Exhibit 10.4(c)





 


 


 


 


Exhibit 10.4(c)


WAIVER AND CONSENT


 


This Waiver and
Consent is given as of November 21, 2008, under the Sixth Amended and
Restated Credit Agreement dated as of July 25, 2007 (as amended, modified, supplemented, renewed or
restated from time to time, the "Credit Agreement") by and
among NATIONAL BEEF PACKING COMPANY, LLC, a Delaware limited liability
company (together with its successors and assigns, the “Borrower”) and
the various financial institutions as are or may become parties thereto (collectively
the "Lenders").  This Waiver and Consent is made by the
undersigned Lenders (being at least the “Required Lenders”, as defined
in the Credit Agreement).



 


RECITALS


 


Except as
defined herein, all capitalized terms used in this Waiver and Consent shall
have meaning assigned to them in the Credit Agreement. During fiscal year 2008 Borrower
incurred Net Capital Expenditures in excess of the amount allowed by Section 10.7 of the Credit Agreement resulting in
a Matured Default (the “Cap Ex Default”).  The Borrower desires that the Lenders consent to the Cap Ex Default and waive their rights
powers and remedies as a result thereof.  The Lenders are willing to
accommodate the Borrower in this regard.


 


NOW, THEREFORE, the undersigned Lenders provide this
Waiver and Consent as follows:


 


1.         The
Lenders hereby consent to the Cap Ex
Default, and agree that their rights powers and remedies as a result
thereof, shall be and are hereby
waived in accordance with Section 13.29 of the Credit Agreement.


 


2.         Notwithstanding the foregoing, it is
expressly understood and agreed that the Lenders shall have the right at all
times hereafter to require strict performance by the Borrower of all terms of
the Credit Agreement or any other Financing Agreement, that the Lenders do not
waive, affect or diminish any right, power or remedy of the Lenders under the Credit
Agreement or any other Financing Agreement except as expressly set forth herein
and that except as expressly set forth herein, the Credit Agreement and each
other Financing Agreement shall continue in full force and effect in accordance
with their respective terms.


 


3.         This
Waiver and Consent may be executed in several counterparts, each of which shall
be deemed to be an original (whether such counterpart is originally executed or
an electronic copy of an original) and all of which shall constitute together
but one and the same document.  Facsimile signatures on this Waiver and Consent
shall be considered as original signatures.


 


4.         This
Waiver and Consent is a Financing Agreement executed pursuant to the Credit
Agreement and shall be construed, administered and applied in accordance with
all of the terms and provisions of the Credit Agreement.


 


[Signature Pages Follow]


 


 










 






 


 


 


 


IN WITNESS
WHEREOF, this Waiver and Consent has been duly executed as of the day and
year first above written.


 


NATIONAL BEEF PACKING


COMPANY, LLC


 


By:
/s/ Jay D. Nielsen                       



Its:
Chief Financial Officer               



 


COBANK, ACB, individually and
as Lead Arranger, Syndication Agent and Administrative Agent


 


By:
/s/ James Matzat                        



Its:
Vice President                             



        


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


 


By:
/s/ Rebecca O. Morrow                                      By:
/s/ Robert K. Hughes


Its:
Executive Director                                              Its:
Executive Director


 


 


{SIGNATURE PAGE ONE OF THREE
TO WAIVER AND CONSENT RELATED TO SIXTH AMENDED AND RESTATED CREDIT AGREEMENT}

 

 

 

 

 




	
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THE CIT GROUP/BUSINESS CREDIT,
INC. 


                                                                                    


By:
__________________________


Its:
__________________________


 


 


BANK OF OKLAHOMA, N.A. 


                                                                                    


By:
/s/ Christopher Port                     



Its:
Vice President                             



 


 


BMO CAPITAL MARKETS FINANCING,
INC.


                                                                        


By:
/s/ Scott Morris                             



Its:
Vice President                             


 


LASALLE BANK N.A.


                                                                                    


By:
/s/ Mark A. Jacobson                  




Its:                  
VP                               



 


 


CALYON – NEW YORK BRANCH


                                                                        


By:
/s/ David Cagle                           



Its:
Managing Director                     


  


By:
/s/ Robert Smith                          



Its: Managing Director                      



 


 


{SIGNATURE PAGE ONE OF THREE
TO WAIVER AND CONSENT RELATED TO SIXTH AMENDED AND RESTATED CREDIT AGREEMENT}

 

 

 

 

 




	
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FIRST NATIONAL BANK OF OMAHA


                                                                                    


By: __________________________


Its: __________________________


 


AMERICAN AGCREDIT, PCA,


formerly
known as Pacific Coast Farm Credit Services, ACA


                                                                                    


By: __________________________


Its: __________________________


 




	
  {SIGNATURE PAGE ONE OF THREE TO WAIVER AND CONSENT
  RELATED TO SIXTH AMENDED AND RESTATED CREDIT AGREEMENT}

  









 

 

 

 

 

 

 




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