Party that would require an amendment, waiver or consent of the
Agent or the Lenders except as expressly stated herein. This Waiver and
Amendment constitutes a Financing Document.
(e)
GOVERNING LAW. 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.
(f)
Counterparts. This Waiver and Amendment may be signed in
counterparts (by facsimile transmission or otherwise) but all of such
counterparts together shall constitute one and the same instrument. Delivery of
an executed counterpart of a signature page to this Waiver and Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Waiver and Amendment.
(g)
Incorporation into Credit Agreement. This Waiver and Amendment
shall be incorporated into the Credit Agreement by this reference.
7.
NO ORAL AGREEMENTS. THIS WAIVER AND 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 WAIVER AND AMENDMENT, EACH LOAN PARTY
(BY ITS EXECUTION BELOW) REPRESENTS AND WARRANTS THAT AS OF THE DATE OF ITS
EXECUTION OF THIS WAIVER AND AMENDMENT THERE ARE NO CLAIMS OR OFFSETS AGAINST OR
DEFENSES OR COUNTERCLAIMS TO ITS OBLIGATIONS UNDER THE CREDIT AGREEMENT, THIS
WAIVER AND 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 WAIVER AND 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
WAIVER AND 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 Waiver and 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