Exhibit 10.1


 


EXECUTION
VERSION


 


WAIVER AND AMENDMENT AGREEMENT dated as of January 14,
2009 (this “Agreement”) among BioFuel Energy, LLC, a Delaware limited
liability company (the “Borrower”), certain affiliates of Greenlight
Capital, Inc. and Third Point LLC as listed on Schedule A attached
hereto (such affiliates, the “Lenders”), and Greenlight APE, LLC, as
Administrative Agent (the “Agent”).


 


RECITALS


 


WHEREAS, pursuant to a loan agreement dated September 25, 2006,
among the Borrower, the Lenders and the Agent (the “Loan Agreement”),
the Lenders have made loans to the Borrower on the terms and subject to the
conditions set forth therein, $20.0 million aggregate principal amount of which
remain outstanding (the “Loans”);


 


WHEREAS, on September 30, 2008, the Borrower did not pay, and has
not paid to date, the quarterly interest payment then due with respect to the
Loans, and on December 31, 2008, the Borrower did not pay, and has not
paid to date, the quarterly interest payment then due with respect to the Loans,
which non-payments constituted individually, on the third Business Day
thereafter, an Event of Default under the Loan Agreement (the “Default”);


 


WHEREAS, immediately prior to the execution and delivery of this
Agreement, the Borrower entered into an agreement (the “Cargill Settlement”)
with Cargill, Incorporated (“Cargill”), which addresses the satisfaction
over time of certain amounts owed to Cargill by the Borrower (the “Cargill
Payable”); and


 


WHEREAS, the Borrower has requested certain waivers and other
modifications to the Loan Agreement, as set forth herein, and the Lenders have
agreed to such waivers and other modifications, in each case, on the terms,
subject to the conditions and to the extent set forth herein;


 


NOW, THEREFORE, in consideration of the foregoing, the mutual promises
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:


 


ARTICLE I


 


Definitions


 


SECTION 1.01.  Definitions.  Capitalized terms used and not defined herein
shall have the meanings assigned to such terms in the Loan Agreement.  In addition to the terms defined elsewhere
herein, the following terms shall have the following meanings:


 

















 


“Available Cash Received” shall mean:


 


(a) 100% of the cash proceeds actually received by the Borrower
after the date of this Agreement from its subsidiaries by way of dividend or
distribution in compliance with the subsidiaries’ credit facilities, other than
(i) any such cash proceeds consisting of management fees paid by such
subsidiaries in compliance with their credit facilities (which are currently
$800,000.00 per month) and (ii) any other such cash proceeds reasonably
required to be spent or reserved by the Borrower for payment of professional
fees, taxes, employee compensation or other similar matters; and


 


(b) 50% of the cash proceeds actually received by the Borrower
after the date of this Agreement from any Equity Issuance (or cash contribution
from holders of Equity Interests) or incurrence of indebtedness for borrowed
money, net of all taxes and customary fees, commissions, costs and other
expenses incurred in connection therewith.


 


“Cargill Designated Funds” shall mean (i) until the Cash
Reallocation Trigger, 100% of Available Cash Received and (ii) thereafter,
50% of Available Cash Received.


 


“Cash Reallocation Trigger” means the payment by the Borrower to
Cargill after the date hereof of an aggregate of $2,800,828.57 in satisfaction
of the Cargill Payable pursuant to Article III of the Cargill Settlement.


 


“Equity Issuance” shall mean any issuance or sale by the
Borrower of any Equity Interests thereof, except in each case for (i) any
such issuance or sale to its subsidiaries and (ii) any such issuance or
sale to management, employees or directors of the Borrower, BioFuel Energy
Corp. or any of the Borrower’s subsidiaries pursuant to an employee or director
stock option or stock purchase plan or an employee or director benefit plan.


 


“Equity Interests” shall mean shares of capital stock,
membership interests or other equity interests, and any option, warrant or
other right entitling the holder thereof to purchase or otherwise acquire an
equity interest.


 


“Penalty Interest” shall mean any interest accrued on the Loans
as a result of the increase in the interest rate thereon from 15% to 17% as a
result of the Default (i.e., the difference between the total interest
that would have accrued at 17% and the total interest that would have accrued
at 15%).


 


ARTICLE II


 


Payment and Waiver


 


SECTION 2.01.  Payment of $2,000,000.00.  In consideration of the Lenders executing
this Agreement, within five Business Days hereof, the Borrower shall


 


2





















 


make a payment to the Agent at the Principal
Office for the ratable accounts of the Lenders in U.S. Dollars and in
immediately available funds in an aggregate amount of $2,000,000.00 (the “Initial
Payment”).  Such payment shall be
allocated $766,666.67 to payment of accrued and unpaid interest on the Loans due
September 30, 2008, and $1,233,333.33 to reduction of the outstanding
principal amount of the Loans.


 


SECTION 2.02.  Waiver of Event of Default.  Effective upon receipt of the Initial
Payment, the Lenders hereby permanently and irrevocably waive (a) the
Default and (b) any and all Penalty Interest.  This Section 2.02 shall be null and void
in the event that the Initial Payment is not timely paid.


 


ARTICLE III


 


Further Actions


 


SECTION 3.01.  Future Payments to Lenders.  (a) The Lenders and the Agent acknowledge
and agree that, notwithstanding anything to the contrary in the Loan Agreement,
but subject to Section 3.01(c) below:


 


(i) other than pursuant to Section 2.01 hereof, the Borrower
shall not be obligated to make any further cash payments of principal, interest
or other amounts (including mandatory prepayments) in respect of the Loans
until the Cash Reallocation Trigger has occurred (and at such time shall only
be obligated to make payments as set forth in sub-clause (ii) of this Section 3.01(a));
and


 


(ii) from the time of the Cash Reallocation Trigger until the
Cargill Payable has been fully satisfied pursuant to the Cargill Settlement,
upon the receipt of any Available Cash Received in excess of $100,000.00 (it
being understood that Available Cash Received not in excess of such amount
shall be included in subsequent calculations of Available Cash Received), the
Borrower will, within three Business Days of such receipt, make payment in
respect of the Loans with Available Cash Received that does not constitute
Cargill Designated Funds.


 


(b) Upon the full satisfaction of the Cargill Payable pursuant to
the Cargill Settlement, the Borrower shall thereafter be obligated to make
quarterly interest payments to the Lenders in accordance with the original terms
of the Loan Agreement.


 


(c) Notwithstanding any other provision of this Section 3.01
or elsewhere in this Agreement, the Loans and all accrued interest thereon
shall be due and payable on the Maturity Date.


 


SECTION 3.02.  Interest.  The Lenders acknowledge and agree that,
effective as of December 1, 2008, the Interest Rate in respect of the
Loans shall be reduced to 5.0% per annum compounded quarterly and will continue
to accrue pursuant to the Loan Agreement at such reduced rate until the earlier
of the full satisfaction of the


 


3





















 


Cargill Payable pursuant to the Cargill
Settlement and the Maturity Date, at which time the interest rate in respect of
the Loans shall automatically revert to the original interest rate of 15.0% (or
17.0% with respect to any Event of Default that thereafter occurs or that is
otherwise then in existence and not waived by this Agreement) set forth in the
Loan Agreement.


 


SECTION 3.03.  Exercise of Remedies.  The Lenders and the Agent hereby acknowledge
and agree that, until the earlier of the full satisfaction of the Cargill
Payable pursuant to the Cargill Settlement and the Maturity Date:


 


(a) No Event of Default shall be deemed to occur as a result of
any failure to make payments in respect of the Loans unless an Event of Default
as defined in Section 4.01 hereof shall have occurred;


 


(b) The Borrower’s obligation to pay the Loans and any accrued
interest thereon shall only be due upon receipt of and shall only be payable
from, Available Cash Received, and at such time shall only be due and payable
in an amount equal to the Available Cash Received that does not constitute
Cargill Designated Funds attributable to such Available Cash Received; and


 


(c) Unless an Event of Default shall have occurred and be in
effect, the Lenders will not exercise or seek to exercise any rights or
remedies (including setoff or recoupment) with respect to the Loans or
institute any action or proceeding with respect to such rights or remedies.


 


ARTICLE IV


 


Event of Default


 


SECTION 4.01.  Event of Default.  Until the earlier of the full satisfaction of
the Cargill Payable pursuant to the Cargill Settlement and the Maturity Date,
an “Event of Default” shall only occur under Section 8.1.1 of the
Loan Agreement if the Borrower shall fail to make any payment (a) due
pursuant to Section 2.01 or Section 3.01 of this Agreement or (b) due
to Cargill pursuant to the Cargill Settlement, in each case within three
Business Days of the date such payment becomes due.  Thereafter, an “Event of Default” shall occur
under Section 8.1.1 of the Loan Agreement (and any other applicable
provisions of the Loan Agreement) pursuant to the original terms of the Loan
Agreement (as such terms may hereafter be further amended or modified).  In addition, an Event of Default shall occur
under Section 8.1.3 of the Loan Agreement if the Borrower violates Section 6.01
of this Agreement and Section 8.1.3 of the Loan Agreement is hereby
amended to be consistent with this sentence.


 


4





















 


ARTICLE V


 


Representations and Warranties


 


SECTION 5.01.  Representations and Warranties.  The parties hereby represent and warrant as
of the date hereof that (a) each party has full power and authority to
execute this Agreement, (b) the execution and delivery by each party of
this Agreement has been duly authorized by all necessary action and no other
proceedings on the part of such party are necessary to approve this Agreement
and (c) each party has duly executed and delivered this Agreement, and
this Agreement constitutes a legal, valid and binding obligation of such party,
enforceable against it in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other laws relating to or affecting creditors’ rights generally and general
equitable principles (whether considered in a proceeding in equity or at law).


 


SECTION 5.02.  Consent of Required Lenders.  The Lenders hereby represent and warrant that,
as of the date hereof, each is the true owner of the Loans as indicated on
Schedule A.


 


ARTICLE VI


 


Negative Covenants


 


SECTION 6.01.  Negative Covenant of the Borrower.  Until the earlier of the full satisfaction of
the Cargill Payable pursuant to the Cargill Settlement and the Maturity Date,
the Borrower shall not agree to any material amendment, modification or waiver
to the Cargill Settlement without the prior written consent of the Required
Lenders.


 


ARTICLE VII


 


Miscellaneous


 


SECTION 7.01.  Loan Agreement.  This Agreement shall constitute a Loan
Document.  Except as specifically stated
herein, the provisions of the Loan Agreement are and shall remain in full force
and effect and the provisions of Article X of the Loan Agreement shall
apply mutatis, mutandis, as appropriate, to this Agreement.


 


SECTION 7.02.  Successors and Assigns.  This Agreement shall be binding upon and
shall inure to the benefit of the Borrower, the Lenders, the Agent and their
respective successors and permitted assigns.


 


SECTION 7.03.  Headings.  Section headings used herein are for
convenience of reference only, are not part of this Agreement and are not to
affect the construction of, or be taken into consideration in interpreting,
this Agreement.


 


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SECTION 7.04.  Counterparts.  This Agreement may be executed in any number
of counterparts and/or by facsimile, each of which, shall be deemed to be an
original and all of which together shall be deemed to be a single Agreement.


 


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IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed as of the day and year first above
written.


 


 


	
   

  	
  BIOFUEL ENERGY, LLC,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GREENLIGHT APE, LLC,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GREENLIGHT CAPITAL OFFSHORE,

  LTD.,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GREENLIGHT CAPITAL, L.P.,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GREENLIGHT CAPITAL QUALIFIED,

  L.P.,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  



 


7

















 


	
   

  	
  GREENLIGHT REINSURANCE, LTD.,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THIRD POINT PARTNERS LP,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THIRD POINT PARTNERS QUALIFIED,

  L.P.,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  



 


8

















 


Schedule A


 


Lenders


 


	
  Lender

  	
   

  	
  Amount of Loans Outstanding ($)

  	
   

  
	
  Greenlight Capital, L.P.

  	
   

  	
  1,359,300.40

  	
   

  
	
  Greenlight Capital Qualified, L.P.

  	
   

  	
  4,786,556.40

  	
   

  
	
  Greenlight Capital Offshore, Ltd.

  	
   

  	
  6,322,123.60

  	
   

  
	
  Greenlight Reinsurance, Ltd.

  	
   

  	
  865,352.00

  	
   

  
	
  Third Point Partners LP

  	
   

  	
  3,538,615.20

  	
   

  
	
  Third Point Partners Qualified, L.P.

  	
   

  	
  2,632,052.40

  	
   

  
	
  Daniel S. Loeb

  	
   

  	
  320,000.00

  	
   

  
	
  Lawrence J. Bernstein

  	
   

  	
  160,000.00

  	
   

  
	
  Todd Q. Swanson

  	
   

  	
  16,000.00