Exhibit 10.9(e)


 


THIRD AMENDMENT

TO SIXTH AMENDED AND RESTATED CREDIT AGREEMENT


 


This Third Amendment to Sixth Amended and Restated Credit Agreement (“Amendment”) is made as of October 8, 2009, by and among
NATIONAL BEEF PACKING COMPANY, LLC, a Delaware limited liability company
(together with its successors and assigns, the “Borrower”),
COBANK, ACB, an agricultural credit bank (“CoBank”), as
Lead Arranger, Syndication Agent, Swing Line Lender and Administrative Agent
for the Lenders (in such capacity, the “Agent”) and as
one of the Lenders, and the other financial institutions signatory hereto
(being at least the Required Lenders).


 


RECITAL


 


This Amendment is made with respect to the Sixth Amended and Restated
Credit Agreement made as of the 25th day of July, 2007 (as amended, modified,
supplemented, renewed or restated from time to time, the “Agreement”).  Capitalized terms that are not defined in
this Amendment shall have the meanings assigned to them in the Agreement.  The Borrower has requested that the date for
delivery of documents related to real property be extended and that the
requirement that such documents related to the property known as National Beef
Leathers — Tannery be eliminated.


 


NOW, THEREFORE, in consideration of the foregoing and of the terms and
conditions contained in this Amendment, and of any loans or extensions of
credit or other financial accommodations heretofore, now or hereafter made to
or for the benefit of Borrower, the parties agree as follows:


 


1.             Section 9.19
of the Agreement, Additional Collateral, shall be amended to read as
follows:


 


9.19        Additional Collateral.


 


On or before January 8, 2010 the
Borrower shall have delivered to the Agent, in form and substance acceptable to
the Agent:


 


(a)           amendments or modifications to the Security
Agreement, the Kansas Mortgage, the Pennsylvania Mortgage and the Intercompany
Loan Documents specified by the Agent in order to reflect the changes that are
set forth in this Agreement;


 


(b)           new mortgage documents to grant to the Agent
for the ratable benefit of the Lenders, liens against the property known as
Moultrie, GA — Case Ready Plant;


 


(c)           With respect to the mortgages and the
properties covered thereby in the preceding Subsections (a) and (b): (i) Commitments
for Mortgagee’s Title Insurance Policies, or date down and modification
endorsements to existing Policies, as the case may be; (ii) ALTA Surveys
with Food Plain Certifications; (iii) Phase I Environmental Assessment
Report(s); (iv) Current “As-is” appraisals which shall contain a certification
that the appraiser’s analysis, opinions, and conclusions conform with the
regulations promulgated under Title XI of the Federal Financial Institutions
Reform, Recovery, and


 

















 


Enforcement Act of 1989, as well as the Uniform Standards of Professional
Appraisal Practice of the Appraisal Foundation and the Appraisal Institute as
required by the Agent; and (v) Opinions of legal counsel in each state
where the property is located.


 


2.             This
Amendment shall be an integral part of the Agreement, and all of the terms set
forth therein are hereby incorporated in this Amendment by reference, and all
terms of this Amendment are hereby incorporated into said Agreement as if made
an original part thereof.  All of the terms
and conditions of the Agreement, which are not modified in this Amendment,
shall remain in full force and effect. 
To the extent the terms of this Amendment conflict with the terms of the
Agreement, the terms of this Amendment shall control.


 


3.             This
Amendment may be executed in several counterparts, each of which shall be
construed together as one original. 
Facsimile signatures on this Amendment shall be considered as original
signatures.


 


[Signature Pages Follow]


 


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IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Sixth Amended and Restated Credit Agreement as of the day and year first herein
above written.


 


	
   

  	
   

  	
  NATIONAL BEEF PACKING

  
	
   

  	
   

  	
  COMPANY, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jay Nielsen

  
	
   

  	
   

  	
  Its:

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ J. Norte

  
	
   

  	
   

  	
  Its:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  COÖPERATIVE CENTRALE

  
	
   

  	
   

  	
  RAIFFEISEN-BOEFENLEENBANK

  
	
   

  	
   

  	
  B.A., “RABOBANK NEDERLAND”,

  
	
   

  	
   

  	
  NEW YORK BRANCH, individually and as a Documentation Agent

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Rebecca O. Morrow

  	
   

  	
  By:

  	
  /s/ Robert K. Hughes

  
	
  Its:

  	
  Executive Director

  	
   

  	
  Its:

  	
  Executive Director

  



 


 


{SIGNATURE PAGE ONE OF THREE TO THIRD
AMENDMENT TO SIXTH 

AMENDED AND RESTATED CREDIT AGREEMENT}


 


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  THE CIT GROUP/BUSINESS CREDIT, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Barbara J. Coffin

  
	
   

  	
  Its:

  	
  Assistant Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A. (successor by merger to LaSalle Bank National
  Association)

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel J. Ricke

  
	
   

  	
  Its:

  	
  Vice President

  



 


 


{SIGNATURE PAGE TWO OF THREE TO THIRD
AMENDMENT TO SIXTH 

AMENDED AND RESTATED CREDIT AGREEMENT}


 


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  FIRST NATIONAL BANK OF OMAHA

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Wade H. Horton

  
	
   

  	
  Its:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas R. Martin

  
	
   

  	
  Its:

  	
  Senior Vice President

  



 


 


{SIGNATURE PAGE THREE OF THREE TO THIRD
AMENDMENT TO SIXTH 

AMENDED AND RESTATED CREDIT AGREEMENT}


 


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