instrument. Delivery of an executed counterpart of a
signature page to this Amendment by telecopier shall be effective as delivery of
a manually executed counterpart of this Amendment.
(g)
Incorporation into Credit Agreement. This Amendment shall be incorporated
into the Credit Agreement by this reference.
7.
NO ORAL AGREEMENTS. THIS AMENDMENT AND THE OTHER FINANCING DOCUMENTS
EMBODY THE ENTIRE AGREEMENT OF THE PARTIES AND SUPERSEDE ALL PRIOR AGREEMENTS
AND UNDERSTANDINGS RELATING TO THE SUBJECT MATTER THEREOF AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.
8.
General Waiver and Release. IN ADDITION, TO INDUCE THE LENDERS AND THE
AGENT TO AGREE TO THE TERMS OF THIS AMENDMENT, EACH LOAN PARTY (BY ITS EXECUTION
BELOW) REPRESENTS AND WARRANTS THAT AS OF THE DATE OF ITS EXECUTION OF THIS
AMENDMENT THERE ARE NO CLAIMS OR OFFSETS AGAINST OR DEFENSES OR COUNTERCLAIMS TO
ITS OBLIGATIONS UNDER THE CREDIT AGREEMENT, THIS AMENDMENT OR THE OTHER
FINANCING DOCUMENTS. NOTWITHSTANDING THE FOREGOING, IN THE EVENT THERE EXIST ANY
SUCH CLAIMS OR OFFSETS AGAINST OR DEFENSES OR COUNTERCLAIMS, THE BORROWER (BY
ITS EXECUTION BELOW) HEREBY:
(A)
FOREVER GENERALLY WAIVES ANY AND ALL CLAIMS, OFFSETS, DEFENSES AND/OR
COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING ON OR PRIOR TO THE DATE OF ITS
EXECUTION OF THIS AMENDMENT; AND
(B)
FOREVER RELEASES, ACQUITS AND DISCHARGES THE LENDERS, THE AGENT AND THEIR
RELATED PARTIES FROM ANY AND ALL OBLIGATIONS, INDEBTEDNESS, LIABILITIES, CLAIMS,
RIGHTS, CAUSES OF ACTION OR DEMANDS WHATSOEVER, WHETHER KNOWN OR UNKNOWN,
SUSPECTED OR UNSUSPECTED, IN LAW OR EQUITY, WHICH SUCH LOAN PARTY EVER HAD, NOW
HAS, CLAIMS TO HAVE OR MAY HAVE AGAINST ANY RELEASED PARTY ARISING ON OR PRIOR
TO THE DATE HEREOF AND FROM OR IN CONNECTION WITH THE CREDIT AGREEMENT, THIS
AMENDMENT AND THE OTHER FINANCING DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
THEREBY AND HEREIN.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed this Amendment as of the day and year first above
written.
BORROWER:
NATIONAL BEEF PACKING COMPANY, LLC
By: /s/ Jay D. Nielsen____________
Name: Jay D. Nielsen
Title: Chief Accounting 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
AGENT:
COBANK, ACB, as Agent
By: /s/ James H. Matzat
Name: James H. Matzat
Title: Vice President
LENDER:
COBANK, ACB, as Lender and Swing Line Lender
By: /s/ James H. Matzat
Name: James H. Matzat
Title: Vice President
LENDER:
BANK OF AMERICA, N.A.
By: /s/ Charles W. Hunter
Name: Charles W. Hunter
Title: S.V.P
LENDER:
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK, B.A., "RABOBANK NEDERLAND", NEW
YORK BRANCH
By: /s/ Robert K. Hughes
Name: Robert K. Hughes
Title: Executive Director
By: /s/ Izumi Fukushima
Name: Izumi Fukushima
Title: Executive Director
LENDER:
U.S. BANK