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 Officer
NATIONAL CARRIERS, INC.
By:
/s/ Jay D. Nielsen
Name:
Jay D. Nielsen
Title:
Chief Financial Officer
AGENT:
COBANK, ACB, as Agent
By:
/s/