AGREEMENT AND (III) SUCH 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 7.02.
NOTICES.
ANY NOTICES AND OTHER COMMUNICATIONS REQUIRED TO BE
GIVEN PURSUANT TO THIS AGREEMENT SHALL BE DELIVERED BY HAND, BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, BY PRIVATE COURIER,
BY FACSIMILE OR BY TELEX, AS FOLLOWS:
If to the Company:
BioFuel Energy, LLC
1600 Broadway, Suite 2200
Denver, Colorado 80202
Attention: Kelly G. Maguire
Vice President and Chief Financial Officer
Fax: (303) 592-8117
with a copy to:
Cravath, Swaine & Moore LLP
825 Eighth Avenue
New York, New York 10019
Attention: Craig F. Arcella
Fax: (212) 474-3700
If to Cargill:
Cargill AgHorizons
P.O. Box 9300, MS 19
Minneapolis, Minnesota 55440-9300
Attention: Daniel P. Dye
President
Fax: (952) 742-7313
6
SECTION 7.03.
HEADINGS.
THE HEADINGS CONTAINED IN THIS AGREEMENT ARE FOR
REFERENCE PURPOSES ONLY AND SHALL NOT AFFECT IN ANY WAY THE MEANING OR
INTERPRETATION OF THIS AGREEMENT.
SECTION 7.04.
ENTIRE AGREEMENT.
THIS AGREEMENT, AND ANY OTHER DOCUMENT SIGNED
BY THE PARTIES HERETO AT OR AFTER THE SIGNING OF THIS AGREEMENT, CONSTITUTE THE
COMPLETE AGREEMENT AMONG THE PARTIES CONCERNING THE SUBJECT MATTER IN SUCH
DOCUMENTS AND SUPERSEDE ALL PRIOR UNDERSTANDINGS AMONG SUCH PARTIES.
SECTION 7.05.
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.
SECTION 7.06.
AMENDMENTS AND WAIVER.
NO PROVISION OF THIS AGREEMENT MAY BE
AMENDED, MODIFIED, WAIVED OR DISCHARGED UNLESS SUCH AMENDMENT, MODIFICATION,
WAIVER OR DISCHARGE IS AGREED TO IN WRITING AND SIGNED BY BOTH PARTIES.
SECTION 7.07.
FURTHER ASSURANCES.
EACH OF THE PARTIES SHALL EXECUTE SUCH
AGREEMENTS AND DOCUMENTS AND TAKE SUCH FURTHER ACTIONS AS MAY BE REASONABLY
REQUIRED OR DESIRABLE TO CARRY OUT THE PROVISIONS HEREOF.
THE PARTIES SHALL
COOPERATE WITH EACH OTHER SO THAT EACH SUCH PARTY RECEIVES THE BENEFITS TO THE
GREATEST EXTENT POSSIBLE TO WHICH IT MAY BE ENTITLED UNDER THIS AGREEMENT.
SECTION 7.08.
RESERVATION OF REMEDIES.
EXCEPT AS DESCRIBED IN THIS AGREEMENT,
THE RIGHTS AND REMEDIES OF THE PARTIES ARE NOT EXCLUSIVE OF ANY RIGHTS OR
REMEDIES WHICH THEY WOULD OTHERWISE HAVE THEREUNDER OR AT LAW OR IN EQUITY.
SECTION 7.09.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, REGARDLESS OF
THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW THEREOF.
SECTION 7.10.
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT SHALL BE BINDING UPON AND
SHALL INURE TO THE BENEFIT OF THE COMPANY AND CARGILL AND THEIR RESPECTIVE
SUCCESSORS AND PERMITTED ASSIGNS.
SECTION 7.11.
FEES AND