Exhibit
10.4
ADMINISTRATIVE AGENCY
AGREEMENT
THIS ADMINISTRATIVE
AGENCY AGREEMENT is entered into as of the 15th day
of March, 2007, among FARM CREDIT SERVICES OF AMERICA, FLCA
(“Farm Credit”), C O BANK, ACB (“CoBank”) and
SUPERIOR ETHANOL, L.L.C., Shenandoah, 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 Construction and Term
Loan Supplement in the amount of $40,000,000.00.00 (“Term
Loan”) and a Construction and Revolving Term Loan Supplement
in the amount of $10,000,000.00 (“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” 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:
Administrative Agency
Agreement
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SUPERIOR ETHANOL,
L.L.C.
Shenandoah,
Iowa
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, 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.
Administrative Agency
Agreement
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SUPERIOR ETHANOL,
L.L.C.
Shenandoah,
Iowa
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
