Exhibit 10.1


 


May 28,
2009


 


BNP Paribas, as Lender and
Administrative Agent


787 Seventh Avenue


New York, NY 10019


 


Deutsche
Bank Trust Company Americas, as Collateral Agent and Depositary Agent


60
Wall Street, 27th Floor


Mail
Stop: NYC60-2710


New
York, NY 10005


 


The
Lender parties to the Credit


Agreement (as defined below)


 


Re:                             Limited
Consent and Waiver and Amendment under the Credit Agreement and Account
Agreement (each as defined below)


 


Ladies
and Gentlemen:


 


1.                                       This request
for limited consent and waiver and amendment (this “Consent”) is
delivered to you pursuant to (i) that certain Credit Agreement, dated as
of September 25, 2006 (as amended, supplemented and modified from time to
time, the “Credit Agreement”), among BFE Operating Company, LLC (“Opco”),
Buffalo Lake Energy, LLC (“Buffalo Lake”), Pioneer Trail Energy, LLC (“Pioneer
Trail” and, together with Opco and Buffalo Lake, the “Borrowers”),
Opco, as Borrowers’ Agent (the “Borrowers’ Agent”), the Lenders party
thereto, BNP Paribas, as Administrative Agent and Arranger, and Deutsche Bank
Trust Company Americas, as Collateral Agent and (ii) that certain
Collateral Account Agreement, dated as of September 25, 2006 (as amended,
supplemented and modified from time to time, the “Account Agreement”),
among Borrowers, the Borrowers’ Agent, the Collateral Agent, and Deutsche Bank
Trust Company Americas, as the Depositary Agent (the “Depositary Agent”).  All capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the Credit
Agreement.


 


2.                                       The Borrowers
hereby acknowledge having received notice by letter dated May 22, 2009
that: (a) a number of Defaults and Events of Default under the Credit
Agreement have occurred and are continuing as of the date hereof; and (b) as
a result thereof, the Borrowers cannot satisfy the conditions precedent to
borrow funds under the Credit Agreement.


 


3.                                       Section 6.1(a) of
the Account Agreement provides that, on and after the date on which the
Depositary Agent has received a notice of an Event of Default (and this Consent
constitutes such a notice of an Event of Default pursuant to paragraph 9 of
this Consent), the Depositary Agent shall accept all notices and instructions
required to be given to the Depositary Agent pursuant to the Account Agreement
only from the Collateral Agent (acting on the instructions of the
Administrative Agent pursuant to the Credit Agreement) and not from any other
Person, and the Depositary Agent shall not withdraw, dispose of, transfer, pay
or otherwise distribute any monies in any of the Accounts except pursuant to
notices and instructions from the 


 

















 


Collateral
Agent (acting on the instructions of the Administrative Agent pursuant to the
Credit Agreement).


 


4.                                       The Borrowers
are in immediate need of funds for the purposes and in the amounts specified in
Exhibit A and therefore hereby request the Lenders to permit the
transfers set forth in paragraph 5 below.


 


5.                                       Notwithstanding
anything to the contrary contained in Section 6.1(c) or any other
provision of the Account Agreement but subject to the proviso below in this
paragraph, the Collateral Agent (acting on the instructions of the
Administrative Agent) hereby instructs the Depositary Agent to not withdraw,
dispose of, transfer, pay or otherwise distribute any monies in any of the
Accounts except pursuant to Sections 4.2(a)(iv), 4.2(a)(v)(A), 4.2(b), 4.2(d),
4.2(e), 4.3(b), 4.4 and 4.5 of the Account Agreement in accordance with a
certificate provided in conformity with the requirements of the Account Agreement
for such purpose, unless the Depositary Agent shall have been instructed
otherwise in writing by the Collateral Agent (acting on the instructions of the
Administrative Agent), in the order of priority set forth in such Sections; provided,
however, that the Depository Agent may only make transfers out of the
Payment Accounts pursuant to Section 4.3(b) from funds on deposit in
the Payment Accounts on the date hereof and solely for the uses and in the
amounts specified in Exhibit A. 
The foregoing consent and waiver shall expire on May 31, 2009
unless otherwise extended by a written consent of the Required Lenders or
terminated earlier by a written notice from the Administrative Agent.


 


6.                                       Exhibit B hereto sets
forth the current balances in each of the Accounts as of the date hereof.


 


7.                                       The parties
hereto agree that Section 4.2(b) of the Account Agreement is hereby
amended by replacing “Section 4.2(a)(iii)” appearing in the third line
with “Section 4.2(a)(iv)”.


 


8.                                       Notwithstanding
anything provided herein or in the Financing Documents, the Borrowers
acknowledge and agree that: (a) the foregoing waivers and instructions
provided herein may be modified or revoked at any time upon unilateral notice
from the Administrative Agent (acting in its sole discretion), except that the
extension of the expiration date of the waiver contained in paragraph 5 above
shall require the prior written consent of the Required Lenders; (b) the
Construction Budget in effect on the date hereof is hereby suspended for all
purposes and the Borrowers may not request a Borrowing in accordance with such
Construction Budget unless otherwise approved in writing by the Required
Lenders; and (c) the Borrowers may not request any transfers, withdrawals
or payments under the Account Agreement except as provided in this Consent.


 


9.                                       The Collateral
Agent and Depositary Agent hereby agree that this Consent shall be deemed to
constitute a written “Notice of Default”: (a) from the Lenders pursuant to
Section 8.5(b) of the Credit Agreement (in the case of the Collateral
Agent) and (b) from the Administrative Agent pursuant to Section 6.1(a) of
the Account Agreement (in the case of the Depositary Agent).


 


10.                                 The Lenders and
Agents (collectively the “Lender Parties”) provide this Consent (i) without
prejudice to any of the Lender Parties’ rights under the Credit Agreement, the
other 


 


2

















 


Financing
Documents and/or under applicable law, all of which rights and remedies are
specifically reserved and (ii) without prejudice to the Borrowers’
continuing obligations under the Credit Agreement, all of which remain in full
force and effect.


 


11.                                 On its own
behalf and on behalf of the other Lender Parties, the Administrative Agent
hereby expressly reserves all of the Lender Parties’ respective individual and
collective rights and remedies under the Credit Agreement, the other Financing
Documents and applicable law, including, without limitation, with respect to
the existence of any Defaults or Events of Default under the Credit Agreement,
and the remedies available under Section 7.2(b) thereof.  The Lender Parties (i) have not waived
and do not intend to waive any existing or future Defaults or Events of Default
under the Credit Agreement, and (ii) are not obligated in any way, and
have not agreed, to “stand still” or in any respect forbear from individually
or collectively enforcing rights or remedies under the Credit Agreement, any
other Financing Document or under any applicable law, all of which rights and
remedies are expressly reserved by the Lender Parties, including the right to
exercise any remedies in respect of the Events of Default described
hereunder.  No oral communication, course
of conduct, past or future forbearance on the part of any of the Lender Parties
should be viewed as a limitation upon or waiver of the absolute right and
privilege of the Lender Parties in exercising remedies that currently or may in
the future exist, and any single or partial exercise of any right or remedy
under the Financing Documents shall not preclude any other or further exercise
thereof or the exercise of any other right or remedy.


 


12.                                 Pursuant to Section 9.12(a) of
the Credit Agreement, the Lenders hereby authorize and direct the
Administrative Agent, the Administrative Agent (acting upon instructions of the
Required Lenders) hereby authorizes and directs the Collateral Agent and the
Collateral Agent hereby authorizes and directs the Depositary Agent, to execute
and deliver this Consent and any other documents which may be reasonably
necessary to give effect to this Consent.


 


13.                                 Except as
expressly amended hereby, all terms and conditions contained in the Credit
Agreement and all other Financing Documents shall remain unchanged and in full
force and effect in accordance with their respective terms.


 


14.                                 THIS CONSENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF (OTHER THAN SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW).


 


15.                                 This Consent
shall become effective as of the date first written above (the “Effective
Date”) upon the following conditions having been fully satisfied:  (a) the Required Lenders shall have
executed and delivered (including by way of facsimile or electronic “pdf”
format) to the Administrative Agent duly executed counterparts of this Consent
and (b) the Administrative Agent, the Collateral Agent and the Depositary
Agent shall have executed and delivered duly executed counterparts of this
Consent.


 


16.                                 The parties
hereto agree that this Consent may be executed in counterparts.


 


3

















 


{signature pages follow}


 


4
















 


IN WITNESS WHEREOF, the parties hereto, by their
officers duly authorized, have caused this letter to be duly executed and
delivered as of the date first above written.


 


 


	
  BFE
  OPERATING COMPANY, LLC,

  	
   

  
	
  as
  Borrower

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  BUFFALO
  LAKE ENERGY, LLC,

  	
   

  
	
  as
  Borrower

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  PIONEER
  TRAIL ENERGY, LLC, as

  	
   

  
	
  Borrower

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  BFE
  OPERATING COMPANY, LLC,

  	
   

  
	
  as
  Borrowers’ Agent

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 

















 


Accepted
and Agreed:


 


	
  BNP PARIBAS, as Lender

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  STANDARD
  CHARTERED BANK,

  	
   

  
	
  as
  Lender

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  AGFIRST
  FARM CREDIT BANK,

  	
   

  
	
  as
  Lender

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  FARM
  CREDIT SERVICES OF AMERICA,

  	
   

  
	
  as
  Lender

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 

















 


	
  GREENSTONE
  FARM CREDIT SERVICES, ACA/FLCA, 

  as Lender

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  METROPOLITAN
  LIFE INSURANCE COMPANY, as Lender

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  AMARILLO
  NATIONAL BANK,

  	
   

  
	
  as
  Lender

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  FARM
  CREDIT BANK OF TEXAS,

  	
   

  
	
  as
  Lender

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 

















 


	
  COÖPERATIEVE
  CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK INTERNATIONAL”, NEW YORK
  BRANCH,

  	
   

  
	
  as
  Lender

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  FIRST
  NATIONAL BANK OF OMAHA,

  	
   

  
	
  as
  Lender

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  CIFC
  Funding 2006-IB, LTD., as Lender

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  CIFC
  Funding 2006-II, LTD., as Lender

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  CIFC
  Funding 2006-III, LTD., as Lender

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 

















 


	
  DEUTSCHE
  BANK TRUST COMPANY

  	
   

  
	
  AMERICAS,
  as Collateral Agent and Depositary Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  BNP PARIBAS, as
  Administrative Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 

















 


EXHIBIT A TO CONSENT


 


PERMITTED OPERATION AND
MAINTENANCE EXPENSES UNDER CONSENT


 

















 


EXHIBIT B TO CONSENT


 


OUTSTANDING BALANCES IN
ACCOUNTS