ADMINISTRATIVE AGENCY AGREEMENT
THIS ADMINISTRATIVE AGENCY AGREEMENT is entered into as of the 30th day
of January, 2006, among FARM CREDIT SERVICES OF AMERICA, FLCA ("Farm Credit"),
COBANK, ACB ("CoBank") and GREEN PLAINS RENEWABLE ENERGY, INC., Shenandoah,
Iowa, an Iowa corporation ("Borrower").
RECITALS
A. Farm Credit intends to extend fmancing to Borrower, which fmancing
will consist of a Master Loan Agreement ("MLA"), a Construction and Term Loan
Supplement in the amount of $30,000,000.00 ("Term Loan") and a Construction and
Revolving Term Loan Supplement in the amount of $17,000,000.00 ("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 of up to 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" shalLalsos lean the
S_ecurity_Doc>>ments.
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, as the same may be
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,
Administrative Agency Agreement 2
Green Plains Renewable Energy, Inc.
Shenandoah, Iowa
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 and Other Banks. 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
Administrative Agency Agreement 3
Green Plains Renewable Energy, Inc.
Shenandoah, Iowa
Agreement and either originate the loans 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.
Administrative Agency Agreement 4
Green Plains Renewable Energy, Inc.
Shenandoah, Iowa
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 or any
Bank, 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 and each B.
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 customary rate set by
Administrative Agent for the correction of errors among banks for three (3)
Banking Days and thereafter at the Base Rate.
Administrative Agency Agreement 5
Green Plains Renewable Energy, Inc.
Shenandoah, Iowa
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 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 parry as shall be specified by like
notice):
Farm Credit Services of America, FCLA
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000-0000 Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000 Facsle: (000) 000-0000
CoBank, ACB
00000 Xxxxxxx Xxxxx Xxxxx, Xxxxx 000 Xxxxx, Xxxxxxxx
00000-0000
Attention: Xxx Xxxxxx, Vice President Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Green Plains Renewable Energy, Inc. 0000 Xxxxxx Xxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxx Xxxxxxxxx, President Telephone: (702)
524-8928
Facsimile: (000) 000-0000
With copy to:
Green Plains Renewable Energy, Inc. 000 Xxxxx Xxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx Sieversten
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.
Administrative Agency Agreement 6
Green Plains Renewable Energy, Inc.
Shenandoah, 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 WHEREOF, the parties hereto have caused the execution of
this Agreement as of the date first above written.
FARM CREDIT SERVICES CoBANK, ACB
OF AMERICA, FLCA
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
Its: V.P. Its: Assistant Corporate Secretary
GREEN PLAINS RENEWABLE ENERGY, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
Its: CEO & President
