"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.
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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,