Exhibit 10.4

SECOND AMENDMENT

**TO SIXTHAMENDED AND RESTATED CREDIT AGREEMENT**

 

This SecondAmendment to Sixth Amended and Restated Credit Agreement (“**Amendment**”)is made as of April 13, 2009, by and among NATIONAL BEEF PACKING COMPANY, LLC,a****Delaware limited liability company (together with its successors andassigns, the “**Borrower**”), COÖPERATIEVE CENTRALERAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH, as a DocumentationAgent and as one of the Lenders, U.S. BANK NATIONAL ASSOCIATION, as aDocumentation Agent and as one of the Lenders,  COBANK, ACB, an agriculturalcredit bank (“**CoBank**”), as Lead Arranger, Syndication Agent, Swing LineLender and Administrative Agent for the Lenders (in such capacity, the “**Agent**”)and as one of the Lenders, and the other financial institutions signatoryhereto.

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**RECITAL**

 

This Amendmentis made with respect to the Sixth Amended and Restated Credit Agreement made asof the 25th day of July, 2007 (as amended, modified, supplemented, renewed orrestated from time to time, the “**Agreement**”).  Capitalized terms thatare not defined in this Amendment shall have the meanings assigned to them inthe Agreement.  The Borrower and the Lenders desire to increase the Commitmentsby $100,000,000 pursuant to Section 13.29 of the Agreement, to add financialinstitutions as Lenders and to otherwise amend certain provisions of theAgreement.

 

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

 

1.         Thetable set forth in Subsection (a) and the paragraph following, of thedefinition of Applicable Margin, set forth in Section 1.2 of theAgreement, Defined Terms, shall be amended to read as follows:

 

| **Borrowing Base		Availability Level** | **Amount of Borrowing		Base Availability**                       | **Base Rate Advance		Line of Credit Loan and 	Swing Line  Loans** | **LIBOR Rate Line		of Credit Loan** | **LC Fees** | **Non-Use Fee** |
|----------------------------------------|------------------------------------------------------------------|-------------------------------------------------------------------|-------------------------------------|-------------|-----------------|
| Level  1                               | Greater  than or equal to $150,000,000                           | 1.75%                                                             | 2.75%                               | 2.75%       | 0.50%           |
| Level  2                               | Less  than $150,000,000 but greater than or equal to $50,000,000 | 2.00%                                                             | 3.00%                               | 3.00%       | 0.50%           |
| Level  3                               | Less  than $50,000,000                                           | 2.50%                                                             | 3.50%                               | 3.50%       | 0.50%           |

 

 

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Theinitial Borrowing Base Availability Level shall be Level 2 until the BorrowingBase Certificate is required to be delivered in October 2009.   The Agent willreview each of the Borrower’s Borrowing Base Certificates to determine theamount of Borrowing Base Availability on the Borrowing Base measurement datereferenced in the Borrower’s current Borrowing Base Certificate.  Any change inthe Borrowing Base Availability will be effective five (5) days after receiptof the relevant Borrowing Base Certificate; provided, however,that if any Borrower’s Borrowing Base Certificate is not delivered on a timelybasis in accordance with Section 9.1, the Agent may, at its option, deemthe Borrower’s Borrowing Base Availability Level to be Level 3 until ten (10) BusinessDays after the Agent’s receipt of such Borrowing Base Certificate;

 

2.         Thetable set forth in Subsection (b) and the paragraph following, of thedefinition of Applicable Margin, set forth in Section 1.2 of theAgreement, Defined Terms, shall be amended to read as follows:

 
| **Borrowing Base Availability Level** | **Amount of		Borrowing Base Availability**                       | **Base Rate		Advance Term Loan** | **LIBOR Rate		Term Loan** | **Non-Use Fee** |
|---------------------------------------|------------------------------------------------------------------|----------------------------------|---------------------------|-----------------|
| Level  1                              | Greater  than or equal to $150,000,000                           | 2.00%                            | 3.00%                     | 0.50%           |
| Level  2                              | Less  than $150,000,000 but greater than or equal to $50,000,000 | 2.25%                            | 3.25%                     | 0.50%           |
| Level  3                              | Less  than $50,000,000                                           | 2.75%                            | 3.75%                     | 0.50%           |

 

Theinitial Borrowing Base Availability Level shall be Level 2 until the BorrowingBase Certificate is required to be delivered in October 2009.  The Agent willreview each of the Borrower’s Borrowing Base Certificates to determine theamount of Borrowing Base Availability on the Borrowing Base measurement datereferenced in the Borrower’s current Borrowing Base Certificate.  Any change inthe Borrowing Base Availability will be effective five (5) days after receiptof the relevant Borrowing Base Certificate; provided, however,that if any Borrower’s Borrowing Base Certificate is not delivered on a timelybasis in accordance with Section 9.1, the Agent may, at its option, deemthe Borrower’s Borrowing Base Availability Level to be Level 3 until ten (10)Business Days after the Agent’s receipt of such Borrowing Base Certificate;

 

 

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3.         Thedefinition of Base Rate, set forth in Section 1.2 of the Agreement,Defined Terms, shall be amended to read as follows:

 

“BaseRate” means a rate per annum announced by the Agent onthe first Business Day of each week, which shall be the higher of (a)150 basis points (1.50 percent) greater than the higher of the one week or onemonth LIBOR Rate, (b) the Prime Rate; or (c) the Federal Funds Rate plus onehalf of one percent (0.5%).

 

4.         Thedefinition of Fixed Charge Coverage Ratio, set forth in Section 1.2of the Agreement, Defined Terms, shall be amended to read as follows:

 

“Fixed Charge Coverage Ratio” means, as of the end ofany fiscal quarter, the ratio of (a) EBITDA during the four consecutive fiscalquarters then ended, less Net Capital Expenditures during such four fiscalquarter period, less Borrower’s consolidated cash income taxes paid during thefour consecutive fiscal quarters then ended to (b) the aggregate amount of allscheduled payments of principal of and interest on Funded Debt during such fourfiscal quarter period, plus Equity Distributions made by the Borrower duringsuch four fiscal quarter period.

5.         Thedefinition of LIBOR Rate, set forth in Section 1.2 of theAgreement, Defined Terms, shall be amended to read as follows:

 

“LIBORRate” means (a) with respect to each day during each Interest Period applicableto a LIBOR Rate Account, the per annum rate for the Interest Period selected byBorrower, as quoted by the British Bankers' Association (or if such quotationsource is unavailable, such other quotation source as may be reasonablyselected by the Administrative Agent) for the purpose of displaying LondonInterbank Offered Rates for U.S. Dollar deposits, (which shall be the LIBORrate in effect two Business Days prior to the related Advance) rounded up tothe 1/100th of 1% per annum, or (b) with respect to the determination of theBase Rate, the LIBOR rate, as quoted by the British Bankers' Association (or ifsuch quotation source is unavailable, such other quotation source as may bereasonably selected by the Administrative Agent) for the purpose of displayingLondon Interbank Offered Rates for U.S. Dollar deposits, in each case dividedby a percentage equal to 100% minus the stated maximum rate of all reserve requirements(including, without limitation, any marginal, emergency, supplemental, specialor other reserves) applicable on such date to any member bank of the Federal ReserveSystem in respect of “Eurocurrency liabilities” as defined in Regulation D (orany successor category of liabilities under Regulation D).

 

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6.         Thedefinition of Line of Credit Loan Commitment, set forth in Section1.2 of the Agreement, Defined Terms, shall be amended to read asfollows:

 

“Lineof Credit Loan Commitment” means as to any Lender, such Lender’s obligation tomake Line of Credit Loans up to its Pro Rata Percentage of $225,000,000, as setforth opposite such Lender’s name under the heading “Line of Credit LoanCommitments” on Exhibit 1A-2, subject to Assignments and Acceptancesexecuted and delivered in accordance with Section 13.23, and as suchamount may be reduced or terminated from time to time pursuant to Section4.5 or 11.1; and “Line of Credit Loan Commitments” means,collectively, the Line of Credit Loan Commitments for all the Lenders.

 

7.         Thedefinition of Maturity Date, set forth in Section 1.2 of theAgreement, Defined Terms, shall be amended to read as follows:

 

“MaturityDate” means the earliest of (i) the date on which the Commitments areterminated in whole pursuant to Section 11.1, (ii) the date on which theBorrower voluntarily terminates the Commitments in whole and pays theLiabilities in full, (iii) in the case of the Line of Credit Loans, July 25,2012, (v) in the case of the Term Loans, July 25, 2012, (v) in the case of anySwing Line Bond Loan, the Swing Line Lender’s close of business of the relevantLoan Date and (vi) in the case of any Regular Swing Line Loan, July 25, 2012,or any earlier Business Day specified by notice from the Swing Line Lender tothe Borrower and the Lenders.

 

8.         Subsection(t) of the definition of Matured Default, set forth in Section1.2 of the Agreement, Defined Terms, shall be deleted.

 

9.         Thedefinition of Prime Rate, set forth in Section 1.2 of theAgreement, Defined Terms, shall be amended to read as follows:

 

“PrimeRate” means a rate of interest per annum equal to the “prime rate” as publishedfrom time to time in the Eastern Edition of the *Wall Street Journal*asthe average prime lending rate for seventy-five percent (75%) of the UnitedStates’ thirty (30) largest commercial banks, or if the *Wall Street Journal*shallcease publication or cease publishing the “prime rate’’ on a regular basis,such other regularly published average prime rate applicable to such commercialbanks as is acceptable to the Administrative Agent in its reasonablediscretion.

 

10.       A newdefinition of Term Loan Commitment, shall be added to Section 1.2of the Agreement, Defined Terms, to read as follows:

 

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“TermLoan Commitment” means as to any Lender, such Lender’s obligation to make TermLoans, or additional Term Loans, as the case may be up to its Pro RataPercentage of $75,000,000, as set forth opposite such Lender’s name under theheading “Term Loan Commitments” on Exhibit 1A-2, subject to Assignmentsand Acceptances executed and delivered in accordance with Section 13.23,and as such amount may be reduced or terminated from time to time pursuant to Section4.5 or 11.1; and “Term Loan Commitments” means, collectively, the TermLoan Commitments for all the Lenders that have a Term Loan Commitment.

 

11.       Thedefinition of Total Percentage, set forth in Section 1.2 of theAgreement, Defined Terms, shall be amended to read as follows:

 

“Total Percentage” means with respect to any Lender atany time, a fraction (expressed as a percentage), the numerator of which shallbe the combined amount of (a) such Lender’s outstanding Term Loan principalbalance, (b)  and such Lender’s outstanding Term Loan Commitment, and (c) suchLender’s Line of Credit Loan Commitment (or, if such Lender’s Line of CreditLoan Commitment shall have expired, the aggregate outstanding principal balanceof such Lender’s Line of Credit Loans and Swing Line Loans) at such time, andthe denominator of which shall be the combined amount of all the outstandingTerm Loan principal balances, Term Loan Commitments and Line of Credit Loan Commitments(or, if the relevant Lenders’ Line of Credit Loan Commitments shall haveexpired, the aggregate outstanding principal balance of such Lenders’ Line ofCredit Loans and Swing Line Loans) of all the Lenders at such time.

12.       The definition of Unallocated Cash Flow,set forth in Section 1.2 of the Agreement, Defined Terms, shall beamended to read as follows: 

“Unallocated Cash Flow” means for any period ofdetermination (a) EBITDA during such period, minus (b) the amount of theBorrower’s consolidated cash income taxes paid during such period, minus (c)the amount of the Borrower’s consolidated cash dividends or distributions paidduring such period allowed under Section 10.10 (a) and (b) (but notthose allowed under Section 10.10 (c), (d) or (e)), minus (d) the netamount of the Borrower’s consolidated capital expenditures during such period(capital items purchased, minus capital items sold, and minus financing forcapital items purchased), with it being acknowledged that only fifty percent(50%) of Advances under the Line of Credit during such period that are used forcapital expenditures related to the expansion of the Borrower’s Dodge CityFacilities shall be included as “financing for capital items purchased” in theforegoing calculation, minus (e) cash interest paid, minus (f) scheduledprincipal payments made; provided, however, that no portion of the paymentsmade by the Borrower under the Water Services Agreement shall be considered tobe interest expense for the purposes of the calculation of Unallocated CashFlow.

13.       Exhibit 1A to theAgreement shall be replaced by Exhibit 1A -2 attached to this Amendment.

 

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14.       Section2.1.2 of the Agreement, Term Loan, shall be amended to read asfollows:

 

**2.1.2.   Term Loan.**  The Borrower acknowledges that,as of April 13, 2009, term loans are outstanding under this Section 2.1.2and owed by the Borrower in the aggregate principal amount of $176,902,881, asset forth opposite such Lender’s name under the heading “Amount of Term LoanOutstanding on April 13, 2009” on Exhibit 1A-2.  Each Lender with a TermLoan Commitment as set for on Exhibit 1A-2 severally agrees to makeloans to the Borrower from time to time on any one or more Business Days fromand after April 13, 2009 (through the Agent as set forth in Section 2.1.4)and after satisfaction of the requirements set forth in Section 9.19, tobut excluding the Maturity Date, during which period the Borrower may borrow,up to an aggregate principal amount not exceeding each such Lender’s Pro RataPercentage of the Term Loan Commitments on such Business Day, in aggregateamounts up to the lesser of (a) the Term Loan Commitments or (b) the amountthat would result in the total aggregate amount of then-current term loans outstandingunder this Section 2.1.2 exceeding 65% of the net appraised value (netof any prior liens or encumbrances) of fixed assets pledged as security underthis Agreement or under the Intercompany Financing Documents (with the 65% ofthe net appraised value reduced if necessary with respect to fixed assetspledged under the Intercompany Financing Documents to reflect the amounts dueunder the respective intercompany note and to reflect the value of personalproperty also pledged under the Intercompany Financing Documents).  EachLender’s allocation of term loans as of April 13, 2009 together with term loansthereafter made under this Section 2.1.2 is herein collectively calledsuch Lender’s “Term Loan”, and all such loans of all of the Lenders areherein collectively called the “Term Loans”.  The Term Loans may be maintainedas LIBOR Rate Advances or Base Rate Advances.  The Term Loans shall beevidenced by and repayable in accordance with the terms of the Borrower’spromissory notes to each of the Lenders (as the same may be amended, supplementedor otherwise modified from time to time, together with any replacements thereofor substitutions therefor, the “Term Notes”), the form of which isattached as Exhibit 2B.  Amounts representing Term Loans which have been repaidby the Borrower may not be reborrowed.

 

15.       Subsection(a) of Section 2.1.4 of the Agreement, Borrowing Procedures,shall be amended to read as follows:

 

 

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(a)        Procedurefor Line of Credit Loans.  Any request by the Borrower for Line of CreditLoans hereunder must be given by the Borrower not later than 11:00 a.m. (Denvertime) on the third Business Day prior to the date of any proposed LIBOR RateAdvance and not later than 1:00 p.m. (Denver time) on the Business Day prior tothe date any Base Rate Advance is proposed to be made.  Each request for Lineof Credit Loans hereunder shall be irrevocable and shall be deemed to be arepresentation by the Borrower that on the requested Loan Date and after givingeffect to the requested Line of Credit Loans the applicable conditions specifiedin Article VIII have been and will be satisfied.  Each request for aLine of Credit Loan hereunder shall specify (i) the requested Loan Date, (ii)the aggregate amount of the Line of Credit Loan to be made on such date, whichshall be in a minimum amount of $1,000,000 and an integral multiple of$500,000, (iii) whether such Line of Credit Loans is to be funded as a BaseRate Advances or LIBOR Rate Advances and (iv) in the case of a LIBOR RateAdvance, the duration of the initial Interest Period applicable thereto. Notlater than 4:00 p.m. (Denver time) on the Business Day a receipt of such noticeis received from the Borrower, the Agent shall advise each Lender of therequested Line of Credit Loans and of such Lender’s ratable share of suchLoans.  At or before 10:00 a.m. (Denver time) on the date of the requested Lineof Credit Loans, each relevant Lender shall provide the Agent at the Agent’sprincipal office in Denver with immediately available funds covering suchLender’s Pro Rata Percentage of the requested Loans.  Unless the Agentdetermines that any applicable condition specified in Article VIII hasnot been satisfied or waived, the Agent will make available to the Borrower atthe Agent’s principal office in Denver, Colorado in immediately available fundsnot later than 12:00 noon (Denver time) on the requested Loan Date the amountof the requested Line of Credit Loans to the extent received by the Agent.  Inaccordance with Section 2.1.5(c) the Agent shall not be obligated toprovide funds to the Borrower that are not provided to the Agent in accordancewith this Section 2.1.4(a). 

 

16.       Subsection(b) of Section 2.1.4 of the Agreement, Borrowing Procedures,shall be amended to read as follows:

 

(b)        Procedurefor Term Loans.  Any request by the Borrower for Term Loans hereunder shallbe made in accordance with the same procedure as required for Line of CreditLoans as set forth in the preceding Subsection (a).

 

17.       Section 4.3 of the Agreement, **TermLoan Installments**, shall be amended to read as follows:

 

**4.3.      Term LoanInstallments.**

Theprincipal amount outstanding under the Term Notes shall be payable insemi-annual installments on the last Business Day of each June and Decembercommencing on the last Business Day of December, 2009 as follows: (a) in equalinstallments of $2,500,000 on the last Business Day of December, 2009 through thelast Business Day of December, 2010; (b) thereafter in equal installments of$4,795,737; and (c) in any event with any and all remaining principaloutstanding on the Maturity Date being due and payable on the Maturity Date.

 

 

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18.       Subsection(b) of Section 4.4 of the Agreement, **Mandatory Prepayments ofNotes**, shall be amended to read as follows:

 

(b)        OtherMandatory Prepayments.  Additional mandatory prepayments of the Term Notesand Line of Credit Notes shall be payable as follows: (i) on or before the 10thday after the receipt thereof, an amount equal to any Excess DispositionProceeds; (ii) on or before the 10th day after the receipt thereof, an amountequal to any Excess Debt Proceeds; (iii) on or before the 10th day after thereceipt thereof, an amount equal to 50% of any Excess Equity Proceeds; and (iv) on or before the 120th day after the end of each of the Borrower’s FiscalYears, an amount equal to fifty percent (50%) of any Unallocated Cash Flowduring such Fiscal Year.  All prepayments under this Section 4.4 shall beapplied (pro rata among the Lenders) first to the unpaidinstallments due under the Term Notes in the inverse order of their maturityuntil all such installments are paid, second to the outstanding principal ofthe Line of Credit Notes, and third to the outstanding principal of the SwingLine Loans.

 

19.       Section6.1 of the Agreement, **Non-Use Fee**, shall be amended to readas follows:

 

**6.1.      Non-Use Fee.**

TheBorrower agrees to pay to the Agent for distribution to the Lenders (based ontheir applicable respective Pro Rata Percentages) a quarterly non-use fee onthe daily average unused amount of the Line of Credit Loan Commitments and theTerm Loan Commitments, as the case may be, at the applicable rate per annum forthe relevant Borrowing Base Availability Level set forth in the definition ofApplicable Margin (the “Non-Use Fee”).  The Non-Use Fee shall be due andpayable in arrears on the first day of each January, April, July and Octoberhereafter through the Maturity Date applicable to the Line of Credit Loans.  Apro-rated non-use fee shall be due and payable on the first day of the quarterfollowing the Restatement Date and on the Maturity Date applicable to the Lineof Credit Loans.  The Non-Use Fee shall be earned as it accrues.  A pro-ratednon-use fee shall be due and payable to the Lenders under the Existing CreditAgreement on the Restatement Date. Swing Line Loans shall be considered usage ofthe Line of Credit Loan Commitments for purposes of this Section 6.1.

 

20.       A new Section9.16 shall be added to the Agreement, Funded Debt to EBITDA Ratio,to read as follows:

 

**9.16.    Funded Debt to EBITDARatio.**

The Borrower shallhave a Funded Debt to EBITDA Ratio of not more than 3.75 to 1.00 as at the endof each fiscal quarter.

 

 

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21.       A new Section9.17 shall be added to the Agreement, Mandatory Redemption of SeniorNotes, to read as follows:

 

**9.17.    Mandatory Redemptionof Senior Notes.**

Fromtime to time, but on or before December 31, 2009 the Borrower shall haveredeemed $100,000,000 in the aggregate face amount of the Senior Notes.

 

22.       A new Section9.18 shall be added to the Agreement, New Equity Contribution, toread as follows:

 

**9.18.    New Equity Contribution.**

Onor before April 13, 2009 the Borrower shall have received not less than $75,484,071of cash proceeds of the issuance by Borrower of equity interests on termsacceptable to the Agent.  Notwithstanding the definition thereof or the termsof Section 4.4(b), the cash proceeds referred to in this Section 9.18 shall notbe included in Excess Equity Proceeds and shall not result in a mandatoryprepayment of the Term Notes.

 

23.       A new Section9.19 shall be added to the Agreement, Additional Collateral, to readas follows:

 

**9.19.    Additional Collateral.**

Onor before August 13, 2009 (which date may be extended up to 60 days at thediscretion of the Agent) the Borrower shall have delivered to the Agent, inform and substance acceptable to the Agent:

 

(a)        amendmentsor modifications to the Security Agreement, the Kansas Mortgage, thePennsylvania Mortgage and the Intercompany Loan Documents specified by theAgent in order to reflect the changes that are set forth in this Agreement;

 

(b)        newmortgage documents to grant to the Agent for the ratable benefit of theLenders, liens against the properties known as National Beef Leathers –Tannery, and Moultrie, GA – Case Ready Plant;

 

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                        (c)        Withrespect to the mortgages and the properties covered thereby in the precedingSubsections (a) and (b):  (i) Commitments for Mortgagee's Title InsurancePolicies, or date down and modification endorsements to existing Policies, asthe case may be; (ii) ALTA Surveys with Flood Plain Certifications; (iii) PhaseI Environmental Assessment Report(s); (iv) Current "As-is" appraisalswhich shall contain a certification that the appraiser's analysis, opinions,and conclusions conform with the regulations promulgated under Title XI ofthe Federal Financial Institutions Reform, Recovery, and Enforcement Act of1989, as well as the Uniform Standards of Professional Appraisal Practice ofthe 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.

 

24.       Subsection(j) of Section 10.4 of the Agreement, Indebtedness, shall beamended to read as follows: “(j) in the case of the Borrower, any unsecuredrefinancing of the Senior Notes that have not been redeemed, up to $30,000,000in aggregate principal amount on terms reasonably satisfactory to the RequiredLenders, so long as no Default or Matured Default shall have occurred and becontinuing or would result from such refinancing”.

 

25.       Section10.7 of the Agreement, Capital Investment Limitations, shall beamended to read as follows:

 

**10.7.    CapitalInvestment Limitations****.**

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The Borrower shall not make orbecome legally obligated to make any Net Capital Expenditures exceeding $60,000,000in the aggregate during any Fiscal Year, provided that commencing with FiscalYear 2010, in the event Net Capital Expenditures in the prior Fiscal Year were$55,000,000 or less, then the Borrower shall not make or become legallyobligated to make any Net Capital Expenditures exceeding $65,000,000 in theaggregate during such Fiscal Year.  

 

26.       Section 10.10 of the Agreement, EquityDistributions, shall be amended to read as follows:

 

**10.10.  Equity Distributions.**

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The Borrower shall not directly orindirectly, make any Equity Distributions, except that (a) the Borrower maymake quarterly distributions to its Members in respect of Borrower’s taxableincome, in amounts proportionate to the respective percentage interests of eachof such Member so that each such Member shall have received an amount equal to48% of such Member’s share of the Borrower’s net taxable income for therelevant quarter, provided that if the aggregate distribution madeduring any calendar year exceeds 48% of the Borrower’s actual net taxable incomefor such year, then the excess distribution for such tax year shall be appliedto the permitted distributions for the immediately subsequent quarters,Dollar-for-Dollar, until all such excess has been applied to future permitteddistributions, (b) the Borrower may, provided that no Default or MaturedDefault has occurred and is continuing or would be caused thereby, makedistributions to pay an annual 5% return on its Class A Units, (c) the Borrowermay, (i) provided that no Default or Matured Default has occurred and iscontinuing or would be caused thereby, and provided that Borrower’s EBITDA forthe then prior four fiscal quarters was at least $160,000,000 or provided thatBorrower’s Funded Debt to EBITDA Ratio was not more than 2.75 to 1.00 as at theend of the then preceding fiscal quarter, make distributions to pay up to anannual 7% return on up to $75,484,071 of the equity interests issued inaccordance with Section 9.18 (as increased by the amount of any paymentin kind notes issued in lieu of cash distributions), or (ii) if either suchconditions are not satisfied, issue payment in kind notes in lieu thereof in anamount equal to an annual 7% return on up to $75,484,071 of the equityinterests issued in accordance with Section 9.18 (as increased by theamount of any payment in kind notes issued in lieu of cash distributions), (d) providedthat no Default or Matured Default has occurred and is continuing or would becaused thereby, and provided that the cash proceeds of the issuance by Borrowerof equity interests as set forth in Section 9.18 have been received, Borrowermay redeem its equity interests for a purchase price not to exceed $125,500,000;and (e) in addition to the foregoing, (i) if Borrower’s Funded Debt to EBITDARatio at the end of a Fiscal Year is less than or equal to 2.00 to 1.00 butgreater than 1.50 to 1.00, then during Borrower’s Fiscal Year following, and providedthat no Default or Matured Default has occurred and is continuing or would becaused thereby, make distributions from Unallocated Cash Flow in respect of anyor all equity interests outstanding in an amount equal to the lesser of (A) anamount not to exceed fifty percent (50%) of any Unallocated Cash Flow, or (B) $10,000,000of Unallocated Cash Flow; or (ii) if Borrower’s Funded Debt to EBITDA Ratio atthe end of a Fiscal Year is less than or equal to 1.50 to 1.00, then duringBorrower’s Fiscal Year following, and provided that no Default or MaturedDefault has occurred and is continuing or would be caused thereby, makedistributions from Unallocated Cash Flow in respect of any or all equityinterests outstanding in an amount equal to the lesser of (A) an amount not toexceed fifty percent (50%) of any Unallocated Cash Flow, or (B) $15,000,000 ofUnallocated Cash Flow.

 

27.       Notwithstanding the terms of Section10.11 of the Agreement, Amendment of Organizational Documents,Borrower shall be permitted to amend their organizational documents to providefor additional equity interests additional equity contributions and for distributionsin respect of those equity interests consistent with the terms of the Agreement.

 

28.       Section10.14 of the Agreement, Prepayment of Debt, shall be deleted in itsentirety.

 

29.       Notwithstanding the various terms of theAgreement to the contrary (specifically including but not limited to Section10.3), the Agent, the Borrower, NBC and National Beef Leathers, may in thediscretion of the Agent, without the consent of the Required Lenders, executeamendments to this Agreement, the Intercompany Financing Documents and theother Financing Documents to (a) initially cause National Beef Leathers toexecute and deliver Intercompany Financing Documents, and (b) subsequently, andprovided that the all Senior Notes have been redeemed, cause NBC and NationalBeef Leathers to become co-borrowers under this Agreement and the otherFinancing Documents.

 

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30.       This Amendment shall be effective as ofits date and funds transfers shall be made through the Agent so that eachLender holds its pro rata share of the outstanding principal balance of theLoans, conditioned upon the execution and delivery to the Agent of: (a) thisAmendment, executed by the Borrower, the Lenders making new or additionalCommitments, and at least the Required Lenders; (b) Notes payable to thoseLenders with new or additional Commitments; (c) Secretaries Certificates fromthe Borrower relating to resolutions, incumbency, etc; and (d) Opinion ofCounsel for Borrower; and the payment the ArrangementFee to the Agent and the payment of the UpfrontFees to the Lenders as set forth in the separate fee letter between theBorrower and the Agent dated March 30, 2009.

 

            31.       U.S.Bank National Association, as a new Lender: (a) confirms that it has receivedcopies of the Financing Agreements, together with copies of the most recentfinancial statements referred to in Section 9.1 of the Agreement andsuch other documents and information as it has deemed appropriate to make itsown credit analysis and decision to enter into this Amendment; (b) agrees thatit will, independently and without reliance upon the Agent, or any other Lenderand based on such documents and information as it shall deem appropriate at thetime, continue to make its own credit decisions in taking or not taking actionunder the Agreement; (c) appoints and authorizes the Agent to take such actionon it’s behalf and to exercise such powers under the Financing Documents as aredelegated to the Agent by the terms thereof, together with such powers as arereasonably incidental thereto; (d) agrees that it will perform in accordancewith their terms all of the obligations which by the terms of the Agreement andthe other Financing Documents are required to be performed by it as a Lender;and (e) specifies as its address for notices the office set forth in theinformation it has provided to the Agent.

 

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

 

33.       This Amendment may be executed in severalcounterparts, each of which shall be construed together as one original. Facsimile signatures on this Amendment shall be considered as originalsignatures.

 

[Signature Pages Follow]

 

 

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IN WITNESS WHEREOF, the parties hereto have executed this Amendment to SixthAmended and Restated Credit Agreement as of the day and year first herein abovewritten.

** **

**NATIONAL BEEF PACKING**

**COMPANY, LLC**

** **

**By:**  /s/ Jay D. Nielsen_**_________**

**Its: _**Chief FinancialOfficer**_____**

** **

**COBANK, ACB, individually andas Lead Arranger, Syndication Agent and Administrative Agent**

 

By: _/s/ Jim Matzat _____________

**Its: _**Vice President **_____________**

** **

**COÖPERATIEVE CENTRALE RAIFFEISEN-****BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH, individually andas a Documentation Agent**

 

**By: _**/s/ D. Shane Bownds**________                           By:_**/s/ Rebecca O. Morrow**______**

**Its: _**Executive Director**__________                           Its:_**Executive Director   **________**

 

** **

** **

**{SIGNATURE PAGEONE OF THREE TO SECONDAMENDEMENT TO SIXTH AMENDED AND RESTATED CREDITAGREEMENT}**

 

 

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**THE CIT GROUP/BUSINESS CREDIT,INC.******

**                                                           ****                       **

By: _/s/ Barbara J. Coffin_________

**Its: _**Assistant VicePresident **_____**

 

** **

**BANK OF OKLAHOMA, N.A.******

**                                                           ****                       **

By: _/s/ Christopher Porter_______

**Its: _**Vice President **____________**

 

** **

**BMO CAPITAL MARKETS FINANCING,INC.**

**                                                           ****           **

### By: __________________________

**Its: __________________________**

 

 

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

**                                                           ****                       **

By: _/s/ Daniel J. Ricke__________

**Its: _**Vice President **____________**

** **

** **

**CALYON – NEW YORK BRANCH**

**                                                           ****           **

### By: __________________________

**Its: __________________________**

** **

### By: __________________________

**Its: __________________________**

** **

** **

**{SIGNATURE PAGETWO OF THREE TO SECOND AMENDEMENT TO SIXTH AMENDED AND RESTATED CREDITAGREEMENT}**

 

 

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** **

### FIRST NATIONAL BANK OF OMAHA

**                                                           ****                       **

### By: __________________________

**Its: __________________________**

 

###  

### AMERICAN AGCREDIT, PCA, formerly known as Pacific Coast Farm CreditServices, ACA

**                                                           ****                       **

By: _/s/ Gary VanSchuyver_______

**Its: _**Vice President **_____________**

** **

**U.S. BANK NATIONAL ASSOCIATION individuallyand as a Documentation Agent**

 

BY: _/s/ Thomas R. Martin________

**ITS: _**Senior VicePresident **_______**

** **

** **

{SIGNATURE PAGE THREEOF THREE TO SECOND AMENDEMENT TO SIXTH AMENDED AND RESTATED CREDIT AGREEMENT}

 

 

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Exhibit 1A -2 to Sixth Amended and Restated CreditAgreement

 

**LoanCommitment Amounts, Term Loan Outstanding Amounts and Percentages**

Swing Line Loan Commitments

 
| Name of Lender | Pro  Rata Percentage | Commitment  Amount                                                                |
|----------------|----------------------|-----------------------------------------------------------------------------------|
| CoBank, ACB    | 100.000000000%       | $30,000,000.00  (Regular Swing Line Loans)

$102,300,000 (Swing  Line Bond Loans) |

 

Line of Credit Loan Commitments

 
| Name of Lender                     | Pro  Rata Percentage | Commitment  Amount |
|------------------------------------|----------------------|--------------------|
| CoBank, ACB                        | 61.644444444%        | $ 138,700,000      |
| Rabobank Nederland                 | 11.022222222%        | $ 24,800,000       |
| First National Bank of Omaha       | 6.666666667%         | $ 15,000,000       |
| BMO Capital Markets                | 2.777777778%         | $ 6,250,000        |
| Bank of Oklahoma                   | 2.666666667%         | $ 6,000,000        |
| American AgCredit                  | 2.444444444%         | $ 5,500,000        |
| Calyon                             | 2.222222222%         | $ 5,000,000        |
| Bank of America, N.A.              | 3.333333333%         | $ 7,500,000        |
| The CIT Group/Business Credit, Inc | 1.666666667%         | $ 3,750,000        |
| US Bank                            | 5.555555556%         | $12,500,000        |
| TOTAL:                             | 100.000000000%       | $225,000,000       |

 

Term Loan Commitments

 
| Name of Lender        | Pro  Rata Percentage | Commitment  Amount |
|-----------------------|----------------------|--------------------|
| CoBank, ACB           | 33.000000000%        | $ 24,750,000       |
| Bank of America, N.A. | 15.000000000%        | $ 11,250,000       |
| US Bank               | 50.000000000%        | $ 37,500,000       |
| American AgCredit     | 2.000000000%         | $1,500,000         |
| TOTAL:                | 100.000000000%       | $ 75,000,000       |

 

Term Loans
| Name of Lender                     | Pro  Rata Percentage | Amount of Term Loan  Outstanding on April 14, 2009 |
|------------------------------------|----------------------|----------------------------------------------------|
| CoBank, ACB                        | 75.840984466%        | $134,164,886.50                                    |
| Rabobank Nederland                 | 14.905051462%        | $26,367,465.45                                     |
| BMO Capital Markets                | 3.084654693%         | $5,456,843.02                                      |
| American AgCredit                  | 2.467723751%         | $4,365,474.41                                      |
| Bank of America, N.A.              | 1.850792814%         | $3,274,105.81                                      |
| The CIT Group/Business Credit, Inc | 1.850792814%         | $3,274,105.81                                      |
| TOTAL:                             | 100.000000000%       | $176,902,881.00                                    |

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