EXHIBIT
10.4

      

    VOTING
AGREEMENT

     

    This
VOTING AGREEMENT (this
“Agreement”)
dated September 24, 2010, is entered into by and among Biofuel Energy Corp., a
Delaware corporation (the “Company”),
and each of the Persons listed on Schedule I attached
hereto (including, with their permitted transferees or assigns, collectively,
the “Stockholders”).  This
Agreement shall become effective as of the Closing (as defined therein) of that
certain proposed registered rights offering for Series A Convertible Preferred
Stock of the Company (or depository interests in respect thereof) (the “Rights
Offering”) as further described in that certain Loan Agreement and Rights
Offering Letter Agreement, each dated as of even date herewith by and among the
Company, each of the Stockholders and the other signatories thereto (the “Loan
Agreement” and the “Rights Offering
Letter Agreement”, respectively).

     

    AGREEMENT

     

    NOW, THEREFORE, in
consideration of the premises and respective covenants and agreements set forth
in this Agreement and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties agree as follows:

     

    ARTICLE
I.


     

    VOTING

     

    Section
1.1 Agreement to
Vote.  Each Stockholder hereby agrees to vote each share of
voting capital stock of the Company that such Stockholder currently holds or
subsequently acquires (hereinafter the “Stockholder
Shares”), at regular and special meetings of the Company’s stockholders
(or by written consent) in accordance with and subject to the provisions of this
Agreement.

     

    Section
1.2 Manner of
Voting.  The voting of Shares pursuant to this Agreement may be
effected in person, by proxy, by written consent, or in any other manner
permitted by the laws of the State of Delaware.

     

    Section
1.3 Grant of
Proxy.  Should the provisions of this Agreement be construed to
constitute the granting of proxies, such proxies shall be deemed coupled with an
interest and are irrevocable for the term of this Agreement.

     

    ARTICLE
II.


     

    BOARD
OF DIRECTORS

     

    Section
2.1 Size and Composition of Board of
Directors.  The size and composition of the Board of Directors
shall be determined in accordance with the provisions of the Company's Amended
and Restated Certificate of Incorporation, in each case as in effect from time
to time (the “Restated
Certificate”) and the Company’s By-Laws.


    
      
         


      

      
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    Section
2.2 Approval of Increase in Authorized
but Unissued Shares of Common Stock.  Each Stockholder agrees
that at a meeting of the Company’s stockholders at which the Company, if ever,
proposes to amend its Restated Certificate so as increase the number of
authorized but unissued shares of Common Stock up to an amount of shares
sufficient to enable the Company to convert all Series A Convertible Preferred
Stock issuable pursuant to the (i) Rights Offering, (ii) the warrant(s)
contemplated by the Loan Agreement and (iii) each other transaction contemplated
by the Loan Agreement, including the “Cargill Acknowledge Letter” described in
Section 10 of the Rights Offering Letter Agreement), which shares of Common
Stock shall rank pari passu with the existing shares of Common Stock, in favor
of such proposal.

     

    Section
2.3 No Limitation on Other Voting
Rights.  Notwithstanding any provision of this Agreement to the
contrary, nothing in this Agreement shall limit or restrict a Stockholder from
acting in its sole discretion on any matter other than those referred to in this
Agreement.

     

    ARTICLE
III.


     

    CERTAIN
REPRESENTATIONS, WARRANTIES AND COVENANTS

     

    Section
3.1 Ownership, Authority,
Etc.  Each Stockholder represents and warrants it has full
power and capacity to execute, deliver and perform this Agreement, which has
been duly executed and delivered by, and evidences the valid and binding
obligation of, such Stockholder.

     

    Section
3.2 No Voting or Conflicting
Agreements.  No Stockholder shall:  (a) except as
contemplated by Section 3.3
hereof, grant any proxy, (b) enter into or agree to be bound by any voting
trust, (c) enter into any stockholder agreements or arrangements of any kind
with any Person (whether or not such agreements or arrangements are with other
stockholders of the Company that are not a party to this Agreement) or (d) act,
for any reason, as a member of a group or in concert with any other Persons in
any manner which is inconsistent with the provisions of this
Agreement.

     

    Section
3.3 Covenant to
Vote.  Each Stockholder shall appear in person or by proxy at
any annual or special meeting of the Company’s stockholders for the purpose of
establishing a quorum, and shall vote such Stockholder’s Shares upon any matter
submitted to the Company’s stockholders in a manner not inconsistent or in
conflict with, and to implement, the terms of this Agreement.

     

    ARTICLE
IV.


     

    MISCELLANEOUS

     

    Section
4.1 Term.  This
Agreement shall terminate and be of no further force or effect upon the earliest
to occur of (a) at such time as the Company's Common Stock is no longer traded
on a national securities exchange Global Market, (b) five (5) years from the
date of this Agreement, (c) the date as of which the parties hereto terminate
this Agreement by the written consent of the holders of a majority of the Stockholder
Shares then outstanding on the one hand, and the Company, on the other hand; and
(d) the Stockholder Shares represent less than 36.4% of the Company’s issued and
outstanding voting capital stock.

     

    Section
4.2 Entire
Agreement.  This Agreement, together with the Schedules hereto
and any certificates, documents, instruments and writings that are delivered
pursuant hereto, constitutes the entire agreement and understanding of the
parties in respect of the subject matter hereof and supersedes all prior
understandings, agreements or representations by or among the parties, written
or oral, to the extent they relate in any way to the subject matter
hereof.  Except as provided in Section 4.3,
there are no third party beneficiaries having rights under or with respect to
this Agreement.


    
      
         


      

      
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    Section
4.3 Binding Effect;
Assignment.  The Company may not assign its rights under this
Agreement.  A transferee that is not an Affiliated Person of a
Stockholder shall not be bound by the terms and conditions of this
Agreement.  No Stockholders may transfer Stockholder Shares to an
Affiliated Person (whether by merger or otherwise by operation of law) unless
such Affiliated Person shall agree to be bound by the terms hereof pursuant to
the form set forth in Exhibit
A.

     

    Section
4.4 Notices.  All
notices, requests and other communications provided for or permitted to be given
under this Agreement must be in writing and shall be given by personal delivery,
by certified or registered United States mail (postage prepaid, return receipt
requested), by a nationally recognized overnight delivery service for next day
delivery, or by facsimile transmission, as follows (or to such other address as
any party may give in a notice given in accordance with the provisions
hereof):

     

    [If to a
Stockholder:]

     

    
      Third
Point Loan LLC

      c/o Third
Point Advisors, L.L.C.

      390 Park
Avenue, 18th
Floor

      New York,
New York 10002

       

    

    With a
copy to (which does not constitute notice):

     

    
      Wilkie
Farr & Gallagher LLP

      787
Seventh Avenue

      New York,
New York 10019

      Phone:
(212) 728-8267

      Fax:
(212) 728-9267

      Attn:
Michael A. Schwartz, Esq.

       

    

    If to the
Company:

     

    BioFuel
Energy Corp.

    1600
Broadway, Suite 2200

    Phone:
(303) 640-6500

    Fax:
(303) 592-8117

    Attn:
President

     

    With a
copy to (which does not constitute notice):

     

    Cravath,
Swaine & Moore LLP

    825
Eighth Avenue

    New York,
New York 10019

    Phone:
(212) 474-1000

    Fax:
(212) 474-3700

    Attn:
Craig F. Arcella


    
      
         


      

      
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    All
notices, requests or other communications will be effective and deemed given
only as follows:  (i) if given by personal delivery, upon such
personal delivery, (ii) if sent by certified or registered mail, on the fifth
business day after being deposited in the United States mail, (iii) if sent for
next day delivery by overnight delivery service, on the date of delivery as
confirmed by written confirmation of delivery, (iv) if sent by facsimile, upon
the transmitter’s confirmation of receipt of such facsimile transmission, except
that if such confirmation is received after 5:00 p.m. (in the recipient’s time
zone) on a business day, or is received on a day that is not a business day,
then such notice, request or communication will not be deemed effective or given
until the next succeeding business day.  Notices, requests and other
communications sent in any other manner, including by electronic mail, will not
be effective.

     

    Section
4.5 Submission to Jurisdiction; Waiver
of Jury Trial.

     

    (a)           Submission to
Jurisdiction.  Any action, suit or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby may be brought in
any federal court located in the State of Delaware or any Delaware state court,
and each party consents to the non-exclusive jurisdiction and venue of such
courts (and of the appropriate appellate courts therefrom) in any such action,
suit or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of the venue
of any such, action, suit or proceeding in any such court or that any such
action, suit or proceeding brought in any such court has been brought in an
inconvenient forum.  Process in any such action, suit or proceeding
may be served on any party anywhere in the world, whether within or without the
jurisdiction of any such court.  Without limiting the foregoing,
service of process on such party as provided in Section 4.4
shall be deemed effective service of process on such party.

     

    (b)           Waiver of Jury
Trial.  EACH PARTY ACKNOWLEDGES THAT ANY DISPUTE THAT MAY ARISE
OUT OF OR RELATING TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY EXPRESSLY WAIVES ITS RIGHT TO
JURY TRIAL OF ANY DISPUTE BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY
OTHER AGREEMENTS RELATING HERETO OR ANY DEALINGS AMONG THEM RELATING TO THE
TRANSACTIONS CONTEMPLATED HEREBY. THE SCOPE OF THIS WAIVER IS INTENDED TO
ENCOMPASS ANY AND ALL ACTIONS, SUITS AND PROCEEDINGS THAT RELATE TO THE SUBJECT
MATTER OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
EACH PARTY REPRESENTS THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT
IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING
WAIVER, (ii) SUCH PARTY UNDERSTANDS AND WITH THE ADVICE OF COUNSEL HAS
CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) SUCH PARTY MAKES THIS WAIVER
VOLUNTARILY, AND (iv) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND REPRESENTATIONS IN THIS SECTION 4.5(b).


    
      
         


      

      
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    Section
4.6 Headings.  The
article and section headings contained in this Agreement are inserted for
convenience only and will not affect in any way the meaning or interpretation of
this Agreement.

     

    Section
4.7 Governing
Law.  This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to any
choice of law principles.

     

    Section
4.8 Amendments.  The
Company will amend Schedule I promptly
to reflect transfers to Affiliates as contemplated by this
Agreement.  An amendment or modification to any provision of this
Agreement will require the written consent of the Company and the holders of at
least a majority of the Stockholder
Shares.

     

    Section
4.9 Extensions;
Waivers.  Any party may, for itself only, (a) extend the time
for the performance of any of the obligations of any other party under this
Agreement, (b) waive any inaccuracies in the representations and warranties of
any other party contained herein or in any document delivered pursuant hereto
and (c) waive compliance with any of the agreements or conditions for the
benefit of such party contained herein.  Any such extension or waiver
will be valid only if set forth in a writing signed by the party to be bound
thereby.  No waiver by any party of any default, misrepresentation or
breach of warranty or covenant hereunder, whether intentional or not, may be
deemed to extend to any prior or subsequent default, misrepresentation or breach
of warranty or covenant hereunder or affect in any way any rights arising
because of any prior or subsequent such occurrence.  Neither the
failure nor any delay on the part of any party to exercise any right or remedy
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right or remedy preclude any other or further exercise
of the same or of any other right or remedy.

     

    Section
4.10 Severability.  The
provisions of this Agreement will be deemed severable and the invalidity or
unenforceability of any provision will not affect the validity or enforceability
of the other provisions hereof; provided that if any provision of this
Agreement, as applied to any party or to any circumstance, is judicially
determined not to be enforceable in accordance with its terms, the parties agree
that the court judicially making such determination may modify the provision in
a manner consistent with its objectives such that it is enforceable, and/or to
delete specific words or phrases, and in its modified form, such provision will
then be enforceable and will be enforced.

     

    Section
4.11 Counterparts;
Effectiveness.  This Agreement may be executed in two or more
counterparts, each of which will be deemed an original but all of which together
will constitute one and the same instrument.  This Agreement will
become effective when one or more counterparts have been signed by each of the
parties and delivered to the other parties.


    
      
         


      

      
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    Section
4.12 Construction.  This
Agreement has been freely and fairly negotiated among the parties.  If
an ambiguity or question of intent or interpretation arises, this Agreement will
be construed as if drafted jointly by the parties and no presumption or burden
of proof will arise favoring or disfavoring any party because of the authorship
of any provision of this Agreement.  Any reference to any law will be
deemed to refer to such law as in effect on the date hereof and all rules and
regulations promulgated thereunder, unless the context requires
otherwise.  The words “include,” “includes,” and “including” will be
deemed to be followed by “without limitation.” Pronouns in masculine, feminine,
and neuter genders will be construed to include any other gender, and words in
the singular form will be construed to include the plural and vice versa, unless
the context otherwise requires. The words “this Agreement,” “herein,” “hereof,”
“hereby,” “hereunder,” and words of similar import refer to this Agreement as a
whole and not to any particular subdivision unless expressly so limited. The
parties intend that each representation, warranty, and covenant contained herein
will have independent significance. If any party has breached any covenant
contained herein in any respect, the fact that there exists another covenant
relating to the same subject matter (regardless of the relative levels of
specificity) which the party has not breached will not detract from or mitigate
the fact that the party is in breach of the first covenant.

     

    Section
4.13 Aggregation of
Stock.  All Stockholder Shares owned or acquired by any
Stockholder or its Affiliated Persons shall be aggregated together for the
purpose of determining the availability of any right under this
Agreement.

     

    Section
4.14 Certain Defined
Terms.  As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):

     

    “Affiliate”
means, with respect to any Person, (i) any other Person of which securities or
other ownership interests representing more than 50% of the voting interests
are, at the time such determination is being made, owned, Controlled or held,
directly or indirectly, by such Person or (ii) any other Person which, at the
time such determination is being made, is Controlling, Controlled by or under
common Control with, such Person.  As used herein, “Control”,
whether used as a noun or verb, refers to the possession, directly or
indirectly, of the power to direct, or cause the direction of, the management or
policies of a Person, whether through the ownership of voting securities or
otherwise.

     

    “Person”
means any individual, firm, corporation, company, partnership, trust,
incorporated or unincorporated association, limited liability company, joint
venture, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind, and shall include any successor (by merger
or otherwise) of any such entity.

     

    Incorporation
of Exhibits and Schedules.  The exhibits and schedules identified in
this Agreement are incorporated by reference herein and made a part
hereof.

     

    [SIGNATURE
PAGE FOLLOWS]


    
      
         


      

      
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    IN WITNESS WHEREOF, the
parties have executed this Voting Agreement as of the date first above
written.


     

    
      	 
      	
              THIRD
      POINT LOAN LLC

            
	 
      	 
      
	 
      	
              By:

            	/s/
      James P. Gallagher  
	 
      	 
      	
              James
      P. Gallagher

            
	 
      	 
      	
              Chief
      Administrative Officer

            


    

    


    Signature
Page to Voting Agreement


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    SCHEDULE
I

     

    STOCKHOLDER


     

    Third
Point Loan LLC


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    EXHIBIT
A

     

    ADOPTION
AGREEMENT

     

    This
Adoption Agreement (“Adoption
Agreement”) is executed by the undersigned (the “Affiliated Transferee”)
pursuant to the terms of that certain Voting Agreement dated as of [__________ ___, 200_]
(the “Agreement”)
by and among the Company and certain of its stockholders.  Capitalized
terms used but not defined herein shall have the respective meanings ascribed to
such terms in the Agreement.  By the execution of this Adoption
Agreement, the Transferee agrees as follows:

     

    
      	
               
      

            	
              (a)

            	
              Acknowledgment.  The
      Affiliated Transferee acknowledges that the Transferee is acquiring
      certain shares of the capital stock of the Company (the “Stock”),
      subject to the terms and conditions of the
  Agreement;

            


    

     

    
      	
               
      

            	
              (b)

            	
              Agreement.  The
      Affiliated Transferee: (i) agrees that the Stock acquired by the
      Transferee, and any Stock acquired by the Affiliated Transferee in the
      future, shall be bound by and subject to the terms of the Agreement, and
      (ii) hereby adopts the Agreement with the same force and effect as if the
      Affiliated Transferee were originally a party thereto;
  and

            


    

     

    
      	
               
      

            	
              (c)

            	
              Notice.  Any
      notice required or permitted by the Agreement shall be given to the
      Transferee at the address listed beside the Affiliated Transferee’s
      signature below.

            


    

     

    EXECUTED
AND DATED this ______ day of _____________, 2010.

     

    
      	 
      	
              AFFILIATED
      TRANSFEREE:

            
	 
      	 
      
	 
      	 
      
	 
      	
              Name:

            
	 
      	
              Title:

            
	 
      	
              Address:

            	 
      
	 
      	
              Facsimile:

            	 
      


    

     

    Accepted
and Agreed:

     

    BIOFUEL
ENERGY CORP.


     

    
      	
              By:

            	 
      	 
      
	
              Name:

            	 
      
	
              Title: