EXHIBIT 10.6
ADMINISTRATIVE AGENCY AGREEMENT
THIS ADMINISTRATIVE AGENCY AGREEMENT
is entered into as of the 20th day
of November, 2006, among FARM CREDIT SERVICES OF AMERICA,
FLCA (“Farm Credit”), C
O BANK, ACB (“CoBank”) and ABE FAIRMONT, LLC,
Fairmont, Nebraska, a Delaware 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 $6,500,000.00 (“Term Loan”)
and a Construction and Revolving Term Loan Supplement in the amount
of $4,000,000.00 (“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
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