EXHIBIT 10.1

 

**FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED CREDITAGREEMENT**

This FIRST AMENDMENT (this "Amendment"), dated as ofJuly 7, 2005, is by and between NATIONAL BEEF PACKING COMPANY, LLC, a Delawarelimited liability company (the "Borrower"), the lenders party to the OriginalAgreement referenced below (collectively, the "Lenders" and individually, a"Lender"), U.S. AGBANK, FCB, as Co-Syndication Agent, COÖPERATIEVE CENTRALERAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK INTERNATIONAL", NEW YORK BRANCH, asDocumentation Agent, and COBANK, ACB, an agricultural credit bank ("CoBank"),as Lead Arranger, Co-Syndication Agent, Swing Line Lender and AdministrativeAgent for the Lenders, the Issuers and the Swing Line Lender hereunder (in itscapacity as Administrative Agent, together with its successors and assigns insuch capacity, the "Agent").

RECITALS

The parties described above are parties to a FourthAmended and Restated Credit Agreement dated as of December 29, 2004 (the"Original Agreement").

The Borrower has requested that certain amendmentsbe made with respect to the Original Agreement and the Required Lenders haveagreed to accommodate such requests on the terms and subject to the conditionsset forth in this Amendment.

ACCORDINGLY,in consideration of the premises and for other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged, the partieshereto hereby agree as follows:

ARTICLE IDEFINITIONS

1.1       Original Agreement Definitions.  Terms defined in theOriginal Agreement shall have the same meaning when used herein unlessotherwise expressly indicated.

ARTICLE IIAMENDMENTS

2.1    Amendment of Section 1.2 of theOriginal Agreement:  Section 1.2 of the Original Agreement is herebyamended by inserting the following new definition:

"'Senior Notes' means the Borrower's $160,000,000aggregate principal amount 10-1/2% Senior Notes due August 1, 2011."

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2.2       Amendment of Section 10.3 of the Original Agreement: Section 10.3 of the Original Agreement is hereby amended by deleting the word"and" immediately before subsection (o) of such Section thereof and byinserting the following new phrase immediately after such subsection (o): 

"and (p) purchases permitted bythe proviso to Section 10.14."

2.3       Amendment of Section 10.4 of the Original Agreement: Section 10.4 of the Original Agreement is hereby amended by deleting the word"and" immediately before subsection (i) of the first sentence of such Sectionand by inserting the following new phrase at the end of such sentence: 

"and (j) resales of Senior Notespreviously purchased pursuant to the proviso to Section 10.14 solong as no Default or Matured Default shall have occurred and be continuing atthe time of any such resale or be caused by any such resale."

2.4       Amendment to Section 10.14 to the Original Agreement. Section 10.14 of the Original Agreement is hereby amended in its entirety toread as follows:

"The Borrower shall not directlyor indirectly prepay, redeem or purchase prior to maturity, or deposit funds orproperty for the prepayment, redemption or purchase prior to maturity of (i)any Indebtedness of the Borrower which is subordinated to the payment of anyportion of the Liabilities or (ii) the Senior Notes; provided, however,that the Borrower may make purchases of up to $30,000,000 in cumulativepurchase price (including any premium) of Senior Notes so long as no Default orMatured Default shall have occurred and be continuing at the time of any suchpurchase or be caused by any such purchase."

2.5       Amendment to Exhibit 7J to the Original Agreement. Exhibit 7J to the Original Agreement is hereby amended in its entirety to readas set forth on Annex A to this Amendment

ARTICLE IIICONDITION PRECEDENT

3.1       Condition to Effectiveness of this Amendment.  ThisAmendment shall become effective when the Agent shall have received thisAmendment, duly executed by the Borrower, the Agent and the Required Lenders.

ARTICLE IVREPRESENTATIONS AND WARRANTIES

4.1       Representations and Warranties.  To induce the Agent, theSwing Line Lender, the Issuers and the Lenders to enter into this Amendment,the Borrower hereby represents and warrants to such Persons as follows:

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(a)       TheBorrower's execution and delivery of this Amendment and the performance of itsobligations hereunder and under the Original Agreement as amended by thisAmendment, (i) are within the Borrower's powers; (ii) are dulyauthorized by the Borrower's  managers and, if necessary, the Borrower'smembers; (iii) are not in contravention of any material law or laws, orthe terms of the Borrower's operating agreement, or other organizationaldocuments, or of any indenture, agreement or undertaking to which the Borroweris a party or by which the Borrower or any of the Borrower's property is bound;(iv) do not require any governmental consent, registration or approval;(v) do not contravene any contractual or governmental restriction bindingupon the Borrower; and (vi) will not, except as contemplated or permittedby this Agreement, result in the imposition of any lien, charge, securityinterest or encumbrance upon any of the Borrower's property under any existingindenture, mortgage, deed of trust, loan or credit agreement or other materialagreement or instrument to which the Borrower is a party or by which theBorrower or any of the Borrower's property may be bound or affected.

            (b)       ThisAmendment and the Original Agreement as amended by this Amendment set forth thelegal, valid and binding obligations of the Borrower and are enforceableagainst the Borrower in accordance with their respective terms.

ARTICLE VMISCELLANEOUS

5.1       Reference to and Effect on the Original Agreement and theother Financing Documents.

(a)       TheOriginal Agreement, as hereby amended, and the other Financing Documents remainin full force and effect and are hereby ratified and confirmed. 

(b)       Theexecution, delivery and effectiveness of this Amendment shall not operate as awaiver of any right, power or remedy of the Agent, the Swing Line Lender, theIssuers or the Lenders under the Original Agreement or any of the otherFinancing Documents, nor constitute a waiver of any provision thereof.

(c)       ThisAmendment constitutes a Financing Document as such term is used in the OriginalAgreement as amended hereby.

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5.2       Continuation of Representations and Warranties.  TheBorrower represents and warrants to the Agent, the Swing Line Lender, theIssuers and the Lenders that on and as of the date hereof and after givingeffect to this Amendment and to disclosures to the Agent made from time to timein accordance with the Original Agreement, (i) all of the representations andwarranties contained in the Original Agreement are correct and complete in allmaterial respects as of the date hereof, as though made on and as of the datehereof, except to the extent such representations and warranties specificallyrelate to an earlier date, in which case they were true and correct as of suchearlier date, and (ii) no Default or Matured Default shall have occurred and becontinuing.

5.3       Merger and Integration, Superseding Effect.  ThisAmendment, together with the Original Agreement as amended by this Amendmentand the other Financing Documents, from and after the date hereof, embodies theentire agreement and understanding between the parties hereto and supersedesand has merged into it all prior oral and written agreements on the samesubjects by and between the parties hereto with the effect that the OriginalAgreement, as amended by this Amendment, shall control.

5.4       Expenses.  The Borrower agrees to pay all of the expenses,including reasonable attorney's fees and expenses, incurred by the Agent inconnection with this Amendment. 

5.5       Counterparts.  This Amendmentmay be executed in several counterparts and by the different parties onseparate counterparts, each of which together shall be construed as oneoriginal and all of which shall constitute together but one and the sameAmendment. Facsimile signatures on this Amendment shall be considered asoriginal signatures.

5.6       Successors.  Whenever in thisAgreement there is reference made to any of the parties hereto, such referenceshall be deemed to include, wherever applicable, a reference to the respectivesuccessors and assigns of the Borrower, the Agent, the Swing Line Lender, theLenders and the Issuers.

5.7       Headings.  The headings of various sections of thisAmendment have been inserted for reference only and shall not be deemed to be apart of this Amendment.

5.8       Governing Law.  This Agreement shall be construed in allrespects in accordance with, and governed by, the laws and decisions of theState of Colorado without regard to the application of conflict of lawsprinciples.

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IN WITNESS WHEREOF, the parties hereto have causedthis Amendment to be executed by their respective officers thereunto dulyauthorized, as of the date first above written.

|   | NATIONAL BEEF PACKING	COMPANY, LLC |
|--------|------------------------------------|
|   |
|        |                                    |    |
|        |  By:                          | /s/ Jay D. Nielsen |
|        |                                    |  |
|        |  Its:                         | Chief Financial Officer |

 

|   | COBANK, ACB, individually and asLead Arranger, Co-Syndication Agent and Administrative Agent |
|--------|----------------------------------------------------------------------------------------------|
|   |
|        |                                                                                              |    |
|        |  By:                                                                                    | /s/ Jim Stutzman |
|        |                                                                                              |  |
|        |  Its:                                                                                   | Vice President |

**           **

|       | COÖPERATIEVECENTRALE  RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK INTERNATIONAL",NEW  YORK BRANCH, individually and as Documentation Agent |
|------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|       |
|            |                                                                                                                                                                   |    |
|  By:  | /s/ Shane Bownds                                                                                                                                                  |  By: | /s/ Rebecca O. Morrow |
|            |                                                                                                                                                                   |  |  |
|  Its: | Executive Director                                                                                                                                                |  Its: | Executive Director |

 

|   | AMARILLO NATIONAL BANK |
|--------|------------------------|
|        |                        |   |
|        |  By:              | /s/ Leonard Herrington |
|        |                        |  |
|        |  Its:             | Vice President |

 

|        | U.S. AGBANK, F.C.B., as Co-Syndication Agent |
|--------|----------------------------------------------|
|   |                                         |
|        |  By:                                    | /s/ Greg Sommerhalder |
|        |                                              |  |
|        |  Its:                                   | Vice President |
|        |                                              |  |

*[Signature Page to First Amendment]*

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