Exhibit 10.1
July 10, 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, Waiver and
Forbearance under the Credit Agreement and Account Agreement (each
as defined below)
Ladies and Gentlemen:
1.
This request for
limited consent, waiver and forbearance (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
the 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
have acknowledged having received notice by letter dated
May 22, 2009 (the “ Default Notice ”) that
a number of Defaults and Events of Default under the Credit
Agreement have occurred and are continuing as of the date
hereof. The Administrative Agent and the Lenders hereby
acknowledge that the Borrowers have contested the assertions made
in the Default Notice. On June 30, 2009, the outstanding
amount of the Construction Loans under the Credit Agreement became
due and payable because the Construction Loans matured on such date
and were not converted into Term Loans in accordance with 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
(which notice was provided pursuant to the limited consent and
waiver and amendment dated as of May 28, 2009 by and among the
parties hereto), 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.
However, the
Borrowers are in immediate need of funds for the purposes and in
the amounts specified in the daily cash flow forecast for the
three-week period ending July 31, 2009 for the payment of
Operation and Maintenance Expenses as set forth 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)(i), 4.2(a)(iv), 4.2(a)(v)(A),
4.2(b) through 4.2(e), 4.3, 4.4 and 4.5 of the Account
Agreement in accordance with a certificate provided by the
Borrowers’ Agent in conformity with the requirements of the
Account Agreement for such purpose and together with any other
documents required to be delivered therewith (but subject to the
terms and conditions set forth in this Consent), 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:
a.
the Depositary
Agent may make transfers on one or more Business Days, but not more
frequently than weekly, out of the Operating Account pursuant to
Section 4.3(a) of the Account Agreement solely for the
uses specified in Exhibit A and in an amount such that
the aggregate amount transferred out of the Operating Account
pursuant to all transfers from the date hereof until the date of
such transfer does not exceed one hundred ten percent (110%) of the
aggregate cumulative amount budgeted therefor over such period as
specified in Exhibit A ; provided , such weekly
transfers from the Operating Account shall be made pursuant to a
Transfer Date Certificate suitably modified to permit for weekly,
rather than monthly, transfers; and
b.
transfers from
the Operating Account shall be subject to the receipt by the
Administrative Agent of the reports pursuant to paragraph 8 below
in form and substance satisfactory to the Administrative Agent and
its financial advisor, which reports shall, inter alia ,
confirm that the Depositary Agent has not transferred from the
Operating Account an amount in excess of one hundred ten percent
(110%) of the aggregate cumulative amount budgeted therefor over
such period as specified in Exhibit A .
6.
The Borrowers
shall only make transfers out of the Payment Accounts pursuant to
Section 4.3(b) of the Account Agreement: (a) solely
for the uses specified in Exhibit A and in an amount
such that the aggregate amount transferred out of the Payment
Accounts pursuant to all transfers from the date he
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