ADMINISTRATIVE AGENCY AGREEMENT
Exhibit 6.5
THIS ADMINISTRATIVE AGENCY AGREEMENT is entered into as of the 6th day of June, 2005, among
FARM CREDIT SERVICES OF AMERICA, FLCA (“Farm Credit”), CoBANK, ACB (“CoBank”) and WESTERN IOWA
ENERGY, LLC, Wall Lake, Iowa, an Iowa limited liability company (“Borrower”).
RECITALS
A. Farm Credit intends to extend financing to Borrower, which financing will consist of a
master loan agreement (“MLA”), a term loan supplement in the amount of $10,000,000.00 (“Term
Loan”) and a revolving term loan supplement in the amount of $8,000,000.00 (“Term
Revolver”). The MLA, Term Loan and Term Revolver are hereinafter referred to as the “Loan
Documents.”
B. Farm Credit has agreed to sell a participation interest in the Loan Documents on the
closing of the loans contemplated therein to CoBank (a participation interest up to and including
100%).
C. In recognition of its participation interest and its experience in the types of loans
contemplated herein, CoBank has agreed to undertake the initial drafting of the Loan documents and
related security documentation (“Security Documents”) and has agreed to undertake the obligations
as administrative agent for these loans.
D. Farm Credit desires to enter into this agreement in order to appoint CoBank as
administrative agent for the Loan Documents and Security Documents. Hereafter, unless otherwise
indicated, “Loan Documents” shall also mean the Security Documents.
NOW, THEREFORE, in consideration of the foregoing and for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged by each party, the parties hereto
agree as follows:
1. Appointment, Powers and Immunities of Administrative Agent. Farm Credit hereby appoints
and authorizes CoBank to act as its agent under the Loan Documents and under the Security
Documents (in such capacity the “Administrative Agent”) with such powers as are specifically
delegated to such Administrative Agent by the terms of this Agreement, together with such other
powers as are reasonably incidental thereto. Farm Credit also agrees that as part of CoBank’s
duties as Administrative Agent, CoBank shall, on Farm Credit’s behalf, perform the loan servicing
duties of the “Lead” as such duties are described in the Participation Agreement dated January 12,
1996, between Farm Credit (formerly Farm Credit Services of the Midlands, FLCA) and CoBank, ACB,
as amended or replaced from time to time. (the “Participation Agreement”). The Administrative
Agent shall have no duties or responsibilities except those expressly set forth in this Agreement,
the Loan Documents, and the Participation Agreement, and shall not by reason of this Agreement be
a trustee or fiduciary for Farm Credit; provided, however, the Administrative Agent shall
administer its duties and responsibilities in accordance with its customary practices and
procedures with respect to similar loans for its own account. The Administrative Agent shall not
be responsible to Farm Credit for any recitals, statements, representations or warranties made by
Borrower or any officer or official of Borrower or any other person contained in this Agreement or
any other Loan Document, or in any certificate or other document or instrument referred to or
provided for in, or received by Farm Credit or the Administrative Agent under, this Agreement or
any other Loan Document, or for the value, legality, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or the Loan Documents or any other
document or instrument referred to or provided for herein or therein, or for any failure by
Borrower to perform any of its obligations hereunder or thereunder. The Administrative Agent may
employ agents and attorneys-in-fact and shall not be responsible, except as to money or securities
received by it or its authorized agents, for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. Neither the Administrative Agent nor any of
its respective directors, officers, employees or agents shall be liable or responsible for any
action taken or omitted to be taken by it or them hereunder or under the Loan Documents or
Security Documents or in connection herewith or therewith, except for its material breach of
contract or for its or their own gross negligence or willful misconduct. Borrower shall pay any
fee agreed to by Borrower and the Administrative Agent with respect to the Administrative Agent’s
services hereunder. Borrower acknowledges the appointment of the Administrative Agent and agrees
to be bound by the terms of this Agreement.
2. Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon
any certification, notice or other communication (including any thereof by telephone, telex,
facsimile, telegram or cable) believed by it to be genuine and correct and to have been signed or
sent by or on behalf of the proper person or persons, and upon advice and statements of legal
counsel, independent accountants and other experts selected by the Administrative Agent.
3. Defaults. The Administrative Agent shall not be deemed to have knowledge of the
occurrence of a Potential Default or Event of Default, as those terms are defined in the MLA,
unless the Administrative Agent has received notice from Farm Credit or Borrower specifying such
Potential Default or Event of Default and stating that such notice is a “Notice of Default.” In
the event that the Administrative Agent receives such a Notice of Default from Borrower, the
Administrative Agent shall give prompt notice thereof to Farm Credit. The Administrative Agent
shall take such action with respect to such Potential Default or Event of Default which is
continuing as determined by the parties under the Participation Agreement. The Administrative
Agent shall not be required to take any action which it determines to be contrary to Law.
4. Indemnification of Administrative Agent. Farm Credit agrees to indemnify the
Administrative Agent (to the extent not reimbursed under the applicable provisions of the Loan
Documents), for its pro rata participation share of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever (including reasonable attorneys’ fees) which may be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or arising out of Loan Documents,
or any other documents contemplated by or referred to therein, or the transactions contemplated
hereby or thereby (including, without limitation, the costs and expenses which Borrower is
obligated to pay under the MLA) or under the applicable provisions of any of the Loan Documents or
the Security Documents or the enforcement of any of the terms hereof or thereof or of any such
other documents or instruments; provided that Farm Credit shall not be liable for any of the
foregoing to the extent they arise from material breach of this Agreement or from the gross
negligence or willful misconduct of the Administrative Agent or its directors, officers, employees
or agents.
5. Non-Reliance on Administrative Agent. Farm Credit agrees that it has, independently and
without reliance on the Administrative Agent, and based on such documents and information as it
has deemed appropriate, made its own credit analysis of Borrower and the decision to enter into
this
Agreement and either originate the loans and/or purchase a participation in the Loan
Documents and that it will, independently and without reliance upon the Administrative Agent, and
based on such documents and information as it shall deem appropriate at the time, continue to make
its own analysis and decisions in taking or not taking action under this Agreement or the Loan
Documents. The Administrative Agent shall be required to keep itself informed as to the
performance or observance by Borrower of the Loan Documents or any other document referred to or
provided for herein or therein and to inspect the properties or books of Borrower. The
Administrative Agent shall have the duty and responsibility to provide Farm Credit with any credit
or other information concerning the affairs, financial condition or business of Borrower which may
come into the possession of the Administrative Agent. The Administrative Agent shall not be
required to file this Agreement, the Loan Documents or any document or instrument referred to
herein or therein, for record or give notice of this Agreement or any other Loan Document or any
document or instrument referred to herein or therein, to anyone. Farm Credit acknowledges and
agrees that the Administrative Agent only has the duties and responsibilities explicitly set forth
herein and in the Loan Documents and Security Documents.
6. Failure of Administrative Agent to Act. Except for action expressly required of the
Administrative Agent hereunder, the Administrative Agent shall in all cases be fully justified in
failing or refusing to act hereunder unless it shall have received further assurances (which may
include cash collateral) of the indemnification obligations of Farm Credit under Section 4 above
in respect of any and all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
7. Resignation or Removal of Administrative Agent. Subject to the appointment and acceptance
of a successor Administrative Agent, as provided below, the Administrative Agent may resign at any
time by giving written notice thereof to Farm Credit and Borrower. Upon any such resignation or
removal, Farm Credit shall have the right to appoint a successor Administrative Agent which must
be located in the United States of America. If no successor Administrative Agent shall have been
so appointed and shall have accepted such appointment within thirty (30) days after the retiring
Administrative Agent’s giving of notice of resignation, then the retiring Administrative Agent
may, on behalf of Farm Credit, appoint a successor Administrative Agent which must be located in
the United States of America. Farm Credit or the retiring Administrative Agent, as the case may
be, shall upon the appointment of a successor Administrative Agent promptly so notify Borrower.
Upon the acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Administrative Agent and
the retiring Administrative Agent shall be discharged from its duties and obligations hereunder,
except for any liability arising from gross negligence, willful misconduct or material breach of
this Agreement. After any retiring Administrative Agent’s resignation hereunder as Administrative
Agent, the provisions of this Agreement shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Administrative Agent.
8. Amendments Concerning Agency Function. The Administrative Agent shall not be bound by any
waiver, amendment, supplement or modification of this Agreement or the Loan Documents or Security
Documents which affects its duties hereunder or thereunder unless it shall have given its prior
consent thereto.
9. Liability of Administrative Agent. Except as otherwise provided in the Loan Documents, the
Security Documents and herein, the Administrative Agent shall not have any liabilities or
responsibilities to Borrower on account of the failure of Farm Credit to perform its obligations
hereunder or to Farm Credit on account of the failure of Borrower to perform their respective
obligations hereunder or under the Loan Documents or Security Documents.
10. Transfer of Agency Function. Without the consent of Borrower, the Administrative Agent
may at any time or from time to time transfer its functions as Administrative Agent hereunder to
any of its offices located in the United States of America, provided that the Administrative Agent
shall promptly notify Borrower.
11. Non-Receipt of Funds by Administrative Agent.
A. Unless Administrative Agent shall have received notice from Farm Credit prior to the date
on which Farm Credit is to provide funds to Administrative Agent for an Advance to be made by Farm
Credit that Farm Credit will not make available to Administrative Agent such funds, Administrative
Agent may assume that Farm Credit has made such funds available to Administrative Agent on the date
of such Advance in accordance with the terms of this Agreement and Administrative Agent in its sole
discretion may, but shall not be obligated to, in reliance upon such assumption, make available to
Borrower on such date a corresponding amount. If and to the extent Farm Credit shall not have made
such funds available to Administrative Agent, Farm Credit agrees to repay Administrative Agent
forthwith on demand such corresponding amount together with interest thereon, for each day from the
date such amount is made available to Borrower until the date such amount is repaid to
Administrative Agent, at the customary rate set by Administrative Agent for the correction of
errors among banks for three (3) Banking Days and thereafter at the “Base Rate” (as that term is
used and defined in the Loan Documents). If Farm Credit shall repay to Administrative Agent such
corresponding amount, such amount so repaid shall constitute Farm Credit’s Advance for purposes of
this Agreement, the Loan Documents and/or Security Documents. If Farm Credit does not pay such
corresponding amount forthwith upon Administrative Agent’s demand therefore, Administrative Agent
shall promptly notify Borrower, and Borrower shall immediately pay such corresponding amount to
Administrative Agent with the interest thereon, for each day from the date such amount is made
available to Borrower until the date such amount is repaid to Administrative Agent, at the rate of
interest applicable at the time to such proposed Advance.
B. Unless Administrative Agent shall have received notice from Borrower prior to the date on
which any payment is due hereunder that Borrower will not make such payment in full, Administrative
Agent may assume that Borrower has made such payment in full to Administrative Agent on such date
and Administrative Agent in its sole discretion may, but shall not be obligated to, in reliance
upon such assumption, cause to be distributed to Farm Credit on such due date an amount equal to
the amount then due Farm Credit. If and to the extent Borrower shall not have so made such payment
in full to Administrative Agent, Farm Credit shall repay to Administrative Agent forthwith on
demand such amount distributed to Farm Credit together with interest thereon, for each day from the
date such amount is distributed to Farm Credit until the date Farm Credit repays such amount to
Administrative Agent at the
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Western Iowa Energy, LLC |
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Wall Lake, Iowa |
customary rate set by Administrative Agent for the correction of errors among banks for three (3)
Banking Days and thereafter at the Base Rate.
12. Amendments, Etc. No amendment, modification, termination, or waiver of any provision of
this Agreement or the Loan Documents or Security Documents to which Borrower is a party, shall in
any event be effective to modify or change the duties or rights of the Administrative Agent unless
the same shall be in writing and signed by the Borrower, Banks, and the Administrative Agent.
13. Notices. All notices or communications hereunder shall be in writing and shall be deemed
duly given upon delivery if personally delivered or sent by telegram or facsimile transmission, or
three (3) days after mailing if sent by express, certified or registered mail, to the parties at
the following addresses (or such other address for a party as shall be specified by like notice):
Farm Credit Services of America, FLCA
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CoBank, ACB
00000 Xxxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
00000 Xxxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Western Iowa Energy, LLC
XX Xxx 000
Xxxx Xxxx, Xxxx 00000
Attention: General Manager Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XX Xxx 000
Xxxx Xxxx, Xxxx 00000
Attention: General Manager Telephone: (000) 000-0000
Facsimile: (000) 000-0000
14. Attorney’s Fees. The prevailing party in any action or other proceeding to enforce its
rights under this Agreement, shall be entitled to its costs of suit, and reasonable attorneys’
fees, in addition to all other recovery or relief to which it may be entitled.
15. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of Colorado.
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Western Iowa Energy, LLC |
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Wall Lake, Iowa |
16. Counterparts. This Agreement may be executed in any number of counterparts and by
different parties to this Agreement in separate counterparts, each of which, when so executed,
shall be deemed to be an original and all of which taken together shall constitute one and the
same Agreement.
IN WITNESS WREREOF, the parties hereto have caused the execution of this Agreement as of the
date first above written.
| FARM CREDIT SERVICES OF AMERICA, FLCA |
CoBANK, ACB | |||||
By:
|
/s/ Xxxxx Xxxxx | By: | /s/ Xxx Xxxxxxx | |||
Title:
|
Vice President | Title: | Assistant Corporate Secretary | |||
| WESTERN IOWA ENERGY, LLC | ||||||
By:
|
/s/ Xxxx Xxxxx | |||||
Title:
|
Chairman | |||||
