Exhibit 10.1
EXECUTION VERSION
WAIVER AND AMENDMENT AGREEMENT dated
as of January 14, 2009 (this “ Agreement ”)
among BioFuel Energy, LLC, a Delaware limited liability company
(the “ Borrower ”), certain affiliates of
Greenlight Capital, Inc. and Third Point LLC as listed on
Schedule A attached hereto (such affiliates, the “
Lenders ”), and Greenlight APE, LLC, as Administrative
Agent (the “ Agent ”).
RECITALS
WHEREAS, pursuant to a loan
agreement dated September 25, 2006, among the Borrower, the
Lenders and the Agent (the “ Loan Agreement ”),
the Lenders have made loans to the Borrower on the terms and
subject to the conditions set forth therein, $20.0 million
aggregate principal amount of which remain outstanding (the “
Loans ”);
WHEREAS, on September 30, 2008,
the Borrower did not pay, and has not paid to date, the quarterly
interest payment then due with respect to the Loans, and on
December 31, 2008, the Borrower did not pay, and has not paid
to date, the quarterly interest payment then due with respect to
the Loans, which non-payments constituted individually, on the
third Business Day thereafter, an Event of Default under the Loan
Agreement (the “ Default ”);
WHEREAS, immediately prior to the
execution and delivery of this Agreement, the Borrower entered into
an agreement (the “ Cargill Settlement ”) with
Cargill, Incorporated (“ Cargill ”), which
addresses the satisfaction over time of certain amounts owed to
Cargill by the Borrower (the “ Cargill Payable
”); and
WHEREAS, the Borrower has requested
certain waivers and other modifications to the Loan Agreement, as
set forth herein, and the Lenders have agreed to such waivers and
other modifications, in each case, on the terms, subject to the
conditions and to the extent set forth herein;
NOW, THEREFORE, in consideration of
the foregoing, the mutual promises herein contained and other good
and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
ARTICLE
I
Definitions
SECTION 1.01.
Definitions. Capitalized terms used and not defined
herein shall have the meanings assigned to such terms in the Loan
Agreement. In addition to the terms defined elsewhere herein,
the following terms shall have the following meanings:
“ Available Cash
Received ” shall mean:
(a) 100% of
the cash proceeds actually received by the Borrower after the date
of this Agreement from its subsidiaries by way of dividend or
distribution in compliance with the subsidiaries’ credit
facilities, other than (i) any such cash proceeds consisting
of management fees paid by such subsidiaries in compliance with
their credit facilities (which are currently $800,000.00 per month)
and (ii) any other such cash proceeds reasonably required to
be spent or reserved by the Borrower for payment of professional
fees, taxes, employee compensation or other similar matters;
and
(b) 50% of
the cash proceeds actually received by the Borrower after the date
of this Agreement from any Equity Issuance (or cash contribution
from holders of Equity Interests) or incurrence of indebtedness for
borrowed money, net of all taxes and customary fees, commissions,
costs and other expenses incurred in connection
therewith.
“ Cargill Designated
Funds ” shall mean (i) until the Cash Reallocation
Trigger, 100% of Available Cash Received and (ii) thereafter,
50% of Available Cash Received.
“ Cash Reallocation
Trigger ” means the payment by the Borrower to Cargill
after the date hereof of an aggregate of $2,800,828.57 in
satisfaction of the Cargill Payable pursuant to Article III of
the Cargill Settlement.
“ Equity Issuance
” shall mean any issuance or sale by the Borrower of any
Equity Interests thereof, except in each case for (i) any such
issuance or sale to its subsidiaries and (ii) any such
issuance or sale to management, employees or directors of the
Borrower, BioFuel Energy Corp. or any of the Borrower’s
subsidiaries pursuant to an employee or director stock option or
stock purchase plan or an employee or director benefit
plan.
“ Equity Interests
” shall mean shares of capital stock, membership interests or
other equity interests, and any option, warrant or other right
entitling the holder thereof to purchase or otherwise acquire an
equity interest.
“ Penalty Interest
” shall mean any interest accrued on the Loans as a result of
the increase in the interest rate thereon from 15% to 17% as a
result of the Default ( i.e. , the difference between the
total interest that would have accrued at 17% and the total
interest that would have accrued at 15%).
ARTICLE
II
Payment and
Waiver
SECTION 2.01.
Payment of $2,000,000.00. In consideration of the
Lenders executing this Agreement, within five Business Days hereof,
the Borrower shall
2
make a payment to the Agent
at the Principal Office for the ratable accounts of the Lenders in
U.S. Dollars and in immediately available funds in an aggregate
amount of $2,000,000.00 (the “ Initial Payment
”). Such payment shall be allocated $766,666.67 to
payment of accrued and unpaid interest on the Loans due
September 30, 2008, and $1,233,333.33 to reduction of the
outstanding principal amount of the Loans.
SECTION 2.02.
Waiver of Event of Default. Effective upon receipt of
the Initial Payment, the Lenders hereby permanently and irrevocably
waive (a) the Default
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