Attached files
file | filename |
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EX-10.5 - Green Brick Partners, Inc. | v197487_ex10-5.htm |
EX-10.4 - Green Brick Partners, Inc. | v197487_ex10-4.htm |
EX-10.3 - Green Brick Partners, Inc. | v197487_ex10-3.htm |
EX-10.1 - Green Brick Partners, Inc. | v197487_ex10-1.htm |
EX-10.2 - Green Brick Partners, Inc. | v197487_ex10-2.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): September 24, 2010
BioFuel
Energy Corp.
(Exact
name of registrant as specified in its charter)
Delaware
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001-33530
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20-5952523
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(State
or other jurisdiction
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(Commission
File Number)
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(IRS
Employer
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of
incorporation)
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Identification
No.)
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1600
Broadway, Suite 2200
Denver,
CO 80202
(Address
of principal executive offices, including zip code)
(303)
640-6500
(Registrant’s
telephone number including area code)
(Former
name or former address if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
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Item
1.01. Entry into a Material
Definitive Agreement.
Bridge
Loan Agreement
On September 24, 2010, BioFuel Energy
Corp. (the “Company”) entered into a loan agreement (the “Bridge Loan
Agreement”) with Greenlight Capital, LP, Greenlight Capital Qualified, LP,
Greenlight Capital (Gold), LP, Greenlight Capital Offshore Partners, Greenlight
Capital Offshore Master (Gold), Ltd., Greenlight Reinsurance, Ltd.
(collectively, the "Greenlight Parties") and Third Point Loan LLC ("Third Point"
and, together with the Greenlight Parties, the "Lenders") and Greenlight APE,
LLC, as administrative agent (the “Administrative Agent”), pursuant to which the
Company borrowed $19,420,620 (the "Bridge Loan"). The proceeds of the
Bridge Loan were used (i) to repay the $17,900,000 working capital loans under
the Credit Agreement dated September 25, 2006 (the "Senior Credit Agreement"),
among BFE Operating Company, LLC, Buffalo Lake Energy, LLC and Pioneer Trail
Energy, LLC, the lenders party thereto, Deutsche Bank Trust Company Americas, as
collateral agent, First National Bank of Omaha, as current administrative agent
and arranger, Standard Chartered Bank and Mizuho Bank, as co-syndication agents
and First National Bank of Omaha and Green Stone Bank, as co-documentation
agents and (ii) to pay the fees and expenses of the transaction, which were a
bridge loan funding fee of $776,825 and a backstop commitment fee pursuant to
the Rights Offering Letter Agreement described below of $743,795. The
Bridge Loan is secured by a pledge of the Company's equity interest in BioFuel
Energy, LLC ("BFE Energy"). The Bridge Loan matures on March 24, 2011
(the "Maturity Date"), and in the event the Bridge Loan is not paid in full on
or before the Maturity Date, the Company will issue warrants to the Lenders
exercisable for an aggregate of 15% of the Company's common stock on a fully
diluted basis as of the date the warrant is issued at an exercise price of $0.01
per share.
The Bridge Loan bears interest at a
rate of 12.5% per annum, and if the Bridge Loan is not paid in full on or before
the Maturity Date, the Bridge Loan will bear interest at a rate of 14.5% per
annum.
The Bridge Loan Agreement contains
customary affirmative covenants for facilities of this type, including covenants
pertaining to the delivery of financial statements, notices of default and
certain other information, maintenance of business and insurance, collateral
matters and compliance with laws, as well as customary negative covenants for
facilities of this type, including limitations on the incurrence of indebtedness
and liens, mergers and certain other fundamental changes, loans and investments,
acquisitions, transactions with affiliates, dispositions of assets, payments of
dividends and other restricted payments and changes in the Company's line of
business.
Under the Bridge Loan Agreement, the
Company must comply with its obligations under the Rights Offering Letter
Agreement, which obligations require the Company to use its commercially
reasonable best efforts to commence and complete a registered rights offering
(the "Rights Offering") pursuant to the terms and conditions of the Rights
Offering Letter Agreement as more fully described below. If, as
permitted by the Rights Offering Letter Agreement, the Company pursues an
alternative equity financing or other transaction in lieu of the Rights Offering
(a "Substitute Transaction"), the Company has agreed that on or before the
earlier of February 1, 2011, and the closing of the Substitute Transaction, it
will (i) repay the Bridge Loan in full, (ii) cause BFE Energy to repay in full
its obligations under its subordinated debt facility (the "BFE Energy
Subordinated Loan") and (iii) repay certain amounts owed to Cargill,
Incorporated ("Cargill").
The Bridge Loan Agreement contains
default provisions that include a material breach of the Rights Offering Letter
Agreement and others that are customary for facilities of this type, which are
subject to customary grace periods and materiality thresholds, including, among
other things, defaults related to payment failures, failure to comply with
covenants, misrepresentations, defaults under other material indebtedness, the
occurrence of a “change of control”, bankruptcy and related events, material
judgments, specified changes in control of the Company and invalidity of the
loan documents. If an event of default occurs under the Bridge Loan Agreement,
the lenders may, among other things, declare the Bridge Loan immediately payable
and foreclose on the collateral.
The Bridge Loan Agreement requires
prepayments with the proceeds from certain sales of assets, the Rights Offering
and any Substitute Transaction. The Bridge Loan may be voluntarily
prepaid without penalty or premium.
Rights
Offering Letter Agreement
In connection with the Bridge Loan
Agreement, on September 24, 2010, the Company entered into a Rights Offering
Letter Agreement (the "Rights Offering Letter Agreement") with the Lenders
pursuant to which the Company agreed to use its commercially reasonable best
efforts to commence the Rights Offering. In connection with the
Rights Offering, the Company would distribute at no charge to each of the
existing holders of Common Stock and Class B Common Stock rights (the "Rights")
to purchase up to an aggregate of 4,000,000 shares of the Company's Series A
Convertible Preferred Stock at a per share price equal to $10.00 per share (the
"Per Preferred Share Purchase Price"). Each Right will permit the
holder to acquire, at a price equal to the Rights Price (as defined below), a
number of shares of Series A Convertible Preferred Stock equal to the fraction
determined by dividing 4,000,000 by the number of Rights offered in the Rights
Offering. The number of Rights offered in the Rights Offering will be
determined by dividing the offering size of the Rights Offering by the Rights
Price. The offering size of the Rights Offering is anticipated to be
approximately $40,000,000 and will be the amount sufficient to repay all amounts
owed at the time, including accrued and unpaid interest, under the Bridge Loan
and the BFE Subordinated Loan and to make the Cargill Payment (as defined
below), including certain fees and expenses incurred in connection with the
Rights Offering. "Rights Price" means the lesser of (i) a dollar
amount equal to 25% of the average per share closing price of the Common Stock
for the five trading days immediately following the initial filing of the
registration statement relating to the Rights Offering and (ii)
$0.75. Each share of Series A Convertible Preferred Stock will be
convertible into that number of shares of Common Stock equal to the quotient
obtained by dividing the Per Preferred Share Purchase Price by the Rights
Price. The Company agreed to provide the Lenders with registration
rights for the shares of Common Stock issued upon conversion of the Series A
Convertible Preferred Stock.
Under the Rights Offering Letter
Agreement, the Company must use its commercially reasonable best efforts to file
a registration statement with respect to the Rights Offering on or before
October 18, 2010, and to cause such registration statement to be declared
effective on or before January 24, 2011, and to remain effective throughout the
entire period without interruption.
The provisions of the Rights Offering
Letter Agreement permit the Company to solicit, participate in, initiate or
facilitate discussions or negotiations with, or provide any information to, any
person or group of persons concerning any alternative equity financing or other
transaction that would result in the (a) repayment in full of all amounts
outstanding under the Bridge Loan Agreement, (b) repayment in full of all
amounts under the BFE
Energy Subordinated Loan and (c) satisfy all obligations under the Cargill
Letter described below (a “Substitute Transaction”). If, as a result of such
activities, the Board of Directors of the Company (the “Board”) (excluding any Board member that is
an affiliate of Greenlight) determines in good faith after consultation with
outside legal counsel and independent financial advisors that (i) it has the
opportunity to enter into a Substitute Transaction that will be consummated
within a timeframe that is not materially longer than the anticipated timeframe
for the Rights Offering but in no event later than February 1, 2011, and (ii)
such Substitute Transaction is more favorable to the holders of Company Common
Stock (excluding benefits arising to the Lenders by virtue of the Backstop
Commitment) than the Rights Offering (taking into account all the terms and
conditions of such Substitute Transaction that the Board deems relevant
including, without limitation, any break-up fee provisions, expense
reimbursement provisions, conditions to closing and availability of necessary
financing) and is reasonably likely to be consummated prior to February 1, 2011,
then the Company shall deliver three business days prior notice to the
Greenlight Parties of its intention to enter into such Substitute Transaction,
together with reasonable details concerning the terms and conditions of such
Substitute Transaction. After such three business day period, (x) the
Board shall be permitted to approve the Substitute Transaction, (y) the Company
shall be permitted to enter into such Substitute Transaction and (z) the Company
shall be permitted to terminate the Rights Offering Letter Agreement; so long as
in each case (A) the Substitute Transaction continues to meet the requirements
described in clause (ii) above and (B) upon execution of definitive
documentation relating to a Substitute Transaction, the Company will pay to the
Lenders an aggregate break-up fee (to be allocated among the Lenders in
accordance with their relative Backstop Commitments) a sum in cash equal to
$350,000 (the “Termination
Fee”).
The Company would use the proceeds of
the Rights Offering or Substitute Transaction to (i) repay in full the Bridge
Loan, (ii) cause BFE Energy to repay in full its obligations under the BFE
Subordinated Loan and (iii) repay certain amounts owed to Cargill and certain of
its affiliates, with the remainder, if any, being used for general corporate
purposes.
Under the Rights Offering Letter
Agreement, the Lenders agreed to (i) participate in the Rights Offering for
their full pro rata share (the "Basic Commitment") and (ii) subject to the terms
and conditions set forth in the Rights Offering Letter Agreement, commit to
purchase all of the additional shares of Series A Convertible Preferred Stock
not otherwise sold in the Rights Offering (the "Backstop
Commitment"). Notwithstanding the foregoing, the Rights Offering
Letter Agreement provides that (a) the Lenders may reduce the number of shares
of Series A Convertible Preferred Stock that the Lenders would otherwise be
obligated to purchase pursuant to the Basic Commitment and/or Backstop
Commitment or (b) the Company may reduce the aggregate number of shares of
Series A Convertible Preferred Stock offered in the Rights Offering in the event
the Lenders determine, in their sole discretion, but after consultation with the
Company, that the consummation of the Rights Offering, the Basic Commitment
and/or the Backstop Commitment would result in adverse tax, legal or regulatory
consequences to the Company or any of the Lenders. In the event of a
backstop reduction, the Rights Offering would proceed with the Company and the
Lenders using their commercially reasonable best efforts to structure and
consummate an alternative transaction to take the place of the issuance of the
Series A Convertible Preferred Shares not purchased in the Rights
Offering.
The Lenders' obligations to purchase
any securities pursuant to the Basic Commitment and/or the Backstop Commitment
are subject to customary closing conditions, including the following: (i) the
Company must be in compliance with its obligations under the Bridge Loan
Agreement and the other transaction documents relating thereto in all material
respects, (ii) the Cargill Letter must be in full force and effect, (iii) the
Lenders must be reasonably satisfied with the Certificate of Designations
setting forth the rights and preferences of the Series A Convertible Preferred
Stock as determined by the Greenlight Parties in their reasonable discretion and
(iv) the Company must not have entered into any letter of intent, memorandum of
understanding, agreement in principle or other agreement relating to any
competing plan, proposal, offer or transaction with a third party other than the
Greenlight Parties materially inconsistent with the Rights Offering Letter
Agreement.
On September 24, 2010, the Company, in
consideration of the Backstop Commitment, paid the Lenders
$743,795. If the amount of the Rights Offering is increased above
$40,000,000, an additional fee of 4% of the excess will be payable (excluding
for calculative purchases, any shares of Series A Convertible Preferred Stock
purchased by the Lenders). As described above, if the Company signs a
definite agreement relating to a Substitute Transaction, it will pay the Lenders
the Termination Fee of $350,000.
The Company must use its commercially
reasonable best efforts to obtain stockholder approval of the authorization of
the Common Stock issuable upon conversion of the Series A Convertible Preferred
Stock. To that end, the Company must use its commercially reasonable
best efforts to file a proxy statement with the Securities and Exchange
Commission for such approval by November 15, 2010 (but in no event after January
1, 2011), and the Company must use its best efforts to obtain such approval by
January 24, 2011. The Rights Offering Letter Agreement also provides
for (i) the payment or reimbursement of the expenses incurred by the Lenders in
connection with the transactions contemplated by the Rights Offering Letter
Agreement and (ii) indemnification for the benefit of the Lenders.
Voting
Agreements
On September 24, 2010, the Greenlight
Parties entered into a voting agreement that, among other things, requires the
Greenlight Parties, in connection with certain stockholder votes, to cast their
votes (i) in favor of at least two directors who are not affiliated with, or
employed by, and are otherwise independent of, the Greenlight Parties and (ii)
in favor of a proposal to amend the Company's amended and restated certificate
of incorporation to facilitate the conversion of the Series A Convertible
Preferred Stock into Common Stock.
On September 24, 2010, Third Point
entered into a voting agreement that, among other things, requires Third Point,
in connection with certain stockholder votes, to cast its votes in favor of a
proposal to amend the Company's amended and restated certificate of
incorporation to facilitate the conversion of the Series A Convertible Preferred
Stock into Common Stock.
The Greenlight Parties are affiliates
of Greenlight Capital, Inc., which as of April 1, 2010, owned 7,542,104 shares
of Common Stock and 4,311,396 shares of Class B Common Stock, which together
represented 36.4% of the Company's outstanding Common Stock on that
date. David Einhorn, one of the Company's directors, is the President
of Greenlight Capital, Inc. Third Point Loan is an affiliate of Third
Point Funds, which as of April 1, 2010, owned 5,803,284 shares of Common Stock,
which represented 17.8% of the Company's outstanding Common Stock on that
date.
Cargill
Letter
On September 23, 2010, the Company
entered into a letter agreement (the "Cargill Letter") with Cargill, Cargill
Commodity Services, Inc., BFE Operating Company, LLC, Pioneer Trail Energy, LLC
and Buffalo Lake Energy, LLC pursuant to which the Company and Cargill agreed to
adjustments to certain commercial terms under the Company's ethanol and
distillers grains marketing agreements, corn supply agreements and grain
facility leases. In the Cargill Letter, Cargill agreed that no
proceeds from the Bridge Loan would be owed to Cargill under the Agreement dated
January 14, 2009 (the "Settlement Agreement"), by and between BFE Energy and
Cargill.
Cargill and the Company also agreed
that upon completion of the Rights Offering, (i) the Company will pay Cargill
$2,800,828.57 (the "Cargill Payment") pursuant to the terms of the Settlement
Agreement and (ii) Cargill will forgive the remaining payable under the
Settlement Agreement in exchange for shares of Series A Convertible Preferred
Stock in an amount equal to approximately $5,800,000 plus accrued and unpaid
interest under the Settlement Agreement. The Series A Convertible
Preferred Stock will be issued to Cargill on the twelfth business day following
the Rights Offering and will be valued at a per share value based upon the
average of the volume weighted averages of the trading prices of the Company's
Common Stock on an as-converted to Common Stock basis, as such prices are
reported on the NASDAQ Global Market (as reported by Bloomberg Financial Markets
or such other sources as the parties shall agree in writing), for the ten
consecutive trading days ending on the second trading day immediately preceding
the date the Series A Convertible Preferred Stock is issued to
Cargill. The shares of Series A Convertible Preferred Stock issued to
Cargill will be the same and/or have the same par value, rights, preferences as
the shares issued to any other participant or purchaser in the Rights
Offering. Each share of Series A Convertible Preferred Stock will be
convertible into that number of shares of Common Stock equal to the quotient
obtained by dividing the Per Preferred Share Purchase Price by the Rights
Price. The payment of the Cargill Payment and the agreements set
forth in this paragraph are contingent upon the successful completion of the
Rights Offering and the ability to raise sufficient proceeds from the Rights
Offering to accomplish the foregoing.
The Company is relying on Section 4(2)
of the Securities Act of 1933, as amended (the "Act") as an exemption from the
registration requirements of the Act. The Company will not
participate in a public offering with respect to the sale of the Series A
Convertible Preferred Stock to Cargill and will not engage an underwriter in
such sale.
Item 2.03. Creation of a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet Arrangement of a
Registrant.
The information included in
Item 1.01 above regarding the Bridge Loan Agreement is incorporated by
reference into this Item 2.03.
Item 3.02. Unregistered
Sales of Equity Securities.
The information included in
Item 1.01 above regarding the Cargill Letter is incorporated by reference
into this Item 3.02.
Item
9.01. Financial Statements and Exhibits.
(d)
Exhibits.
10.1
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Loan
Agreement dated as of September 24, 2010, by and among the registrant,
Greenlight Capital, LP, Greenlight Capital Qualified, LP, Greenlight
Capital (Gold), LP, Greenlight Capital Offshore Partners, Greenlight
Capital Offshore Master (Gold), Ltd., Greenlight Reinsurance, Ltd. and
Third Point Loan LLC identified therein and Greenlight APE, LLC, as
administrative agent
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10.2
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Rights
Offering Letter Agreement dated as of September 24, 2010, by and among the
registrant, Greenlight Capital, LP, Greenlight Capital Qualified, LP,
Greenlight Capital (Gold), LP, Greenlight Capital Offshore Partners,
Greenlight Capital Offshore Master (Gold), Ltd., Greenlight Reinsurance,
Ltd. and Third Point Loan LLC
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10.3
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Voting
Agreement dated as of September 24, 2010 by Greenlight Capital, LP,
Greenlight Capital Qualified, LP, Greenlight Capital (Gold), LP,
Greenlight Capital Offshore Partners, Greenlight Capital Offshore Master
(Gold), Ltd., Greenlight Reinsurance,
Ltd.
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10.4
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Voting
Agreement dated as of September 24, 2010 by Third
Point
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10.5
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Letter
Agreement dated as of September 23, 2010, by and among BioFuel Energy
Corp., BFE Operating Company, LLC, Pioneer Trail Energy, LLC, Buffalo Lake
Energy, LLC, Cargill, Incorporated and Cargill Commodity Services,
Inc.*
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*
Pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended,
confidential portions of this exhibit have been omitted and filed separately
with the Securities and Exchange Commission (“SEC”) pursuant to a Confidential
Treatment Request filed with the SEC.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned, hereunto
duly authorized.
BIOFUEL
ENERGY CORP.
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Date:
September 27, 2010
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By:
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/s/
Scott Pearce
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Name: Scott
H. Pearce
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Title:
President and CEO
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Exhibit Number
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Exhibit
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10.1
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Loan
Agreement dated as of September 24, 2010, by and among the registrant,
Greenlight Capital, LP, Greenlight Capital Qualified, LP, Greenlight
Capital (Gold), LP, Greenlight Capital Offshore Partners, Greenlight
Capital Offshore Master (Gold), Ltd., Greenlight Reinsurance, Ltd. and
Third Point Loan LLC identified therein and Greenlight APE, LLC, as
administrative agent
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10.2
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Rights
Offering Letter Agreement dated as of September 24, 2010, by and among the
registrant, Greenlight Capital, LP, Greenlight Capital Qualified, LP,
Greenlight Capital (Gold), LP, Greenlight Capital Offshore Partners,
Greenlight Capital Offshore Master (Gold), Ltd., Greenlight Reinsurance,
Ltd. and Third Point Loan LLC
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10.3
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Voting
Agreement dated as of September 24, 2010 by Greenlight Capital, LP,
Greenlight Capital Qualified, LP, Greenlight Capital (Gold), LP,
Greenlight Capital Offshore Partners, Greenlight Capital Offshore Master
(Gold), Ltd., Greenlight Reinsurance, Ltd.
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10.4
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Voting
Agreement dated as of September 24, 2010 by Third Point
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10.5
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Letter
Agreement dated as of September 23, 2010, by and among BioFuel Energy
Corp., BFE Operating Company, LLC, Pioneer Trail Energy, LLC, Buffalo Lake
Energy, LLC, Cargill, Incorporated and Cargill Commodity Services,
Inc.*
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*
Pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended,
confidential portions of this exhibit have been omitted and filed separately
with the Securities and Exchange Commission (“SEC”) pursuant to a Confidential
Treatment Request filed with the SEC.