Agent, there has been no materially adverse
change in the condition or operation of the Borrower and its Subsidiaries,
taken as a whole, and (unless otherwise permitted in this Agreement) none of
the Borrower or any of its Subsidiaries has granted a Lien on any of their
respective assets or properties since the date of the most recent financial
statement delivered to the Agent and the Lenders.


 


17.          Employee
Controversies.


 


Except as disclosed on Exhibit 7L,
there are no controversies pending or threatened between the Borrower or any of
its Subsidiaries, on the one hand, and any of their respective 


 


48

















 


employees,
on the other hand, other than employee grievances arising in the ordinary
course of the Borrower’s or its Subsidiaries’ respective business which are
not, in the aggregate, material to the continued financial success and
well-being of the Borrower and its Subsidiaries, taken as a whole, and which
employee grievances are disclosed in writing to the Agent from time to time
hereafter.


 


18.          Compliance with
Laws and Regulations.


 


The Borrower and each of its
Subsidiaries each are in compliance with all laws, orders, regulations and
ordinances of all federal, foreign, state and local Governmental Authorities
relating to the Borrower’s and its Subsidiaries’ business operations and
assets, except for laws, orders, regulations and ordinances, the violation of
which would not have a material adverse effect on the value of the Collateral
or the Agent’s interest in any of the Collateral and, in the aggregate, would
not have a material adverse effect on the consolidated financial condition,
results of operations or business of the Borrower and its Subsidiaries.


 


19.          Solvency.


 


The Borrower and each of the
other Loan Parties are solvent, able to pay their respective debts generally as
such debts mature, and have capital sufficient to carry on their business and
all businesses in which the Borrower and the other Loan Parties each expect to
engage. The saleable value of each of the Borrower’s and the other Loan Parties’
total assets at a fair valuation, and at a present fair saleable value, are
greater than the amount of each of the Borrower’s and any of the other Loan
Parties’ total obligations to all Persons. 
None of the Borrower nor any of the other Loan Parties will be rendered
insolvent by the execution or delivery of this Agreement, the other Financing
Documents, the Intercompany Financing Documents or by the transactions
contemplated hereunder or thereunder.


 


20.          ERISA Matters.


 


(a)           Each Plan is in compliance
in all material respects with the applicable provisions of ERISA, the IRC and
other Federal or state Laws, and each Plan that is intended to qualify under Section 401(a) of
the IRC has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with
respect thereto or may legally rely upon an opinion letter issued by the IRS to
a prototype plan sponsor, and, to the Borrower’s and the other Loan Parties’
best knowledge, nothing has occurred which would prevent, or cause the loss of,
such qualification. The Borrower, the other Loan Parties and each of their
ERISA Affiliates have made all required contributions to each Plan subject to Section 412
of the Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.


 


(b)           There are no pending or, to
either the Borrower’s or any of the other Loan Parties’ best knowledge,
threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that could reasonably be expected to have a
material adverse effect on the consolidated financial condition, results of
operations, business or prospects of the Borrower and its Subsidiaries.  There has been 


 


49

















 


no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan
that has resulted or could be reasonably expected to result in a material
adverse effect on the consolidated financial condition, results of operations,
business or prospects of the Borrower and its Subsidiaries.


 


(c)           (i) No material ERISA
Event (except as set forth in Exhibit 7M has occurred or is
reasonably expected to occur; (ii) no Pension Plan has any material
Unfunded Pension Liability; (iii) none of the Borrower, any of the other
Loan Parties, nor any ERISA Affiliate thereof has incurred, or reasonably
expects to incur, any material liability under Title IV of ERISA with respect
to any Pension Plan (other than premiums due and not delinquent under Section 4007
of ERISA); (iv) none of the Borrower, any of the other Loan Parties, nor
any ERISA Affiliate thereof has incurred, or reasonably expects to incur, any
material liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under
Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) none
of the Borrower, any of the other Loan Parties, nor any ERISA Affiliate of
either has engaged in a transaction that could be subject to Sections 4069 or
4212(c) of ERISA.


 


21.          Margin Security.


 


None of the Borrower nor any of its Subsidiaries owns any margin
security and none of the loans advanced hereunder shall be used for the purpose
of purchasing or carrying any margin securities or for the purpose of reducing
or retiring any indebtedness which was originally incurred to purchase any
margin securities or for any other purpose not permitted by Regulations T, U or
X of the Board of Governors of the Federal Reserve System.


 


22.          Investment
Company Act Not Applicable.


 


None of the Borrower nor any
of its Subsidiaries is an “investment company”, or a company “controlled” by an
“investment company”, within the meaning of the Investment Company Act of 1940,
as amended.


 


23.          [Intentionally
Omitted].


 


24.          No Consent.


 


The execution, delivery and
performance of, and the effectuation of the transactions contemplated under,
this Agreement, the other Financing Documents and the Bond Documents by the
Borrower and each of its Subsidiaries which is a party thereto, and the
borrowings contemplated herein, do not require the consent or approval of any
other Person, except such consents or approvals as have been obtained or will
be obtained by the Restatement Date. 
None of the Borrower nor any of its Subsidiaries has otherwise failed to
obtain any material governmental consent, approval, license, permit, franchise
or other governmental authorization necessary to the ownership of any of its
properties or the conduct of its business.


 


50
















 


25.          Full Disclosure.


 


The factual information
taken as a whole in the materials furnished by or on behalf of the Borrower and
its Subsidiaries to the Agent, any Lender, any Issuer, the Swing Line Lender,
or any Existing Lender for purposes of or in connection with the transactions
contemplated under this Agreement, the Existing Credit Agreement, the other
Financing Documents and the Bond Documents does not contain any untrue
statement of a material fact or omit to state any material fact necessary to
keep the statements contained therein from being misleading as of the date of
this Agreement, and thereafter as supplemented by information provided to the
Agent and the Lenders, any Issuer and the Swing Line Lender in writing pursuant
to this Agreement. The financial projections and other financial information
furnished to the Agent and the Lenders by the Borrower and its Subsidiaries,
and to be delivered under Section 9.1 of this Agreement, were
prepared in good faith on the basis of information and assumptions that the
Borrower and each of its Subsidiaries believed to be reasonable as of the date
of such information.


 


26.          Intellectual
Property.


 


Except as set forth in Exhibit 7C,
the Borrower and each of its Subsidiaries owns or possesses (or will be
licensed or otherwise have the full right to use) all intellectual property
which is necessary for the operation of their respective businesses, without
any known conflict with the rights of others. 
Except as set forth in Exhibit 7N, no product of the
Borrower or any of its Subsidiaries infringes upon any intellectual property
owned by any other Person and no claim or litigation is pending or (to the
Borrower’s and each of its Subsidiaries’ knowledge) threatened against or
affecting such Person, contesting the Borrower’s or any of its Subsidiaries’
right to sell or to use any product or material, in any case which could have a
material adverse effect on the consolidated financial condition, operations,
assets, or business of the Borrower and its Subsidiaries.  To the best of their knowledge, none of the
Borrower nor any of its Subsidiaries is in violation of any of their respective
obligations with respect to any material patent, trademark, trade name, service
mark, copyright or license owned or used by the Borrower or any of its
Subsidiaries.


 


27.          Compliance with
Federal Food Security Act.


 


The Borrower and each of its
Subsidiaries have adequate procedures in place to insure that Collateral
purchased by the Borrower or any of its Subsidiaries is free of security interests
in favor of Persons other than the Agent in accordance with the Federal Food
Security Act.  The Borrower and each of
its Subsidiaries will furnish, at the Agent’s request, the names and addresses
of all Persons who supply Inventory to the Borrower or any of its Subsidiaries
or who deliver Goods to the Borrower or any of its Subsidiaries on consignment
or under sale or return contracts.


 


28.          Survival of
Warranties.


 


All representations and
warranties contained in this Agreement or any of the other Financing Documents
shall survive the execution and delivery of this Agreement and shall be true on
the date of this Agreement and on each date hereafter on which the Borrower is
required to execute and deliver a compliance certificate to the Agent, until the
Liabilities shall be paid in 


 


51

















 


full
and the Commitments have been fully terminated in accordance with the
provisions of this Agreement.


 


29.          CoBank Equity
Interests.


 


So long as CoBank is a
Lender under this Agreement, the Borrower will acquire equity in CoBank in such
amounts and at such times as CoBank may require in accordance with CoBank’s
Bylaws and Capital Plan (as each may be amended from time to time), except that
the maximum amount of equity that the Borrower may be required to purchase in
CoBank in connection with the Loans and Swing Line Loans made by CoBank under
this Agreement shall not exceed the maximum amount permitted by CoBank’s Bylaws
as of the date of this Agreement.  The
rights and obligations of the parties with respect to such equity and any
distributions made on account thereof or on account of the Borrower’s patronage
with CoBank shall be governed by CoBank’s Bylaws, except that if CoBank sells a
participation in a portion of any Loans due to CoBank, such portion of the
Loans due to CoBank shall not be entitled to patronage distributions.  A sale of a participation interest may
include certain voting rights of the participants regarding the loans hereunder
(including without limitation the administration, servicing and enforcement
thereof).  The Borrower hereby consents
and agrees that the amount of any distributions with respect to the Borrower’s
patronage with CoBank that are made in qualified written notices of allocation
(as defined in 26 U.S.C. § 1388) and that are received by the Borrower from
CoBank will be taken into account by the Borrower at the stated Dollar amounts
whether the distribution is evidenced by a stock certificate or other form of
written notice that such distribution has been made and recorded in the
Borrower’s name on CoBank’s records.  The
Loans due to CoBank under this Agreement and other Indebtedness due to CoBank
hereunder shall be secured by a statutory first Lien on all equity that the
Borrower may now own or hereafter acquire in CoBank.  Such equity shall not, however, constitute
security for Indebtedness due to any other Lender under this Agreement.  CoBank shall not be obligated to set off or
otherwise apply such equities to the Borrower’s Indebtedness to CoBank.


 


ARTICLE
VIII

CONDITIONS


 


1.             Conditions to
the Restatement Date and the Initial Borrowing.


 


The occurrence of the
Restatement Date, each Lender’s obligation to make its Loans, the Swing Line
Lender’s obligation to make the Swing Line Loans, and each Issuer’s obligation
to issue one or more LCs comprising a part of the initial borrowing hereunder,
are subject to the following conditions precedent:


 


(a)           Documents.


 


The Agent shall have
received, appropriately dated and in form and substance reasonably satisfactory
to the Agent (together with original counterparts or copies, as the case may
be, for each Lender), the documents listed on the List of Closing Documents
which is attached as Exhibit 8A.


 


52

















 


(b)           Actions and Events.


 


(i)            Payment of Fees and
Expenses.


 


The Borrower shall have paid
all fees (including, without limitation, the Upfront Fee) due on or before the
Restatement Date as specified herein or in the Agent’s Letter and all fees and
expenses of or incurred by the Agent and its special and local counsel to the
extent billed on or before the Restatement Date;


 


(ii)           No Prohibitions.


 


No law or regulation shall
prohibit, and no order, judgment or decree of any Governmental Authority shall
prohibit, and no litigation shall be pending or threatened which would enjoin,
prohibit, restrain or otherwise adversely affect the consummation of the
transactions contemplated under the Financing Documents or the Intercompany
Financing Documents, or which would otherwise have a material adverse effect on
either the Borrower’s or any of its Subsidiaries’ financial condition, results
of operations or business;


 


(iii)          Material Adverse Change.


 


No material adverse change
shall have occurred since: (i) the end of Fiscal Year 2009, or (ii) the
date of the most recent financial statement delivered to the Agent and the
Lenders, as applicable, with respect to:


 


(A) the Borrower’s and
its Subsidiaries’ condition (financial or otherwise), business, assets,
liabilities (actual or contingent), operations or prospects;


 


(B) the syndication
markets for credit facilities similar in nature to those discussed in this
Agreement; or


 


(C) the financial,
banking or capital markets, the effect of which would have an adverse change or
effect in the syndication market;


 


in each case, as determined by the Agent in its sole
discretion.


 


(iv)          Wiring Instructions.


 


The Agent shall have
received wiring instructions with respect to the proceeds of the Loans and
Swing Line Loans (if any) to be made on the Restatement Date;


 


(v)           Other Documents.


 


The Borrower and each of its
Subsidiaries shall have taken such actions, and the Agent shall have received
such other documents (including, without limitation, amendments or
modifications to the Security Documents and the Intercompany Loan Documents
specified by the Agent in order to reflect the changes to the Existing Credit
Agreement that are set forth in this Agreement), as the Agent may reasonably
request; and


 


53

















 


(vi)          Compliance.


 


Each of the Borrower’s and
its Subsidiaries’ representations and warranties contained in this Agreement
shall be true on and as of the Restatement Date as if such representations and
warranties had been made on and as of the Restatement Date, and no Default or
Matured Default shall have occurred and be continuing or shall exist, as
evidence by a current compliance certificate in the format required to be
delivered to the Agent from time to time in accordance with Section 9.1.


 


2.             Conditions
Precedent to All Borrowings, Conversions, Roll Overs and Issuances of Letters
of Credit.


 


Each Lender’s obligation to
make (or convert or roll over) a Loan, the Swing Line Lender’s obligation to
make Swing Line Loans, and each Issuer’s obligation to issue an LC on the
occasion of each borrowing (including the initial borrowing), conversion, roll
over or issuance of an LC shall be subject to the further condition precedent
that the following statements shall be true (and the Borrower’s acceptance of
the proceeds of each borrowing, the delivery of the notice of interest
conversion under Section 3.2 in the case of a conversion or roll
over, or the delivery of the Application in the case of the issuance of an LC,
shall be deemed to constitute a representation and warranty by the Borrower
that on the date of such borrowing, conversion, roll over or issuance of LC
such statements are true) and on the date of each borrowing the Agent shall
have received a certificate (dated the date of such borrowing) from a
responsible officer of the Borrower certifying that all conditions under Section 8.1
have been satisfied and that such statements are true:


 


(a)           The Borrower is duly
authorized and empowered to make such request for borrowing, conversion, roll
over or issuance of LC and such borrowing, conversion, roll over or issuance of
LC will not violate any Governmental Requirement;


 


(b)           No material adverse change
has occurred with respect to the Borrower’s consolidated financial condition,
business, operations or prospects since the date of the last audited financial
statements delivered to the Agent and the Lenders;


 


(c)           The representations and
warranties set forth in Article 7 are, as of the Restatement Date,
true and correct in all respects and are, from and after the Restatement Date,
true and correct in all material respects, in each case, with the same effect
as if then made (unless stated to relate solely to an earlier date, in which
case the representations and warranties shall be true and correct as of such
earlier date);


 


(d)           No event has occurred and is
continuing, or would result from such borrowing, conversion, roll over or
issuance of LC, which constitutes a Default or a Matured Default;


 


(e)           The Borrower has delivered
to the Agent its notice of borrowing or notice of interest conversion;


 


54

















 


(f)            The Borrower has complied
with any post-closing requirements of the Agent by the deadline for such
requirements;


 


(g)           The Borrower has paid any
portion of the Upfront Fees due on or before the applicable date of borrowing
as specified in the Agent’s Letter; and


 


(h)           With respect to the issuance
of any LC, the Borrower has delivered to the Agent an Application for such LC
as described in Section 2.2(b).


 


ARTICLE
IX

AFFIRMATIVE COVENANTS


 


The Borrower and each other
Loan Party covenants and agrees that from the date of execution hereof until
the Liabilities are paid in full, and the Commitments, all LCs and all other
obligations of the Agent, the Issuers, the Swing Line Lender and the Lenders
hereunder are finally terminated, the Borrower will comply (and will cause its
Subsidiaries to comply) with the following provisions of this Article 9:


 


1.             Financial
Statements.


 


Except as otherwise
expressly provided for in this Agreement, the Borrower and its Subsidiaries
each shall keep proper books of record and account in which full and true
entries will be made of all dealings and transactions of or in relation to the
Borrower’s and its Subsidiaries’ business and affairs, in accordance with GAAP
consistently applied in all material respects, and the Borrower shall cause to
be furnished to the Agent and the Lenders, from time to time and in a form
acceptable to the Agent, such information as the Agent may reasonably request, including
without limitation, the following as to the Borrower and/or its Subsidiaries
(as the case may be):


 


(a)           as soon as practicable and
in any event within thirty (30) days after the end of each monthly accounting
period in each Fiscal Year (as measured at the end of such monthly accounting
period), or, during the existence of any Default, as frequently as the Agent
may request, a Borrowing Base Certificate of the chief financial or other
authorized officer of the Borrower;


 


(b)           as soon as practicable and
in any event within thirty (30) days after the end of each fiscal quarter in
each Fiscal Year (i) consolidated statements of income and retained
earnings for such fiscal quarter and for the period from the beginning of the
then current Fiscal Year to the end of such fiscal quarter, and a consolidated
balance sheet as of the end of such fiscal quarter, setting forth in each case
in comparative form, figures for the corresponding periods in the preceding
Fiscal Year, all in reasonable detail and certified as accurate by the chief
financial or other authorized officer, subject to changes resulting from normal
year-end adjustments, (ii) copies of statements of cash flow, and (iii) a
compliance certificate of the chief financial or other authorized officer of
the Borrower in substantially the form attached as Exhibit 9A (the “Compliance
Certificate”);


 


55

















 


(c)           as soon as practicable and
in any event within one hundred twenty (120) days after the end of each Fiscal
Year, (i) audited consolidated statements of income, retained earnings and
changes in the financial condition for each year, and a consolidated balance
sheet for such year, setting forth in each case, in comparative form,
corresponding figures as of the end of the preceding Fiscal Year, all in
reasonable detail and satisfactory in scope to the Agent and certified to the
Borrower by KPMG LLP or such other independent public accountants as are
selected by the Borrower and satisfactory to the Agent, whose opinion shall be
in scope and substance satisfactory to the Agent, (ii) a true and complete
copy of the management letter from KPMG LLP or such other independent public
accountants as are selected by the Borrower and satisfactory to the Agent, in
connection with such audited financial statements; and (iii) a Compliance
Certificate; and


 


(d)           as soon as practicable and
in any event within thirty (30) days after the end of each Fiscal Year, a month
by month operating and capital budget for the then current Fiscal Year and
annual operating and capital budgets for the three following Fiscal Years.


 


2.             Conduct of
Business.


 


Except as contemplated by
this Agreement, the Borrower and each of its Subsidiaries shall:  (a) not fail to maintain their
respective existence and not fail to maintain in full force and effect all
material licenses, bonds, franchises, leases, patents, contracts and other
rights necessary or appropriate which if not maintained could be reasonably
expected to have a material adverse effect on the consolidated financial
condition, operations, assets, business or prospects of the Borrower and its
Subsidiaries; (b) continue in, and limit each of the Borrower’s and its
Subsidiaries’ operations to, the same general line of business as that
presently conducted by the Borrower and each of its Subsidiaries; (c) comply
with all applicable laws and regulations of any Governmental Authority, except
for such laws and regulations the violation of which would not, in the
aggregate, have a material adverse effect on the consolidated financial
condition, results of operations or business of the Borrower and its
Subsidiaries; and (d) keep and conduct their respective businesses
separate and apart from the business of the Borrower’s Affiliates; provided,
however, that the Borrower and its Subsidiaries may enter into
transactions with its Affiliates as long as such transactions are entered into
in the ordinary course of the Borrower’s or its Subsidiaries’ business, and as
long as such transactions are not less favorable to the Borrower or its
Subsidiaries than similar transactions with non-Affiliates would be.


 


3.             Maintenance of
Properties.


 


The Borrower and each of its
Subsidiaries each shall keep its real estate, leaseholds, equipment and other
fixed assets in good condition, repair and working order, normal wear and tear
excepted, except to the extent such real estate, leaseholds, equipment or other
fixed assets are not material to the conduct of its business.


 


56

















 


4.             Liability
Insurance.


 


The Borrower and each of its
Subsidiaries shall maintain, at the Borrower’s and/or such Subsidiaries own
expense (as the case may be), such public liability and property damage
insurance as is ordinarily maintained by other companies in similar businesses,
provided that in no event shall such public liability insurance provide for
coverage less than $10,000,000 per occurrence for personal injury and
$10,000,000 per occurrence for property damage. 
Each of the Borrower’s and its Subsidiaries’ public liability insurance
may provide for a deductible of not more than $500,000 per occurrence.  All such policies of insurance shall be in
form and with insurers reasonably acceptable to the Agent and proper certificates
evidencing the same, shall be provided to the Agent within ten (10) days
of receipt thereof.


 


5.             Property
Insurance.


 


At the Borrower’s own cost
and expense, or at the cost and expense of a Subsidiary, in the case of
property owned by such Subsidiary, the Borrower shall keep all of its and its
Subsidiaries’ assets fully insured, with carriers, and in amounts acceptable to
the Agent, against the hazards of fire, theft, collision, spoilage, hail, those
covered by extended or all risk coverage insurance and such others as may
reasonably be required by the Agent.  The
Borrower shall cause to be delivered to the Agent the proper certificates
evidencing the same. All such policies covering the Borrower’s and the other
Loan Parties’ assets shall provide, in manner satisfactory to the Agent, that
any amounts in excess of $500,000 payable under such policies shall be payable
first to the Agent (for the ratable benefit of the Lenders), as the Agent’s
interest may appear.  Each such policy
covering the Borrower’s or any of the other Loan Parties’ assets shall include
a provision for thirty (30) days’ prior written notice to the Agent of any
cancellation or expiration thereof and show the Agent as lender loss payee as
provided in a form of loss payable endorsement in form and substance
satisfactory to the Agent.  In the event
of any loss covered by any such policy covering the Borrower’s or any of the
other Loan Parties’ assets, the Borrower or such Loan Party, as applicable,
shall direct the carrier named in such policy to make payment for such loss to
the Agent for application to the Liabilities and not to the Borrower or such
Loan Party, as applicable, or to the Borrower or such Loan Party, as
applicable, and the Agent jointly.  The
Borrower and each of and the other Loan Parties irrevocably makes, constitutes
and appoints the Agent (and all officers, employees or agents designated by the
Agent) as the Borrower’s and such Loan Party’s true and lawful attorney and
agent-in-fact for the purpose of making, settling or adjusting claims under
such policies of insurance after the occurrence of a Matured Default.  If payment as a result of any insurance
losses under such policies of insurance covering the Borrower’s or any of the
Loan Parties’ assets shall be paid by check, draft or other instrument payable to
the Borrower or any of the other Loan Parties, or to the Borrower or any of the
other Loan Parties, as applicable, and the Agent jointly, the Agent (for the
ratable benefit of the Lenders) may endorse the Borrower’s or such Loan Party’s
name on such check, draft or other instrument, and may do such other things as
the Agent may deem advisable to reduce the same to cash.  Subject to Section 4.4(b)(i), all
loss recoveries received by the Agent on account of any such insurance on the
Collateral up to $2,500,000 may be reinvested by the Borrower in the
Collateral.  All loss recoveries received
by the Agent on account of any such insurance on the Collateral in excess of
$2,500,000 may be applied and credited by the Agent to the Liabilities, to the
extent that there are at the time Liabilities outstanding, or subject to Section 4.4(b)(i),
reinvested by the Borrower in the Collateral in the discretion of the
Agent.  The Borrower and 


 


57

















 


each
of it’s the other Loan Parties hereby assigns all of the Borrower’s and such
Loan Party’s insurance coverage proceeds to the Agent (for the ratable benefit
of the Lenders) as additional collateral security for the Liabilities.  To the extent actually received by the Agent
in immediately available funds, the Agent shall pay any surplus of insurance
proceeds from such insurance policies in excess of the Liabilities to the
Borrower.  If the Borrower or any of its
Subsidiaries fails to procure insurance as provided in this Agreement, or to
keep the same in force, or fails to perform any of its other obligations
hereunder, then the Agent may, at the Agent’s option, and without obligation to
do so, obtain such insurance and pay the premium thereon for the account of the
Borrower or any of its Subsidiaries, or make whatever other payments the Agent
may deem appropriate to protect the Agent’s security for the Liabilities.  Any such payments shall be additional
Liabilities of the Borrower, each payable on demand and secured by the Collateral.  Upon the Agent’s written request, copies of
the policies of insurance referred to in this Section 9.5 and in Section 9.4,
together with all amendments and schedules thereto, shall be provided to the
Agent by the Borrower. The Borrower’s and each of its Subsidiaries’ insurance
policies are summarized on Exhibit 9B.


 


6.             [Intentionally
Omitted].


 


7.             Pension Plans.


 


The Borrower and each of its
Subsidiaries each shall:  (a) keep
in full force and effect any and all Plans which are presently in existence or
may, from time to time, come into existence under ERISA, unless such Plans can
be terminated without material liability to the Borrower in connection with
such termination (as distinguished from any continuing funding obligation); (b) make
contributions to all Plans in a timely manner and in an amount sufficient to
comply with the requirements of ERISA; (c) comply with all requirements of
ERISA which relate to such Plans; and (d) notify the Agent immediately
upon the Borrower’s or any of its Subsidiaries’ receipt of any notice of the
institution of any proceeding or other action which may result in the
termination of any Plan.  Notwithstanding
the requirements of this Section 9.7, neither the Borrower’s nor
any of its Subsidiaries’ failure to comply with any of said requirements shall
constitute a Default or a Matured Default under this Agreement, unless such
failure could result in the imposition on the Borrower or such Subsidiary of a
liability in excess of $1,000,000 on a consolidated basis for the Borrower and
its Subsidiaries.


 


8.             Notice of Suit,
Adverse Change, ERISA Event or Default.


 


The Borrower and each of its
Subsidiaries shall, as soon as possible, and in any event within ten (10) Business
Days after either the Borrower or such Subsidiary learns of the following, give
written notice to the Agent of (a) any proceeding being instituted or
threatened to be instituted by or against the Borrower or any of its
Subsidiaries in any federal, state, local or foreign court or before any
commission or other regulatory body (federal, state, local or foreign) for
which claimed damages exceed $2,000,000, (b) any material adverse change
in the business, assets or condition, financial or otherwise, of the Borrower
and its Subsidiaries, taken as a whole, (c) any ERISA Event and (d) the
occurrence of any Default or Matured Default. 
Within three (3) Business Days after the Agent’s receipt of such
written notice, the Agent shall forward such notice to the Lenders.


 


58

















 


9.             [Intentionally
Omitted].


 


10.          Books and
Records; Separate Existence.


 


The Borrower and each of its
Subsidiaries shall maintain proper books of record and account in accordance
with GAAP consistently applied in which true, full and correct entries will be
made of all of their respective dealings and business affairs.


 


11.          Laws and
Obligations.


 


The Borrower and each of its
Subsidiaries shall comply with all Governmental Requirements in all material
respects; and pay all taxes, assessments, governmental charges, claims for
labor, supplies and rent, including without limitation, taxes, assessments,
governmental charges, claims for labor, supplies and rent imposed upon or
against or with respect to the ownership, use, occupancy or enjoyment of any
real property owned by the Borrower or any of its Subsidiaries, or any utility
service thereon; provided, however, that the Borrower and its
Subsidiaries shall not be required to pay any ad valorem or other real
property taxes or any other taxes, assessments, governmental charges or claims
or charges of amounts claimed to be due in any event, if, in any such case, the
amount, applicability or validity thereof shall currently be contested in good
faith by appropriate proceedings diligently conducted by or on behalf of the
Borrower or any of its Subsidiaries and, if required under GAAP, the Borrower
and each of its Subsidiaries shall have set up adequate reserves therefor; and
provided further that, with respect to such other taxes, assessments,
governmental charges or claims, no lien is claimed by the United States or any
state or other political subdivision thereof which could have priority over the
liens and security interests granted to the Agent pursuant to the Security
Documents.


 


12.          Environmental
Laws.


 


The Borrower and each of its
Subsidiaries shall at all times:


 


(a)           use and operate all of its
businesses and properties in compliance in all material respects with all
environmental laws; keep all necessary permits relating to environmental and
safety and health matters in effect and remain in compliance in all material
respects therewith; handle all hazardous materials in compliance in all
material respects with all applicable environmental laws; and dispose of all
hazardous materials generated by the Borrower or any of its Subsidiaries or at
any property owned or leased by the Borrower or any of its Subsidiaries at
facilities or with carriers that maintain valid permits for such disposal or
transportation under applicable environmental laws, except to the extent that failure
to so comply shall not have a material adverse effect on the financial
condition, results of operations or business of the Borrower and its
Subsidiaries, taken as a whole;


 


(b)           promptly notify the Agent
(and provide copies upon receipt) of all material claims, complaints, notices
or inquiries relating to the environmental condition of its facilities and
properties or its compliance with environmental laws; and


 


59

















 


(c)           provide such other
information and certifications which the Agent may reasonably request from time
to time to evidence compliance with this Section 9.12.


 


13.          Trade Accounts
Payable and Producer Payables.


 


The Borrower and each of its
Subsidiaries shall pay, within two (2) Business Days after the Borrower’s
or such Subsidiary’s purchase of the related Inventory, all cattle Producer
Payables other than (a) those not yet due for livestock priced on a grade
and yield matrix, and (b) those which are not yet due and have deferred
payment terms.  The Borrower and each of
its Subsidiaries shall pay, within five (5) Business Days after the
Borrower’s or any of its Subsidiaries’ purchase of the related Inventory, all
grain Producer Payables.  The Borrower
and each of its Subsidiaries may pay Producer Payables by wire transfer on the
date of presentment of checks representing payment of Producer Payables.  The Borrower and each of its Subsidiaries
shall pay all cattle Producer Payables for livestock priced on a grade and
yield matrix and those which have deferred payment terms, in accordance with
the terms governing the same.  The
Borrower and each of its Subsidiaries shall pay all trade accounts payable
other than Producer Payables on a basis not more than forty-five (45) days past
due, except (a) accounts payable contested in good faith or (b) accounts
payable in an aggregate amount not to exceed at any time outstanding $250,000
and with respect to which no proceeding to enforce collection has been
commenced or, to the knowledge of the Borrower or any of its Subsidiaries,
threatened.  Packers and Stockyard Act
claims shall remain:  (i) unsecured
at all times; (ii) secured by LCs; (iii) secured by performance bonds
satisfactory to Agent; or (iv) secured by a trust account or other form of
security permitted by the Packers and Stockyards Act and satisfactory to the
Agent.


 


14.          Compliance with
National Security Laws.


 


The Borrower shall (a) ensure,
and cause each Subsidiary to ensure, that no person who owns a controlling
interest in or otherwise controls the Borrower or any Subsidiary is or shall be
listed on the Specially Designated Nationals and Blocked Person List or other
similar lists maintained by the Office of Foreign Assets Control (“OFAC”),
the Department of the Treasury, or included in any Executive Orders, (b) not
use or permit the use of the LCs or the proceeds of the Loans or Swing Line
Loans to violate any of the foreign asset control regulations of OFAC or any
enabling statute or Executive Order relating thereto, and (c) comply, and
cause each Subsidiary to comply, with all applicable Bank Secrecy Act (“BSA”)
laws and regulations, as amended.


 


15.          Post Closing
Matters.


 


(a)           The Borrower shall use
commercially reasonable efforts to deliver to the Agent on or before July 8,
2010, bailee letters in form and substance satisfactory to the Agent in respect
of each location of Inventory of the Loan Parties and KC Steak listed on Exhibit 3B(i);


 


(b)           On or before the date that
is 120 days after the Restatement Date (or such later date as the Agent may agree
in its sole discretion), NBC shall have delivered to the Agent, in form and
substance acceptable to the Agent, a Deed of Trust, Assignment of


 


60
















 


Rents and Leases, Security
Agreement and Fixture Filing and an Assignment of Leases and Rents together
with such other instruments as Agent may require to create a Lien on the
California Property to secure the Liabilities, and such instruments shall be recorded,
at Borrower’s cost, in the Official Records of Imperial County,
California.  Agent shall cause the
Intercompany Deed of Trust to be released upon satisfaction of the foregoing
requirement.   In addition, on or before
the date that is 120 days after the Restatement Date (or such later date as the
Agent may agree in its sole discretion), the Borrower shall have delivered to
the Agent, in form and substance acceptable to the Agent, (i) a mortgagee
title insurance policy in the amount of $61,542,000.00 on the California
Property naming Lenders as the insureds; and (ii) an opinion of legal
counsel in the State of California.; and


 


(c)           On or before the date that
is 90 days after the Restatement Date (or such later date as the Agent may
agree in its sole discretion), the Borrower shall have delivered to the Agent,
in form and substance acceptable to the Agent, with respect to the Kansas
Mortgage, the Pennsylvania Mortgage and Georgia Mortgage and the properties
covered thereby: (i) mortgagee title insurance policies, or date down and
modification endorsements to existing policies, as the case may be; and (ii) if
and to the extent requested by the Agent, modifications to the Kansas Mortgage,
the Pennsylvania Mortgage and the Georgia Mortgage to reflect the new Maturity
Date, the increase in the Indebtedness and such other matters with respect to
this Agreement as Agent shall require. 
The Borrower shall pay all costs required to comply with this Section 9.15(c).


 


(d)           On or before the date that
is 90 days after the Restatement Date (or such later date as the Agent may
agree in its sole discretion), Borrower shall have taken action satisfactory to
Agent to obtain good and insurable title to the strip of land between Parcel
A-4 and the adjoining real property as shown on the survey of the Dodge City
Facilities dated May 4, 2010 prepared by Cornerstone Professional
Services.


 


(e)           On or before the date that
is 10 days after the Restatement Date (or such later date as the Agent may
agree in its sole discretion), the Loan Parties shall deliver to the Agent the
endorsements required by Section 9.5 of this Agreement in respect
of property insurance.


 


(f)            On or before the date that
is 30 days after the Restatement Date (or such later date as the Agent may
agree in its sole discretion), the Loan Parties shall deliver to the Agent each
certificate (if any) representing “Pledged Equity” (as defined in the Security
Agreement) that is required to be delivered under the Security Agreement,
together with corresponding stock or transfer powers executed in blank.


 


16.          Funded Debt to
EBITDA Ratio.


 


The Borrower shall have a Funded Debt to EBITDA Ratio of not more than
3.25 to 1.00 as at the end of each fiscal quarter.


 


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17.          Adjusted Net
Worth


 


The Borrower and its consolidated Subsidiaries shall have Adjusted Net
Worth of not less than $275,000,000 as at the end of each Fiscal Year.


 


18.          Fixed Charge
Coverage Ratio.


 


The Borrower shall have a Fixed Charge Coverage Ratio of at least 1.05
to 1.00 as at the end of each fiscal quarter.


 


19.          Additional
Collateral.


 


(a)           Upon the formation or
acquisition of any new direct or indirect Subsidiary by the Borrower (other
than a Foreign Subsidiary or Non-Material Domestic Subsidiary), the Borrower
shall, at the Borrower’s expense, within sixty (60) days after such formation
or acquisition or such longer period as the Agent may agree in its sole
discretion, cause each such Subsidiary to execute and deliver to the Agent a
joinder to this Agreement, the Security Agreement and the Guaranty Agreement in
form and substance reasonably satisfactory to the Agent; provided, further,
that, if at any time a Non-Material Domestic Subsidiary shall, together with
its consolidated Subsidiaries, have assets, as of the last day of the Borrower’s
most recently ended fiscal quarter, with a book value of 5% or more of the
total assets of the Borrower and its Subsidiaries on a consolidated basis on
such date, then the Borrower shall cause such Non-Material Domestic Subsidiary
to execute and deliver to the Agent a joinder to this Agreement, the Security
Agreement and the Guaranty Agreement in form and substance reasonably
satisfactory to the Agent; provided, further, that, if at any
time the aggregate book value of the assets of the Domestic Subsidiaries which
have not become Subsidiary Loan Parties in accordance with this Section 9.19,
together with the assets of their respective consolidated Subsidiaries, shall
equal or exceed 10% of the total book  value of the
assets of the Borrower and its Subsidiaries on a consolidated basis, then the
Borrower shall cause one or more additional Domestic Subsidiaries to become
Subsidiary Loan Parties in accordance with this Section 9.19; provided,
further, that, if at any time the aggregate EBITDA of a Domestic
Subsidiary which has not become a Subsidiary Loan Party in accordance with this
Section 9.19, together with its consolidated Subsidiaries, shall be
greater than or equal to $20,000,000, then the Borrower shall cause such
Domestic Subsidiary to become Subsidiary Loan Parties in accordance with this Section 9.19;
provided, further, that, notwithstanding anything else to the
contrary contained in this clause (a), in no event shall National Beef
Leathers, LLC be or become a Subsidiary Loan Party, except upon consent of the
Agent.


 


(b)           The Borrower shall cause,
and shall cause each other Subsidiary Loan Party to cause, all of its
respective property to be subject at all times to first priority perfected
Liens in favor of or for the benefit of the Agent on behalf of itself and the
other secured parties, subject in each case to Liens permitted by Section 10.1,
in accordance with the terms of the Security Agreement.  Without limiting the foregoing, subject to
the terms of the Security Documents, the Borrower will, and will cause each
Subsidiary Loan Party to, execute and deliver, or cause to be executed and
delivered, 


 


62

















 


such documents, agreements
or instruments and will take or cause to be taken such further actions
(including the filing and recording of financing statements, fixture filings,
mortgages, deeds of trust and other documents) which may be required by law or
which the Agent may, from time to time, reasonably request to carry out the
terms and conditions of this Agreement and the other Financing Documents and to
ensure perfection and priority of the Liens created or intended to be created
by the Security Documents, all at the expense of the Borrower.


 


(c)           If, in compliance with the terms
and provisions of the Financing Documents, the Borrower or any Subsidiary (i) sells
or otherwise transfers equity interests of any Subsidiary Loan Party to a
Person which is not the Borrower or a Subsidiary and after giving effect to
such sale or transfer the Borrower and its Subsidiaries cease to own any of the
equity interests of such Subsidiary Loan Party, (ii) liquidates or
dissolves any Subsidiary Loan Party or (iii) subject to compliance with clause
(a) above, any Subsidiary Loan Party shall be or become a Non-Material
Domestic Subsidiary, in each case, the Agent will, on behalf of the Lenders,
execute and deliver to the Borrower a release of such Subsidiary Loan Party
from its obligations under this Agreement and the other Financing Documents.


 


ARTICLE
X

NEGATIVE COVENANTS


 


The Borrower and each other
Loan Party covenants and agrees that from the date of execution hereof until
the Liabilities are paid in full, and the Commitments, all LCs and all other
obligations of the Agent, the Issuers, the Swing Line Lender and the Lenders
hereunder are finally terminated, the Borrower will comply (and will cause each
of its Subsidiaries to comply) with the following provisions of this Article 10:


 


1.             Encumbrances.


 


Except for those Liens
presently in existence and reflected in either the Borrower’s or its
Subsidiaries’ financial statements referred to in Section 7.16 or
security interests granted in the Security Documents or in the Intercompany
Financing Documents, none of the Borrower nor any of its Subsidiaries shall
create, incur, assume or suffer to exist any Lien of any nature whatsoever on
or with regard to any of its assets (including, without limitation, the
Collateral) other than:  (a) Liens
securing the payment of taxes, either not yet due or the validity of which is
being contested in good faith by appropriate proceedings, and as to which the
Borrower or its Subsidiaries (as the case may be) shall, if appropriate under
GAAP, have set aside on its books and records adequate reserves; (b) Liens
securing deposits under workers’ compensation, unemployment insurance, social
security and other similar laws, or securing the performance of bids, tenders,
contracts (other than for the repayment of borrowed money) or leases, or
securing indemnity, performance or other similar bonds for the performance of
bids, tenders, contracts (other than for the repayment of borrowed money) or
leases, or securing statutory obligations or surety or appeal bonds, or
securing indemnity, performance or other similar bonds in the ordinary course
of the Borrower’s or its Subsidiaries’ business (as the case may be); (c) Liens
granted under the Bond Documents and Liens in favor of the Agent securing the
Liabilities; (d) zoning restrictions, easements, licenses, covenants and
other restrictions affecting the use of the Borrower’s or any 


 


63

















 


of
its Subsidiaries’ real property, and other Liens on property which are
subordinate to the Liens of the Agent securing the Liabilities and which do
not, in the determination of the Required Lenders (i) materially impair
the use of such property or (ii) materially lessen the value of such
property for the purposes for which the same is held by the Borrower or any of
its Subsidiaries; (e) purchase money security interests and capitalized
leases securing indebtedness permitted to be incurred under Section 10.4(d);
(f) in the case of the Borrower, Liens securing the interests of any
broker in any Margin Account; (g) in the case of the Borrower, Liens securing
indebtedness permitted to be incurred under Section 10.4(f); and (h) Liens
permitted under Section 7.29.


 


2.             Consolidations,
Mergers or Acquisitions.


 


None of the Borrower nor any
of its Subsidiaries shall recapitalize or consolidate with, merge with, or
otherwise acquire all or substantially all of the assets or properties of any
other Person; provided, however, that (a) any Subsidiary of
the Borrower shall be permitted to consolidate or merge with (i) the
Borrower, provided that the Borrower shall be the continuing or
surviving Person or (ii) any one or more other Subsidiaries of the
Borrower, provided, that, in the event of a consolidation or merger with
a Loan Party, the Loan Party shall be the continuing or surviving Person, and (b) the
Borrower may make acquisitions, so long as no Default or Matured Default is
then continuing or would occur as a result of such transaction, the Funded Debt
to EBITDA Ratio on a pro forma basis after giving effect to such acquisition
(based on assumptions and projections acceptable to the Agent) shall not exceed
2.50 to 1.00 and the Borrower shall otherwise be in pro forma compliance (based
on assumptions and projections acceptable to the Agent) with the financial
covenants set forth in Sections 9.16 and 9.18.


 


3.             Deposits,
Investments, Advances or Loans.


 


None of the Borrower nor any
of its Subsidiaries shall make or permit to exist deposits, investments,
advances or loans (other than those existing on the date of the execution of
this Agreement and disclosed to the Lenders in writing on or prior to such
date) in or to Affiliates or any other Person, except: (a) the Collateral
Accounts; (b) deposits under workers’ compensation, unemployment
insurance, social security and other similar laws, or securing the performance
of bids, tenders, contracts (other than for the repayment of borrowed money) or
leases, or securing indemnity, performance or other similar bonds for the
performance of bids, tenders, contracts (other than for the repayment of
borrowed money) or leases, or securing statutory obligations or surety or
appeal bonds, or securing indemnity, performance or other similar bonds in the
ordinary course of the Borrower’s or its Subsidiaries’ business (as the case
may be); (c) in the case of the Borrower, loans not exceeding $2,000,000
in the aggregate at any one time outstanding; (d) demand deposits (other
than payroll accounts and the Collateral Accounts) not to exceed $250,000 in
the aggregate for the Borrower and its Subsidiaries combined; (e) in the
case of the Borrower, margin deposits required to be made in connection with
any Margin Account; (f) in the case of the Borrower, deposits permitted by
Section 10.19 of this Agreement; (g) in the case of the
Borrower, margin deposits required to be made in connection with the Borrower’s
obligations under any Swap Contracts with any Lender or any Affiliates of a
Lender; (h) deposits in trust accounts required under the Packers and
Stockyards Act; (i) in the case of the Borrower, loans to KC Steak
pursuant to the Intercompany Financing Documents not to exceed $20,000,000 in
amount outstanding; (j) investments, advances or loans by a Loan Party to
another Loan Party; (k) Cash Equivalent Investments in which the Agent has
a perfected first 


 


64

















 


priority
security interest, including those credited to any deposit account or
securities account (as the case may be) at CoBank; (l) in the case of the
Borrower, investments in the purchase of Bonds; (m) in the case of the
Borrower, loans to or investments in aLF Ventures, LLC or other investments
related to the development of lactoferrin, in each case, occurring prior to the
date hereof not to exceed $8,000,000 in the aggregate at any one time
outstanding; (n) investments permitted under Section 10.2; (o) in
the case of the Borrower, investments permitted under Section 7.29;
(p) in the case of the Borrower and each of its Subsidiaries, advances for
travel and expenses to the officers or managers or employees of the Borrower
and its Subsidiaries paid in the ordinary course of business; (q) in the
case of the Borrower, investments in National Beef Leathers, LLC from and after
the Restatement Date in an aggregate amount not to exceed $50,000,000 for the
purpose of making capital improvements, provided that such investments
shall be in a form and subject to documentation reasonably acceptable to the
Agent and all investments in an aggregate amount in excess of $20,000,000 shall
be in the form of a secured intercompany loans which shall be collateral
assigned to the Agent; (r) in the case of the Borrower, other investments
not to exceed $5,000,000 in the aggregate; and (s) at any time from and
after the consummation of a Permitted IPO, in the case of the Borrower, loans
to NB, Inc. in an aggregate amount not to exceed $5,000,000; provided that
such loans shall be unsecured and otherwise on terms and conditions reasonably
satisfactory to the Agent.  The Borrower
shall not permit to exist any other Deposit Accounts for the receipt of
Collateral proceeds of any type whatsoever, except the Collateral Accounts.


 


4.             Indebtedness.


 


Except for those obligations
and that Indebtedness presently in existence referred to in Section 7.6,
none or the Borrower nor any of its Subsidiaries shall incur, create, assume,
become or be liable in any manner with respect to, or permit to exist, any
obligations or Indebtedness, direct or indirect, fixed or contingent, except: (a) the
Liabilities and, in the case of its Subsidiaries, the Indebtedness outstanding
under the Intercompany Financing Documents; (b) obligations secured by
liens or security interests permitted under Section 10.1 or
contingent obligations permitted under Section 10.5; (c) trade
obligations, Producer Payables and normal accruals in the ordinary course of
the Borrower’s or its Subsidiaries’ business (as the case may be) not yet due
and payable, or with respect to which the Borrower or its Subsidiaries (as
applicable) is contesting in good faith the amount or validity thereof by
appropriate proceedings, and then only to the extent that the Borrower or any
of its Subsidiaries (as applicable) has set aside on its books adequate
reserves therefor, if appropriate under GAAP; (d) other indebtedness
secured by Liens permitted under clause (e) of Section 10.1,
not exceeding $30,000,000 in the aggregate (on a combined basis for the
Borrower and its Subsidiaries) at any one time outstanding; (e) other
unsecured Indebtedness not exceeding $10,000,000 in the aggregate (on a
combined basis for the Borrower and its Subsidiaries) at any one time
outstanding; (f)  in the case of the Borrower, the Bonds; (g) in the
case of the Borrower, the Borrower’s Class A or B Units subject to
redemption rights to the extent classified as debt and obligations arising from
the exercise of those redemption rights; and (h) in the case of the
Borrower, Swap Contracts with any Lender or any of its Affiliates.


 


65

















 


5.             Guarantees and
Other Contingent Obligations.


 


None of the Borrower nor any
of its Subsidiaries shall incur any Guaranty Obligations, except:  (a) for endorsements of negotiable
Instruments for collection in the ordinary course of business; and (b) in
the case of the Borrower, guaranties of the Indebtedness (including capitalized
leases) or operating lease obligations of Domestic Subsidiaries of the Borrower
to the extent permitted under Section 10.4 or 10.12,
respectively; provided, however, that the amount payable under
such guaranties shall (i) in the case of guaranteed Indebtedness (including
capitalized lease obligations) be deemed to be “Funded Debt” for purposes of Section 9.18
of this Agreement, and (2) in the case of guaranteed operating lease
obligations, the annual amount payable shall be included in the computation of
the Borrower’s annual financial obligations for purposes of Section 10.12
of this Agreement.


 


6.             Disposition of
Property.


 


None
of the Borrower nor any of its Subsidiaries shall sell, lease, transfer or
otherwise dispose of any of its properties, assets or rights, to any Person,
except (a) sales or other dispositions of Inventory or obsolete Equipment
in the ordinary course of the Borrower’s or its Subsidiaries’ business (as
applicable), (b) as permitted in the Security Agreement and (c) sales,
transfers, dispositions of assets other than as set forth above of up to
$5,000,000 (on a combined basis for the Borrower and its Subsidiaries) during
any single Fiscal Year. The Agent hereby covenants that upon the sale or
disposition of any asset permitted hereunder it shall release its Lien on such
asset.


 


7.             Change in
Nature of Business.


 


None of the Borrower nor any
of its Subsidiaries shall engage in any material line of business substantially
different from those lines of business conducted by the Borrower and its Subsidiaries
on the Closing Date or any business reasonably related or ancillary thereto..


 


8.             ERISA Matters.


 


None of the Borrower nor any
of its Subsidiaries shall at any time engage in a transaction which could be
subject to Section 4069 or 4212(c) of ERISA, or permit any Plan to (a) engage
in any non-exempt “prohibited transaction” (as defined in Section 4975 of
the IRC); (b) fail to comply with ERISA or any other applicable laws; or (c) incur
any material “accumulated funding deficiency” (as defined in Section 302
of ERISA), which, with respect to each event listed above, could be reasonably
expected to have a material adverse effect on the Borrower’s consolidated
business, assets, operations, financial condition or prospects.


 


9.             [Intentionally
Omitted].


 


10.          Equity
Distributions.


 


None of the Borrower nor any
of its Subsidiaries shall directly or indirectly, make any Equity
Distributions, except that (a) the Borrower may make quarterly
distributions to its Members in respect of Borrower’s taxable income, in
amounts proportionate to the respective percentage interests of each of such
Member so that each such Member shall have received an 


 


66

















 


amount
equal to 48% of such Member’s share of the Borrower’s net taxable income for
the relevant quarter (subject to any increase in accordance with the terms of
the Borrower’s Amended and Restated Limited Liability Company Agreement)  (the “Permitted Taxable Distribution Amount”), provided
that if the aggregate distribution made during any calendar year exceeds the
Permitted Taxable Distribution Amount, then the excess distribution for such
tax year shall be applied to the permitted distributions for the immediately
subsequent quarters, Dollar-for-Dollar, until all such excess has been applied
to future permitted distributions,  b)
the Borrower may make distributions to pay an annual 5% return on its Class A
Units, so long as no Default or Matured Default has occurred and is continuing
or would be caused thereby, (c) the Borrower may (i) make
distributions to pay up to an annual 7% return on the Specified Class A-1
Units, so long as no Default or Matured Default has occurred and is continuing
or would be caused thereby, or (ii) if the conditions in clause (i) are
not satisfied, issue payment in kind notes in lieu thereof in an amount equal
to an annual 7% return on the Specified Class A-1 Units, (d) the
Borrower may make distributions in respect of its outstanding equity interests
in an amount not to exceed $150,000,000 in the aggregate during the period from
(and including) the Restatement Date until the first anniversary of the
Restatement Date (the “$150 Million Basket”), (i) so long as no
Default or Matured Default has occurred and is continuing or would be caused
thereby, and (ii) subject to any concurrent mandatory prepayment required
to be made pursuant to Section 4.4(b)(ii), and (e) the
Borrower may make additional Equity Distributions (the “Additional Equity
Distributions”), so long as (i) no Default or Matured Default has
occurred and is continuing or would be caused thereby, (ii) the Borrower
shall be in pro forma compliance (based on assumptions and projections
acceptable to the Agent) with the Fixed Charge Coverage Ratio after giving
effect to such Equity Distribution and (iii) to the extent such Additional
Equity Distributions shall be made with IPO Proceeds, subject to any concurrent
mandatory prepayment required to be made pursuant to Section 4.4(b)(ii).


 


11.          Amendment of
Organizational Documents.


 


Neither the Borrower nor any
of its Subsidiaries shall amend any agreement, instrument or document
pertaining to either the Borrower’s or any of its Subsidiaries’ governance, in
any manner that affects either of the Borrower’s or any of its Subsidiaries’
name or jurisdiction of organization or that otherwise could reasonably be
expected to have a material adverse effect on the rights, powers or remedies of
the Agent and/or the Lenders.


 


12.          Lease
Limitations.


 


The Borrower’s and its
Subsidiaries’ combined annual financial obligations under all operating leases
and other similar agreements (excluding capitalized leases and Owner/Operator
Agreements shall not exceed $25,000,000 in the aggregate in any of the Borrower’s
Fiscal Years.


 


13.          Use of Other
Fictitious Names.


 


None of the Borrower nor any
of its Subsidiaries shall use any fictitious name except for the names referred
to in Section 7.7 of this Agreement or as otherwise may be
disclosed at least thirty (30) days in advance in writing to the Agent.


 


67

















 


14.          [Intentionally
Omitted.]


 


15.          Fiscal Year.


 


None of the Borrower nor any
of its Subsidiaries shall change its Fiscal Year or any of the fiscal quarters
or monthly accounting periods therein.


 


16.          Limitations on
Bank Accounts.


 


None of the Borrower nor any
of its Subsidiaries shall maintain any cash in any bank accounts other than
those listed on Exhibit 7J or as approved by the Agent from time to
time.


 


17.          Use of
Trademarks.


 


None of the Borrower nor any
of its Subsidiaries shall use any trademarks with respect to Inventory except
for such trademarks as have been properly licensed to the Agent.


 


18.          Amendments of
Other Documents.


 


None of the Borrower nor any
of its Subsidiaries shall without the Agent’s advance written consent (which
shall not be unreasonably withheld) amend, waive any obligation owed to the
Borrower or any of its Subsidiaries under, or grant any consents under any Bond
Document or any Intercompany Financing Document, in each case, in any way that
is reasonably likely to be prejudicial to the interests of the Agent or the
other holders of the Liabilities.


 


19.          Ownership of
Cattle and Deposits on Cattle with Feeders.


 


The
Borrower and its Subsidiaries together shall not at any time own more than
25,000 head of cattle, whether such cattle are hedged or unhedged.  The Borrower and its Subsidiaries together
shall not at any time own more than 10,000 head of Unhedged Cattle to be
finished in any single month.  In
determining the number of hedged or Unhedged Cattle for purposes of this Section 10.19,
any partial ownership interests of the Borrower or any of its Subsidiaries in
cattle shall be counted at the percentage of interest owned.  As used herein, the phrase “Unhedged
Cattle” shall refer to cattle which are not hedged with either futures
contracts or option contracts at prices that limit the Borrower’s or any of its
Subsidiaries’ combined potential losses to no more than $50 per head.
Notwithstanding the provisions of Section 10.3, the Borrower and
its Subsidiaries shall be allowed to make deposits on cattle with such feeders
as are approved by the Agent, up to $75 per head, not to exceed $2,000,000 (on
a combined basis for the Borrower and its Subsidiaries) at any time outstanding
in the aggregate (the “Feeder Deposits”). The Feeder Deposits may not be
treated as tangible assets of the Borrower or any of its Subsidiaries for the
purposes of determining compliance with the covenants set forth herein without
the prior approval of the Required Lenders.


 


20.          Enforcement of
Certain Documents.


 


The Borrower shall not at
any time fail to enforce, or fail to cause its relevant Subsidiaries to
enforce, in all material respects, any of the Intercompany Financing Documents.


 


68
















 


ARTICLE
XI

DEFAULT REMEDIES


 


1.             Acceleration.


 


With respect to: (a) any
Matured Default described in clauses  (i), (j), (k) and
(l) of the definition thereof, all of the Liabilities shall
automatically become immediately due and payable, the Borrower shall without
demand pay into the Holding Account an amount equal to the aggregate undrawn
amount of all outstanding LCs, and the obligations of the Lenders to make
Loans, the Swing Line Lender to make Swing Line Loans, and the Issuers to issue
or cause the issuance of LCs and the Commitments shall automatically terminate,
without presentment, demand, protest or further notice (including without
limitation, notice of intent to accelerate and notice of acceleration) of any
kind, all of which are expressly waived by the Borrower, and (b) any other
Matured Default, the Agent may with the consent of the Required Lenders, and
shall at the request of the Required Lenders, by notice to the Borrower and the
Lenders, (i) declare the several obligations of the Lenders to make Loans,
the Swing Line Lender to make Swing Line Loans, and the Issuers and to issue or
cause the issuance of LCs and the Commitments to be terminated, whereupon such
obligations and the Commitments of each Lender shall terminate, and (ii) declare
all of the Liabilities to be due and payable, whereupon the Liabilities shall
become and be due and payable and the Borrower shall be required to pay into
the Holding Account an amount equal to the aggregate undrawn amount of all
outstanding LCs, without presentment, demand, protest or further notice
(including without limitation, notice of intent to accelerate and notice of
acceleration) of any kind, all of which are expressly waived by the Borrower.


 


2.             Other Remedies.


 


Upon the occurrence and
during the continuance of any Matured Default, the Agent may with the consent
of the Required Lenders (subject to the provisions of the other Financing
Documents), and shall at the direction of the Required Lenders, proceed:  (a) to protect and enforce the rights of
the Lenders by suit in equity, by action at law or both, whether for the
specific performance of any covenant or agreement contained in this Agreement
or in any other Financing Document or in aid of the exercise of any power
granted in this Agreement or any other Financing Document, (b) to enforce
the payment of the Liabilities, or (c) to foreclose upon any Liens granted
pursuant to the Security Documents and other Financing Documents in the manner
set forth therein; it being intended that no remedy conferred herein or in any
of the other Financing Documents is to be exclusive of any other remedy, and
each and every remedy contained herein or in any other Financing Document shall
be cumulative and shall be in addition to every other remedy given hereunder
and under the other Financing Documents, or at any time existing at law or in
equity or by statute or otherwise.


 


3.             Right to Cure.


 


If a Matured Default occurs
as a result of non-compliance with one or more of the financial covenants set
forth in Sections 9.16 and 9.18 with respect to any fiscal
quarter, the Borrower may engage in an Equity Cure Issuance and apply the
amount of the Equity Cure Proceeds as an addition to EBITDA (with the amount so
applied to be treated for purposes of 


 


69

















 


Sections
9.16 and/or 9.18, as applicable, as if such application had been
made on the last day of the respective fiscal quarter for which there has been
a non-compliance); provided, that (a) such Equity Cure Proceeds are
actually received by the Borrower and applied to EBITDA no later than the tenth
(10th) day following
the earlier of (i) the date of delivery of the financial statements with
respect to such fiscal period or (ii) the date on which the financial
statements are required to be delivered under Section 9.1 (without
regard to any cure periods applicable thereto) with respect to such fiscal
period, (b) in each four (4) fiscal quarter period, there shall be a
period of three (3) fiscal quarters in which no Equity Cure Issuance is
made, (c) only two Equity Cure Issuances may be made during the term of
this Agreement, and (d) this Section 11.3 shall not be relied
on for purposes of calculating any financial ratios other those set forth in Sections
9.16 and 9.18 and the Equity Cure Issuance shall be disregarded for
all other purposes, including, without limitation, determination of the
Applicable Margin and for purposes of determining availability of any baskets
with respect to the covenants contained in this Agreement.  The Agent and the Lenders agree that from the
date of delivery by the Borrower of notice of its intent to exercise its equity
cure rights under this Section 11.3 (but only if such notice is
provided on or before the financial statements are required to be delivered
under Section 9.1 (without regard to any cure periods applicable
thereto) with respect to such fiscal quarter) until the date that is ten (10) days
following the earlier of (i) the date of delivery of the financial
statements with respect to such fiscal period or (ii) the date on which
the financial statements are required to be delivered under Section 9.1
(without regard to any cure periods applicable thereto) with respect to such
fiscal quarter, neither the Agent nor any Lender shall exercise any rights or
remedies with respect to any Matured Default addressed in such notice.


 


ARTICLE
XII

THE AGENT


 


1.             Authorization
and Action.


 


Each Lender and each Issuer
appoints the Agent as its Agent under, and irrevocably authorizes the Agent
(subject to Section 12.7) to take such action on its behalf and to
exercise such powers under any Financing Document and under any Bond Documents
as are delegated to the Agent by the terms thereof, together with such powers
as are reasonably incidental thereto. Without limitation of the foregoing, each
Lender and each Issuer expressly authorizes the Agent to execute, deliver, and
perform its obligations under each of the Financing Documents to which the
Agent is a party, and to exercise all rights, powers, and remedies that the
Agent may have thereunder. As to any matters not expressly provided for by this
Agreement (including without limitation, enforcement or collection of the
Liabilities), the Agent shall not be required to exercise any discretion or
take any action, but shall be required to act, or to refrain from acting (and
shall be fully protected in so acting or refraining from acting), upon the
instructions of the Required Lenders (or such other groups of Lenders, the
relevant Issuer and/or the Swing Line Lender as may be required pursuant to a
particular provision of this Agreement or another Financing Document), and such
instructions shall be binding upon all the Lenders, the Issuers, the Swing Line
Lender and all holders of and participants in any Note; provided, however,
that the Agent shall not be required to take any action which exposes the Agent
to personal liability or which is contrary to this Agreement or applicable
law.  Without limiting the generality of
the power and authority vested in the Agent pursuant to this Section 12.1,
the power and authority vested in the Agent includes, but is not limited to,
the following:


 


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(a)           To solicit the advice and assistance
of each of the Lenders and Farm Credit System Voting Participants concerning
the administration of the Loans and the exercise by the Agent of its various
rights, remedies, powers, and discretions with respect thereto;


 


(b)           To execute, seal, acknowledge, and
deliver as the Agent, all such instruments as may be appropriate in connection
with the administration of the Loans and the exercise by the Agent of its
various rights with respect thereto;


 


(c)           To initiate, prosecute, defend, and
to participate in, actions and proceedings in its name as the Agent for the
ratable benefit of the Lenders;


 


(d)           To retain attorneys, accountants, and
other professionals to provide advice and professional services to the Agent,
with their fees and expenses reimbursable in accordance with the terms hereof;
and


 


(e)           To exercise powers reasonably
incident to the Agent’s discharge of its duties enumerated in Section 12.1
hereof.


 


2.             Agent’s
Reliance, Etc.


 


Neither the Agent nor any of
its directors, officers, agents or employees shall be liable to any Lender or
Issuer for any action taken or omitted to be taken by it or them under or in
connection with any Financing Document or Bond Document, except for its or
their own gross negligence or willful misconduct. Without limiting the
generality of the foregoing, the Agent:  (a) may
treat the original or any successor holder of any Note as the holder thereof
until it receives notice from the Lender which is the payee of such Note
concerning the assignment of such Note; (b) may employ and consult with
legal counsel (including counsel for either the Borrower or any of its
Subsidiaries), independent public accountants, and other experts selected by it
and shall not be liable to any Lender for any action taken, or omitted to be
taken, in good faith by it or them in accordance with the advice of such
counsel, accountants, or experts received in such consultations and shall not
be liable for any negligence or misconduct of any such counsel, accountants or
other experts; (c) makes no warranty or representation to any Lender or
Issuer and shall not be responsible to any Lender or Issuer for any opinions,
certifications, statements, warranties or representations made in or in
connection with any Financing Document; (d) shall not have any duty to any
Lender or Issuer to ascertain or to inquire as to the performance or observance
of any of the terms, covenants, or conditions of any Financing Document or any
other instrument or document furnished pursuant thereto or to satisfy itself
that all conditions to and requirements for any credit extension have been met
or that the Borrower is entitled to any credit extension or to inspect the
property (including the books and records) of the Borrower or any of its
Subsidiaries; (e) shall not be responsible to any Lender or Issuer for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of any item of Collateral or Financing Document, Bond Document or any
other instrument or document furnished pursuant thereto or hereto, nor for the
creation, perfection or priority of any Liens purported to be created by any
Financing Documents; and (f) shall incur no liability under or in respect
of this Agreement by acting upon any notice, consent, certificate, or 


 


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other
instrument or writing (which may be by telegram, cable, telex, or otherwise)
believed by it to be genuine and signed or sent by the proper party or parties.


 


3.             Notices of
Defaults.


 


Except as provided in this Section 12.3,
the Agent shall not be deemed to have knowledge of the occurrence of a Default
or a Matured Default unless the Agent has received written notice from a
Lender, an Issuer, the Borrower or any of its Subsidiaries specifying such
Default or Matured Default and stating that such notice is a “Notice of Default”.  Notwithstanding the foregoing, the Agent
shall be deemed to have knowledge of the occurrence of a Default or a Matured
Default:  (a) consisting of the
non-payment of principal or interest, on the due date such principal or
interest, (b) on the date the Agent has received a Compliance Certificate
of the Borrower as required by Section 9.1, which compliance
certificate discloses (without review of any financial statements attached
thereto) the existence of any Default or Matured Default, and (c) ten (10) Business
Days after the date the Agent has received a Compliance Certificate of the
Borrower as required by Section 9.1, which compliance certificate
(after review of any financial statements attached thereto) would disclose the
existence of any Default or Matured Default. 
In the event that the Agent obtains such knowledge of the occurrence of
a Default or a Matured Default, the Agent shall within three (3) Business
Days thereafter, give prompt notice thereof to the Lenders and the
Issuers.  The Agent shall (subject to Section 12.1)
take such action with respect to such Default as may be directed by the
Required Lenders; provided that, unless and until the Agent shall have received
the directions referred to in Section 12.1, the Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default as it shall deem advisable and in the best
interest of the Lenders and the Issuers.


 


4.             The Agent as a
Lender, Fiduciary.


 


(a)           With respect to its Commitment, any Loan
or Swing Line Loan made by it, any LC issued by it and any Note issued to it,
the Agent shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though it were not the Agent; and the
term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include
the Agent in its individual capacity. The Agent and its affiliates may accept
deposits from, lend money to, act as trustee under indentures of, and generally
engage in any kind of business with, the Borrower, any of its respective
Affiliates and any Person who may do business with or own securities of the
Borrower or any such Affiliate, all as if the Agent were not the Agent and
without any duty to account therefor to the Lenders.


 


(b)           None of the Arranger, any Syndication
Agent or Documentation Agent identified as such in this Agreement shall have
any right, power, obligation, liability, responsibility or duty under this
Agreement, except in its capacity, as applicable, as Agent, a Lender or an Issuer
hereunder.  Without limiting the
foregoing, none of the Arranger, any Syndication Agent or Documentation Agent
shall have or be deemed to have a fiduciary relationship with any Lender.


 


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5.             Non Reliance on
Agent and Other Lenders.


 


Each Lender and each Issuer
agrees that it has, independently and without reliance on the Agent, any other
Issuer, Lender or the Swing Line Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Borrower and its Subsidiaries and its decision to enter into the transactions
contemplated by the Financing Documents and that it will, independently and
without reliance upon the Agent, any other Issuer, Lender or Swing Line Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking or not taking
action under any Financing Document. The Agent shall not be required to keep
itself informed as to the performance or observance by the Borrower, or any of
its Subsidiaries, or any other Person of any Financing Document, Bond Document,
Intercompany Financing Document, or to inspect the properties or books of the
Borrower or any of its Subsidiaries. The Agent assumes no responsibility for
the financial condition of the Borrower or for the performance of the Borrower’s
obligations under the Financing Documents. 
Except for notices, reports, and other documents and information
expressly required to be furnished to the Lenders by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the affairs, financial condition or
business of the Borrower (or any of its Affiliates) which may come into the
possession of the Agent or any of its affiliates.  Notwithstanding the foregoing, the Agent
will, upon the request of any Lender or Issuer, provide to such Person, at such
Person’s expense, copies of any and all written information provided to the
Agent by the Borrower or any of its Subsidiaries (unless concurrently delivered
to such Person by the Borrower or any of its Subsidiaries).


 


6.             Indemnification
of the Agent.


 


Notwithstanding anything to
the contrary herein contained, the Agent shall be fully justified in failing or
refusing to take any action unless it shall first be indemnified to its
satisfaction by the Lenders and the Issuers against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, and disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way relating to or
arising out of its taking or continuing to take any action. Each Lender agrees
to indemnify the Agent (to the extent not reimbursed by the Borrower),
according to such Lender’s Total Percentage, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses and disbursements of any kind or nature whatsoever which
may be imposed on, incurred by, or asserted against the Agent in any way
relating to or arising out of any Financing Document, Intercompany Loan
Document or Bond Document or any action taken or omitted by the Agent under any
Financing Document, Intercompany Loan Document or Bond Document (which
indemnity shall survive any termination of this Agreement); provided
that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements resulting from the gross negligence or willful
misconduct of the Person being indemnified; provided further, that it is the intention of each
Lender to indemnify the Agent against the consequences of the Agent’s own
negligence, whether such negligence be sole, joint, concurrent, active or
passive. Without limiting the foregoing, each Lender agrees to reimburse the
Agent promptly upon demand for its Total Percentage of any out-of-pocket expenses
(including attorneys’ fees) incurred by the Agent in connection with the
preparation, 


 


73

















 


administration,
or enforcement of, or legal advice in respect of rights or responsibilities
under, any Financing Document, Intercompany Loan Document or Bond Document, to
the extent that the Agent is not reimbursed for such expenses by the
Borrower.  If any indemnity in favor of
the Agent shall be or become, in the Agent’s determination, inadequate, the
Agent may call for additional indemnification from the Lenders and/or the
Issuers and cease to do the acts indemnified against hereunder unless such
additional indemnity is given.


 


7.             Successor Agent.


 


The Agent may resign at any
time as Agent under the Financing Documents by giving written notice thereof to
the Lenders, the Issuers, the Swing Line Lender and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon any
such resignation or removal, the Required Lenders shall have the right to
appoint a successor Agent with the prior written consent of the Borrower, such
consent not to be unreasonably withheld (provided that the Borrower shall have
no consent right upon the occurrence and during the continuance of a Matured
Default). If no successor Agent shall have been so appointed by the Required
Lenders or shall have accepted such appointment within sixty (60) days after
the retiring Agent’s giving of notice of resignation or the Required Lenders’
removal of the Agent, then the retiring Agent may, on behalf of the Lenders and
the Issuers, appoint a successor Agent with the Borrower’s prior written
consent, such consent not to be unreasonably withheld (provided that the
Borrower shall have no consent right upon the occurrence and during the
continuance of a Matured Default), which shall be a bank or other financial
institution having a combined capital and surplus of at least $500,000,000 or
its equivalent. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall be entitled to receive from the
retiring Agent such documents of transfer and assignment as such successor
Agent shall reasonably request and shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations under
this Agreement. After the retiring Agent’s resignation or removal as Agent, the
provisions of this Article XII shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.


 


8.             Verification of
Borrowing Notices.


 


The Agent shall have no duty
to verify the authenticity of the signature appearing on any notice of
borrowing, and with respect to any oral request for an advance, the Agent shall
have no duty to verify the identity of any Person representing himself as one
of the natural Persons authorized to make such request on behalf of the
Borrower. Neither the Agent nor any Lender shall incur any liability to the
Borrower in acting upon any telephonic notice referred to above which the Agent
or such Lender believes in good faith to have been given by a duly authorized
Person authorized to borrow on behalf of the Borrower or for otherwise acting
in good faith.


 


9.             Action Upon
Instructions of the Lenders.


 


The Agent agrees, upon the
written request of the Required Lenders (or such other groups of Lenders, the
Issuers and/or the Swing Line Lender as may be required pursuant to a
particular provision of this Agreement or another Financing Document), to take
any action of the type specified in the Financing Documents or Bond Document as
being within the Agent’s rights, 


 


74

















 


duties,
power or discretion.  The Agent shall in
all cases be fully protected in acting, or in refraining from acting in
accordance with written instructions signed by the Required Lenders, and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Required Lenders, the Issuers, the Swing Line Lender and
on all holders of the Notes.  In the
absence of a request by the Required Lenders, the Agent shall have authority,
in its sole discretion, to take or not to take any action, unless the Financing
Documents specifically require the consent of the Required Lenders, of all of
the Lenders or of other specified Persons.


 


10.          Action Upon
Request of the Borrower.


 


If (a) any of the
events described in Sections 5.2, 5.3, 5.4 or 5.5
cause the Borrower to be required to pay to any one of the Lenders other than
the Agent, costs associated with the LIBOR Rate Advances which are materially
disproportionate to such costs required to be paid to the other Lenders (each a
“Non-Proportionate Lender”), or (b) a Lender is a Defaulting
Lender, then the Borrower or the Agent may elect to replace such
Non-Proportionate Lender or Defaulting Lender, as the case may be, as a Lender
party to this Agreement in accordance with and subject to the restrictions
contained in, and consents required by Section 13.23; provided
that (a) if such replacement is requested by the Borrower, the Borrower
shall have received the prior written consent of the Agent, and (b) such
Non-Proportionate Lender or Defaulting Lender, as the case may be, shall have
received payment of an amount equal to the outstanding principal amount of its
Loans (including any Swing Line Loans) and participations in Swing Line Loans
and LC Obligations, accrued interest thereon, accrued fees and all other amounts
payable hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts).  Notwithstanding the
foregoing, under no circumstances shall the Lender affected hereby be required
to bear any of the costs or expenses associated with the proposed assignment,
all of which costs and expenses shall be the sole responsibility of the
Borrower and the proposed assignee, and the Lender affected hereby may defer
compliance with its obligations under this Section 12.10 until the
Borrower has deposited with such Lender such amount as such Lender reasonably
believes will be sufficient to reimburse such Lender for such costs and
expenses.


 


11.          Additional
Functions of Certain Lenders.


 


The Lenders identified in
this Agreement as a “Syndication Agent”, “Documentation Agent”, “Bookrunner”
and/or a “Lead Arranger” shall not have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those applicable
to all Lenders as such.


 


ARTICLE
XIII

MISCELLANEOUS


 


1.             Timing of
Payments.


 


For purposes of determining
the outstanding balance of the Liabilities, including the computations of
interest which may from time to time be owing to the Lenders, the receipt by
the Agent of any check or any other item of payment whether through a blocked
account or lockbox or otherwise, shall not be treated as a payment on account
of the Liabilities until such check or 


 


75

















 


other
item of payment is actually received by the Agent at its office in Greenwood
Village, Colorado and is paid to the Agent in cash or a cash equivalent.


 


2.             Attorneys’ Fees
and Costs.


 


If at any time or times
hereafter the Agent employs counsel in connection with protecting or perfecting
the Agent’s security interest in the Collateral or in connection with any
matters arising out of this Agreement, whether: 
(a) to commence, defend or intervene in any litigation or to file a
petition, complaint, answer, motion or other pleading; (b) to take any
other action in or with respect to any suit or proceeding (bankruptcy or
otherwise); (c) to consult with officers of the Agent to advise the Agent
or to draft documents for the Agent in connection with any of the foregoing or
in connection with any release of the Agent’s claims or security interests or
any proposed extension, amendment or refinancing of the Liabilities; (d) to
protect, collect, lease, sell, take possession of, or liquidate any of the
Collateral; or (e) to attempt to enforce or to enforce any security
interest in any of the Collateral, or to enforce any rights of the Agent, the
Issuers, the Swing Line Lender or the Lenders to collect any of the
Liabilities; then in any of such events, all of the reasonable attorneys’ fees
arising from such services, and any expenses, costs and charges relating
thereto, including without limitation, all fees of all paralegals, legal
assistants and other staff employed by such attorneys whether outside the Agent
or in the Agent’s legal department, together with interest at the Default Rate
provided for in Section 3.1(c) if a Matured Default has
occurred, or at the highest interest rate set forth in any promissory note
referred to herein, shall constitute additional Liabilities, payable on demand
and secured by the Collateral.  In
addition, if the Liabilities have been accelerated in accordance with Section 11.1,
and thereafter any Lender employs counsel (a) in connection with
protecting such Lender’s interest in the Collateral; (b) to commence,
defend or intervene in any litigation or to file a petition, complaint, answer,
motion or other pleading; (c) to take any other action in or with respect
to any suit or proceeding (bankruptcy or otherwise); (d) to protect,
collect, lease, sell, take possession of, or liquidate any of the Collateral;
or (e) to attempt to enforce or to enforce any security interest in any of
the Collateral, or to enforce any of such Lender’s rights to collect any of the
Liabilities; then in any of such events, all of the reasonable attorneys’ fees
arising from such services, and any expenses, costs and charges relating
thereto, including without limitation, all fees of all paralegals, legal
assistants and other staff employed by such attorneys whether outside the
Lender or in the Lender’s legal department, together with interest at the
Default Rate provided for in Section 3.1(c), or at the highest
interest rate set forth in any promissory note referred to herein, shall
constitute additional Liabilities, payable on demand and secured by the
Collateral.  All of the rights to
reimbursement of expenses set forth in this Section 13.2 that are
applicable to the Agent, shall also be applicable to CoBank and Rabobank in
their respective capacities as an Issuer and/or as the Swing Line Lender.


 


3.             Expenditures by
the Agent.


 


In the event that the
Borrower shall fail to pay taxes, insurance, assessments, costs or expenses
which the Borrower is, under any of the terms hereof, or of any of the other
Financing Documents or of any of the Bond Documents, required to pay, or fails
to keep its assets free from other security interests, liens or encumbrances,
except as permitted herein, the Agent may, in its sole discretion and without
obligation to do so, make expenditures for any or all of such purposes, and the
amount so expended, together with interest at the Default Rate provided for in 


 


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Section 3.1(c), shall
constitute additional Liabilities, payable on demand and secured by the
Collateral.


 


4.             The Agent’s
Costs as Additional Liabilities.


 


The Borrower shall reimburse
the Agent for all expenses and fees paid or incurred in connection with the
documentation, negotiation and closing of the loans and other financial
accommodations described in this Agreement (including without limitation,
filing and recording fees, and the fees, Synd-Trak fees (up to $6,000) and
expenses of the Agent’s attorneys, paralegals and legal assistants, whether
outside the Agent or in its legal department, and whether such expenses and
fees are incurred prior to or after the Closing Date).  The Borrower further agrees to reimburse the
Agent for all expenses and fees paid or incurred in connection with the documentation
of any renewal or extension of the loans, any additional financial
accommodations, or any other amendments to this Agreement.  All costs and expenses incurred by the Agent
with respect to such negotiation and documentation together with interest at
the highest interest rate set forth in any promissory note referred to herein,
shall constitute additional Liabilities, payable on demand and secured by the
Collateral. All of the rights to reimbursement of expenses set forth in this Section 13.4
that are applicable to the Agent, shall also be applicable to CoBank and
Rabobank in their respective capacities as an Issuer and/or as the Swing Line
Lender.


 


5.             Indemnification.


 


(a)           The Borrower agrees to indemnify and hold the Agent, each
Issuer, the Swing Line Lender and the Lenders and each of their respective
officers, directors, employees and agents harmless from and against any and all
claims, demands, liabilities, losses, damages, penalties, costs, and expenses
(including without limitation, reasonable attorneys’ fees) relating to or in
any way arising out of the possession, use, operation or control of any of the
Borrower’s assets (irrespective of whether such party is a party to the action
for which indemnification hereunder is sought). 
The Borrower shall pay or cause to be paid all license fees, bonding
premiums and related taxes and charges, and shall pay or cause to be paid all
of the Borrower’s real and personal property taxes, assessments and charges and
all of the Borrower’s franchise, income, unemployment, use, excise, old age
benefit, withholding, sales and other taxes and other governmental charges
assessed against the Borrower, or payable by the Borrower, at such times and in
such manner as to prevent any penalty from accruing or any lien or charge from
attaching to the Borrower’s property, provided that the Borrower shall have the
right to contest in good faith, by an appropriate proceeding promptly initiated
and diligently conducted, the validity, amount or imposition of any such tax,
and upon such good faith contest to delay or refuse payment thereof, if (i) the
Borrower establishes adequate reserves to cover such contested taxes; and (ii) such
contest does not and will not have a material adverse effect on the Borrower’s
consolidated financial condition of the Borrower, the Borrower’s ability to pay
any of the Liabilities or the priority or value of the Agent’s security
interests in the Collateral.


 


(b)           The Borrower further agrees to defend, protect, indemnify
and hold harmless the Agent, each Issuer, the Swing Line Lender, the Lenders,
their respective 


 


77

















 


Affiliates and the
respective directors, officers, employees, attorneys and agents of each of such
Persons (each of the foregoing being an “Indemnitee” and all of the
foregoing being collectively the “Indemnitees”) from and against any and
all claims, actions, damages, liabilities, judgments, costs and expenses,
including all reasonable fees and disbursements of counsel which may be
incurred in the investigation or defense of any matter (collectively the “Indemnified
Amounts”) imposed upon, incurred by or asserted against any Indemnitee,
whether direct, indirect or consequential and whether based on any federal,
state, local or foreign laws or regulations (including without limitation
securities laws, Environmental Laws, commercial laws and regulations), under
common law or on equitable cause, or on contract or otherwise:


 


(i)            by reason of, relating to or in connection with the
execution, delivery, performance or enforcement of any Financing Document, Bond
Document, Intercompany Financing Document or LC, any commitments relating
thereto, or any transaction contemplated by any Financing Document, Bond
Document, Intercompany Financing Document or LC; or


 


(ii)           by reason of, relating to or in connection with any credit
extended or used under, or transaction financed by, the Financing Documents,
the Bond Documents, the Intercompany Financing Documents or any LC or any act
done or omitted by any Person, or the exercise of any rights or remedies
thereunder, including the acquisition of any Collateral by the Agent by way of
foreclosure of the Lien thereon, deed or bill of sale in lieu of such
foreclosure or otherwise;


 


provided, however,
that the Borrower shall not be liable to any Indemnitee for any portion of such
Indemnified Amounts resulting from such Indemnitee’s gross negligence or
willful misconduct.  In the event this
indemnity is unenforceable as a matter of law as to a particular matter or
consequence referred to herein, it shall be enforceable to the full extent
permitted by law.  Furthermore, if and to
the extent that any of the foregoing agreements described in this Section 13.5
may be unenforceable for any reason, the Borrower hereby agrees to make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Amounts that is permissible under applicable law.


 


(c)           The indemnification set forth in this Section 13.5
applies, without limitation, to any act, omission, event or circumstance
existing or occurring on or prior to the later of the Termination Date or the
date of payment in full of the Liabilities, including specifically Liabilities
arising under clause (a)(ii) of this Section.  The indemnification provisions set forth
above shall be in addition to any liability the Borrower may otherwise
have.  Without prejudice to the survival
of any other obligation of the Borrower hereunder, the indemnities and
obligations of the Borrower contained in this Section shall survive the
payment in full of the Liabilities.


 


(d)           Furthermore, as applied to Liabilities arising under
Environmental Laws, the indemnification set forth in this Section 13.5
(i) shall in no way be waived, released, discharged, reduced, mitigated or
otherwise affected by the Agent’s, any Issuer’s, the Swing Line Lender’s or any
Lender’s extension of credit under the Financing Documents with knowledge of
the matters described in documents listed on Exhibit 7I  


 


78

















 


or otherwise made known to
the Agent or the Agent’s counsel in connection with this Credit Agreement or
the transactions contemplated hereby; and (ii) shall be deemed continuing
for the benefit of any purchaser at a foreclosure or other sale under any
mortgage and any transferee of the title from the Agent, and shall survive the
satisfaction or release of any mortgage, any foreclosure of or other sale under
a mortgage and/or any acquisition of title to a mortgaged property or any part
thereof by the Agent, or anyone claiming by, through or under the Agent, by
deed in lieu of foreclosure or otherwise. 
Notwithstanding the foregoing, this indemnification shall not apply with
respect to any loss, damage, liability, cost or expense related to a mortgaged
property which the Borrower proves was caused solely by or resulted solely from
any act or omission of any Person, other than the Borrower or an agent,
employee, invitee or contractor of the Borrower, which occurred after the Agent
or anyone claiming by, through or under the Agent acquired title to the relevant
mortgaged property (by foreclosure of the relevant mortgage or deed in lieu of
foreclosure or otherwise) and control of such mortgaged property.  So long as the Borrower has control of any
such mortgaged properties, the Borrower agrees that the Indemnitees shall have
no responsibility for, and the Borrower hereby releases the Indemnitees from
responsibility for, damage or injury to human health, property, the environment
or natural resources caused by hazardous substances, pollutants or contaminants
or for abatement, clean-up, detoxification, removal or disposal of, or
otherwise with respect to, hazardous substance, pollutants and contaminants, provided,
however, that the Borrower shall not be liable to any Indemnitee for any
portion of such Liabilities resulting from such Indemnitee’s gross negligence
or willful misconduct.


 


6.             Inspection.


 


The Agent (by and through
its officers and employees), or any Person designated by the Agent in writing,
shall have the right, from time to time upon five (5) Business Days notice
if there has not occurred a Matured Default and without notice after the
occurrence of a Matured Default, to call at the Borrower’s and/or any of its
Subsidiaries’ place or places of business (or any other place where Collateral
or any information relating thereto is kept or located) during reasonable
business hours, and without hindrance or delay, to:  (a) inspect, audit, check and make
copies of and extracts from such Person’s books, records, journals, orders,
receipts and any non-privileged correspondence and other data relating to such
Person’s business or to any transactions between the parties to this Agreement;
(b) make such verification concerning the Collateral (or any collateral
underlying the Intercompany Loan Documents) as the Agent may consider
reasonable under the circumstances; and (c) review operating procedures,
review maintenance of property and discuss such Person’s affairs, finances and
business with such Person’s officers, employees or directors.  The Borrower agrees to pay to the Agent an
annual audit fee in accordance with the Agent’s Letter.  The Agent will, on the request of any Lender,
provide to such Lender a copy of any written report prepared by the Agent in
connection with any inspection or audit made pursuant to this Section 13.6.


 


7.             Examination of
Banking Records.


 


The Borrower and its
Subsidiaries consents to the examination by the Agent, the Agent’s officers,
employees and agents, or any of them, whether or not there shall have occurred
a


 


79
















 


Matured
Default, of any and all of the Borrower’s and its Subsidiaries’ banking
records, wherever they may be found, and directs any Person which may be in
control or possession of such records (including, without limitation, any bank,
other financial institution or accountant) to provide such records to the Agent
and the Agent’s officers, employees and agents, upon their request.  The Agent may conduct such examination with
reasonable notice to the Borrower at the option of the Agent, any such notice
being waived by the Borrower and its Subsidiaries.  Nothing in this Section 13.7
shall be construed to require any accountant to provide materials to the Agent
or the Agent’s officers, employees and agents, which is subject to a valid
privilege.


 


8.             Governmental
Reports.


 


The Borrower will furnish to
the Agent, upon the reasonable request of the Agent, copies of the reports of
examinations or inspections of the Borrower by all Governmental Authorities,
and if the Borrower fails to furnish such copies to the Agent, the Borrower
authorizes all such Government Authorities to furnish to the Agent copies of
their reports of examinations or inspections of the Borrower.


 


9.             Reliance by the
Agent, the Issuers and the Lenders.


 


All covenants, agreements,
representations and warranties made herein by the Borrower shall,
notwithstanding any investigation by the Agent, any Issuer, the Swing Line
Lender or any of the Lenders, be deemed to be material to and to have been
relied upon by the Agent, the Issuers, the Swing Line Lender and the Lenders.


 


10.          Parties.


 


Whenever in this Agreement
there is reference made to any of the parties hereto, such reference shall be
deemed to include, wherever applicable, a reference to the respective
successors and assigns of the Borrower, the Agent, the Swing Line Lender, the
Lenders and the Issuers.


 


11.          Applicable Law;
Severability.


 


This Agreement shall be
construed in all respects in accordance with, and governed by, the laws and
decisions of the State of Colorado without regard to the application of
conflict of laws principles.  Wherever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provisions or the
remaining provisions of this Agreement.


 


12.          SUBMISSION TO
JURISDICTION; WAIVER OF BOND AND TRIAL BY JURY.


 


THE BORROWER HEREBY CONSENTS
TO THE JURISDICTION OF ANY LOCAL, STATE, OR FEDERAL COURT LOCATED WITHIN THE
CITY AND COUNTY OF DENVER, COLORADO AND WAIVES ANY OBJECTION WHICH THE BORROWER
MAY HAVE BASED ON IMPROPER VENUE OR FORUM NON CONVENIENS TO THE 


 


80

















 


CONDUCT
OF ANY PROCEEDING IN ANY SUCH COURT, WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS UPON THE BORROWER. THE BORROWER HEREBY CONSENTS THAT ALL SUCH SERVICE
OF PROCESS BE MADE BY MAIL OR MESSENGER DIRECTED TO THE BORROWER AT THE ADDRESS
SET FORTH IN SECTION 13.18 OF THIS AGREEMENT.  SERVICE SO MADE SHALL BE DEEMED TO BE
COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT OR THREE (3) DAYS AFTER THE
SAME SHALL HAVE BEEN POSTED TO THE BORROWER’S ADDRESS BY THE BORROWER’S AGENT
AS SET FORTH BELOW.  THE BORROWER HEREBY
IRREVOCABLY APPOINTS THE CORPORATION COMPANY, WITH AN OFFICE ADDRESS LOCATED AT
1675 BROADWAY, DENVER, COLORADO 80202, AS THE BORROWER’S AGENT FOR THE PURPOSE
OF ACCEPTING THE SERVICE OF ANY PROCESS WITHIN THE STATE OF COLORADO.  AT THE OPTION OF THE AGENT, THE BORROWER
WAIVES, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY, AND WAIVES ANY BOND OR
SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED
OF THE AGENT.  THE BORROWER ACKNOWLEDGES
AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS
PROVISION (AND EACH OTHER PROVISION OF EACH OTHER FINANCING DOCUMENT TO WHICH
IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT,
EACH ISSUER, THE SWING LINE LENDER AND THE LENDERS TO ENTER INTO THIS AGREEMENT
AND EACH SUCH OTHER FINANCING DOCUMENT.


 


13.          Application of
Payments.


 


(a)           Application of
Payments and Collections Prior to a Matured Default.


 


(i)                                     Subject to subsection
(b) below, the Agent shall distribute all funds it receives in respect
of any payments made by or on behalf of the Borrower on the Notes or the
Non-Use Fees among the Lenders, in like currency and funds as received, ratably
according to each Lender’s respective Line of Credit Loan Commitment or the
outstanding principal amount of each Lender’s respective Term Loan, as the case
may be.


 


(ii)                                  Subject to subsection
(b) below, the Agent shall distribute all funds it receives in respect
of any payments made by or on behalf of the Borrower on the Borrower’s
obligations under a Swap Contract to the applicable Swap Party.


 


(iii)                               Subject to subsection
(b) below, the Agent shall distribute all funds it receives in respect
of any payments made by or on behalf of the Borrower on LC Obligations to the
applicable Issuer(s).


 


(iv)                              Subject to subsection
(b) below, the Agent shall distribute all funds it receives in respect
of any payments made by or on behalf of the Borrower on Swing Line Loans to the
Swing Line Lender.


 


(b)           Application of Payments and
Collections after a Matured Default. After any Matured Default has
occurred, all funds received by the Agent, whether as 


 


81

















 


payments by the Borrower or
as realization on Collateral or on any guaranties, shall (except as may
otherwise be required by law) be distributed by the Agent as follows:


 


(i)            First, to pay any unreimbursed cost
of collection with respect to any Loan, any Swing Line Loan, any Note, any LC
Obligation, any Collateral or otherwise relating to this Agreement to the Agent
and each Issuer, Lender, Swing Line Lender or Swap Party who has incurred such
costs;


 


(ii)           Second, to pay the Agent and each
Issuer, Lender, Swing Line Lender or Swap Party to whom the Borrower owes any
indemnity obligation or other expense reimbursement obligation (other than
those described in the immediately preceding subsection (a)) with
respect to any Loan, any Swing Line Loan, any Note, any LC Obligation, any
Collateral or otherwise relating to this Agreement, or relating to any Swap
Contract, the amount thereof;


 


(iii)          Third, (1) to the Lenders,
accrued Non-Use Fees then due and payable by the Borrower in accordance with
their respective Line of Credit Loan Commitments, (2) to pay to the Agent
that portion of the accrued fees payable to the Agent, and (3) to pay any
fees then due and payable to the Issuers pursuant to this Agreement;


 


(iv)          Fourth, to pay (1) accrued
interest that is payable on the Loans to the Lenders, (2) accrued interest
that is payable on the Swing Line Loans to the Swing Line Lender, and (3) any
obligation (other than an early termination payment obligation) owing to a Swap
Party that is due and payable to such Swap Party pursuant to any Swap Contract;


 


(v)           Fifth, to pay (1) the principal
of the Loans to the Lenders, (2) the principal of the Swing Line Loans to
the Swing Line Lender, (3) any obligation that is due and payable to a
Swap Party as a result of an early termination of a Swap Contract, (4) the
aggregate amount of any drawings under LCs which have not yet been reimbursed
to the relevant Issuers, and (5) to the Holding Account an amount equal to
the aggregate undrawn amount of all outstanding LCs;


 


(vi)          Sixth, to the Borrower or as otherwise
may be directed by court order or by other applicable law.


 


To the extent that available
funds are sufficient to pay only part of the amount due to all Persons within
any of the foregoing clauses, such funds shall be allocated to all such Persons
pro rata in accordance with the respective amounts owed.  Upon any sale of the Collateral by the Agent
(including pursuant to a power of sale granted by statute or under a judicial
proceeding), the receipt by the Agent or of the officer making the sale shall
be a sufficient discharge to the purchaser or purchasers of the Collateral so
sold and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Agent or such
officer or be answerable in any way for the misapplication thereof.


 


82

















 


14.          Marshaling;
Payments Set Aside.


 


The Agent shall be under no
obligation to marshal any assets in favor of the Borrower or against or in
payment of any or all of the Liabilities. 
To the extent that the Borrower makes a payment or payments to the Agent
or the Agent receives any payment or proceeds of the Collateral for the
Borrower’s benefit or enforces the Agent’s security interests or exercises the
Agent’s rights of set-off, and such payment or payments or the proceeds of such
Collateral, enforcement or set-off or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then to
the extent of such recovery, the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such enforcement or set-off had not occurred.


 


15.          Section Titles.


 


The section titles contained
in this Agreement shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement among the parties.


 


16.          Continuing
Effect.


 


This Agreement, the Agent’s
security interests in the Collateral, and all of the other Financing Documents
shall continue in full force and effect so long as any Liabilities shall be
owed to the Agent and/or any of the Lenders and/or the Issuers and/or the Swing
Line Lender and (even if there shall be no Liabilities outstanding) so long as
the Agent and/or any of the Lenders remains committed to make Loans under this
Agreement and/or any Issuer remains committed to issue LCs under this Agreement
and/or the Swing Line Lender remains committed to make Swing Line Loans under
this Agreement.


 


17.          No Waiver.


 


The Agent’s, any Issuer’s or
the Required Lenders’ failure, at any time or times hereafter, to require
strict performance by the Borrower of any provision of this Agreement shall not
waive, affect or diminish any right of the Agent or the Required Lenders
thereafter to demand strict compliance and performance therewith.  Any suspension or waiver by the Agent or the
Required Lenders of any Default or Matured Default under this Agreement or any
of the other Financing Documents, shall not suspend, waive or affect any other
Default or Matured Default under this Agreement or any of the other Financing
Documents, whether the same is prior or subsequent thereto and whether of the
same or of a different kind or character. 
None of the undertakings, agreements, warranties, covenants and
representations of the Borrower contained in this Agreement or any of the other
Financing Documents and no Default or Matured Default under this Agreement or
any of the other Financing Documents, shall be deemed to have been suspended or
waived by the Agent, the Issuers or the Required Lenders unless such suspension
or waiver is in writing signed by an officer of the Agent or each of the
Required Lenders (as applicable) and is directed to the Borrower specifying
such suspension or waiver.


 


83

















 


18.          Notices.


 


(a)           All notices and other communications provided for herein
shall be in writing (including telex, facsimile, or cable communication) and
shall be mailed, telexed, cabled or delivered addressed as follows:


 


(i)             If to the Agent at:


CoBank, ACB


5500 South Quebec
Street


Greenwood Village,
Colorado 80111


Attn:  Jim Matzat


Facsimile:
303-224-2529


 


(ii)           If to the Borrower or any of its
Subsidiaries at:


National Beef
Packing Company, LLC


12200 North
Ambassador Drive


Kansas City,
Missouri  64163


Attn: Jay D.
Nielsen, Chief Financial Officer


Facsimile: (816)
713-8856


 


with copies to:


 


National Beef
Packing Company, LLC


12200 North
Ambassador Drive


Kansas City,
Missouri  64163


Attn: Bret G.
Wilson, General Counsel


Facsimile: (816)
713-8856


 


Husch Blackwell
Sanders LLP


4801 Main Street, Suite 1000


Kansas City,
Missouri  64112


Attn: John
Brungardt, Esq.


Facsimile: (816)
983-9271


 


U.S. Premium Beef, LLC


P.O. Box 20103


Kansas City,
MO  64195


Attn: Steven D.
Hunt, Chief Executive Officer


Facsimile: (816)
713-8810


 


(i)            If to any of the Lenders or Issuers
other than the Agent, at the address for such Person provided in writing to the
Agent and the Borrower and, as to each party hereto, at such other address as
shall be designated by such party in a written notice to the other parties
hereto. All such notices and communications shall, when mailed, telecopied,
telexed, transmitted, or cabled, become effective when deposited in the mail,
confirmed by telex answerback, transmitted by telecopier, or delivered to the
cable company, respectively except that notices and 


 


84

















 


communications to the Agent
shall not be effective until actually received by the Agent.


 


(b)           The timing of notices to the Agent of terminations or
reductions of the Commitment, of borrowings, conversions and prepayments of
Loans and Swing Line Loans and of the duration of Interest Periods and of a
request for the issuance of an LC is summarized below:


 


	
  Borrowing of Base Rate Advances

  and Swing Line Loans

  	
   

  	
  1 Business Day

  
	
  Borrowing of LIBOR Rate Advances

  	
   

  	
  3 Business Days

  
	
  Conversion of Loans (including
  changes in

  Interest Period for LIBOR Rate Advances)

  	
   

  	
  3 Business Days

  
	
  Prepayments of Base Rate Advances

  and Swing Line Loans

  	
   

  	
  Same Business Day

  
	
  Prepayments of LIBOR Rate Advances

  	
   

  	
  3 Business Days

  
	
  LCs

  	
   

  	
  5 Business Days

  



 


19.          Maximum
Interest.


 


No agreements, conditions,
provisions or stipulations contained in this Agreement or in any of the other
Financing Documents, or any Matured Default, or any exercise by the Agent of
the right to accelerate the payment of the maturity of principal and interest,
or to exercise any option whatsoever, contained in this Agreement or any of the
other Financing Documents, or the arising of any contingency whatsoever, shall
entitle the Agent to collect, in any event, interest exceeding the Highest
Lawful Rate, and in no event shall the Borrower be obligated to pay interest
exceeding the Highest Lawful Rate, and all agreements, conditions or
stipulations, if any, which may in any event or contingency whatsoever operate
to bind, obligate or compel the Borrower to pay a rate of interest exceeding
the Highest Lawful Rate, shall be without binding force or effect, at law or in
equity, to the extent only of the excess of interest over such Highest Lawful
Rate.  In the event any interest is
charged in excess of the Highest Lawful Rate (“Excess”), the Borrower
acknowledges and stipulates that any such charge shall be the result of an
accidental and bona fide error, and such Excess shall be, first, applied to
reduce the principal of any Liabilities due, and, second, returned to the
Borrower, it being the intention of the parties hereto not to enter at any time
into a usurious or otherwise illegal relationship.  The Borrower and the Agent both recognize
that, with fluctuations in the Base Rate and the LIBOR Rate, such an
unintentional result could inadvertently occur. 
By the execution of this Agreement, the Borrower covenants that (a) the
credit or return of any Excess shall constitute the acceptance by the Borrower
of such Excess and (b) the Borrower shall not seek or pursue any other
remedy, legal or equitable, against the Agent, any Issuer, the Swing Line
Lender or the Lenders based, in whole or in part, upon the charging or
receiving of any interest in excess of the Highest Lawful Rate.  For the purpose of determining whether or not
any Excess has been contracted for, charged or received by the Agent, any
Issuer, the Swing Line Lender or the Lenders (as the case may be), all interest
at any time contracted for, charged or received by the Agent, the Issuers, the
Swing Line Lender or the Lenders in connection with the Liabilities shall be
amortized, prorated, allocated and spread in equal parts during the entire term
of this Agreement.


 


85

















 


20.          Representations
by the Lenders and Swing Line Lender.


 


Each Lender and the Swing
Line Lender represents that it is such Person’s present intention, as of the
date of its acquisition of its Notes, to acquire such Notes for its account or
for the account of its affiliates, and not with a view to the distribution or
sale thereof, and, subject to any applicable laws, the disposition of such
Lender’s or the Swing Line Lender’s property shall at all times be within its
control. The Notes have not been registered under the Securities Act of 1933,
as amended (the “Securities Act”), and may not be transferred, sold or
otherwise disposed of except (a) in a registered offering under the
Securities Act; (b) pursuant to an exemption from the registration
provisions of the Securities Act; or (c) if the Securities Act shall not
apply to the Notes or the transactions contemplated by the Financing Documents.
Nothing in this Section 13.20 shall affect the characterization of
the Loans, the Swing Line Loans and the transactions contemplated hereunder as
commercial lending transactions.


 


21.          Counterparts
and Facsimile Signatures.


 


This Agreement, any other
Financing Document and any subsequent amendment to any of them may be executed
in several counterparts and by the different parties on separate counterparts,
each of which together shall be construed as one original and all of which
shall constitute together but one and the same agreement.  Facsimile signatures on this Agreement, any
other Financing Document and any subsequent amendment to any of them shall be
considered as original signatures.


 


22.          Set-off.


 


The Borrower gives and
confirms to each Lender and each Issuer a right of set-off of all moneys,
securities and other property of the Borrower (whether special, general or
limited) and the proceeds thereof, at any time delivered to remain with or in
transit in any manner to such Lender or Issuer, its correspondent or its agents
from or for the Borrower, whether for safekeeping, custody, pledge,
transmission, collection or otherwise or coming into possession of such Lender
or Issuer in any way, and also, any balance of any deposit accounts and credits
of the Borrower with, and any and all claims of security for the payment of the
Liabilities owed by the Borrower to such Lender or Issuer, contracted with or
acquired by the Lender or Issuer, whether such liabilities and obligations be
joint, several, absolute, contingent, secured, unsecured, matured or unmatured,
and the Borrower authorizes such Lender or Issuer at any time or times, without
prior notice, to apply such money, securities, other property, proceeds,
balances, credits of claims, or any part of the foregoing, to such liabilities
in such amounts as it may select, whether such Liabilities be contingent,
unmatured or otherwise, and whether any collateral security therefor is deemed
adequate or not. Each Lender and each Issuer agrees to notify the Agent
promptly after any such setoff and application made by such Lender or Issuer; provided,
however, that the failure to give such notice shall not affect the
validity of such setoff and application. The rights described herein shall be
in addition to any collateral security described in any separate agreement
executed by the Borrower and any other right of setoff under applicable law or
otherwise which each Lender and each Issuer may have.


 


86

















 


23.          Assignments and
Participation.


 


(a)           After the Restatement Date and
(except in the case of an assignment by a Lender or the Swing Line Lender to
one or more of its affiliates) subject to the prior written consent of the
Agent and (so long as no Default or Matured Default shall have occurred and be
continuing) the Borrower, which consent(s) shall not be unreasonably
withheld, each Lender and the Swing Line Lender may assign to any Person (the “Assignee”)
all or a portion of its rights and obligations under this Agreement (including
without limitation, all or a portion of its Commitment and the Notes and/or
Swing Line Note held by it); provided, however, that (i) each
such assignment shall be of a constant, and not a varying, percentage of all of
the assigning Lender’s rights and obligations under this Agreement, (ii) the
total amount of the Commitment (based on the original Commitment without giving
effect to any repayments or prepayments) so assigned to an Assignee or to an
Assignee and its affiliates taken as a whole shall equal or exceed $5,000,000, (iii) the
remaining Commitment (based on the original Commitment without giving effect to
any repayments or prepayments) held by the assigning Lender after giving effect
to any such assignment shall equal or exceed $5,000,000, (iv) the
assignment will not cause the Borrower to incur any additional liability or
expense and (v) the parties to each such assignment shall execute and
deliver to the Agent for its acceptance an Assignment and Acceptance in
substantially the form attached as Exhibit 13A (“Assignment and
Acceptance”), together with any Note or Notes to be exchanged in connection
with such assignment and a processing and recordation fee of $3,500 to the
Agent.  Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be the date on which such
Assignment and Acceptance is accepted by the Agent, (vi) the Assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender under the Financing
Documents and (vii) the Lender assignor thereunder shall be deemed to have
relinquished its rights and to be released from its obligations under the
Financing Documents, to the extent (and only to the extent) that its rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender’s rights and obligations under the
Financing Documents, such Lender shall cease to be a party thereto).


 


(b)           By executing and delivering an
Assignment and Acceptance, the Lender assignor thereunder and the Assignee
thereunder confirm to and agree with each other and the other parties hereto as
follows:  (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Financing Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Financing Documents or any other
instrument or document furnished pursuant thereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under the Financing
Documents, the Security Documents or any other instrument or document furnished
pursuant hereto; (iii) such 


 


87

















 


Assignee confirms that it
has received a copy of the Financing Documents, together with copies of the
financial statements referred to in Section 7.16 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
Assignee will, independently and without reliance upon the Agent, such
assigning Lender or any other Lender or Issuer or Swing Line Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such Assignee appoints and authorizes the Agent to
take such action as the Agent on its behalf and to exercise such powers under
the Financing Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; and (vi) such
Assignee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Financing Documents are required to be
performed by it as a Lender.


 


(c)           The Agent shall maintain at its
address referred to in Section 13.18 a copy of each Assignment and
Acceptance delivered to and accepted by it.


 


(d)           Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender, together with any Note or Notes
subject to such assignment, the Agent shall, if such Assignment and Acceptance
has been completed, (i) accept such Assignment and Acceptance and (ii) give
prompt notice thereof to the Borrower. Within five (5) Business Days after
its receipt of such notice, the Borrower, at its own expense, shall execute and
deliver to the Agent in exchange for the surrendered Note a new Note to the
order of such Assignee in an amount equal to the Commitment assumed by it
pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained a Commitment hereunder, a new Note to the order of the assigning
Lender in an amount equal to the Commitment retained by it hereunder. Such new
Note or Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes, shall be dated the effective
date of such Assignment and Acceptance and shall otherwise be in substantially
the form of Exhibit 2A or Exhibit 2B, as the case may
be.  Upon the Agent’s receipt of such new
Note or Notes conforming to the requirements set forth in the preceding sentences,
the Agent shall return to the Borrower such surrendered Note or Notes, marked
to show that such surrendered Note or Notes has (have) been replaced, renewed
and extended by such new Note or Notes.


 


(e)           Each Lender may sell participations
to one or more banks or other entities in or to all or a portion of its rights
and obligations under this Agreement (including without limitation, all or a
portion of its Commitment and the Notes held by it); provided however, that (i) such
Lender’s obligations under this Agreement (including without limitation, its
Commitments to the Borrower hereunder) shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder
of any such Note for all purposes of this Agreement, (iv) the sale of the
participation will not cause the Borrower to incur any additional liability,
and (v) the Borrower, the Agent and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement, provided that no participant shall
be entitled to recover under the above-described provisions an 


 


88

















 


amount in excess of the
proportionate share which such participant holds of the original aggregate
principal amount hereunder to which the assigning Lender would otherwise be
entitled.  Notwithstanding the foregoing,
in the case of participations sold to members of the Farm Credit System (a “Farm
Credit System Participant”), with the written consent of the Agent and the
Borrower and provided that such participation is not less than $10,000,000,
such participant shall have the right to vote (each, a “Farm Credit System
Voting Participant”) on any matter which requires the consent of the
Lenders.  For purposes of voting, such
Farm Credit System Voting Participant shall receive voting rights in proportion
to the interest purchased, and the voting right percentage of the Lender
selling the participation shall be correspondingly reduced.  The initial list of Farm Credit System Voting
Participants is set forth on Exhibit 13B.  In the case of such participations to Farm
Credit System Voting Participants, the Lender selling such participation shall
promptly provide to the Agent a Voting Participant Notice and Consent in the
form of Exhibit 13C.


 


(f)            Any Lender may, in connection with
any assignment or participation or proposed assignment or participation
pursuant to this Section 13.23, disclose to the assignee or
participant or proposed assignee or participant, any information relating to
the Borrower furnished to such Lender by or on behalf of the Borrower; provided
that, prior to any such disclosure, the assignee or participant or proposed
assignee or participant shall agree in writing to preserve the confidentiality
of any confidential information relating to the Borrower received by it from
such Lender.


 


(g)           Any Lender may assign and pledge all
or any of the instruments held by it as collateral security; provided that any
payment made by the Borrower for the benefit of such assigning and/or pledging
Lender in accordance with the terms of the Financing Documents shall satisfy
the Borrower’s obligations under the Financing Documents in respect thereof to
the extent of such payment. No such assignment and/or pledge shall release the
assigning and/or pledging Lender from its obligations hereunder.


 


24.          Loan Agreement
Controls.


 


If
there are any conflicts or inconsistencies among this Agreement and any of the
other Financing Documents, the provisions of this Agreement shall prevail and
control.


 


25.          Obligations
Several.


 


Each Lender’s, each Issuer’s,
the Agent’s and the Swing Line Lender’s obligations under each Financing Document
to which it is a party are several, and no Lender, Issuer, Agent or Swing Line
Lender shall be responsible for any obligation or Commitment of any other such
Person under any Financing Document to which it is a party. Nothing contained
in any Financing Document to which it is a party, and no action taken by any
Lender, Issuer, Agent or Swing Line Lender pursuant thereto, shall be deemed to
constitute such Persons (or any of them) as a partnership, an association, a
joint venture, or any other kind of entity.


 


89
















 


26.          Pro Rata
Treatment.


 


All Loans under, and all
payments and other amounts received in connection with this Agreement for
application to the Loans (including, without limitation, amounts received as a
result of the exercise by any Lender of any right of set-off) shall be
effectively shared by the Lenders ratably in accordance with their respective pro rata
shares of the relevant type of Loan. If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of the principal of, or interest on, or fees in
respect of, any Note held by it (other than pursuant to Section 5.2,
5.3 or 5.4) in excess of its pro rata share of payments on
account of similar Notes obtained by all the Lenders, such Lender shall
purchase from the other Lenders such participation in the Notes or Loans made
by them as shall be necessary to cause such purchasing Lender to share the
excess payment ratably with each of them; provided, however, that
if all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender’s ratable share
(according to the proportion of (a) the amount of such Lender’s required
repayment to (b) the 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. Disproportionate payments of interest
shall be shared by the purchase of separate participation in unpaid interest
obligations, disproportionate payments of fees shall be shared by the purchase
of separate participation in unpaid fee obligations, and disproportionate
payments of principal shall be shared by the purchase of separate participation
in unpaid principal obligations. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 13.26
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation. Notwithstanding the foregoing, a Lender may receive and retain
an amount in excess of its pro rata share of the relevant type of Loan to the
extent, but only to the extent, that such excess results from such Lender’s
Highest Lawful Rate exceeding another Lender’s Highest Lawful Rate.


 


27.          Confidentiality.


 


Each of the Agent, the
Issuers, the Swing Line Lender and the Lenders agrees that it will use its best
efforts to keep confidential, in accordance with its customary procedures for
handling confidential information and in accordance with safe and sound banking
practices, any proprietary information of the Borrower identified in writing by
the Borrower to the Agent, as being proprietary and confidential; provided that
the Agent, any Issuer, the Swing Line Lender or any Lender may disclose any
such information  (a) to enable it
to comply with any Governmental Requirement applicable to it, (b) in
connection with the defense of any litigation or other proceeding brought
against it arising out of the transactions contemplated by this Agreement and
the other Financing Documents, (c) in connection with the supervision and
enforcement of the rights and remedies of the Agent, the Issuers, the Swing
Line Lender and/or the Lenders under any Financing Document and (d) as set
forth in Section 13.23(f).


 


90

















 


28.          Independence of
Covenants.


 


All covenants under Section 10
shall be given independent effect so that if a particular action or condition
is not permitted by any of such covenants, the fact that it would be permitted
by an exception to, or be otherwise within the limitations of, another covenant
shall not avoid the occurrence of a Default or a Matured Default if such action
is taken or condition exists.


 


29.          Amendments and
Waivers; Commitment Increases.


 


Any term, covenant,
agreement or condition of this Agreement or any Financing Document may be
amended only by a written amendment executed by the Borrower, the Required
Lenders and, if the rights or duties of the Agent are affected thereby, the
Agent, or compliance therewith only may be waived (either generally or in a
particular instance and either retroactively or prospectively), if the Borrower
shall have obtained the consent in writing of the Required Lenders (or in the
case of provisions relating to any Bond Document, any Bond Document or the Bond
Pledge Agreement, the Agent without necessity of consent of the Required
Lenders) and, if the rights or duties of the Agent, Swing Line Lender and/or an
Issuer are affected thereby, such Person; provided, however, that
without the consent in writing of the holders of all outstanding Notes and LC
Obligations, or of all Lenders and the Swing Line Lender if no Notes or LCs are
outstanding, no such amendment or waiver shall (a) change the amount or
postpone the date of payment of any scheduled payment or required payment of
principal of the Notes or reduce the rate or extend the time of payment of
interest on the Notes, or reduce the amount of principal thereof, or modify any
of the provisions of the Notes with respect to the payment or prepayment
thereof, (b) give to any Note any preference over any other Notes, (c) amend
the definition of Required Lenders, (d) alter, modify or amend the provisions
of this Section 13.29, (e) change the amount or term of any of
the Commitments or the fees required under Section 6, (f) alter,
modify or amend the provisions of Section 8 of this Agreement, (g) alter,
modify or amend any Lender’s right hereunder to consent to any action, make any
request or give any notice, or (h) release all or substantially all of the
Collateral (except such Collateral relating to the Bond Documents, which
release shall be at the Agent’s sole discretion), unless such release is permitted
by the Financing Documents.  Any such
amendment or waiver shall apply equally to all Lenders and all the holders of
the Notes and/or LC Obligations and shall be binding upon them, upon each
future holder of any Note or LC Obligation and upon the Borrower, whether or
not such Note or LC shall have been marked to indicate such amendment or
waiver.  No such amendment or waiver
shall extend to or affect any obligation not expressly amended or waived.  Notwithstanding the foregoing, the Borrower
may increase the Line of Credit Loan Commitment and the aggregate outstanding
principal amount of the Term Loans from time to time by obtaining applicable
commitments from one or more Lenders (or from other lenders reasonably
acceptable to the Agent) so long as (a)  no Default or Matured Default
shall have occurred and be continuing, (b) the Borrower shall be in pro
forma compliance (based on assumptions and projections acceptable to the Agent)
with the financial covenants set forth in Sections 9.16, 9.17 and
9.18 after giving effect to such increase, (c) the cumulative
increase in the sum of the Line of Credit Loan Commitment and the Term Loan
Commitment may not exceed $100,000,000 and (d) an amendment to this
Agreement, in form satisfactory to the Agent, that amends the definition of “Line
of Credit Loan Commitment” and Exhibit 1A to reflect such increase
and that includes provisions to cause any outstandings relating to the Line of
Credit Loans or the Term Loans to be held by the Lenders on a ratable 


 


91

















 


basis
after giving effect to the relevant increase, shall have been executed and
delivered by the Borrower and the Agent. 
Additionally, all new Term Loans and Line of Credit Loans disbursed
pursuant to any increase made under this Section 13.29 shall have
the same Maturity Date as the previously outstanding Term Loans and Line of
Credit Loans (as the case may be) and all the economic terms of the new Term
Loans and Line of Credit Loans (as the case may be), including the interest
margin, yield and fees applicable thereto, shall not be more favorable to the
incremental lenders than the terms of the existing Loans for the Lenders.


 


30.          Binding Effect.


 


This Agreement and the other
Financing Documents set forth the legal, valid and binding obligations of the
Borrower, the Agent, the Issuers, the Swing Line Lender and the Lenders and are
enforceable against the Borrower in accordance with their respective terms.


 


31.          FINAL AGREEMENT.


 


THIS WRITTEN AGREEMENT, THE
NOTES AND THE OTHER FINANCING DOCUMENTS COLLECTIVELY REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.


 


32.          [Intentionally Omitted.]


 


33.          USA Patriot Act
Notice.


 


Each Lender, each Issuer,
the Swing Line Lender and the Agent (for itself and not on behalf of any
Lender) hereby notifies the Borrower that pursuant to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record
information that identifies the Borrower, which information includes the Borrower’s
name and address and other information that will allow such Lender, such
Issuer, the Swing Line Lender or the Agent, as applicable, to identify the
Borrower in accordance with the Act.


 


34.          Subsidiaries.


 


Each Subsidiary party
hereto, by its signature hereto, makes each representation and warranty in the
Financing Documents made by the Borrower with respect to it.  Furthermore, each Subsidiary party hereto, by
its signature hereto, covenants and agrees that, until the Liabilities are paid
in full, and the Commitments, all LCs and all other obligations of the Agent,
the Issuers, the Swing Line Lender and the Lenders hereunder are finally
terminated, such Subsidiary will perform and observe all terms, covenants and
agreements applicable to it set forth in the Financing Documents.


 


92

















 


35.          Amendment and
Restatement; Renewal Notes.


 


This Agreement amends and
restates in its entirety the Existing Credit Agreement.  This Agreement does not constitute and shall
not be construed to evidence a novation of or a payment and readvance of any of
the Liabilities (as defined in the Existing Credit Agreement), it being the
intention of the parties hereto that this Agreement is an amendment and
restatement (but not an extinguishment) of the Existing Credit Agreement.  From and after the date hereof, except as the
context otherwise provides, (a) all references to the Existing Credit
Agreement (or to any amendment, supplement, modification or amendment and
restatement thereof) in the Financing Documents (other than this Agreement) and
the use of the words “thereunder”, “thereof”, or words of similar import when
referring to the Existing Credit Agreement shall be deemed to refer to this
Agreement, (b) all references to any Article, Section (or clause) of
the Existing Credit Agreement in any Financing Document (other than this
Agreement) shall be amended to become mutatis mutandis, references to the
corresponding provisions of this Agreement and (c) all references to this
Agreement herein (including for purposes of indemnification and reimbursement
of fees) shall be deemed to be references to this Agreement as the same may be
further amended, restated, amended and restated, supplemented or otherwise
modified from time to time pursuant to the terms of this Agreement.  The Borrower reaffirms the Liens granted
pursuant to the Security Documents to the Agent for the benefit of the Agent,
the Issuer, the Lenders, the Swap Parties and any other Person, which Liens
shall continue in full force and effect during the term of this Agreement and
any renewals or extensions thereof.  The
Notes have been given in renewal, extension and modification of the promissory
notes delivered in connection with the Existing Credit Agreement.


 


{SIGNATURE PAGES FOLLOW}


 


93

















 


IN WITNESS WHEREOF, the
parties have executed this Agreement as of the day first written above.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  NATIONAL BEEF PACKING

  
	
   

  	
  COMPANY, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jay D. Nielsen

  
	
   

  	
  Name:

  	
  Jay D. Nielsen

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SUBSIDIARY LOAN PARTIES:

  
	
   

  	
   

  
	
   

  	
  NATIONAL BEEF CALIFORNIA, LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  NATIONAL CARRIERS,
  INC.,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jay D. Nielsen

  
	
   

  	
  Name:

  	
  Jay D. Nielsen

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NATIONAL CARRIERS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jay D. Nielsen

  
	
   

  	
  Name:

  	
  Jay D. Nielsen

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
						



 


{SIGNATURE PAGE ONE OF THREE TO AMENDED

AND RESTATED CREDIT AGREEMENT}


 


National Beef Packing Company
Credit Agreement


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
  COBANK, ACB, individually and
  as

  
	
   

  	
  Lead Arranger, Swing Line
  Lender

  
	
   

  	
  and Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James Matzat

  
	
   

  	
  Its:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.,
  individually and as Syndication Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel J. Ricke

  
	
   

  	
  Its:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF MONTREAL, individually
  and as Syndication Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Manuel Diaz

  
	
   

  	
  Its:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
  COÖPERATIEVE CENTRALE
  RAIFFEISEN BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH,
  individually and as Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D. Shane Bounds

  
	
   

  	
  Its:

  	
  Executive Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rebecca O. Morrow

  
	
   

  	
  Its:

  	
  Executive Director

  



 


{SIGNATURE PAGE TWO OF THREE
TO AMENDED

AND RESTATED CREDIT AGREEMENT}


 


National Beef Packing Company
Credit Agreement


 

















 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION,
  individually and as Documentation Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas L. Martin

  
	
   

  	
  Its:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, NATIONAL
  ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John R. Carley

  
	
   

  	
  Its:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  UMB BANK, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas E. Brusnahan

  
	
   

  	
  Its:

  	
  Community Bank
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AMERICAN AGCREDIT, PCA

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary VanSchuyver

  
	
   

  	
  Its:

  	
  Vice President

  



 


{SIGNATURE PAGE THREE OF
THREE TO AMENDED

AND RESTATED CREDIT AGREEMENT}


 


National Beef Packing Company
Credit Agreement


 
















 


Exhibit 1A to

Amended and Restated

Credit Agreement


 


Loan
Commitment Amounts and Percentages


 


Swing Line Loan
Commitments


 


	
  Name
  of Lender

  	
   

  	
  Pro Rata Percentage

  	
   

  	
  Commitment Amount

  	
   

  
	
  CoBank,
  ACB

  	
   

  	
  100.000000000

  	
  %

  	
  $

  	
  30,000,000.00 (Swing
  Line Loans) 

  	
   

  
							



 


Line of Credit
Loan Commitments


 


	
  Name
  of Lender

  	
   

  	
  Pro Rata Percentage

  	
   

  	
  Commitment Amount

  	
   

  
	
  CoBank,
  ACB

  	
   

  	
  55.200000000

  	
  %

  	
  $

  	
  138,000,000.00

  	
   

  
	
  Bank
  of America, N.A.

  	
   

  	
  8.000000000

  	
  %

  	
  $

  	
  20,000,000.00

  	
   

  
	
  Bank
  of Montreal

  	
   

  	
  8.000000000

  	
  %

  	
  $

  	
  20,000,000.00

  	
   

  
	
  Rabobank
  Nederland

  	
   

  	
  8.000000000

  	
  %

  	
  $

  	
  20,000,000.00

  	
   

  
	
  U.S.
  Bank National Association

  	
   

  	
  8.000000000

  	
  %

  	
  $

  	
  20,000,000.00

  	
   

  
	
  Wells
  Fargo Bank, National Association

  	
   

  	
  8.000000000

  	
  %

  	
  $

  	
  20,000,000.00

  	
   

  
	
  UMB
  Bank, N.A.

  	
   

  	
  3.200000000

  	
  %

  	
  $

  	
  8,000,000.00

  	
   

  
	
  American
  AgCredit, PCA

  	
   

  	
  1.600000000

  	
  %

  	
  $

  	
  4,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL:

  	
   

  	
  100.000000000

  	
  %

  	
  $

  	
  250,000,000.00

  	
   

  



 


Term Loan
Commitments


 


	
  Name
  of Lender

  	
   

  	
  Pro Rata Percentage

  	
   

  	
  Commitment Amount

  	
   

  
	
  CoBank,
  ACB

  	
   

  	
  55.200000000

  	
  %

  	
  $

  	
  207,000,000.00

  	
   

  
	
  Bank
  of America, N.A.

  	
   

  	
  8.000000000

  	
  %

  	
  $

  	
  30,000,000.00

  	
   

  
	
  Bank
  of Montreal

  	
   

  	
  8.000000000

  	
  %

  	
  $

  	
  30,000,000.00

  	
   

  
	
  Rabobank
  Nederland

  	
   

  	
  8.000000000

  	
  %

  	
  $

  	
  30,000,000.00

  	
   

  
	
  U.S.
  Bank National Association

  	
   

  	
  8.000000000

  	
  %

  	
  $

  	
  30,000,000.00

  	
   

  
	
  Wells
  Fargo Bank, National Association

  	
   

  	
  8.000000000

  	
  %

  	
  $

  	
  30,000,000.00

  	
   

  
	
  UMB
  Bank, N.A.

  	
   

  	
  3.200000000

  	
  %

  	
  $

  	
  12,000,000.00

  	
   

  
	
  American
  AgCredit, PCA

  	
   

  	
  1.600000000

  	
  %

  	
  $

  	
  6,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL:

  	
   

  	
  100.000000000

  	
  %

  	
  $

  	
  375,000,000.00

  	
   

  



 


97

















 


Exhibit 1B to


Amended and Restated

Credit Agreement


 


Formula for Borrowing Base Certificate


 


1.                                       Borrowing Base. The “Borrowing
Base” as of any date of determination shall be:


 


(a)                                  100% of
the available funds on deposit in Collateral Accounts that are eligible for
inclusion in the Borrowing Base according to Section 4.07 of the Security
Agreement, plus


 


(b)                                 100% of
the net equity in Margin Accounts properly assigned to the Agent, plus


 


(c)                                  90% of
the amount of Eligible Accounts, plus


 


(d)                                 70% of
the value of Eligible Inventory valued at the lower of cost or market value in
accordance with GAAP, plus


 


(e)                                  Unless an
event of the type described in one or more of clauses (i) through (n) of
the definition of Matured Default shall have occurred, and such Default shall
be continuing, with respect to KC Steak, the lesser of (i) 100% of the
principal amount outstanding under the Amended and Restated Promissory Note
from KC Steak dated May 30, 2006, payable to the Borrower in the face
amount of $16,000,000 or (ii) the sum of (A) 90% of the Eligible KC
Steak Accounts and (B) 70% of the Eligible KC Steak Inventory, plus


 


(f)                                    100% of
Producer Payables owed by the Borrower and KC Steak, minus


 


(g)                                 100% of
the amounts of all uncleared checks or drafts issued by Borrower and KC Steak
and related to Producer Payables owed by such Person, minus


 


(h)                                 The
Insurance Reserve.


 


2.                                       Definitions. Capitalized terms
used herein that are defined in the Credit Agreement are used herein with the
respective meanings attributed thereto in the Credit Agreement. In addition,
for the purposes of this Exhibit 1B and for determining the Borrowing
Base, the following terms shall have the following respective meanings;
provided, however, that in the case of conflict, the definitions contained in
the Credit Agreement
shall
prevail:


 


“Eligible KC Steak Accounts” means accounts
of KC Steak which the Agent determines in the exercise of the Agent’s
reasonable discretion, are eligible for inclusion in the Borrowing Base at any
particular time. Without limiting the Agent’s right to determine that accounts
of KC Steak do not constitute Eligible KC Steak Accounts, but without
duplication, the following accounts shall not be Eligible KC Steak Accounts: (a) all
accounts which are at that time unpaid for a period exceeding ninety (90) days
after the original invoice date of the original invoice related thereto, except
for Accounts which are covered by a letter of credit; (b) all accounts
owing by an account debtor if more than ten percent (10%) of the accounts owing
by such account debtor are at that time unpaid for a period exceeding ninety
(90) days after the original 


 


98

















 


invoice date of the original
invoice related thereto; (c) those accounts, except accounts owing from
the following account debtors: (i) Sysco, (ii) Outback Steakhouse, (iii) QVC,
(iv) IQVC, (v) Wal-Mart and affiliates, (vi) Costco, (vii) International
Traders, and (viii) C&C Wholesale Grocers, of an account debtor, the
aggregate face amount of which is in excess of five percent (5%) of the
aggregate face amount of all other Eligible KC Steak Accounts of all account
debtors, but in each case only to the extent of such excess; (d) those
accounts owing from the United States or any department, agency or
instrumentality thereof unless KC Steak shall have complied with the Assignment
of Claims Act to the satisfaction of the Agent; (e) accounts which arise
out of transactions with affiliates of KC Steak; (f) accounts of account
debtors that are located outside the United States, unless such accounts are
covered by a letter of credit issued or confirmed by a bank acceptable to the
Agent; (g) accounts which are or may be subject to rights of setoff or
counterclaim by the account debtor (to the extent of the amount of such setoff
or counterclaim); (h) accounts in which the Borrower does not, for any
reason, have a first priority perfected security interest, which security
interest shall have been collateral assigned to the Agent; and (i) accounts
which in the Agent’s opinion may be subject to liens or conflicting claims of
ownership, whether such liens or conflicting claims are asserted or could be
asserted by any Person except for statutory liens or encumbrances described in Section 10.1
(a), (b) and (d).


 


“Eligible KC Steak Inventory” means inventory
of KC Steak which the Agent determines in the exercise of the Agent’s
reasonable discretion is eligible for inclusion in the Borrowing Base at any
particular time. Without limiting the Agent’s right to determine that inventory
of KC Steak does not constitute Eligible KC Steak Inventory, but without
duplication, the following inventory of KC Steak shall not be Eligible KC Steak
Inventory: (a) inventory deemed to be out-of-condition or otherwise
unmerchantable by the United States Department of Agriculture, any state’s
Department of Agriculture, or any other Governmental Authority having
regulatory authority over the Borrower or any of the Borrower’s assets or
activities; (b) inventory for which a prepayment has been received; (c) inventory
in the possession of third parties, unless it is inventory: (i) at a
location listed below, for which the Agent has received a bailee letter
satisfactory to the Agent (provided, however, that in the case of
such inventory in existence on the Restatement 
Date, the Borrower need not deliver such letters until 30 days after the
Restatement  Date), or (ii) covered
by negotiable warehouse receipts or negotiable bills of lading issued by
either: (A) a warehouseman licensed and bonded by the United States
Department of Agriculture or any state’s Department of Agriculture, or (B) a
recognized carrier having an office in the United States and in a financial
condition reasonably acceptable to the Agent, which receipts or bills of lading
designate the Agent directly or by endorsement as the only Person to which or
to the order of which the warehouseman or carrier is legally obligated to
deliver such Goods; (d) inventory  in which the
Borrower does not, for any reason, have a first priority perfected security
interest, which security interest shall have been collateral assigned to the
Agent; and (e) inventory which in the Agent’s opinion may be subject to
liens or conflicting claims of ownership, whether such liens or conflicting
claims are asserted or could be asserted by any Person except for statutory
liens or encumbrances permitted by Section 10.1(a), (b) and
(d).


 


KC Steak Bailee Location:


Midwest Cold Storage, LLC


1101 South 5th Street


Kansas
City, KS 66105


 


99

















 


Exhibit 1C to


Amended and Restated

Credit Agreement


 


Form of Borrowing Base Certificate


 


DATE PREPARED:                    


CREDIT
LINE: $250,000,000


BORROWING
BASE MEASUREMENT DATE:          


 


This Borrowing Base Certificate is delivered in
accordance with the Amended and Restated Credit Agreement dated as of June 4,
2010 (as the same may be amended, amended and restated, supplemented, restated
or otherwise modified from time to time, the “Credit Agreement”) by and
among National Beef Packing Company, LLC (the “Borrower”), CoBank, ACB,
as agent (the “Agent”), and the other Persons from time to time party
thereto. Capitalized terms used herein that are defined in the Credit Agreement
shall have the meanings set forth for such terms therein. All amounts are as of
the date shown above except as otherwise stated herein.


 


The Borrower hereby reaffirms all representations
and warranties contained in the Credit Agreement and certifies and warrants
that the following calculations are true and correct as of the date set forth
above and were correctly determined according to the Credit Agreement.


 


	
  1.

  	
   

  	
  ELIGIBLE ACCOUNTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A.

  	
   

  	
  Outstanding Accounts
  Receivable (detail Exhibit A)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
   

  	
  Less Accounts over 21
  days old not covered by a letter of credit ($            )

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
   

  	
  Less other ineligible
  Accounts:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.

  	
  25% Rule

  	
   

  	
  ($            )

  
	
   

  	
   

  	
  2.

  	
  5% Concentration

  	
   

  	
  ($            )

  
	
   

  	
   

  	
  3.

  	
  10% Concentration

  	
   

  	
  ($            )

  
	
   

  	
   

  	
  4.

  	
  Excess Wal-Mart
  Accounts

  	
   

  	
  ($            )

  
	
   

  	
   

  	
  5.

  	
  US Gov’t without
  Assignment of Claims compliance

  	
   

  	
  ($            )

  
	
   

  	
   

  	
  6.

  	
  Excess Affiliate Accounts

  	
   

  	
  ($            )

  
	
   

  	
   

  	
  7.

  	
  Outside US without
  letter of credit or exemption

  	
   

  	
  ($            )

  
	
   

  	
   

  	
  8.

  	
  Setoff or counterclaim

  	
   

  	
  ($            )

  
	
   

  	
   

  	
  9.

  	
  Other:

  	
   

  	
  ($            )

  
	
   

  	
   

  	
  10.

  	
  Total Ineligible
  Accounts (sum Lines 1B & 1C 1-9)

  	
   

  	
  ($            )

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D.

  	
   

  	
  Eligible Accounts (Line
  1A minus 1C10)

  	
   

  	
  ($            )

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  ELIGIBLE INVENTORY

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A.

  	
   

  	
  Inventory (detail Exhibit B)

  	
   

  	
  ($            )

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
   

  	
  Less Ineligible
  Inventory

  	
   

  	
   

  



 


1

















 


	
   

  	
   

  	
  1.

  	
  Out-of-condition
  Inventory

  	
   

  	
  ($            )

  
	
   

  	
   

  	
  2.

  	
  Customer deposits,
  prepaids & advances

  	
   

  	
  ($            )

  
	
   

  	
   

  	
  3.

  	
  Inventory stored
  off-premises w/o bailee letter or negotiable receipt at

  	
   

  	
  ($            )

  
	
   

  	
   

  	
  4.

  	
  Consigned Inventory
  from:

  	
   

  	
  ($            ))

  
	
   

  	
   

  	
  5.

  	
  Other:

  	
   

  	
  ($            )

  
	
   

  	
   

  	
  6.

  	
  Total Ineligible
  Inventory (Sum Lines 2B 1-5)

  	
   

  	
  ($            )

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
   

  	
  Eligible Inventory
  (Line 2A minus 2B6)

  	
   

  	
   

  	
  $              

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  BORROWING BASE

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A.

  	
   

  	
  Cash in
  Agent-Controlled Accounts

  	
  $            x 100%

  	
   

  	
  $       

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
   

  	
  Hedge Account Equity

  	
  $            x 100%

  	
   

  	
  $             

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
   

  	
  Net Eligible Accounts
  Receivable (from Line 1D)$

  	
  $            x 90%

  	
   

  	
  $          

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D.

  	
   

  	
  Net Eligible Inventory,
  valued LCM (from Line 2C) $

  	
  $            x 70%

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E.

  	
   

  	
  Kansas City Steak
  Accounts & Inventory (detail Exhibit C)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  F.

  	
   

  	
  Less Producer Payables
  and related outstanding checks (detail Exhibit D)

  	
   

  	
   

  	
  ($            )

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  G.

  	
   

  	
  Total Combined
  Collateral (sum 3A-F)

  	
   

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  H.

  	
   

  	
  Less Insurance Reserve

  	
   

  	
   

  	
  ($            )

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  I.

  	
   

  	
  Borrowing Base (Line 3G
  minus 3H)

  	
   

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  J.

  	
   

  	
  Aggregate outstanding
  principal amount of Line of Credit Loans, Swing Line Loans, LCs and
  unreimbursed LC draws on the Borrowing Base Certificate Measurement Date
  referenced at the top of this Certificate (maximum permitted is $250,000,000;
  if greater than $250,000,000, payment is required)

  	
   

  	
   

  	
  $            

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  K.

  	
   

  	
  Borrowing Base
  Availability on the Borrowing Base Measurement Date referenced at the top of
  this Certificate (Line 3I minus Line 3J) (if negative, payment is required)

  	
   

  	
   

  	
  $            

  
									



 


2

















 


	
  4.

  	
   

  	
  ACCOUNTS PAYABLE:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CURRENT

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
  PAST
  DUE

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
  TOTAL
  PAYABLES

  	
   

  	
   

  	
  $

  



 


The Borrower further
certifies that (a) all amounts outstanding under the Notes constitute the
obligation of the Borrower in accordance with the terms of the Credit
Agreement, (b) the Collateral remains subject to a valid first Lien to the
Agent, and no Lien has been granted in favor of any other person and no
security has been returned to a supplier unless approved by the Agent, and (c) no
circumstances or conditions exist at the date of this Borrowing Base
Certificate which constitute a Default or a Matured Default. The information provided
in this Borrowing Base Report is consistent with what is required by the Credit
Agreement.


 


	
  Prepared by:

  	
   

  	
   

  	
  Approved

  	
   

  



 


3
















 


EXHIBIT A TO BORROWING BASE
CERTIFICATE


 


Accounts Receivable Detail


 


4

















 


EXHIBIT B TO BORROWING BASE
CERTIFICATE


 


Inventory Detail


 


5

















 


EXHIBIT C TO BORROWING BASE
CERTIFICATE


 


Kansas City Steak Account &
Inventory


 


	
  1. ELIGIBLE KC STEAK ACCOUNTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  A. 

  	
  Outstanding KC Steak Accounts Receivable

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  B. 

  	
  Less Accounts over 90 days old not covered by a
  letter of credit

  	
   

  	
  ($            )

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  C. 

  	
  Less other ineligible Accounts

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1. 

  	
  10% Rule

  	
   

  	
   

  
	
   

  	
   

  	
  2. 

  	
  5% Concentration

  	
   

  	
  ($            )

  
	
   

  	
   

  	
  3. 

  	
  US Gov’t without Assignment of Claims compliance

  	
   

  	
  ($            )

  
	
   

  	
   

  	
  4. 

  	
  Affiliate Accounts

  	
   

  	
  ($            )

  
	
   

  	
   

  	
  5. 

  	
  Outside US without letter of credit or exemption

  	
   

  	
  ($            )

  
	
   

  	
   

  	
  6. 

  	
  Setoff or counterclaim

  	
   

  	
  ($            )

  
	
   

  	
   

  	
  7. 

  	
  Other:

  	
   

  	
  ($            )

  
	
   

  	
   

  	
  8.

  	
  Total Ineligible Accounts (sum Lines 1B &
  1C1-7)

  	
   

  	
  ($            )

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  D. 

  	
  Eligible KC Steak Accounts (Line IA minus 1C8)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  2. ELIGIBLE KC STEAK INVENTORY

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  A. KC Steak Inventory

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  B. Less Ineligible Inventory

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1. 

  	
  Out-of-condition Inventory

  	
   

  	
  ($            )

  
	
  2. 

  	
  Customer deposits, prepaids & advances

  	
   

  	
  ($            )

  
	
  3. 

  	
  Inventory stored off-premises w/o bailee letter or
  negotiable receipt at:

  	
   

  	
  ($            )

  
	
  4. 

  	
  Consigned Inventory from:

  	
   

  	
  ($            )

  
	
  5. 

  	
  Other:

  	
   

  	
  ($            )

  
	
  6. 

  	
  Total Ineligible Inventory (Sum Lines 2B1-5)

  	
   

  	
  ($            )

  
	
   

  	
   

  	
   

  
	
  C. Eligible KC Steak Inventory (Line 2A minus 2B6)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  3. BORROWING BASE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  A. 

  	
  Net Eligible KC Steak Accounts (from Line ID) 

  	
  $            x 90%

  	
   

  	
  ($            )

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  B. 

  	
  Net Eligible KC Steak Inventory (from Line 2C) 

  	
  $            x 70%

  	
   

  	
  ($            )

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  C. 

  	
  Sum of Lines 3 A and 3B

  	
   

  	
  ($            )

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  D. 

  	
  Principal amount outstanding on KC Steak Restated
  Promissory Note

  	
   

  	
  ($            )

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  E. 

  	
  Lesser of Lines 3C and 3D (to Certificate Line 3F)

  	
   

  	
  ($            )

  
								



 


6

















 


EXHIBIT D TO BORROWING BASE
CERTIFICATE


 


Producer Payables and
Related Outstanding Checks


 


7

















 


Exhibit 1D to

Amended and Restated

Credit Agreement


 


Form of NB, Inc. Acknowledgement


 


[Insert Date]


 


CoBank,
ACB


5500
South Quebec Street


Greenwood
Village, Colorado  80111


Attention: James Stutzman


 


Re:  Acknowledgment


 


Ladies and Gentleman:


 


Reference is made to that certain Amended and Restated Credit
Agreement, dated as of June 4, 2010 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”)
among National Beef Packing Company, LLC, a Delaware limited liability company
(the “Borrower”), certain of its Subsidiaries, the financial
institutions from time to time party thereto (the “Lenders”), and
CoBank, ACB, an agricultural credit bank, as Lead Arranger, Syndication Agent,
Swing Line Lender and Administrative Agent for the Lenders (in such capacity,
the “Agent”).  Capitalized terms
used but not defined herein shall have the meanings assigned to such terms in
the Credit Agreement.


 


This letter agreement is entered into contemporaneously with the
execution and delivery of the Credit Agreement. 
As an inducement to the Agent and the Lenders to enter into the Credit
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, National Beef, Inc., a
Delaware corporation (“NB, Inc.”) hereby acknowledges and agrees
that it shall not (a) conduct, transact or otherwise engage in any
business or operations other than those incidental to its direct ownership of
the equity interests of the Borrower or the issuance and registration under
federal securities laws of securities and other matters incidental thereto, (b) incur,
create, assume or suffer to exist any Indebtedness except (i) nonconsensual
obligations imposed by operation of law, (ii) obligations with respect to
the intercompany loans permitted under Section 10.3(s) of the
Credit Agreement, and (iii) obligations with respect to its equity interests,
(c) create, assume or permit to exist any Lien upon the equity interests
of the Borrower or any of its other properties or assets, (d) create,
organize or acquire any Subsidiary (other than a Subsidiary of the Borrower to
the extent permitted under the Credit Agreement), or (e) amend any
agreement, instrument or document pertaining to Borrower’s governance in any
manner that has or could reasonably be expected to have a material adverse
effect on the rights, powers or remedies of the Agent and/or the Lenders.  For the avoidance of doubt, nothing herein
shall prohibit NB, Inc. from entering into and performing its obligations
under the Tax Receivable Agreement, Exchange Agreement, Stockholders Agreement
and related documents, in each case, dated on or about the date of the
Permitted IPO and entered into in connection therewith.


 


NB, Inc. hereby further acknowledges and agrees that it will
derive substantial direct and indirect benefit from the execution and delivery
of the Credit Agreement by the parties thereto and acknowledges that this
letter agreement constitutes a Financing Document under the Credit Agreement
and that any 


 


1

















 


failure by NB, Inc. to comply fully with its
obligations set forth herein shall constitute an immediate Matured Default
under the Credit Agreement.


 


This letter agreement shall be construed in accordance with and
governed by the laws of the State of Colorado without regard to the application
of conflict of laws principles.  This
letter agreement sets forth the entire agreement between the parties with
respect to the matters addressed herein and supersedes all prior
communications, written or oral, with respect hereto.  This letter agreement shall be binding upon
the parties hereto and their respective successors and assigns.  This letter agreement may be executed in any
number of counterparts, each of which, when so executed, will be deemed to be
an original and all of which, taken together, will constitute one and the same
agreement.  Delivery of an executed
counterpart of a signature page to this letter agreement by facsimile or
other electronic means will be as effective as delivery of an original executed
counterpart of this letter agreement.


 


Please indicate your acceptance and agreement
to the terms hereof by executing this letter agreement in the space provided
below.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  NATIONAL BEEF, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


	
  ACCEPTED AND AGREED TO:

  	
   

  
	
   

  	
   

  
	
  COBANK, ACB, individually and
  as Lead Arranger,

  	
   

  
	
  Syndication Agent and
  Administrative Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


2
















 


Exhibit 2A to

Amended and Restated

Credit Agreement


 


Line of Credit Note


 


	
  $

  	
   

  	
  Greenwood
  Village, Colorado

  
	
   

  	
   

  	
  , 2010

  



 


FOR VALUE RECEIVED, the undersigned National Beef
Packing Company, LLC, a Delaware limited liability company (together with its
successors as permitted in the Credit Agreement, the “Borrower”),
promises to pay to the order of
                            
(hereinafter referred to as “Lender”), at such place as the Agent (as
hereinafter defined), may from time to time designate, in lawful money of the
United States of America and in immediately available funds, the principal sum
of
                      
($            ) or,
if less, the unpaid principal amount of the Line of Credit Loans from the
Lender to the Borrower outstanding under the Credit Agreement (as hereinafter
defined), together with interest on any and all principal amounts outstanding
calculated in accordance with the provisions set forth below. This note is
issued under that certain Amended and Restated Credit Agreement dated as of June 4,
2010 (as the same may be amended, amended and restated, replaced, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”)
between the Borrower, certain of its subsidiaries, CoBank, ACB, an agricultural
credit bank, as agent (in such capacity, together with its successors and
assigns in such capacity, the “Agent”), Lender and the other lenders
identified therein (collectively the “Lenders”).


 


Capitalized terms used and not defined herein shall
have the meanings given to such terms in the Credit Agreement.


 


This note is the one of the Line of Credit Notes
referred to in the Credit Agreement, and is a replacement and substitute for,
but does not constitute payment of, one or more Line of Credit Notes that may
have been previously issued by the Borrower. This note is secured, is subject
to scheduled payments and certain permissive and mandatory prepayments, and is
subject to acceleration, in each case upon the terms provided in the Credit
Agreement and in the Security Documents referenced therein.


 


Borrower shall pay interest on the unpaid principal
amount of each Loan made by the Lender from the date of such Loan until such
principal amount shall be paid in full, at the times and at the rates per annum
set forth in the Credit Agreement.


 


In addition to the repayment requirements imposed
upon the Borrower under the Credit Agreement, together with the agreements
referred to therein, the principal and interest owing under this note shall be
due and payable in full on the Maturity Date applicable to the Line of Credit
Loans, without presentment, demand, protest or further notice of any kind, all
of which are expressly waived by the Borrower. Time is of the essence hereof.


 


The obligations of the Borrower to the Lender
hereunder together with the other Liabilities are secured by certain Collateral
as set forth in the Credit Agreement and in the Security Documents.


 


1

















 


In the case of a Matured Default, the undersigned
agrees to pay all costs and expenses of collection, including reasonable
attorneys’ fees incurred by the Agent or its successors and assigns in
accordance with the terms of the Credit Agreement.


 


This note shall be construed in accordance with, and
governed by, the laws of the State of Colorado, without regard to the conflict
of laws principles thereof.


 


	
   

  	
  NATIONAL BEEF PACKING COMPANY, LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


2

















 


Exhibit 2B to

Amended and Restated

Credit Agreement


 


Term Note


 


	
  $

  	
   

  	
  Greenwood
  Village, Colorado

  
	
   

  	
   

  	
  , 2010

  



 


FOR VALUE RECEIVED, the undersigned National Beef
Packing Company, LLC, a Delaware limited liability company (together with its
successors as permitted in the Credit Agreement, the “Borrower”),
promises to pay to the order of
                                        
(hereinafter referred to as “Lender”), at such place as the Agent (as
hereinafter defined) may from time to time designate, in lawful money of the United
States of America and in immediately available funds, the principal sum of
                                                
($                  )
or, if less, the unpaid principal amount of the Term Loans from the Lender to
the Borrower outstanding under the Credit Agreement (as hereinafter defined),
together with interest on any and all principal amounts outstanding calculated
in accordance with the provisions set forth below. This note is issued under
that certain Amended and Restated Credit Agreement dated as of June 4,
2010 (as the same may be amended, replaced, amended and restated, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”)
between the Borrower, certain of its subsidiaries, CoBank, ACB, an agricultural
credit bank, as agent (in such capacity, together with its successors and
assigns in such capacity, the “Agent”), Lender and the other lenders
identified therein (collectively the “Lenders”).


 


This note is one of the Term Notes referred to in
the Credit Agreement, and is a replacement and substitute for, but does not
constitute payment of, one or more Term Notes that may have been previously
issued by the Borrower. This note is secured, is subject to scheduled payments
and certain permissive and mandatory prepayments, and is subject to
acceleration, in each case upon the terms provided in the Credit Agreement and
in the Security Documents referenced therein.


 


Borrower shall pay interest on the unpaid principal
amount of each Loan made by the Lender from the date of such Loan until such
principal amount shall be paid in full, at the times and at the rates per annum
set forth in the Credit Agreement.


 


In addition to the repayment requirements imposed
upon the Borrower under the Credit Agreement, together with the agreements
referred to therein, the principal and interest owing under this note shall be
due and payable in full on the Maturity Date applicable to the Term Loans,
without presentment, demand, protest or further notice of any kind, all of
which are expressly waived by the Borrower. Time is of the essence hereof.


 


The obligations of the Borrower to the Lender
hereunder, together with the other Liabilities, are secured by certain
Collateral as set forth in the Credit Agreement and in the Security Documents.


 


In the case of a Matured
Default, the undersigned agrees to pay all costs and expenses of collection,
including reasonable attorneys’ fees incurred by the Agent or its successors
and 


 


1

















 


assigns in accordance with
the terms of the Credit Agreement.


 


This note shall be construed in accordance with, and
governed by, the laws of the State of Colorado without regard to the conflict
of laws principles thereof.


 


	
   

  	
  NATIONAL BEEF PACKING COMPANY, LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


2

















 


Exhibit 2C to

Amended and Restated

Credit Agreement


 


Swing
Line Note


 


	
  $

  	
   

  	
  Greenwood
  Village, Colorado

  
	
   

  	
   

  	
  , 2010

  



 


FOR VALUE RECEIVED, the undersigned National Beef
Packing Company, LLC, a Delaware limited liability company (together with its
successors as permitted in the Credit Agreement, the “Borrower”),
promises to pay to the order of CoBank, ACB (hereinafter referred to as “Swing
Line Lender”), at such place as the Swing Line Lender may designate, in
lawful money of the United States of America and in immediately available
funds, the principal sum of
                                                            
($                    )
or, if less, the unpaid principal amount of the Swing Line Loans from the Swing
Line Lender to the Borrower outstanding under the Credit Agreement (as
hereinafter defined), together with interest on any and all principal amounts
outstanding calculated in accordance with the provisions set forth below. This
note is issued under that certain Amended and Restated Credit Agreement dated
as of June 4, 2010 (as the same has been and may in the future be amended,
amended and restated, replaced, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”) between the Borrower, certain
of its subsidiaries, CoBank, ACB, an agricultural credit bank, as agent (in
such capacity, together with its successors and assigns in such capacity, the “Agent”),
and the lenders identified therein (the “Lenders”).


 


Capitalized terms used and not defined herein shall
have the meanings given to such terms in the Credit Agreement.


 


This note is the Swing Line Note referred to in the
Credit Agreement and is a replacement and substitution for, but does not
constitute payment of, any Swing Line Note issued to the Swing Line Lender on June 1,
2006 This note is secured, is subject to scheduled payments and certain
permissive and mandatory prepayments, and is subject to acceleration, in each
case upon the terms provided in the Credit Agreement and in the Security
Documents referenced therein.


 


Borrower shall pay interest on the unpaid principal
amount of each Loan made by the Swing Line Lender from the date of such Loan
until such principal amount shall be paid in full, at the times and at the
rates per annum set forth in the Credit Agreement.


 


In addition to the repayment requirements imposed
upon the Borrower under the Credit Agreement, together with the agreements
referred to therein, the principal and interest owing under this note shall be
due and payable in full on the Maturity Date applicable to the Swing Line
Loans, without presentment, demand, protest or further notice of any kind, all
of which are expressly waived by the Borrower. Time is of the essence hereof.


 


The obligations of the
Borrower to the Lender hereunder together with the other Liabilities are
secured by certain Collateral as set forth in the Credit Agreement and in the
Security Documents.


 


1

















 


In the case of a Matured Default, the undersigned
agrees to pay all costs and expenses of collection, including reasonable
attorneys’ fees incurred by the Agent or its successors and assigns in
accordance with the terms of the Credit Agreement.


 


This note shall be construed in accordance with, and
governed by, the laws of the State of Colorado without regard to the conflict
of laws principles thereof.


 


	
   

  	
  NATIONAL BEEF PACKING COMPANY, LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


2
















 


Exhibit 9A to

Amended and Restated

Credit Agreement


 


Form of
Compliance Certificate

(period from
                  ,
200    to               ,
200  )


 


Pursuant to Section 9.1 of the Amended and
Restated Credit Agreement dated as of June 4, 2010 (as the same may be amended,
amended and restated, supplemented, restated or otherwise modified from time to
time, the “Credit Agreement”) by and among National Beef Packing
Company, LLC (the “Borrower”), certain of its subsidiaries, CoBank, ACB,
as agent (the “Agent”), and the Persons from time to time party thereto,
the undersigned certifies to the Agent and the Lenders as follows:


 


1.                                     The Borrower’s consolidated financial
statements, attached hereto, for the period indicated above (the “Financial
Statements”), have been prepared in accordance with the requirements of Section 9.1
of the Credit Agreement and have been delivered on or before the date they are
due.


 


2.                                     The representations and warranties
contained in Article VII of the Credit Agreement, as updated by
disclosures in writing to the Agent as permitted therein, are true and correct
as of the date hereof as though made on this date.


 


3.                                     The Borrower is in compliance with all of
the affirmative and negative covenants set forth in Articles IX and X of the
Credit Agreement as of the date hereof.


 


4.                                      Specifically, as of the date of the
Financial Statements:


 


a.                                      The Borrower shall have a Funded Debt to
EBITDA Ratio of not more than 3.25 to 1.00 as at the end of each fiscal
quarter.


 


Borrower’s Funded
Debt to EBITDA Ratio for the four consecutive fiscal quarters ending on the
date of the Financial Statements was
                 
to 1.00.


 


In
Compliance:
Yes o          No
o


 


b.                              [The Borrower and its consolidated
Subsidiaries shall have Adjusted Net Worth of not less $275,000,000 as at the
end of each Fiscal Year.


 


The Adjusted Net
Worth of the Borrower and its consolidated Subsidiaries as the date of the
Financial Statements was
$                                      .


 


In
Compliance:
Yes o          No
o](1)


 






(1) Applicable for
Financial Statements delivered in respect of a Fiscal Year end only.


 


1

















 


c.                                      The Borrower shall have a Fixed Charge
Coverage Ratio of at least 1.05 to 1.00 as at the end of each fiscal quarter.


 


Borrower’s Fixed
Charge Coverage Ratio for the eight consecutive fiscal quarters ending on the
date of the Financial Statements was
                            
to 1.00.


 


In
Compliance:
Yes o          No
o


 


d.                                    The rate at which interest accrues in
respect of the Line of Credit Loans, Swing Line Loans, Term Loans, LC Fees and
Non-Use Fees, as the case may be, is determined in accordance with a Financial
Performance Level (as described in the Credit Agreement), which, in turn, is
determined by the Borrower’s Funded Debt to EBITDA Ratio, as set forth below:


 


	
  Financial

  Performance

  Level:

  	
   

  	
  Funded Debt to

  EBITDA Ratio:

  	
   

  	
  Base Rate Advance

  Line of Credit Loans,

  Swing Line Loans

  and Term Loans:

  	
   

  	
  LIBOR Rate

  Line of Credit

  Loans and

  Term Loans:

  	
   

  	
  LC Fee:

  	
   

  	
  Non-Use

  Fee:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level I

  	
   

  	
  Less than 1.00: 1.00

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  	
  2.25

  	
  %

  	
  0.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level II

  	
   

  	
  Greater than or equal to 1.00:1.00 and less than
  2.00:1.00

  	
   

  	
  1.50

  	
  %

  	
  2.50

  	
  %

  	
  2.50

  	
  %

  	
  0.375

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level III

  	
   

  	
  Greater than or equal to 2.00:1.00 and less than
  3.00:1.00

  	
   

  	
  1.75

  	
  %

  	
  2.75

  	
  %

  	
  2.75

  	
  %

  	
  0.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level IV

  	
   

  	
  Greater than or equal to 3.00:1.00

  	
   

  	
  2.25

  	
  %

  	
  3.25

  	
  %

  	
  3.25

  	
  %

  	
  0.625

  	
  %

  



 


As of the date of
the Financial Statements, Borrower’s Funded Debt to EBITDA Ratio was
                         
and the Financial Performance Level was
          .


 


5.  All adjustments and calculations related to
the amounts set forth in each of 4.a. through 4.d. above are attached hereto.


 


2

















 


	
  Dated:                   ,
  200  

  	
   

  
	
   

  	
   

  
	
   

  	
  National Beef Packing
  Company, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  



 


3

















 


Schedule 4.a..  Funded
Debt to EBITDA Ratio(2)


 


	
  1. Funded
  Debt

  	
   

  	
   

  
	
  a. Outstanding
  Principal Amount of Interest-Bearing Indebtedness (including Capital Leases)

  	
   

  	
  $

  
	
  b. Undrawn Amount of
  Outstanding Letters of Credit (including the LCs)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  c. Subtotal (Lines a
  and b)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  Minus:

  	
   

  	
   

  
	
  d. LCs or Indemnity
  Obligations Issued to Support other Indebtedness

  	
   

  	
  $

  
	
  e. Class A or B
  Units subject to Redemption Rights

  	
   

  	
  $

  
	
  f. Obligations under
  Deferred Compensation Plans

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  g. Subtotal (Lines d
  through f)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  h. Funded
  Debt (Line c — Line g)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  2. EBITDA

  	
   

  	
   

  
	
  a. Net Income

  	
   

  	
   

  
	
   

  	
   

  	
  $

  
	
  Plus:

  	
   

  	
   

  
	
  b. Income Taxes

  	
   

  	
  $

  
	
  c. Interest Expense

  	
   

  	
  $

  
	
  d. Depreciation Expense

  	
   

  	
  $

  
	
  e. Amortization Expense

  	
   

  	
  $

  
	
  f. Other Non-Cash
  Expenses or Charges

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  g. Subtotal (Lines b
  through f)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  Minus:

  	
   

  	
   

  
	
  h. Non-Operating Gains

  	
   

  	
  $

  
	
  i. Non-Operating Losses

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  j. Subtotal (Lines h
  and i)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  k. EBITDA (Line
  a + Line g - Line j)

  	
   

  	
  $

  



 






(2) The Funded Debt to EBITDA Ratio is measured for the four (4)
consecutive fiscal quarters ending on the date of the Financial Statements.


 


4

















 


	
  Funded Debt to EBITDA Ratio (Line 1h over Line 2k)

  	
             
  to 1.00

  



 


Schedule
4.b.  Adjusted Net Worth


 


	
  a. Book Value of all
  Assets

  	
   

  	
  $

  
	
  b. Total Liabilities

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  c. Net Worth (Line
  a - Line b)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  d. Negative Impact
  Occurring as a Result of Making Equity Distributions in accordance with the
  $150 Million Basket

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  Adjusted Net Worth (Line c - Line d)

  	
   

  	
  $

  



 


Schedule 4.c.  Fixed
Charge Coverage Ratio(3)


 


	
  1. EBITDA

  	
   

  	
   

  
	
  a. Net Income

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  Plus:

  	
   

  	
   

  
	
  b. Income Taxes

  	
   

  	
  $

  
	
  c. Interest Expense

  	
   

  	
  $

  
	
  d. Depreciation Expense

  	
   

  	
  $

  
	
  e. Amortization Expense

  	
   

  	
  $

  
	
  f. Other Non-Cash
  Expenses or Charges

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  g. Subtotal (Lines b
  through f)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  Minus:

  	
   

  	
   

  
	
  h. Non-Operating Gains

  	
   

  	
  $

  
	
  i. Non-Operating Losses

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  j. Subtotal (Lines g
  and h)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  k. EBITDA (Line
  a + Line g - Line j)

  	
   

  	
  $

  



 






(3) The Fixed Charge Coverage
Ratio is measured for the eight (8) consecutive fiscal quarters ending on the
date of the Financial Statements.


 


5

















 


	
  Minus:

  	
   

  	
   

  
	
  l. Net Capital
  Expenditures

  	
   

  	
  $

  
	
  m. Numerator (Line k —
  Line l)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  2. Fixed
  Charges

  	
   

  	
   

  
	
  a. Scheduled Payments
  of Principal and Interest on Funded Debt

  	
   

  	
  $

  
	
  b. Cash Income Taxes
  Incurred and Paid

  	
   

  	
  $

  
	
  c. Equity Distributions
  (other than Equity Distributions under the $150 Million Basket, Certain
  Equity Distributions Made in April 2009 and up to $8 Million in Equity Distributions
  made in May 2010)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  d. Fixed
  Charges (Lines a + b +c)

  	
   

  	
  $

  



 


	
  Fixed Charge Coverage Ratio (Line 1m over
  Line 2d)

  	
                 
  to 1.00

  



 


6
















 


Exhibit 13A to

Amended and Restated

Credit Agreement


 


Form of
Assignment and Acceptance


 


Dated:                        


 


ASSIGNMENT AND ACCEPTANCE
AGREEMENT, dated as of
                    ,
             among                                             
(the “Assignor”),
                                            
(the “Assignee”) and CoBank, ACB, as Agent for the lenders from time to
time party to the Credit Agreement described below (in such capacity, the “Agent”).


 


Please refer to the
certain Amended and Restated Credit Agreement dated as of June 4, 2010 (as
amended, amended and restated, supplemented, restated or otherwise modified or
renewed from time to time, the “Credit Agreement”) by and among National
Beef Packing Company, LLC, a Delaware limited liability company (the “Borrower”),
certain of its subsidiaries, the Agent and various other Persons. Terms defined
in the Credit Agreement and not defined herein are used herein with the same
meaning.


 


NOW, THEREFORE, the
Assignor and the Assignee agree as follows:


 


1.             Upon the execution and delivery of this Assignment and
Acceptance Agreement by the Assignor, the Assignee and the Agent, the Assignee
[shall be] [shall continue to be] a Bank party to the Credit Agreement for all
purposes thereof.


 


2.            Prior to the execution and delivery
of this Assignment and Acceptance Agreement:


 


a.            the Assignor’s and
the Assignee’s Line of Credit Loan Commitments (and the principal amount of the
Assignor’s and the Assignee’s outstanding Line of Credit Loans) were
$                      
and
$                          
(and
$                    
and
$                          ),
respectively (the “Original Line of Credit Commitments”) and the
Assignor’s and the Assignee’s Pro Rata Percentages of the Line of Credit Loans
were
                      
and
                  ,
respectively (the “Original Line of Credit Percentages”);


 


b.            the Assignor’s and
the Assignee’s Term Loan Commitments (and the outstanding principal amount of
the Assignor’s and the Assignee’s Term Loans) were
$              
and
$                
(and $                    
and
$                      ),
respectively (the “Original Term Loan Commitments”) and the Assignor’s
and the Assignee’s Pro Rata Percentages of the Term Loans were
                
and           , respectively
(the “Original Term Loan Percentages”);


 


3.            Upon the execution and delivery of
this Assignment and Assumption Agreement:


 


a.            the Line of Credit
Loan Commitments of the Assignor and the Assignee (and the principal amount of
the Assignor’s and the Assignee’s outstanding Line of Credit Loans) shall be
$                      
and $                    
(and $                      
and 


 


1

















 


$                    ),
respectively, the sum of which shall equal the sum of the Original Line of
Credit Commitments, and the Pro Rata Percentages of the Line of Credit Loans of
the Assignor and the Assignee shall be
                                      
and
                  ,
respectively, the sum of which shall equal the sum of the Original Line of
Credit Percentages;


 


b.            the Term Loan
Commitments of the Assignor and the Assignee (and the outstanding principal
amount of the Assignor’s and the Assignee’s Term Loans) shall be
$                  
and $                    
(and
$                    
and $                      ),
respectively, the sum of which shall equal the Original Term Loan Commitments,
and the Pro Rata Percentages of the Term Loans of the Assignor and the Assignee
shall be
                    
and
                    ,
respectively, the sum of which shall equal the Original Term Loan Percentages;
and


 


4.             The Assignor: (a) represents and warrants that it
is the legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse claim; (b) makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any
Financing Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Financing Document or any other
instrument or document furnished pursuant thereto; (c) makes no
representation or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower of
any of its obligations under any Financing Document or any other instrument or
document furnished pursuant thereto; [and] (d) attaches the [Line of
Credit Note] payable to the Assignor and requests that the Agent exchange such
[Line of Credit Note] for new [Line of Credit Notes] as follows: a [Line of
Credit Note] dated [Insert Date - Same Date as Old Note] in the
principal amount of $[Insert $ Amount], payable to the order of the
Assignee and a [Line of Credit Note] dated [Insert Date — Same Date as Old
Note] in the principal amount of $ [Insert $ Amount], payable to the
order of the Assignor; [and (?) attaches the [Term Note] payable to the
Assignor and requests that the Agent exchange such [Term Note] for new [Term
Notes] as follows: a [Term Note] dated [Insert Date - Same Date as Old Note] in
the principal amount of $[Insert $ Amount], payable to the order of the
Assignee and a [Term Note] dated [Insert Date - Same Date as Old Note]
in the principal amount of $[Insert $ Amount], payable to the order of
the Assignor;] [and (?) has delivered and endorsed the Notes held by the
Assignor to the Assignee, payable to the order of the Assignee].


 


5.            The Assignee:  (a) confirms that it has received copies
of the Financing Documents, together with copies of the most recent financial
statements referred to in Section 9.1 of the Credit Agreement and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and Acceptance; (b) agrees
that it will, independently and without reliance upon the Agent, the Assignor
or any other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (c) appoints and
authorizes the Agent to take such action on the Assignee’s behalf and to
exercise such powers under the Financing Documents as are delegated to the
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (d) agrees that it will perform in accordance with
their terms all of the obligations which by the terms of the Credit Agreement
and the other Financing Documents are required to be performed 


 


2

















 


by the Assignee as a
Lender; (e) (if such Assignee is a bank or financial institution organized
outside the United States) agrees that it will deliver to the Agent and the
Borrower the forms prescribed by the Internal Revenue Service of the United
States (including without limitation, Form W-8BEN, Form W-8EC1, or Form W-8IMY)
certifying such Assignee’s exemption from United States withholding taxes with
respect to all payments to be made to such Assignee under its Notes and under
any other Financing Document; and (f) specifies as its address for notices
the office set forth beneath its name on the signature pages hereof.


 


6.             The Restatement 
date for this Assignment and Acceptance shall be [Agent inserts date
of its acceptance] (the “Restatement 
Date”). Following the execution of this Assignment and Acceptance,
it will be delivered to the Agent for acceptance and recording by the Agent.


 


7.             Upon such acceptance and recording, as of the
Restatement  Date: (a) the Assignee
shall be a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, shall have the rights and obligations of a Lender
thereunder and under the other Financing Documents; and (b) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement and the
other Financing Documents and in the event that the Assignor has assigned to
the Assignee hereunder all of its rights and obligations under the Credit
Agreement and the other Financing Documents, the Assignor shall cease to be a
party to the Credit Agreement and such other Financing Documents.


 


8.             Upon such acceptance and recording, from and after the
Restatement  Date, the Agent shall make
all payments under the Credit Agreement in respect of the interest assigned
hereby (including without limitation, all payments of principal, interest and
commitment fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the Credit
Agreement for periods prior to the Restatement 
Date directly between themselves.


 


9.             This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of Colorado, without regard
to the conflict of laws principles thereof.


 


3

















 


IN WITNESS WHEREOF, the
parties hereto, by their respective officers thereunto duly authorized, have
executed this Assignment and Acceptance Restatement  as of the day first written above.


 


	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Accepted this: [Insert
  Date]

  	
   

  
	
   

  	
   

  
	
   

  	
  COBANK, ACB, as Agent

  5500 South Quebec
  Street

  Greenwood Village,
  Colorado 80111

  Facsimile: 720-528-6225

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  
	
  Consent granted this: [Insert
  Date]

  	
   

  
	
   

  	
   

  
	
   

  	
  NATIONAL BEEF PACKING
  COMPANY, LLC,

  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  



 


4

















 


Exhibit 13C to

Amended and Restated

Credit Agreement


 


Form of
Voting Participant Notification and Consent


 


Reference is made to the
Amended and Restated Credit Agreement dated as of June [    ],
2010 (as the same may be amended, amended and restated, supplemented, restated
or otherwise modified from time to time, the “Credit Agreement”) by and
among National Beef Packing Company, LLC (the “Borrower”), certain of
its subsidiaries, CoBank, ACB, as agent (the “Agent”), and the other
Persons from time to time party thereto. Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the Credit
Agreement.


 


Pursuant to Section 13.23
of the Credit Agreement, the Lender identified below hereby notifies the Agent
that it is designating the participant identified below as being entitled to be
accorded the rights of a voting participant as described in Section 13.23(e).
Such participants must be members of the Farm Credit System, have purchased a
participation in the minimum amount of $10,000,000 on or after the
Restatement  Date and have received the
written consent of Borrower and the Agent.


 


	
  Lender:

  	
   

  
	
   

  	
   

  
	
  Voting Participant:

  	
   

  
	
   

  	
   

  
	
  Full
  Legal Name:

  	
   

  
	
   

  	
   

  
	
  Address
  for Notices:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
   

  
	
   

  	
   

  
	
  Amount of Participation
  Purchased: 

  	
  $

  
	
   

  	
   

  
	
  Date of Notification:

  	
   

  



 

















 


	
   

  	
  [Lender]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  
	
   

  	
  [Participant]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  



 


Pursuant to Section 13.23
of the Credit Agreement, the undersigned hereby consent to the institution
identified herein becoming a voting participant.


 


	
   

  	
   

  	
  NATIONAL BEEF PACKING
  COMPANY, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  COBANK, ACB, as Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By: