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TORTOISE CAPITAL RESOURCES CORPORATION
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$20,000,000
CREDIT AGREEMENT
Dated as of April 23, 2007
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U.S. BANK NATIONAL ASSOCIATION, as Agent
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Table of Contents
Section 1 General Definitions.................................................1
1.1 Definitions..................................................1
1.2 Accounting and Other Terms...................................7
1.3 General Rules................................................8
Section 2 Credit Facility.....................................................8
2.1 Total Credit Facility........................................8
2.2 Revolving Credit Loans.......................................8
2.3 Swingline Loans..............................................9
2.4 Reduction and Changes of Commitments........................10
2.5 Pro Rata Treatment..........................................10
Section 3 Finance Charges, Repayment and Other Terms.........................11
3.1 Interest Rate...............................................11
3.2 Payments of Principal, Interest and Costs...................12
3.3 Voluntary Prepayments.......................................12
3.4 Mandatory Prepayments.......................................13
3.5 Method of Payment...........................................13
3.6 Use of Proceeds.............................................13
3.7 Notice and Manner of Borrowing..............................14
3.8 Minimum Amount..............................................14
3.9 Capital Adequacy............................................14
3.10 Application of Payments and Collections.....................15
3.11 Periodic Statement..........................................15
3.12 Non-Receipt of Funds by Agent...............................15
3.13 Several Obligations.........................................15
3.14 Benefits of Collateral......................................15
3.15 Proceeds from Collateral....................................16
3.16 Balance; Sharing of Payments................................16
3.17 Libor Loan Provisions.......................................17
Section 4 Lending Conditions.................................................17
4.1 Credit Documents............................................17
4.2 Additional Conditions Precedent to Initial Loans............19
4.3 Conditions Precedent to All Loans...........................19
Section 5 Representations and Warranties.....................................20
5.1 Representations, Warranties and Covenants of the Borrower...20
Section 6 Covenants..........................................................22
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6.1 Affirmative Covenants.......................................22
6.2 Negative Covenants..........................................25
Section 7 Events of Default..................................................27
7.1 Events of Default...........................................27
7.2 Obligation to Lend; Acceleration............................28
7.3 Remedies....................................................28
7.4 Right of Set-off............................................29
Section 8 Agency Provisions..................................................29
8.1 Appointment, Powers and Immunities..........................29
8.2 Reliance by Agent...........................................30
8.3 Defaults....................................................30
8.4 Rights as a Bank............................................30
8.5 Indemnification.............................................30
8.6 Non-Reliance on Agent and other Banks.......................31
8.7 Failure to Act..............................................31
8.8 Resignation or Removal of Agent.............................31
8.9 Designee and Delegatee......................................31
8.10 Representation of Banks.....................................32
8.11 Obligations Several.........................................32
Section 9 Miscellaneous......................................................32
9.1 Notices.....................................................32
9.2 Power of Attorney...........................................32
9.3 Reimbursement of Expenses...................................33
9.4 Indemnity...................................................33
9.5 Entire Agreement; Modification of Agreement; Sale of
Interest....................................................33
9.6 Indulgences Not Waivers.....................................34
9.7 Severability................................................34
9.8 Successors and Assigns......................................34
9.9 General Waivers by Borrower.................................35
9.10 Execution in Counterparts; Facsimile Signatures.............35
9.11 Captions....................................................35
9.12 USA Patriot Act Notice......................................35
9.13 Governing Law; Consent to Forum.............................35
9.14 Waiver of Jury Trial; Limitation on Damages.................36
9.15 Controlling Document........................................36
9.16 K.S.A. ss.16-118 Required Notice............................37
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Table of Exhibits
Exhibit A - Commitments
Exhibit B - Form of Revolving Credit Note
Exhibit C - Form of Swingline Note
Exhibit D - Form of Borrowing Base Certificate
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CREDIT AGREEMENT
This Credit Agreement (the "Agreement") is made as of April 23, 2007, by
and among TORTOISE CAPITAL RESOURCES CORPORATION, a Maryland corporation (the
"Borrower"); U.S. BANK NATIONAL ASSOCIATION, a national banking association,
BANK OF OKLAHOMA, N.A., a national banking association, and each other lender
from time to time identified as having a Commitment on Exhibit A hereto and who
becomes a party hereto (each a "Bank" and, collectively, the "Banks"); U.S. BANK
NATIONAL ASSOCIATION, a national banking association, as the lender for
Swingline Loans (in such capacity, the "Swingline Lender"); U.S. BANK NATIONAL
ASSOCIATION, a national banking association, as agent for the Banks hereunder
(in such capacity, the "Agent"); and as lead arranger hereunder (in such
capacity, the "Lead Arranger").
The parties agree as follows:
Section 1
General Definitions
1.1 Definitions. When used in this Agreement, the following terms have the
following meanings:
"1940 Act" means the Investment Company Act of 1940, and the rules and
regulations promulgated thereunder, as the same may be amended from time to
time.
"Affiliate" means a Person (1) which owns or otherwise has an interest in
five percent or more of any equity interest of the Borrower, (2) five percent or
more of the equity interests of which the Borrower (or any shareholder or other
equity holder, director, officer, employee or subsidiary of the Borrower or any
combination thereof) owns or otherwise has an interest in, or (3) which,
directly or through one or more intermediaries, is controlled by, controls, or
is under common control with the Borrower. For purposes of subpart (3) above,
"control" means the ability, directly or indirectly, to affect the management or
policies of a Person by virtue of an ownership interest, by right of contract or
any other means.
"Agreement" means this Credit Agreement, as amended, renewed, restated,
replaced, consolidated or otherwise modified from time to time.
"Banks" shall have the meaning given to such term in the introductory
paragraph hereof and shall include the Swingline Lender. The term shall also
include any assignee of a Bank under Section 9.5.
"Borrowing Base Certificate" means a certificate, in favor of the Agent,
signed by an authorized officer of the Borrower, substantially in the form of
Exhibit D hereto, or in such other form as the Agent may reasonably request from
time to time, which sets forth in reasonable detail the computations necessary
to determine the Borrowing Base at a particular time.
"Borrowing Base" means, at any date, an amount equal to (1) 25% of the
value of the total assets of the Borrower (such amount shall also include any
Loan requested on such date), less (2) all outstanding other senior debt;
provided, however, such senior debt shall not include the Loans under this
Agreement.
"Business Day" means any day on which commercial banks are not authorized
or required to close in Kansas City, Missouri.
"Central Time" means the time as in effect in the central time zone in the
United States from time to time.
Credit Agreement - Page 1
"Change in Control" shall be deemed to have occurred if (1) any Person or
group of Persons acting in concert shall own, directly or indirectly,
beneficially or of record, shares representing more than 50% of the aggregate
ordinary voting power represented by the issued and outstanding capital stock of
the Borrower; or (2) a change shall occur in the Board of Directors of the
Borrower such that the individuals who constituted the Board of Directors of the
Borrower as of the Closing Date cease for any reason to constitute a majority of
the directors of the Borrower then in office.
"Closing Date" means the date of this Agreement as set forth in the
introductory paragraph of this Agreement.
"Collateral" means all property with respect to which a Lien has been
granted to or for the benefit of the Banks pursuant to the Security Agreement or
any of the other Credit Documents or which otherwise secures the payment or
performance of any Obligation.
"Commitments" means, as to each Bank, at any date, without duplication, its
Revolving Credit Loan Commitment and its Swingline Exposure, all at such date;
provided, however, that, in the case of the Swingline Lender (solely in its
capacity as the Swingline Lender), its Commitments shall mean its Swingline Loan
Commitment.
"Control Agreement" means the Securities Account Control Agreement or
similar control agreement to be executed by the Borrower, the Securities
Intermediary and the Agent on or about the Closing Date and by which the
Securities Intermediary shall acknowledge that it will comply with entitlement
orders originated by the Bank without further consent by the Borrower, as the
same may be amended, renewed, replaced, restated, consolidated or otherwise
modified from time to time.
"Credit Documents" means, collectively, this Agreement, the Notes, the
Security Agreement, the Control Agreement and any other agreements or documents
with the Agent or the Banks existing on or after the Closing Date evidencing or
otherwise relating to any of the transactions described in or contemplated by
this Agreement, and any amendments, renewals, restatements, replacements,
consolidations or other modifications of any of the foregoing from time to time.
"Daily Reset Libor Rate" means an annual rate of interest equal to the
one-month LIBOR rate for Dollars quoted by the Agent from Reuters Screen LIBOR01
Page (or, any successor or substitute thereto selected by the Agent in its sole
discretion), which shall be that one-month LIBOR rate in effect and reset each
Business Day, adjusted for any reserve requirement and any subsequent costs
arising from a change in government regulation.
"Debt" means any of the following: (1) indebtedness or liability for
borrowed money; (2) obligations evidenced by bonds, debentures, notes or other
similar instruments; (3) obligations for the deferred purchase price of property
or services; (4) obligations as lessee under capital leases; (5) current
liabilities in respect of unfunded vested benefits under Plans covered by ERISA;
(6) obligations under letters of credit or acceptance facilities; (7) all
guarantees, endorsements (other than for collection or deposit in the ordinary
course of business) and other contingent obligations to purchase, to provide
funds for payment, to supply funds to invest in any Person, or otherwise to
assure a creditor against loss; and (8) obligations secured by a Lien, whether
or not the obligations have been assumed.
"Default Rate" has the meaning provided in Section 3.1(b) of this
Agreement.
"Default" means an event or condition the occurrence of which would, with
the lapse of time or the giving of notice or both, become an Event of Default.
Credit Agreement - Page 2
"Dollars" and "$" means lawful money of the United States of America.
"Environmental Laws" means all federal, state, local and other applicable
statutes, ordinances, rules, regulations, judicial orders or decrees, common law
theories of liability, governmental or quasi-governmental directives or notices
or other laws or matters existing on or after the Closing Date relating in any
respect to occupational safety, health or environmental protection.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and all rules and regulations from time to time
promulgated thereunder.
"Eurocurrency Reserve Requirement" means, for any Loan for any Interest
Period therefor, the daily average of the stated maximum rate (expressed as a
decimal) at which reserves (including any marginal, supplemental or emergency
reserves) are required to be maintained during such Interest Period under
Regulation D by member banks of the Federal Reserve System in New York City with
deposits exceeding one billion dollars against "Eurocurrency liabilities" (as
such term is used in Regulation D) but without benefit or credit of proration,
exemptions or offsets that might otherwise be available from time to time under
Regulation D. Without limiting the effect of the foregoing, the Eurocurrency
Reserve Requirement shall reflect any other reserves required to be maintained
against (1) any category of liabilities that includes deposits by reference to
which the Libor Rate or the Daily Reset Libor Rate for Loans is to be
determined, or (2) any category of extension of credit or other assets that
include Loans for which the interest rate is determined on the basis of a Libor
Rate or a Daily Reset Libor Rate.
"Event of Default" has the meaning provided in Section 7.1 of this
Agreement.
"Funded Debt" means Debt of the Borrower of the type described in subparts
(1), (2), (3), (4) and (6) of the definition of "Debt" in this Section 1.1 and
includes, in any event, the Loans.
"GAAP" means generally accepted accounting principles in effect from time
to time in the United States of America.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, and any branch, department or agency thereof, or
any other entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to a government.
"Hazardous Substance" means any hazardous, toxic, dangerous or otherwise
environmentally unsound substance, waste or other material, in whatever form, as
defined or described in, or contemplated by, any Environmental Law and any other
hazardous, toxic, dangerous or otherwise environmentally unsound substance,
waste or other material in whatever form, or any other substance, waste or other
material regulated by any Environmental Law.
"Interest Period" means, with respect to any Loan in which interest accrues
at a Libor Rate, the period commencing on the date such Loan is made and ending
on the numerically corresponding day in the first, second, third or sixth
calendar month thereafter, except, that each Interest Period that commences on
the last Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month;
provided, however, that (a) no Interest Period may extend beyond the Termination
Date, and (b) if an Interest Period would end on a day that is not a Business
Day, such Interest Period shall be extended to the next Business Day unless such
Business Day would fall in the next calendar month, in which event such Interest
Period shall end on the immediately preceding Business Day.
Credit Agreement - Page 3
"Investment Advisor" means any person (other than a bona fide officer,
director, trustee, member of an advisory board, or employee of the Borrower, as
such) who, pursuant to contract with the Borrower, regularly furnishes advice to
the Borrower with respect to the desirability of investing in, purchasing or
selling securities or other property, or is empowered to determine what
securities or other property shall be purchased or sold by the Borrower.
"Libor Rate" means, for any Interest Period, the rate per annum determined
by the Agent to equal the quotient of (1) the London interbank offered rate for
Dollars for such Interest Period, as quoted two Business Days immediately
preceding the date of the proposed Libor Loan in the "Money Rates" section of
The Wall Street Journal or, if not available, by Bloomberg, Telerate or any
other financial news services (electronic or otherwise) used by the Agent from
time to time in accordance with commercially reasonable industry standards,
divided by (2) one minus the Eurocurrency Reserve Requirement for such Interest
Period.
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), or preference, priority, or other security agreement or preferential
arrangement, charge or encumbrance of any kind or nature whatsoever, including,
without limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing, or the filing of any financing statement under the Uniform Commercial
Code or comparable law of any jurisdiction to evidence any of the foregoing.
"Loans" means all Revolving Credit Loans and the Swingline Loans. The term
"Loan" may refer to all Revolving Credit Loans or Swingline Loans then
outstanding or, as the context so requires, any particular Revolving Credit Loan
or Swingline Loan then outstanding under this Agreement.
"Mandatory Prepayments" shall mean the prepayments of the Loans required by
Section 3.5 hereof.
"Material Adverse Effect" means (1) a material adverse effect on the
assets, liabilities, business, prospects, operations, income or condition,
financial or otherwise, of the Borrower, (2) a material impairment of the
ability of the Borrower to pay, perform or observe its obligations under the
Credit Documents, or (3) a material impairment of the enforceability or
availability of the rights or remedies stated to be available to the Agent or
any Bank under the Credit Documents.
"Notes" means, collectively, the Revolving Credit Notes and the Swingline
Note.
"Obligations" means all Loans and all other advances, debts, liabilities,
obligations, covenants and duties owing, arising, due or payable from the
Borrower to the Agent or any Bank of any kind or nature, existing or future,
whether or not evidenced by any note, letter of credit, guaranty or other
instrument, whether arising under this Agreement or any of the other Credit
Documents or otherwise and whether direct or indirect (including, without
limitation, those acquired by assignment), absolute or contingent, primary or
secondary, due or to become due, existing on or after the Closing Date and
however acquired, and all amendments, renewals, restatements, replacements or
other modifications of the foregoing from time to time. The term includes,
without limitation, all principal, interest, fees, expenses and any other sums
chargeable to the Borrower under any of the Credit Documents.
"Permitted Debt" means any of the following: (1) accrued expenses and trade
account payables incurred in the ordinary course of the Borrower's business; (2)
Debt to the Agent and the Banks under this Agreement; (3) interest rate
protection agreements; and (4) other Debt approved in advance by the Required
Banks in a writing delivered to the Borrower.
Credit Agreement - Page 4
"Permitted Liens" means any of the following: (1) Liens for taxes,
assessments or governmental charges not delinquent or being contested in good
faith and by appropriate proceedings and for which adequate reserves in
accordance with GAAP are maintained on the Borrower's books; (2) Liens arising
out of deposits in connection with workers' compensation, unemployment
insurance, old age pensions or other social security or retirement benefits
legislation; (3) deposits or pledges to secure bids, tenders, contracts (other
than contracts for the payment of money), leases, statutory obligations, surety
and appeal bonds, and other obligations of like nature arising in the ordinary
course of the Borrower's business; (4) Liens imposed by law, such as mechanics',
workers', materialmen's, carriers' or other like Liens (excluding, however, any
Lien in favor of a landlord) arising in the ordinary course of the Borrower's
business which secure the payment of obligations which are not past due or which
are being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP are maintained on the Borrower's
books; (5) rights of way, zoning restrictions, easements and similar
encumbrances affecting the Borrower's real property which do not materially
interfere with the use of such property; and (6) Liens in favor of the Agent and
the Banks.
"Person" means an individual, corporation, limited liability company,
partnership, trust, governmental entity or any other entity, organization or
group whatsoever.
"Plan" means an employee benefit plan (as defined in Section 3(3) of ERISA)
maintained for employees of the Borrower on or after the Closing Date.
"Post-Resting Period" has the meaning provided in Section 2.2(a)(2) of this
Agreement.
"Prime Rate" means a basis on which the rate of interest is from time to
time calculated for loans making reference thereto, and may not be the lowest,
best or most favored of the interest rates offered by U.S. Bank National
Association.
"Pro-Rata Share" means, at any date, with respect to a Bank, in each case
expressed as a percentage (rounded to 12 decimal places, or such other number of
decimal places as the Agent, acting in a commercially reasonable manner, may
select from time to time):
(1) Make Revolving Credit Loans. In the case of a Bank's obligation
to make Revolving Credit Loans, a fraction: (a) the numerator of
which is the amount of such Bank's Revolving Credit Loan
Commitment on such date, and (b) the denominator of which is the
aggregate amount of all Banks' Revolving Credit Loan Commitments
on such date.
(2) Swingline Exposure. In the case of a Bank's obligation to
reimburse the Swingline Lender for Swingline Loans, a fraction:
(a) the numerator of which is the amount of such Bank's Revolving
Credit Loan Commitment on such date, and (b) the denominator of
which is the aggregate amount of all Banks' Revolving Credit Loan
Commitments on such date.
(3) Receive Principal or Interest. In the case of a Bank's right to
receive payments of principal and interest with respect to its
outstanding Revolving Credit Loans (including any such Revolving
Credit Loans arising out of Swingline Loans), a fraction: (a) the
numerator of which is the aggregate unpaid principal amount of
such Bank's Loans giving rise to such principal or interest
payment on such date, and (b) the denominator of which is the
aggregate unpaid principal amount of all Banks' Loans giving rise
to such principal or interest payment on such date.
Credit Agreement - Page 5
(4) Receive Shared Fees. In the case of a Bank's right to receive
payments with respect to Shared Fees, a fraction: (a) the
numerator of which is the aggregate unpaid principal amount of
such Bank's Revolving Credit Loans on such date, and (b) the
denominator of which is the aggregate unpaid principal amount of
all Banks' Revolving Credit Loans on such date.
(5) Indemnification; Other. In the case of a Bank's obligations under
Section 8.5 hereof, or in any other case not addressed in
subparts (1) through (4) above, a fraction: (a) the numerator of
which is the amount of such Bank's Revolving Credit Loan
Commitment, and (b) the denominator of which is the aggregate
amount of all Banks' Revolving Credit Loan Commitments (the
foregoing fraction shall be calculated without regard to whether
such Bank or any other Bank has any commitment to make Revolving
Credit Loans on such date).
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as amended or supplemented from time to time.
"Regulatory Change" means any change after the Closing Date in federal,
state, local or foreign laws or regulations (including, without limitation,
Regulation D, but, subject to the Borrower's obligations otherwise provided
herein, not including a change in the Eurocurrency Reserve Requirement), or the
adoption or making after such date of any interpretations, directives or
requirements applying to a class of banks including the Agent and/or Banks under
any federal, state, local or foreign laws or regulations (whether or not having
the force of law) by any court or governmental or monetary authority charged
with the interpretation or administration thereof.
"Required Banks" shall mean, at any date, one or more Banks having at least
66-2/3% of the Commitments on such date; provided, however, so long as there are
three Banks or less under this Agreement with Revolving Credit Loan Commitments,
"Required Banks" shall mean one or more Banks having at least 100% of the
Commitments on such date.
"Resting Period" has the meaning provided in Section 2.2(a)(1) of this
Agreement.
"Revolving Credit Loan Commitment" means, as to each Bank, its obligation
to make Revolving Credit Loans under Section 2.2 hereof in an aggregate
principal amount at any time outstanding not to exceed the amount set forth
opposite such Bank's name on Exhibit A hereto under the column entitled
"Revolving Credit Loan Commitment Amount."
"Revolving Credit Loans" has the meaning provided in Section 2.2(a) of this
Agreement.
"Revolving Credit Note" has the meaning provided in Section 2.2(b) of this
Agreement.
"Securities Account" means securities account number 19-9236 held at the
Securities Intermediary.
"Securities Intermediary" means U.S. Bank National Association.
"Security Agreement" means the Security Agreement to be executed by the
Borrower on or about the Closing Date in favor of the Agent and the Banks and by
which the Borrower shall grant to the Agent and the Banks, as security for the
Obligations, a security interest in all of the Borrower's presently owned or
hereafter acquired assets, including without limitation, all of the Borrower's
investment assets,
Credit Agreement - Page 6
investment property, and all instruments, accounts and general intangibles, as
the same may be amended, renewed, replaced, restated, consolidated or otherwise
modified from time to time.
"Shared Fee" means the Late Fee provided in Section 3.1(c) and the Unused
Line Fee provided in Section 3.1(d) of this Agreement .
"Swingline Exposure" means, at any date, with respect to any Bank, its
Pro-Rata Share of the outstanding principal amount of Swingline Loans on such
date.
"Swingline Lender" has the meaning given to such term in the introductory
paragraph hereof.
"Swingline Loan Commitment" means, as to the Swingline Lender, its
obligation to make Swingline Loans pursuant to Section 2.3 hereof, in an
aggregate principal amount outstanding at any time not to exceed the amount set
forth opposite such Bank's name on Exhibit A hereto under the column entitled
"Swingline Loan Commitment Amount."
"Swingline Loans" has the meaning provided in Section 2.3(a) of this
Agreement.
"Swingline Note" has the meaning provided in Section 2.3(b) of this
Agreement.
"Termination Date" means March 21, 2008.
"UCC" means the Uniform Commercial Code as in effect in the State of Kansas
from time to time.
1.2 Accounting and Other Terms.
(a) General. All accounting terms not specifically defined herein
shall be construed in accordance with GAAP. Unless the context clearly requires
otherwise, all references to "dollars" or "$" are to United States dollars. This
Agreement and the other Credit Documents shall be construed without regard to
any presumption or rule requiring construction against the party causing any
such document or any portion thereof to be drafted. The Section and other
headings in this Agreement and any index at the beginning of this Agreement are
for convenience of reference only and shall not limit or otherwise affect any of
the terms of this Agreement. Similarly, any page footers or headers or similar
word processing, document or page identification numbers in this Agreement or
any index or exhibit are for convenience of reference only and shall not limit
or otherwise affect any of the terms of this Agreement, nor shall there be any
requirement that any such footers or other numbers be consistent from page to
page. Unless the context clearly requires otherwise, any reference to a Section
of this Agreement refers to all Sections and Subsections thereunder. Any pronoun
used herein shall be deemed to cover all genders. Defined terms used in this
Agreement may be set forth in Section 1.1 or other Sections of this Agreement,
and all such definitions defined in the singular shall have a corresponding
meaning when used in the plural and vice versa.
(b) Changes in GAAP. If at any time any change in GAAP would affect
the computation of any financial ratio or requirement set forth in any Credit
Document, and either the Borrower or the Agent shall so request, the Agent and
the Borrower shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP; provided,
however, that, until so amended, (1) such ratio or requirement shall continue to
be computed in accordance with GAAP prior to such change therein, and (2) the
Borrower shall provide to the Agent financial statements and other documents
required under this Agreement or as reasonably requested
Credit Agreement - Page 7
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
1.3 General Rules. For the purposes of this Agreement, the words "herein,"
"hereof," "hereunder" and words of similar import refer to this Agreement as a
whole and not to a particular section, paragraph or other subdivision. Terms
defined in the singular have a corresponding meaning when used in the plural and
vice versa. Similarly, verbs defined in one tense have a corresponding meaning
when used in another tense.
Section 2
Credit Facility
2.1 Total Credit Facility. Each Bank severally agrees, subject to the
terms and conditions of this Agreement, to make a total credit facility of up to
$20,000,000 available to the Borrower upon its request therefor, as provided in
this Section 2.
2.2 Revolving Credit Loans.
(a) General. Each Bank severally agrees, subject to the terms and
conditions of this Agreement, to make revolving credit loans ("Revolving Credit
Loans") to the Borrower from time to time in the following amounts:
(1) during the period of time (the "Resting Period") from the
Closing Date through and including June 7, 2007, neither the
Agent nor any Bank shall be obligated whatsoever to make
Revolving Credit Loans to the Borrower; and
(2) during the period of time (the "Post-Resting Period") from
June 8, 2007 through and including the Business Day
immediately before the Termination Date, in an aggregate
principal amount at any one time outstanding up to but not
exceeding the lesser of (1) the amount of such Bank's
Revolving Credit Loan Commitment at such time, or (2) such
Bank's Pro-Rata Share of the Borrowing Base at such time.
In no event shall any Bank be obligated to make a Revolving Credit Loan if
any Default or Event of Default exists or would result from the making of such
Revolving Credit Loan. Subject to the terms and conditions of this Agreement,
the Borrower may borrow, repay and re-borrow under the Revolving Credit Loan
facility.
Notwithstanding anything herein to the contrary, on or after the Closing
Date, the Borrower may increase the total amount of this credit facility, as
such amount is provided in Section 2.1 above, in an aggregate principal amount
of up to $20,000,000 (for a total credit facility in an aggregate amount of up
to $40,000,000) subject to the arrangement of additional commitments with
financial institutions acceptable to the Borrower and the Agent; provided that
in each case (1) no Bank will be required to increase its Revolving Credit Loan
Commitment, (2) the Agent shall have no responsibility for arranging any such
additional commitments without the Agent's prior written consent and subject to
such conditions, including, but not limited to fee arrangements, as the Agent
may provide in connection therewith, (3) there is no continuing Default or Event
of Default and (4) the conditions to making a Revolving Credit Loan, as provided
in Section 4.3(a) below, are satisfied.
Credit Agreement - Page 8
(b) Revolving Credit Note. The Revolving Credit Loans made by each
Bank under its Revolving Credit Loan Commitment shall be evidenced by, and shall
be payable in accordance with the terms and conditions of, a promissory note of
the Borrower in favor of such Bank in substantially the form of Exhibit B hereto
(as to such Bank, as the same may be amended, renewed, restated, replaced,
consolidated or otherwise modified from time to time, its "Revolving Credit
Note"). Each Revolving Credit Note shall be in a principal amount equal to the
amount of its Revolving Credit Loan Commitment then in effect and otherwise duly
completed. Each Loan made by each Bank under its Revolving Credit Loan
Commitment, and all payments and prepayments made on account of the principal
thereof, shall be recorded by such Bank on its books and records.
2.3 Swingline Loans.
(a) General. The Swingline Lender agrees, on and subject to the terms
of this Agreement, to make loans ("Swingline Loans") to the Borrower from time
to time in the following amounts:
(1) during the Resting Period (as such term is defined in
Section 2.2(a)(1) above), the Swingline Lender shall have no
obligation whatsoever to make Swingline Loans to the
Borrower; and
(2) during the Post-Resting Period (as such term is defined in
Section 2.2(a)(2) above), in an aggregate principal amount
at any time outstanding up to but not exceeding the
Swingline Loan Commitment at such time; provided, that the
aggregate principal balance of all Swingline Loans then
outstanding (or which would be outstanding if such Swingline
Loan were to be made) at any time plus the aggregate
principal balance of all Revolving Credit Loans then
outstanding shall not exceed the lesser of (1) the total
Commitments of all Banks at such time, or (2) the Borrowing
Base. Subject to the terms and conditions of this Agreement,
during such period the Borrower may borrow, repay and
reborrow Swingline Loans.
If the Borrower does not repay any Swingline Loans in accordance with
the terms of this Agreement, the Swingline Note or any of the other Credit
Documents, then the Banks shall reimburse the Swingline Lender on demand for the
unpaid amount of such Swingline Loans. Such reimbursements shall be made by the
Banks in accordance with their respective Pro-Rata Shares and shall thereafter
be reflected as Revolving Credit Loans of the Banks on the books and records of
the Agent. Each Bank shall fund its respective Pro-Rata Share of Revolving
Credit Loans as required to repay Swingline Loans outstanding to the Swingline
Lender upon demand by the Swingline Lender but in no event later than 2:00 p.m.,
Central Time, on the next succeeding Business Day after such demand is made. No
Bank's obligation to fund its Pro-Rata Share of a Swingline Loan shall be
affected by any other Bank's failure to fund its Pro-Rata Share of a Swingline
Loan. Similarly, the Borrower's obligation to repay Swingline Loans shall not be
affected by any Bank's failure to reimburse the Swingline Lender pursuant to
this Section 2.3.
If any portion of any principal payment made by the Borrower to the
Swingline Lender on account of any Swingline Loan shall be recovered by or on
behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise, the
loss of the amount so recovered shall be ratably shared among all of the Banks
in accordance with their respective Pro-Rata Shares.
Credit Agreement - Page 9
Each Bank acknowledges and agrees that its obligation to reimburse
Swingline Loans in accordance with the terms of this Section 2.3 is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, the existence of a Default or an Event of
Default. Further, each Bank agrees and acknowledges that if prior to the
reimbursing of any outstanding Swingline Loans pursuant to this Section 2.3, one
of the events described in Sections 7(e) shall have occurred, each Bank will, on
the date the applicable Revolving Credit Loan would have been made, purchase,
without warranty or recourse, an undivided participating interest in the
Swingline Loan to be reimbursed in an amount equal to its Pro-Rata Share of the
aggregate amount of such Swingline Loan. Each Bank will immediately transfer to
the Swingline Lender, in immediately available funds, the amount of its
participation and upon receipt thereof the Swingline Lender will deliver to such
Bank a certificate evidencing such participation dated the date of receipt of
such funds and for such amount. Whenever, at any time after the Swingline Lender
has received from any Bank such Bank's participating interest in a Swingline
Loan, the Swingline Lender receives any payment on account thereof, the
Swingline Lender will distribute to such Bank its participating interest in such
amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Bank's participating interest was outstanding
and funded).
The parties acknowledge that the Swingline Loan facility referred to
in this Section 2.3 is a subfacility of the Revolving Credit Loan facility
referred to in Section 2.2 above and, accordingly, its use by the Borrower shall
act to reduce, on a dollar-for-dollar basis, the amount of credit otherwise
available to the Borrower under such Revolving Credit Loan facility.
(b) Swingline Note. Swingline Loans made by the Swingline Lender shall
be evidenced by a promissory note of the Borrower in favor of the Swingline
Lender in substantially the form of Exhibit C hereto (as the same may be
amended, renewed, restated, replaced, consolidated or otherwise modified from
time to time, the "Swingline Note"). The Swingline Note shall be in a principal
amount equal to the total Swingline Loan Commitment then in effect and otherwise
duly completed.
2.4 Reduction and Changes of Commitments.
(a) The Borrower shall have the right to terminate in whole or reduce
in part the unused portion of the Commitments, upon notice as provided herein;
provided, however, that each reduction in the Revolving Credit Loan Commitments
is an amount of not less than $1,000,000 and whole multiples of $1,000,000;
provided, further, that no reduction shall be permitted if, after giving effect
thereto, and to any prepayment made therewith, the outstanding and unpaid
principal amount of the Loans shall exceed the Commitments. Any reduction in
part of the unused portion of a Bank's Revolving Credit Loan Commitment shall be
made in the proportion that such Bank's Revolving Credit Loan Commitment bears
to the total amount of the Revolving Credit Loan Commitments.
(b) The Borrower shall give the Agent notice (and the Agent shall
promptly notify the Banks in writing) at least three (3) Business Days prior to
any such reduction or termination provided in this Section 2.4.
(c) Commitments once reduced in accordance with Section 2.4(a) may not
be reinstated.
2.5 Pro Rata Treatment. Except as otherwise provided herein:
(a) each borrowing of Revolving Credit Loans hereunder shall be made
from the Banks, and each termination or reduction of the amount of the Revolving
Credit Loan Commitments shall
Credit Agreement - Page 10
be applied to such Commitments of the Banks, in each case in accordance with the
Banks' respective Pro-Rata Shares;
(b) each payment and prepayment by the Borrower of principal of or
interest on the Loans shall be made to the Agent for the account of the Banks in
accordance with their respective Pro-Rata Shares, and likewise each payment of
any Shared Fee (but not any other fees or amounts payable to the Agent whether
pursuant to a separate letter or otherwise) shall be made to the Agent for the
benefit of the Banks in accordance with their respective Pro-Rata Shares.
Section 3
Finance Charges, Repayment and Other Terms
3.1 Interest Rate.
(a) General.
(1) Revolving Credit Loans. Interest on each advance of a
Revolving Credit Loan hereunder shall accrue at an annual
rate equal to, at the Borrower's election, (i) the Libor
Rate plus 1.75% or (ii) the Daily Reset Libor Rate plus
1.75%, as the Borrower shall specify, pursuant to Section
3.7(a) below.
(2) Swingline Loans. Interest on each advance of a Swingline
Loan hereunder shall accrue at an annual rate equal to the
Daily Reset Libor Rate plus 1.75%.
(b) Default Rate. Notwithstanding the provisions of subsection 3.1(a)
above, upon or after the occurrence and during the continuation of any Event of
Default, the principal amount of each Loan shall bear interest at a per annum
rate equal to three percent (3%) above the interest rate that would otherwise
apply under Section 3.1(a) above (the "Default Rate").
(c) Late Fee. In addition to interest payable at the Default Rate or
any other amounts payable under this Agreement or the other Credit Documents,
the Borrower shall pay to the Agent a late fee in an amount equal to five
percent (5%) of the amount of each payment due under this Agreement which is not
received by any Bank within five (5) days after its due date.
(d) Unused Line Fee. The Borrower shall pay to the Agent (to be
allocated by the Agent to the Banks in accordance with their respective Pro-Rata
Shares), on the first day of each fiscal quarter, for the immediately preceding
fiscal quarter, an unused line fee (the "Unused Line Fee") at a rate per annum
equal to 0.375% for such preceding fiscal quarter of the difference between (a)
the Banks' total credit facility commitments set forth in Section 2.1 above, and
(b) the average outstanding principal balance at the end of each day for such
preceding fiscal quarter. Notwithstanding the above, the Unused Line Fee shall
not accrue during the Resting Period.
(e) Computation of Interest. Interest on the outstanding principal
balance of all Loans and all other Obligations, if any, under the Credit
Documents with respect to which interest accrues pursuant to the terms of this
Agreement shall be calculated on a daily basis, computed on the basis of a
360-day year for the actual number of days elapsed (or if the Agent so elects,
on the basis of twelve 30-day months for the actual number of days elapsed).
Credit Agreement - Page 11
(f) Usury. In no contingency or event whatsoever shall the aggregate
of all amounts deemed interest hereunder or under any Note and charged or
collected pursuant to the terms of this Agreement or any other Credit Documents
exceed the highest rate permissible under any law which a court of competent
jurisdiction shall, in a final determination, deem applicable thereto. If such a
court determines that any amount of interest charged or received hereunder or
under the other Credit Documents is in excess of the highest applicable rate,
any such excess shall be applied to any other Obligations then due and payable
by the Borrower under the Credit Documents, whether principal, interest, fees or
otherwise, and the remainder of such excess interest, if any, shall be refunded
to the Borrower, and such rate shall automatically be reduced to the maximum
rate permitted by such law.
3.2 Payments of Principal, Interest and Costs. Except as otherwise
provided in this Agreement, the Borrower agrees to pay, to the Agent for the
account of each Bank, the Borrower's obligations under the Credit Documents as
follows:
(a) Revolving Credit Loans.
(3) Interest. Accrued interest on the outstanding principal
balance of the Revolving Credit Loans of such Bank is
payable on: (A) in the case of a Revolving Credit Loan that
accrues interest at a Libor Rate, (i) the earlier of: (I)
the last day of each Interest Period or (II) the date that
is three months following the first day of the then current
Interest Period (beginning _____ __, 2007), or (B) in the
case of a Revolving Credit Loan that accrues interest at a
Daily Reset Libor Rate, on the first day of each month
(beginning _____ __, 2007), and (C) with respect to all
Revolving Credit Loans, the Termination Date.
(4) Principal. The outstanding principal balance of the
Revolving Credit Loans of such Bank is payable on the
Termination Date.
(b) Swingline Loans.
(1) Interest. Accrued interest on the outstanding principal
balance of Swingline Loans is payable on (A) the first day
of each month (beginning _____ __, 2007), and (B) the
Termination Date.
(2) Principal. The outstanding principal balance of the
Swingline Loans is payable on the Termination Date.
(c) Other Obligations. Costs, fees and expenses and any other
Obligations payable by the Borrower pursuant to this Agreement or
the other Credit Documents shall be payable as and when provided
in this Agreement or the other Credit Documents, as the case may
be, or, if no specific provision for payment is made, on demand.
3.3 Voluntary Prepayments. The Borrower shall have the right, without
penalty or premium, to prepay the Loans in whole or in part at any time and from
time to time after the Closing Date; provided; however, if the Borrower prepays
all or any part of a Loan on any day other than the last day of the then-current
Interest Period, the Borrower shall pay to the Agent the amounts due each Bank
under such circumstances in accordance with Section 3.17(c) of this Agreement.
Credit Agreement - Page 12
3.4 Mandatory Prepayments.
(a) Combined Loan to Value. If, at any time, the aggregate outstanding
principal balance of the Loans exceeds the Borrowing Base, the Borrower shall
immediately prepay the Loans in an amount sufficient to reduce the aggregate
unpaid principal balance of the Loans by an amount equal to such excess.
(b) Legal Requirement. If at any time the Borrower, the Agent or any
Bank, as the case may be, is required by applicable law to prepay or to cause to
be prepaid all or any portion of the Loans, the Borrower shall immediately
prepay the Loans in an amount sufficient to satisfy such legal requirement. For
purposes of the preceding sentence, "applicable law" and "legal requirement"
shall include, without limitation, any legal requirement or restriction imposed
by virtue of Regulation U of the Board of Governors of the Federal Reserve
System or the 1940 Act.
3.5 Method of Payment.
(a) Except as otherwise expressly provided herein, the Borrower shall
make each payment due under this Agreement, the Notes and the other Credit
Documents, in immediately available funds, without notice or demand, and without
exercising any right of set-off, deduction or counterclaim, not later than 1:00
p.m., Central Time, on the date when due, in Dollars, to the Agent at such
office as the Agent may designate from time to time by giving notice thereof to
the Borrower. Payments received after 1:00 p.m., Central Time, shall be deemed
received by the Agent on the next following Business Day, and interest shall
accrue on such amount until such next Business Day. Insofar as the Borrower's
obligations are concerned, payment to the Agent shall constitute payment to the
Banks.
(b) The Agent shall remit to each Bank its Pro-Rata Share of all
payments of principal and interest under the Loans and any Shared Fee received
by the Agent on the Business Day the Agent receives such payments; provided,
however, that if any such payment is received by the Agent after 2:00 p.m.,
Central Time, on such Business Day, then the Agent shall endeavor to remit to
each Bank its Pro-Rata Share of such payment on such Business Day but shall be
under no duty to do so. If the Agent fails to remit any such payment received
after 2:00 p.m., Central Time, on any Business Day, the Agent shall remit to
each Bank its Pro-Rata Share of such payment on the next following Business Day.
(c) All payments from the Agent to a Bank, and all payments from a
Bank to the Agent, in each case contemplated by this Agreement, shall be made by
electronic funds transfer or by such other means and pursuant to such
instructions as the Agent and such Bank may agree from time to time, any such
agreement to be confirmed in writing at the request of the Agent or such Bank.
(d) If the due date of any payment under this Agreement, the Notes or
any of the other Credit Documents would otherwise fall on a day which is not a
Business Day such payment date shall (unless otherwise expressly provided
herein) be extended to the immediately succeeding Business Day and interest
shall be payable for any principal so extended for the period of such extension.
3.6 Use of Proceeds. The Revolving Credit Loans shall be used solely for
purposes of: (1) the refinancing of the existing senior indebtedness of the
Borrower to U.S. Bank National Association; (2) the Borrower's acquisition of
investment property in the ordinary course of its business; (3) the Borrower's
general working capital and other general corporate needs; and (4) paying costs
and expenses incurred in connection with the closing of the transactions
contemplated by this Agreement.
Credit Agreement - Page 13
3.7 Notice and Manner of Borrowing.
(a) The Borrower shall give the Agent notice (and the Agent shall
promptly notify the Banks in writing) of each borrowing hereunder: (i) in the
case of a Loan that accrues interest based on a Daily Reset Libor Rate, by noon
Central Time of the Business Day such Loan is to be disbursed to the Borrower,
and (ii) in the case of a Loan that accrues interest at a rate other than a
Daily Reset Libor Rate, at least three (3) Business Days before the Business Day
such Loan is to be disbursed to the Borrower, and the Borrower shall specify and
provide: (i) the proposed funding date of such Loan, (ii) the amount of such
Loan and whether the Loan requested is a Revolving Credit Loan or a Swingline
Loan, (iii) if such Loan is to bear interest based on the Libor Rate, the
Interest Period requested by the Borrower for such Loan, (iv) the then current
total fair market value of the financial assets in the Securities Account and
any and all other assets of the Borrower, (v) a Borrowing Base Certificate,
substantially in the form of Exhibit D hereto, executed by an authorized officer
of the Borrower providing the current Borrowing Base and stating that the
Borrower is in compliance with all applicable leverage regulations of the 1940
Act; and (vi) only in the case of a Revolving Credit Loan, whether such Loan
shall accrue interest at a Daily Reset Libor Rate. All notices given under this
Section by the Borrower shall be irrevocable and shall be given not later than
11:00 a.m. Central Time on the day which is not less than the number of Business
Days specified above for such notice. For purposes of this Section, the Borrower
and the Banks agree that the Agent may rely and act upon any request for a Loan
from any individual who the Agent, absent gross negligence or willful
misconduct, believes to be a representative of the Borrower.
(b) Not later than 1:00 p.m., Central Time, on the date specified for
each borrowing hereunder, each Bank shall make available to the Agent the amount
of the Revolving Credit Loan to be made by it on such date, at such account
maintained by the Agent as the Agent shall specify, in immediately available
funds, for the account of the Borrower. The amount so received by the Agent
shall, subject to the terms and conditions of this Agreement, promptly be made
available to the Borrower by depositing the same, in immediately available
funds, in one or more accounts of the Borrower maintained with the Agent.
3.8 Minimum Amount. Each borrowing of a Loan that accrues interest at a
Daily Reset Libor Rate shall be in an amount of at least $250,000 and a whole
multiple of $25,000. Each borrowing of a Loan that accrues interest at a rate
other than a Daily Reset Libor Rate shall be in an amount of at least $1,000,000
and a whole multiple of $250,000.
3.9 Capital Adequacy. If the Agent determines that the adoption of any
law, rule or regulation regarding capital adequacy, or any change therein or in
the interpretation or application thereof or compliance by the Agent or the
Banks with any request or directive regarding capital adequacy (whether or not
having the force of law) from any central bank or governmental authority, does
or shall have the effect of reducing the rate of return on the Agent's or any
Bank's capital as a consequence of its obligations hereunder to a level below
that which the Agent or the Banks could have achieved but for such adoption,
change or compliance (taking into consideration the Agent's and the Banks'
policies with respect to capital adequacy) by an amount deemed by the Agent (or,
the Required Banks) to be material, then from time to time, after submission by
the Agent to the Borrower of a written demand therefor, the Borrower shall pay
to the Agent such additional amount or amounts as will compensate the Agent for
such reduction. A certificate of the Agent claiming entitlement to payment as
set forth in this Section shall be conclusive in the absence of manifest error.
Such certificate shall set forth the nature of the occurrence giving rise to
such payment, the additional amount or amounts to be paid to the Agent, and the
method by which such amounts were determined. In determining such amount, the
Agent may use any reasonable averaging and attribution method.
Credit Agreement - Page 14
3.10 Application of Payments and Collections. The Borrower irrevocably
waives the right to direct the application of any and all payments and
collections at any time or times after the Closing Date received by the Agent
from or on behalf of the Borrower, and the Borrower agrees that the Agent and
each affected Bank has the continuing exclusive right to apply and reapply any
and all such payments and collections received at any time or times after the
Closing Date by the Agent or its agent against the Obligations, in such manner
as the Agent and each affected Bank may deem advisable, notwithstanding any
entry by the Agent or any Bank upon any of its books and records.
3.11 Periodic Statement. The Agent may, in its sole discretion, account to
the Borrower with a periodic statement of loan balances, charges and payments
made or received pursuant to this Agreement, and any such statement rendered by
the Agent shall be deemed final, binding and conclusive upon the Borrower unless
the Agent is notified by the Borrower in writing to the contrary within 45 days
after the date such statement is made available to the Borrower. Any such notice
by the Borrower shall only be deemed an objection to those items specifically
objected to in such notice.
3.12 Non-Receipt of Funds by Agent.
(a) Unless the Agent shall have received notice from a Bank prior to
the date on which such Bank is to provide funds to the Agent for a Loan to be
made by such Bank that such Bank will not make available to the Agent such
funds, the Agent may assume that such Bank has made such funds available to the
Agent on the date of such Loan in accordance with Section 3.7 and the Agent in
its sole discretion may, but shall not be obligated to, in reliance on such
assumption, make available to the Borrower on such date a corresponding amount.
If, and to the extent such Bank shall not have so made such funds available to
the Agent, such Bank agrees to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is repaid to the Agent, at the customary rate set by the Agent for
the correction of errors among banks for three (3) Business Days and thereafter
at the Prime Rate. If such Bank does not pay such corresponding amount forthwith
upon the Agent's demand therefore, the Agent shall promptly notify the Borrower,
and the Borrower shall immediately pay such corresponding amount to the Agent
with interest thereon, for each day from the date such amount is made available
to the Borrower until the date such amount is repaid to the Agent, at the rate
of interest applicable at the time to such proposed Loan.
(b) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Banks hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
in its sole discretion may, but shall not be obligated to, in reliance upon such
assumption, cause to be distributed to each Bank on such due date an amount
equal to the amount then due such Bank. If and to the extent the Borrower shall
not have so made such payment in full to the Agent, each Bank shall repay to the
Agent forthwith on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the Agent, at the customary
rate set by the Agent for the correction of errors among banks for the three
Business Days and thereafter at the Prime Rate.
3.13 Several Obligations. The failure of any Bank to make any Loan to be
made by it on the date specified therefor shall not relieve any other Bank of
its obligation to make its Loan on such date, but neither any Bank nor the Agent
shall be responsible for the failure of any other Bank to make a Loan to be made
by such other Bank.
3.14 Benefits of Collateral. The Agent shall hold all of the Collateral,
along with all payments and proceeds arising therefrom, for the benefit of all
Banks as ratable security for the payment of the Obligations. Upon payment in
full of the Obligations, the Agent shall release all of the Collateral
Credit Agreement - Page 15
remaining in the Agent's possession to the Borrower and shall notify each Bank
of such action. The Agent, in its own name or in the name of the Borrower, may
enforce any of the Collateral or the security therefor by any mode provided
under the Credit Documents or by applicable law, and may collect, receive and
receipt for all proceeds receivable on account of ownership of the Collateral.
3.15 Proceeds from Collateral. To the extent that the Collateral includes
notes or other instruments evidencing any monetary obligation to, or interest of
the Borrower, the Borrower shall deliver to the Agent letters, executed by the
Borrower and approved by counsel for the Agent, notifying the obligors to make
payments directly to the Agent, such letters to be held by the Agent and sent to
such obligors at its discretion. All payments and proceeds of every kind from
the Collateral, when directly received by the Agent (whether from payments on or
with respect to the Collateral, from foreclosure and sales to third parties,
from sale of Collateral subsequent to a foreclosure at which the Agent or any
Bank was the purchaser, or otherwise) shall be held by the Agent as part of the
Collateral and, except as otherwise expressly provided hereinafter, shall be
applied to the Obligations pursuant to Section 3.7(b) above.
3.16 Balance; Sharing of Payments.
(a) If any Bank shall obtain payment of any principal of or interest
on any Loan through the exercise of any right of set-off, banker's lien or
counterclaim or similar right or otherwise, and, as a result of such payment,
such Bank shall have received a greater percentage of the principal or interest
then due hereunder by the Borrower to such Bank than its Pro-Rata Share thereof,
it shall promptly purchase from such other Banks participations in (or, if and
to the extent specified by such Bank, direct interests in) the Loans made by
such other Banks (or in interest due thereon, as the case may be) in such
amounts, and make such other adjustments from time to time as shall be
equitable, to the end that all the Banks shall share the benefit of such excess
payment (net of any expenses which may be incurred by such Bank in obtaining or
preserving such excess payment) pro rata in accordance with the unpaid principal
and/or interest on the Loans held by each of the Banks. To such end, all the
Banks shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored. The Borrower agrees that any Bank so purchasing a participation (or
direct interest) in the Loans made by other Banks (or in interest due thereon,
as the case may be) may exercise any and all rights of set-off, bankers' lien,
counterclaim or similar rights with respect to such participation as fully as if
such Bank were a direct holder of Loans in the amount of such participation.
Nothing in this Agreement shall require any Bank to exercise any such right or
shall affect the right of any Bank to exercise, and retain the benefits of
exercising, any such right with respect to any other indebtedness or obligation
of the Borrower. If, under any applicable bankruptcy, insolvency or other
similar law, any Bank receives a secured claim in lieu of a set-off to which
this Section 3.16 applies, such Bank shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Banks entitled under this Section 3.16 to share in the benefits of
any recovery on such secured claim.
(b) Notwithstanding anything to the contrary in Sections 3.16(a) or
(b) above, if any Bank at any time has a separate credit relationship with the
Borrower - separate and apart from such Person's credit relationship with the
Borrower under this Agreement and the other Credit Documents - and such Person
exercises any right of set-off, banker's lien or other right or claim with
respect to any amounts due such Person by the Borrower under any such separate
credit relationship, then all proceeds of such set-off, banker's lien or other
right or claim, as the case may be, shall first be applied against the
Borrower's obligations under this Agreement and the other Credit Documents,
before being applied against the Borrower's obligations under such separate
credit relationship.
Credit Agreement - Page 16
3.17 Libor Loan Provisions.
(a) Market Disruption. Notwithstanding anything herein to the
contrary, if, prior to the determination of any Libor Rate or Daily Reset Libor
Rate, any Bank determines (in its sole discretion and which determination shall
be conclusive) that any condition exists which impairs such Bank's ability to
readily and reliably ascertain the Libor Rate or Daily Reset Libor Rate, as the
case may be, for Loans (whether due to disruption in the relevant markets,
suspension of quotations, or otherwise), then such Bank shall give the Borrower
prompt notice thereof (with a copy to the Agent), and so long as such condition
remains in effect, interest shall accrue on the Loans at a rate designated by
the Agent which shall be the Agent's Prime Rate. Such Bank agrees to give notice
to the Borrower (with a copy to the Agent) promptly after the circumstances
specified in this Section no longer exist.
(b) Illegality; Regulatory Change. Notwithstanding anything herein to
the contrary, if it becomes unlawful for any Bank to honor its obligation to
make or maintain Loans hereunder, then such Bank shall promptly notify the
Borrower thereof (with a copy to the Agent), and for the period of such
illegality, interest shall accrue on the Loans at a rate designated by the Agent
which shall be the Agent's Prime Rate. Furthermore, if, by reason of any
Regulatory Change, any Bank becomes subject to restrictions on the amount of a
category of deposits or liabilities which it may hold which includes deposits by
reference to which the interest rate on Loans is determined as provided in this
Agreement or a category of assets of such Bank which includes Loans for which
the interest rate is determined on the basis of a Libor Rate or a Daily Reset
Libor Rate, then, if such Bank so elects by notice to the Borrower thereof (with
a copy to the Agent), interest shall, for the duration of such Regulatory
Change, accrue on the Loans made by such Bank at a rate designated by the Agent
which shall be the Agent's Prime Rate. Such Bank agrees to give notice to the
Borrower (with a copy to the Agent) promptly after the circumstances specified
in this Section no longer exist.
(c) Breakage Costs; Funding Indemnification. If any payment or
prepayment is made or applied in respect of any Loan before the last day of the
applicable Interest Period (whether due to voluntary prepayment, acceleration of
the Loan, or otherwise), the Borrower shall pay to the Agent, as liquidated
damages for the loss of the bargain and/or anticipated resulting damages and not
as a penalty, an amount which, when added to the interest otherwise accruing in
respect of such Loan, would enable the Banks to realize the rate due on the
Loans hereunder on the principal amount of such Loan for the entirety of such
Interest Period. Similarly, if the Borrower fails to borrow any Loan on the date
for borrowing specified hereunder, the Borrower shall pay to the Agent such
amount as shall be sufficient, in the reasonable judgment of the Agent, to
compensate it for any loss, cost or expense resulting therefrom.
Section 4
Lending Conditions
4.1 Credit Documents. Notwithstanding anything herein or in the other
Credit Documents to the contrary, the Banks shall not be obligated to make the
initial Loans under this Agreement to the Borrower until the Agent shall have
received the following documents, duly executed and delivered by all parties
thereto, and otherwise satisfactory in form and content to the Agent:
(a) Credit Agreement. This Agreement;
(b) Notes. The Revolving Credit Notes and the Swingline Note;
(c) Security Agreement. The Security Agreement;
Credit Agreement - Page 17
(d) UCC Financing Statements. UCC-1 financing statements from the
Borrower, as debtor, to the Agent and the Banks, as secured
parties, covering the Collateral, from such jurisdictions as the
Agent, in its sole discretion, deems necessary or desirable to
perfect its security interest in the Collateral;
(e) Control Agreement. The Control Agreement;
(f) Loan Disbursement Instructions; Borrowing Base Certificate.
Written instructions from the Borrower to the Agent directing the
disbursement of proceeds of the initial Loans made pursuant to
this Agreement, and an initial Borrowing Base Certificate from
the Borrower reflecting that the Borrower has sufficient assets
to support Loans in the amount requested by the Borrower on the
date of such certificate;
(g) Form U-1. A Form U-1 for the Borrower whereby, among other
things, the Borrower represents and warrants that the proceeds of
each Loan may be used to purchase or carry margin stock, the
Borrower hereby concurring with the assessment of the market
value of any margin stock and other investment property described
therein as of the date provided therein;
(h) Opinion of Borrower's Counsel. The favorable written opinion to
the Agent of Blackwell Sanders Peper Martin LLP, counsel to the
Borrower, regarding the Borrower, the Credit Documents, the
transactions contemplated by this Agreement and the other Credit
Documents and such other matters and in such form as the Agent
may reasonably require;
(i) Certificate of Borrower's Secretary. A certificate executed by
the Borrower's secretary whereby such secretary affirms that,
among other things, attached to such certificate is (1) a copy of
the Borrower's board resolutions authorizing the borrowing of
monies, the granting of Liens and all other matters set forth in
or contemplated by the Credit Documents, (2) a copy of the
Borrower's by-laws in effect on the Closing Date, (3) a copy of
the Borrower's articles or certificate of incorporation and all
amendments thereto, and (4) a certificate of good standing for
the Borrower, dated on or not more than 10 days prior to the
Closing Date, from the Secretary of State of the state of
incorporation of the Borrower and from the Secretary of State of
Kansas; and
(j) Other Items. Such other agreements, documents and assurances as
the Agent may reasonably request in connection with the
transactions described in or contemplated by the Credit
Documents.
If the Agent, in its sole and absolute discretion, elects to make a Loan
notwithstanding the Borrower's failure to comply with all of the terms of this
Section, then the Agent or any Bank shall not be deemed to have waived the
Borrower's compliance therewith, nor to have waived any of the Agent's or Banks'
other rights under this Agreement; and in any event the Agent, if it so elects,
may declare an immediate Event of Default if the Borrower fails to furnish to
the Agent on demand any of the Credit Documents described in this Section or
otherwise fails to comply with any condition precedent set forth in any Credit
Document, in each case irrespective of whether such failure occurs on or after
the Closing Date or the making of such Loan.
Credit Agreement - Page 18
4.2 Additional Conditions Precedent to Initial Loans. The obligation of
each Bank to make the initial Loans under this Agreement shall also be subject
to the satisfaction, in the Agent's sole judgment, of each of the following
conditions precedent:
(a) Since the date of the most recent financial statements of the
Borrower submitted by the Borrower to the Agent immediately prior
to the Closing Date, there shall not have occurred any act or
event which could reasonably be expected to have a Material
Adverse Effect;
(b) No action, proceeding, investigation, regulation or legislation
shall have been instituted, threatened or proposed before any
court, governmental agency or legislative body to enjoin,
restrain or prohibit, or to obtain damages in respect of, or
which is related to or arises out of this Agreement or the other
Credit Documents or the consummation of the transactions
contemplated hereby or thereby or which, in the Agent's
reasonable determination, would make it inadvisable to consummate
the transactions contemplated by this Agreement or the other
Credit Documents; and
(c) The Borrower shall have paid all legal fees and other closing or
like costs and expenses of the Agent and the Banks which the
Borrower is obligated to pay hereunder.
4.3 Conditions Precedent to All Loans. The obligation of each Bank to make
each Loan under this Agreement (including, without limitation, the initial Loan)
shall be subject to the further conditions precedent that, on the date of each
such Loan:
(a) The following statements shall be true: (1) the representations
and warranties of the Borrower contained in this Agreement and
the other Credit Documents are correct on and as of the date of
such Loan as though made on and as of such date, and (2) there
exists no Default or Event of Default as of such date, nor would
any Default or Event of Default result from the making of the
Loan requested by the Borrower;
(b) The Borrower shall have signed and sent to the Agent a request
for borrowing, setting forth in writing the amount of the Loan
requested and the other information required pursuant to Section
3.7 of this Agreement;
(c) The Borrower shall have furnished to the Agent a completed
Borrowing Base Certificate, signed by the Borrower, and dated not
more than one day prior to the date of the Borrower's request for
such Loan; and
(d) The Agent shall have received such other approvals, opinions or
documents as it may reasonably request.
The Borrower agrees that the making of a request by the Borrower for a Revolving
Credit Loan or Swingline Loan, whether in writing, by telephone or otherwise,
shall constitute a certification by the Borrower that all representations and
warranties of the Borrower in the Credit Documents are true as of the date
thereof and that all required conditions to the making of the Revolving Credit
Loan and/or Swingline Loan have been met.
Credit Agreement - Page 19
Section 5
Representations and Warranties
5.1 Representations, Warranties and Covenants of the Borrower. The Borrower
represents, and warrants to the Agent and the Banks as follows:
(a) Organization and Existence. The Borrower (1) is a corporation duly
incorporated, validly existing and in good standing under the laws of the state
of its incorporation as reflected in the introductory paragraph of this
Agreement, (2) is in good standing in all other jurisdictions in which it is
required to be qualified to do business as a foreign corporation, and (3) has
obtained all licenses and permits and has filed all registrations necessary to
the operation of its business; except where the failure to so qualify or to
obtain such licenses or permits could not reasonably be expected to have a
Material Adverse Effect.
(b) Authorization by the Borrower. The execution, delivery and
performance by the Borrower of the Credit Documents (1) are within the
Borrower's corporate powers, (2) have been duly authorized by all necessary
corporate or similar action, (3) do not contravene the Borrower's articles or
certificate of incorporation or by-laws, or any law or contractual restriction
binding on or affecting the Borrower or its properties, and (4) do not result in
or require the creation of any Lien upon any of the Collateral other than a Lien
in favor of the Borrower's existing or future assets.
(c) Approval of Governmental Bodies. No authorization or approval or
other action by, and no notice to or filing with, any Governmental Authority or
regulatory body is required for the due execution, delivery and performance by
the Borrower of the Credit Documents or the exercise by the Bank of its rights
thereunder, including, without limitation, the sale or other disposition of any
of the Collateral to any Person.
(d) Default or Event of Default. No Default or Event of Default has
occurred or is occurring.
(e) Disclosure. Neither this Agreement, nor any of the other Credit
Documents, nor any certificate or statement furnished to the Agent or any Bank
in connection herewith or otherwise, at the time it was executed, delivered
and/or furnished, contained any untrue statement of material fact, or omitted to
state a material fact which was necessary in order to make the statements
contained herein or therein not materially misleading. There is no fact known to
the Borrower which is expected to result in a Material Adverse Effect.
(f) Enforceability of Obligations. The Credit Documents are the legal,
valid and binding obligations of the Borrower enforceable against the Borrower
in accordance with their respective terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium, or similar
laws affecting the enforceability of creditors' rights generally and subject to
the discretion of courts in applying equitable remedies.
(g) Financial Statements. All financial statements of the Borrower
which have been furnished to the Agent and/or the Banks fairly present the
financial condition of the Borrower, as of the dates reflected on the financial
statements, and fairly present the results of its operations for the period
covered thereby, all in accordance with GAAP, except for the omission of
footnotes in interim financial statements and subject to normal year-end
adjustments. There has been no material adverse change in the financial
condition or results from operations of the Borrower since the dates of the most
recent financial statements of the Borrower submitted to the Agent and/or the
Banks.
Credit Agreement - Page 20
(h) Litigation. There is no pending or threatened action or proceeding
affecting the Borrower or any of its properties before any court, governmental
agency or arbitrator which, if determined adversely to the Borrower, could
reasonably be expected to have a Material Adverse Effect.
(i) Existing Debt. The Borrower has no Debt other than Permitted Debt.
(j) Taxes. The Borrower has filed all required federal, state, local
and other tax returns and has paid, or made adequate provision for the payment
of, any taxes due pursuant thereto or pursuant to any assessment received by the
Borrower except such taxes, if any, as are being contested in good faith and as
to which adequate reserves have been provided.
(k) Stock and Records; Existing Subsidiary. All outstanding capital
stock of the Borrower was and is properly issued, and all books and records of
the Borrower, including but not limited to its minute books, by-laws and books
of account, are accurate and complete in all material respects. The Borrower is
not obligated on or after the Closing Date to redeem or otherwise acquire, or
pay any dividends or make any other distributions in respect of, any of its
stock. As of the date of this Agreement, the Borrower has only one subsidiary.
Borrower's subsidiary is named "Mowood, LLC" and which is a natural gas local
distribution company whose sole asset is a pipeline located in Fort Leonard Wood
Army Base in Southwest Missouri.
(l) Contracts. The Borrower is not in default under or has not
otherwise violated the terms of any contract or other agreement to which such
Person is a party or by which such Person is bound, except for any such default
the consequences of which would not have a Material Adverse Effect.
(m) Hazardous Materials. The Borrower has complied with all
Environmental Laws and all of its facilities, leaseholds, assets and other
property comply with all Environmental Laws, except where such failure to comply
could not reasonably be expected to have a Material Adverse Effect. There are no
outstanding or threatened citations, notices or orders of non-compliance issued
to the Borrower or relating to its facilities, leaseholds, assets or other
property. The Borrower has been issued all licenses, certificates, permits or
other authorizations required under any Environmental Law or by any federal,
state or local governmental or quasi-governmental entity, except where the
failure to obtain such license, certificate, permit or other authorization could
not reasonably be expected to have a Material Adverse Effect.
(n) Negative Pledges. The Borrower is not a party to or bound by any
indenture, contract or other instrument or agreement which prohibits the
creation, incurrence or sufferance to exist of any Lien upon any of the
Collateral.
(o) Title to Property; Liens. The Borrower has good and marketable
title to all assets and other property purported to be owned by it, and the
Banks have a perfected first priority Lien therein subject to no other Liens
except for Permitted Liens.
(p) Insolvency. After the execution and delivery of the Credit
Documents and the disbursement of the Loans hereunder, the Borrower will not be
insolvent within the meaning of the United States Bankruptcy Code or unable to
pay its debts as they mature.
(q) Survival of Representations. All representations and warranties
made in this Section 5 shall survive the execution and delivery of the Credit
Documents and the making of the Loans.
Credit Agreement - Page 21
Section 6
Covenants
6.1 Affirmative Covenants. So long as any Obligation remains unpaid or the
Banks have any commitment to extend credit to or for the benefit of the
Borrower, the Borrower covenants to the Agent and the Banks as follows:
(a) Compliance with Laws. The Borrower shall comply with all
applicable laws, rules, regulations and orders affecting the Borrower or its
properties, including, without limitation, all ERISA and all Environmental Laws,
except where such failure to comply could not reasonably be expected to have a
Material Adverse Effect. Without limiting the foregoing, the Borrower shall
remain in material compliance, at all times, with the 1940 Act, including but
not limited to, all leverage regulations specified in the 1940 Act.
(b) Reporting Requirements. The Borrower shall furnish to the Agent:
(1) Quarterly Statements. As soon as available and in any event
within 60 days after the end of each fiscal quarter of the
Borrower, an internally prepared balance sheet of the
Borrower as of the end of such quarter and internally
prepared income statements as of the end of such quarter for
such quarter and for the fiscal year-to-date, each certified
to the Agent by the Borrower's chief financial officer as to
fairness of presentation and conformity with GAAP;
(2) Audited Year-End Statements. As soon as available and in any
event within 120 days after the end of each fiscal year of
the Borrower, final audited financial statements (as
described above but including a statement of changes in
financial position) as of the end of such fiscal year of the
Borrower reported on by and accompanied by the unqualified
opinion of independent certified public accountants selected
by the Borrower and reasonably acceptable to the Agent, and
a copy of any management, operation or other letter or
correspondence from such accountant to the Borrower in
connection therewith;
(3) Borrowing Base Certificate. So long as any Loan remains
unpaid, and within 14 days after the end of each calendar
month, a Borrowing Base Certificate;
(4) Independent Valuation. So long as any Loan remains unpaid,
and at least once each calendar year, a validation of the
valuation of all of the securities in respect of the
Borrower's business, in which a market quotation of such
securities is not readily available based on fair market
value; provided, however, that in the event a validation of
a valuation of any such security occurs more frequently than
annually, the Borrower shall provide such validation to the
Agent; provided further, the Agent may request, more
frequently than annually, and is entitled to validations of
valuations of any such securities if any event occurs that
could reasonably be expected to have a Material Adverse
Effect. Such valuations and validations shall be at the
Borrower's sole cost and provided in writing by an
independent third party, as reasonably acceptable to the
Agent; and
Credit Agreement - Page 22
(5) Other. Such other information respecting the condition or
operations, financial or otherwise, of the Borrower as the
Agent may reasonably request from time to time.
All financial statements described in clauses (1) and (2) above shall be
prepared in accordance with GAAP on a basis applied consistently with the
financial statements of the Borrower delivered to the Agent for the period
ending most immediately prior to the Closing Date, except that unaudited
financial statements shall be subject to normal year-end audit adjustments and
need not contain footnotes.
(c) Preservation of Business and Corporate Existence. The Borrower
shall: (1) carry on and conduct its principal business substantially as it is
now being conducted; (2) maintain in good standing its existence and its right
to transact business in those states in which it is now or may after the Closing
Date be doing business; and (3) maintain all licenses, permits and registrations
necessary to the conduct of its business; except where the failure to so
maintain its right to transact business or to maintain such licenses, permits or
registrations could not reasonably be expected to have a Material Adverse
Effect.
(d) Insurance. The Borrower shall keep insured at all times with
financially sound and reputable insurers which are reasonably satisfactory to
the Agent (1) all of the Borrower's property of an insurable nature, including,
without limitation, all real estate, equipment, fixtures and inventories,
against fire and other casualties in such a manner and to the extent that like
properties are usually insured by others owning properties of a similar
character in a similar locality or as otherwise required by the Agent, with the
proceeds of such casualty insurance payable solely to the Agent, and (2) against
liability on account of damage to persons or property (including product
liability insurance and all insurance required under all applicable worker's
compensation laws) caused by the Borrower or its officers, directors, employees,
agents or contractors in such a manner and to the extent that like risks are
usually insured by others conducting similar businesses in the places where the
Borrower conducts its business or as otherwise required by the Agent, with the
Agent being named as an additional insured under such liability policies. The
Borrower shall cause the insurers under all of its insurance policies to provide
the Agent at least 30 days prior written notice of the termination of any such
policy before such termination shall be effective and to agree to such other
matters in respect of any such casualty insurance as provided in the Agent's
loss payee endorsement provided to the Borrower. In addition, the Borrower will,
upon request of the Agent at any time, furnish a written summary of the amount
and type of insurance carried, the names of the insurers and the policy numbers,
and deliver to the Agent certificates with respect thereto.
(e) Payment of Taxes. The Borrower shall pay and discharge, before
they become delinquent, all taxes, assessments and other governmental charges
imposed upon it, its properties, or any part thereof, or upon the income or
profits therefrom and all claims for labor, materials or supplies which if
unpaid might be or become a Lien or charge upon any of its property, except such
items as it is in good faith appropriately contesting and as to which adequate
reserves have been provided to the Agent's satisfaction.
(f) Employee Plans. The Borrower shall: (1) notify the Agent promptly
of the establishment of any Plan, except that prior to the establishment of any
"welfare plan" (as defined in Section 3(1) of ERISA) covering any employee of
the Borrower for any period after such employee's termination of employment
other than such period required by the Consolidated Omnibus Budget
Reconciliation Act of 1986 or "defined benefit plan" (as defined in Section
3(35) of ERISA), it will obtain the Agent's prior written approval of such
establishment; (2) at all times make prompt payments or contributions to meet
the minimum funding standards of Section 412 of the Internal Revenue Code of
1986, as amended, with respect to each Plan; (3) promptly after the filing
thereof, furnish to the Agent
Credit Agreement - Page 23
a copy of any report required to be filed pursuant to Section 103 of ERISA in
connection with each Plan for each Plan year, including but not limited to the
Schedule B attached thereto, if applicable; (4) notify the Agent promptly of any
"reportable event" (as defined in ERISA) or any circumstances arising in
connection with any Plan which might constitute grounds for the termination
thereof by the Pension Benefit Guaranty Corporation or for the appointment by
the appropriate United States District Court of a trustee to administer the
Plan, the initiation of any audit or inquiry by the Internal Revenue Service or
the Department of Labor of any Plan or transaction(s) involving or related to
any Plan, or any "prohibited transaction" as defined in Section 406 of ERISA or
Section 4975(c) of the Internal Revenue Code of 1986, as amended; (5) notify the
Agent prior to any action that could result in the assertion of liability under
Subtitle E of Title IV of ERISA caused by the complete or partial withdrawal
from any multiemployer plan or to terminate any defined benefit plan sponsored
by the Borrower; and (6) promptly furnish such additional information concerning
any Plan as the Agent, it its sole discretion, may from time to time request.
(g) Notice of Default. The Borrower shall give prompt written notice
to the Agent of the occurrence of any Default or Event of Default under any of
the Credit Documents. Similarly, the Borrower shall give prompt written notice
to the Agent of any failure to pay, perform or observe or any other default by
the Borrower under any other existing or future agreement by which the Borrower
is bound if such default could reasonably be expected to have a Material Adverse
Effect.
(h) Books and Records; Inspection; Audits. The Borrower shall: (1)
maintain complete and accurate books and financial records in accordance with
GAAP (except that interim financial statements need not contain footnotes and
may be subject to normal year-end audit adjustments); (2) during normal working
hours permit the Agent, the Banks and Persons designated by the Agent and the
Banks to visit and inspect its properties and to inspect its books and financial
records (including its journals, orders, receipts and correspondence which
relates to its accounts receivable), and to discuss its affairs, finances and
accounts receivable and operations with its directors, officers, employees and
agents and its independent public accountants; and (3) permit the Agent, the
Banks and Persons designated by the Agent and the Banks to perform reviews of
such books and financial records when and as requested by the Agent or any Bank.
(i) Agent May Perform Obligations; Further Assurances. After and
during the continuation of an Event of Default, the Borrower shall permit the
Agent, if the Agent so elects in its sole discretion, to pay or perform any of
the Borrower's Obligations hereunder or under the other Credit Documents and to
reimburse the Agent, on demand, or, if the Agent so elects, by the Agent making
a Revolving Credit Loan on the Borrower's behalf and disbursing the same to the
appropriate Persons, for all amounts expended by or on behalf of the Agent in
connection therewith and all reasonable costs and expenses incurred by or on
behalf of the Agent in connection therewith. The Borrower agrees to execute,
deliver or perform, or cause to be executed, delivered or performed, all such
documents, agreements or acts, as the case may be, as the Agent may reasonably
request from time to time to create, perfect, continue or otherwise assure the
Bank with respect to any Lien created or purported to be created by any of the
Credit Documents or to otherwise create, evidence or assure the Agent's or any
Bank's rights and remedies under, or as contemplated by, the Credit Documents or
at law or in equity.
(j) Securities Account. The Borrower shall deliver to the Agent,
promptly after its receipt thereof, a copy of the monthly account statement for
the Securities Account. The Borrower further agrees that the Agent shall have
the right, should it so elect, to monitor the Securities Account from time to
time on a "real time" or other electronic basis, and to that end the Borrower
hereby irrevocably authorizes and instructs the Securities Intermediary to take
such steps as may be necessary to allow the Agent to so monitor the Securities
Account. The foregoing right to monitor the Securities Account shall give the
Agent the right to monitor all aspects of the Securities Account, including,
without
Credit Agreement - Page 24
limitation, the right to monitor all financial assets held therein and all
trading activity relating thereto. The Borrower agrees to indemnify and hold the
Securities Intermediary harmless from and against any losses, damages or
expenses the Securities Intermediary may incur as a result of the Securities
Intermediary permitting the Agent to monitor the Securities Account as provided
in this Section, except for any such losses, damages or expenses that arise out
of the Securities Intermediary's gross negligence or willful misconduct. The
Securities Intermediary shall be a third-party beneficiary of this Section.
(k) Daily Securities Account Information. In the event that the Agent
is not the custodian of the Securities Account and the financial assets held
therein, the Borrower shall before the end of each Business Day directly provide
the Agent such information as the Agent may request to allow monitoring of the
Securities Account, including the financial assets held therein and all trading
activity relating thereto, on a daily basis. The Agent shall have the right,
should it so elect to monitor the Securities Account from time to time on a
"real time" or other electronic basis, and to that end, Borrower, if so
requested by the Agent, will take appropriate action to authorize and instruct
the custodian of the Securities Account to take such steps as necessary to allow
the Agent to so monitor the Securities Account, not less frequently than at the
end of each Business Day.
(l) Litigation. The Borrower shall promptly give to the Agent and the
Banks, notice of:
(1) any pending or threatened action or proceeding affecting the
Borrower or any of its properties before any court,
governmental agency or arbitrator which, if determined
adversely to the Borrower, could reasonably be expected to
have a Material Adverse Effect.
(2) (i) the issuance by any Governmental Authority of any
injunction, order or other restraint prohibiting, or having
the effect of prohibiting or delaying, any action on the
part of the Borrower, or (ii) the institution of any
litigation or similar proceedings seeking any such
injunction, order or other restraint which, in the case of
subpart (i) hereof, would have, and in the case of subpart
(ii) hereof, would reasonably be expected to have if the
outcome were adverse, a Material Adverse Effect.
6.2 Negative Covenants. So long as any Obligation remains unpaid or the
Banks have any commitment to extend credit to or for the benefit of the
Borrower, the Borrower covenants to the Agent and the Banks as follows:
(a) Liens. The Borrower shall not create or suffer to exist any Lien
on or with respect to any of its properties, whether the Borrower owns or has an
interest in such property on the Closing Date or at any time thereafter, except
for Permitted Liens. If, notwithstanding the foregoing, the Borrower at any time
creates or suffers to exist any Lien (other than a Permitted Lien) on any
Property, including, if applicable, any proceeds thereof (such Property and, if
applicable, such proceeds being collectively referred to herein as "Encumbered
Property"), to secure any Debt (including, without limitation, any Debt
evidenced by any of the Senior Notes), the Borrower shall be deemed to have
granted to the Agent and the Banks at such time, without further action on any
Person's part, a security interest in the Encumbered Property as security for
all existing and future obligations of the Borrower to the Agent and the Banks
under the Credit Documents. In such event and insofar as the Encumbered Property
consists of the Securities Account or any financial assets held therein: (1) the
Agent and the Securities Intermediary shall be authorized - without notice to,
the consent of or other action by the Borrower - to take such action as the
Agent deems necessary or advisable to perfect or otherwise assure the Agent with
respect to such security interest (including, without limitation, to provide the
Agent control of the
Credit Agreement - Page 25
Encumbered Property held in the Securities Account, as the term "control" is
defined in ss.8-106(d)(2) of the Uniform Commercial Code as in effect in any
jurisdiction); and (2) if so requested by the Agent, the Borrower, at its
expense, shall cause the holder of any such Lien granted to a Person other than
the Agent or the Banks to take such action as the Agent reasonably deems
necessary or advisable to cause the priority of such Lien to rank on a pari
passu basis with the Agent's and the Banks' Liens.
(b) Debt. The Borrower shall not create or suffer to exist any Debt
except for Permitted Debt. The Borrower shall not prepay any Debt; provided,
however, the Borrower shall be permitted to prepay any Loans and/or Obligations
under this Agreement.
(c) Structure; Disposition of Assets. The Borrower shall not merge or
consolidate with or otherwise acquire, or be acquired by, any other Person;
provided, however, that the foregoing prohibition on acquisitions by the
Borrower shall not prohibit the Borrower from acquiring investment property in
the ordinary course of its business provided such investment property is
promptly credited to the Securities Account. The Borrower shall not sell, lease
or otherwise transfer any property, except for the disposition of obsolete
equipment, the sale or other disposition of investment property in the ordinary
course of the Borrower's business, and as otherwise permitted under the Security
Agreement and the Control Agreement with respect to the Collateral.
(d) Subsidiaries; New Business. The Borrower shall not (a) change its
corporate structure or create any subsidiary, (b) render any services or
otherwise enter into any business which is not substantially similar to that
existing on the Closing Date or (c) liquidate, wind-up or dissolve itself.
(e) Conflicting Agreements. The Borrower shall not enter into any
agreement any term or condition of which conflicts with any provision of this
Agreement or the other Credit Documents.
(f) Changes in Accounting Principles; Fiscal Year. The Borrower shall
not make any change in its principles or methods of accounting as currently in
effect, except such changes as are required by GAAP, nor shall the Borrower,
without first obtaining the Agent's written consent, change its fiscal year.
(g) Dividends and Distributions. So long as a Default or an Event of
Default is occurring, the Borrower shall not declare or pay, directly or
indirectly, any dividend or make any other distribution (by reduction of capital
or otherwise), whether in cash, property, securities or otherwise, with respect
to any shares of its capital stock or directly or indirectly redeem, purchase,
retire or otherwise acquire for value any shares of any class of its capital
stock or set aside any amount for any such purpose.
(h) Investments and Joint Ventures. The Borrower shall not make or
permit to remain outstanding any investment in any Person or enter into any
joint venture; provided, however, Borrower shall not be prohibited from making
or permitting to remain outstanding any investment in the ordinary course of its
business; and provided further, Borrower may purchase interest rate protection
in a form acceptable to the Agent and the Banks.
(i) Transactions With Affiliates. Other than the advisor relationship
existing on the Closing Date with Tortoise Capital Advisors, LLC, the Borrower
shall not enter into or be a party to any transaction or arrangement, including
without limitation, the purchase, sale or exchange of property of any kind or
the rendering of any service, with any Affiliate, except in the ordinary course
of and pursuant to the reasonable requirements of the Borrower's business and
upon fair and reasonable terms substantially as favorable to the Borrower as
those which would be obtained in a comparable arms-length transaction with a
non-Affiliate.
Credit Agreement - Page 26
(j) Amount Invested in Single MLP. The Borrower shall not make any
investment in any single master limited partnership or other single issuer if,
immediately after giving effect to such investment, the aggregate fair market
value of all investments in such issuer would exceed 25% of the Borrower's total
assets at such time.
Section 7
Events of Default
7.1 Events of Default. Each of the following events shall constitute an
Event of Default hereunder:
(a) General. The Borrower fails to pay, perform or observe any
Obligation or any other term, covenant or other provision in any
Credit Document in accordance with the terms thereof and, if such
default is curable, the Borrower fails to cure such default
within five days after written notice from the Agent specifying
in reasonable detail the nature of such default is received by
the Borrower; or
(b) Other Bank Default. Any "Event of Default" (as such term is
defined in any other Credit Document to which the Borrower is a
party) occurs; or
(c) Misrepresentation. Any representation or warranty made or
furnished by the Borrower in connection with this Agreement or
the other Credit Documents proves to be incorrect, incomplete or
misleading in any material respect when made, or any such
representation or warranty becomes incorrect, incomplete or
misleading in any material respect and the Borrower fails to give
the Agent prompt written notice thereof; or
(d) Cross-Default. The Borrower fails to pay any Debt (other than any
monetary Obligation due the Agent or any Bank under the Credit
Documents, as contemplated by Subsection (a) above) or to perform
or observe any other obligation or term in respect of such Debt,
and, as a result of any such failure, the holder of such Debt
accelerates or is entitled to accelerate the maturity thereof or
requires or is entitled to require the Borrower or some other
Person to purchase or otherwise acquire such Debt; or
(e) Insolvency. The Borrower ceases to be solvent or suffers the
appointment of a receiver, trustee, custodian or similar
fiduciary or makes an assignment for the benefit of creditors; or
any petition for an order for relief is filed by or against the
Borrower under the federal Bankruptcy Code or any similar state
insolvency statute (except, in the case of a petition filed
against the Borrower, if such proceeding is dismissed within 60
days after the petition is filed, unless prior thereto an order
for relief is entered under the federal Bankruptcy Code); or the
Borrower makes any offer of settlement, extension or composition
to their respective unsecured creditors generally; or
(f) Contest Credit Documents. The Borrower challenges or contests in
any action, suit or proceeding the validity or enforceability of
any of the Credit Documents, the legality or enforceability of
the Obligations or the validity, perfection or priority of any
Lien granted or purported to be granted to the Agent and/or the
Banks; or
Credit Agreement - Page 27
(g) Judgments. One or more judgments, decrees or orders for the
payment of money in excess of $100,000 in the aggregate during
any 12-month period is rendered against the Borrower; or
(h) Lien. The Agent shall cease to have a duly perfected first
priority security interest in the Collateral subject to no Liens
except for Permitted Liens.
(i) Change in Control. Any Change in Control occurs; or
(j) Material Adverse Change. Any material adverse change occurs in
the financial condition or economic prospects of the Borrower or
any other act or event occurs which reasonably could be expected
to have a Material Adverse Effect.
(k) Investment Advisor. The Borrower changes the Investment Advisor,
and such new Investment Advisor is not acceptable to the Required
Banks; provided, however, changing the Investment Advisor shall
not be deemed an Event of Default, if doing so violates the 1940
Act.
7.2 Obligation to Lend; Acceleration. After the occurrence and during the
continuation of any Default, the Agent may (and, upon the request of the
Required Banks, the Agent shall) declare the obligation of the Agent and/or any
Bank to make Loans or to otherwise extend credit hereunder to be terminated,
whereupon the same shall forthwith terminate. After the occurrence and during
the continuation of any Event of Default, the Agent may (and, upon the request
of the Required Banks, the Agent shall) declare the Notes, all interest thereon,
and all other obligations of the Borrower to the Agent and/or any Bank under the
Credit Documents to be forthwith due and payable, whereupon the Notes, all such
interest thereon and all such other obligations shall become and be forthwith
due and payable, without presentment, protest or further notice or demand of any
kind, all of which are waived by the Borrower. If, notwithstanding the
foregoing, after the occurrence and during the continuation of any Default or
Event of Default, as the case may be, the Agent elects (any such election to be
in the Agent's sole and absolute discretion) to make one or more advances under
this Agreement or to not accelerate all or any of the Borrower's obligations,
any such election shall not preclude the Agent from electing thereafter (in its
sole and absolute discretion) to not make advances or to accelerate all or any
of the Borrower's obligations, as the case may be.
7.3 Remedies. Upon or after the occurrence and during the continuation of
any Event of Default, the Agent has and may (and, upon request of the Required
Banks, the Agent shall) exercise from time to time the following rights and
remedies:
(a) All of the rights and remedies of a secured party under the UCC or
under other applicable law, and all other legal and equitable rights to which
the Agent may be entitled, all of which rights and remedies shall be cumulative,
and none of which shall be exclusive, and all of which shall be in addition to
any other rights or remedies contained in this Agreement or any of the other
Credit Documents.
(b) The right to take immediate possession of the Collateral, and (1)
to require the Borrower to assemble the Collateral, at the Borrower's expense,
and make it available to the Agent at a place designated by the Agent which is
reasonably convenient to both parties, and (2) to enter upon and use any
premises in which the Borrower has an ownership, leasehold or other interest, or
wherever any of the Collateral shall be located, and to store, remove, abandon,
sell, dispose of or otherwise use all or any part of the Collateral on such
premises without the payment of rent or any other fees by the Agent to the
Borrower or any other Person for the use of such premises or such Collateral.
Credit Agreement - Page 28
(c) The right to sell or otherwise dispose of all or any Collateral at
public or private sale or sales, with such notice as may be required by law, in
lots or in bulk, for cash or on credit, all as the Agent, in its sole
discretion, may deem advisable. The Borrower agrees that not less than 10 days
prior written notice to the Borrower of any public or private sale or other
disposition of such Collateral shall be reasonable notice thereof, and such sale
shall be at such locations as the Agent may designate in such notice. The Agent
has the right to conduct such sales on the Borrower's premises, without charge
therefor, and such sales may be adjourned from time to time in accordance with
applicable law. The Agent has the right to sell, lease or otherwise dispose of
such Collateral, or any part thereof, for cash, credit or any combination
thereof, and the Agent may purchase all or any part of such Collateral at public
or, if permitted by law, private sale and, in lieu of actual payment of such
purchase price, may set-off or credit the amount of such price against the
Obligations.
(d) The proceeds realized from the sale of any Collateral may be
applied, after the Agent is in receipt of good funds, as follows: (i) first, to
the Agent for all reasonable costs and expenses, including without limitation,
reasonable attorneys' fees and expenses, incurred by the Agent for collection,
removal, storage, processing, protection, insurance, demonstration, sale or
delivery of the Collateral, and for any other Obligations constituting costs or
expenses; (ii) second, to any fees or expenses due the Agent under the Credit
Documents; (iii) third, to the Agent for payment to the account for each Bank,
in accordance with each Bank's Pro-Rata Share, for interest due upon any of the
Obligations; (iv) fourth, to the Agent for payment to the account for each Bank,
in accordance with each Bank's Pro-Rata Share, of the amounts due for the
principal of the Obligations; (v) fifth, to the Agent for payment to the account
of each Bank, in accordance with each Bank's Pro-Rata Share, for any Obligations
not included in (i) through (iv) above; and (vi) sixth, and finally, to any
other party, to the extent it is lawfully entitled to any remaining proceeds. If
any deficiency shall arise, the Borrower shall remain liable to the Agent and
the Banks therefor. Any surplus remaining after payment in full of the
Obligations may be returned to the Borrower or to whomever may be legally
entitled thereto.
7.4 Right of Set-off. Upon or after the occurrence and during the
continuation of any Event of Default, the Agent is authorized at any time and
from time to time, without notice to the Borrower (any such notice being waived
by the Borrower), to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by any Bank to or for the credit or the account of the Borrower
against any and all of the Obligations irrespective of whether or not the Agent
or any Bank has made any demand under this Agreement or the other Credit
Documents and although such Obligations may be unmatured. The rights of the
Agent and the Banks under this Section are in addition to other rights and
remedies (including, without limitation, other rights of setoff) which the Agent
or any Bank may have.
Section 8
Agency Provisions
8.1 Appointment, Powers and Immunities. Each Bank hereby irrevocably
appoints and authorizes the Agent to act as its agent hereunder and under the
Credit Documents with such powers as are specifically delegated to the Agent by
the terms hereof and thereof, together with such other powers as are reasonably
incidental thereto. The Agent (which term as used in this sentence and in
Section 9.8 hereof shall include reference to its Affiliates and its own and its
Affiliates' officers, directors, employees and agents): (a) shall have no duties
or responsibilities except those expressly set forth in this Agreement or in any
of the Credit Documents, and shall not by reason of this Agreement be a trustee
or fiduciary for any Bank; (b) shall not be responsible to the Banks for any
recitals, statements, representations or warranties contained in this Agreement
or any of the other documents in any certificate or any of the other Credit
Documents or received by an of them under, this Agreement or any of the other
Credit Documents, for the value, validity, effectiveness, enforceability or
sufficiency of this Agreement, any Note or any of
Credit Agreement - Page 29
the other Credit Documents or for any failure by the Borrower or any other
Person to perform any of its obligations hereunder or thereunder, or for the
satisfaction of any condition precedent specified in Section 4 hereof; (c) shall
not be required to initiate or conduct any litigation or collection proceedings
hereunder; and (d) shall not be responsible for any action taken or omitted to
be taken by it hereunder or under any of the other Credit Documents, except for
its own gross negligence or willful misconduct. Without limiting the generality
of the foregoing, the Agent shall be conclusively entitled to assume that the
conditions precedent set forth in Section 4 hereof have been satisfied unless
the Agent has received written notice from a Bank referring to the relevant
Section and stating that the relevant condition has not been satisfied or unless
the certificate furnished by the Borrower pursuant thereto so indicates. The
Agent may employ agents and attorneys-in-fact and shall not be responsible for
the negligence or misconduct of any such agents or attorneys-in-fact selected by
it in good faith. The Agent may deem and treat the payee of any Note as the
holder thereof for all purposes hereof unless and until a written notice of the
assignment or transfer thereof shall have been filed with the Agent.
8.2 Reliance by Agent. The Agent shall be entitled to rely on any
certification, notice or other communication (including any thereof by
telephone, telex, 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 on advice and statements of legal counsel, independent accountants and other
experts selected by it. As to any matters not expressly provided for by this
Agreement or any of the Credit Documents, the Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder or thereunder (as
the case may be) in accordance with instructions signed by the Required Banks,
and such instructions of the Required Banks and any action taken or failure to
act pursuant thereto shall be binding on all of the Banks. If the Agent shall
seek the consent or approval of the Required Banks to the taking or refraining
from taking of any action hereunder or under any of the Credit Documents, the
Agent shall give notice thereof to each Bank and as soon as practicable notify
each Bank at any time that the Required Banks have instructed the Agent to act
or refrain from acting hereunder or thereunder (as the case may be).
8.3 Defaults. The Agent shall not be deemed to have knowledge of the
occurrence of a Default or an Event of Default (other than the non-payment of
principal of or interest on Loans) unless the Agent has received written notice
from a Bank or the Borrower specifying such Default or Event of Default and
stating that such notice is a "Notice of Default." In the event that the Agent
receives such a notice of the occurrence of a Default or Event of Default, the
Agent shall give prompt notice thereof to the Banks (and shall give each Bank
prompt notice of each such nonpayment). The Agent shall take such action with
respect to such Default as shall be directed by the Required Banks, provided
that, unless and until the Agent shall have received such directions, the Agent
may (but shall not be obligated to) take such action or refrain from taking such
action with respect to such default as it shall deem advisable in the best
interest of the Banks.
8.4 Rights as a Bank. With respect to its Commitment and the Loans made by
it, U.S. Bank National Association (and any successor acting as Agent), in its
capacity as a Bank hereunder shall have the same rights and powers hereunder as
any other Bank and may exercise the same as though it were not acting as the
Agent, and the term "Bank" or "Banks" shall, unless the context otherwise
indicates, include the Agent in its individual capacity. The Agent, its
permitted successors and its Affiliates may, without having to account therefor
to any Bank, accept deposits from, lend money to and generally engage in any
kind of banking, trust or other business with the Borrower and any of its
Affiliates as if it were not acting as the Agent, and the Agent and its
Affiliates may accept fees and other consideration from the Borrower and its
Affiliates for services in connection with this Agreement or otherwise without
having to account for the same to the Banks, except for any fees stated herein
to be for the account of any of the Banks.
8.5 Indemnification. Each Bank severally, to the extent of its Pro-Rata
Share, indemnifies the Agent (to the extent the Agent is not reimbursed by the
Borrower) for any and all liabilities,
Credit Agreement - Page 30
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and/or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against it and/or any of its shareholders,
directors, officers, employees, agents, attorneys, contractors or other
representatives in any way relating to or arising out of this Agreement, any of
the other Credit Documents, any of the transactions contemplated hereby
(including, without limitation, the costs, expenses and other amounts which the
Borrower is obligated to pay under Section 9.3 hereof), any action or omission
taken by the Agent or any of the other indemnified parties referred to above,
and/or the enforcement of any of the terms of this Agreement or any of the other
Credit Documents; provided; however, that no Bank shall be liable for any
portion of any of the foregoing resulting from the gross negligence or willful
misconduct of the Agent or any of the other indemnified parties referred to
above.
8.6 Non-Reliance on Agent and other Banks. Each Bank agrees that it has,
independently and without reliance on the Agent or any other Bank, and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and evaluation of the Borrower and its own decision to enter into this
Agreement and that it will, independently and without reliance on the Agent or
any other Bank, 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. The Agent shall not be
required to keep itself informed as to the performance or observance by the
Borrower or any other Person of this Agreement or any other Credit Document or
in respect of the properties or books of the Borrower or any other Person.
Except for notices, reports and other documents and information expressly
required to be furnished to the Banks by the Agent hereunder, the Agent shall
not have any duty or responsibility to provide any Bank with any credit or other
information concerning the affairs, financial condition or business of the
Borrower (or Affiliates) which may come into its possession or into the
possession of any of its Affiliates.
8.7 Failure to Act. Except for action expressly required of the Agent
hereunder or under any of the Credit Documents, the Agent shall in all cases be
fully justified in failing or refusing to act hereunder or thereunder (as the
case may be) unless it shall be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action.
8.8 Resignation or Removal of Agent. Subject to the appointment and
acceptance of a successor Agent as provided below, the Agent may resign at any
time by giving notice thereof to the Banks and the Borrower, and the Agent may
be removed at any time with or without cause by the Required Banks. Upon any
such resignation or removal, the Required Banks shall have the right to appoint
a successor Agent with the consent of Borrower. If no such successor Agent shall
have been so appointed by the Required Banks and shall have accepted such
appointment within 30 days after the retiring Agent's giving of notice of
resignation or the Required Banks' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Banks, appoint a successor Agent with the
consent of Borrower. Upon the acceptance or any appointment as Agent hereunder
by a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Section 8.8 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
the Agent.
8.9 Designee and Delegatee. The Banks understand and agree that the Agent
(with permission of the Required Banks) may contract with a third party (the
"Collateral Designee") to perform substantially all or any of the ministerial
functions pertaining to the possession, perfection, enforcement and collection
of the Collateral, and Agent shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it in good faith.
Credit Agreement - Page 31
8.10 Representation of Banks. The Banks severally represent that they will
be taking the Notes issued hereunder for their own respective accounts to
evidence loans made in the ordinary course of their commercial banking business,
and not with a view of distribution of such Notes; provided, however, that
nothing contained in this Section 8.10 shall create any rights or remedies in
favor of the Borrower or anyone else against any Bank so long as such Bank acts
in good faith upon the advice of its counsel with respect to compliance with
applicable laws; provided further, that the assets of each Bank must be and
shall always remain within the control of each Bank.
8.11 Obligations Several. Unless otherwise expressly provided for herein,
the obligation of each Bank hereunder is several, and neither the Agent nor any
Bank shall be responsible for the obligations of any other Bank hereunder, nor
will the failure of any Bank to perform any of its obligations hereunder relieve
any other Bank from the performance of its respective obligations hereunder.
Nothing contained in this Agreement or any of the other Credit Documents, and no
action taken by the Banks pursuant hereto or thereto shall be deemed to
constitute the Banks a partnership, association, joint venture or other entity
or otherwise (except as expressly provided for herein) give rise to joint or
vicarious liability between the Banks.
Section 9
Miscellaneous
9.1 Notices. All notices and other communications provided for herein
(including, without limitation, any waivers or consents under this Agreement)
shall be given or made by telex, telecopy, cable or otherwise in writing (each
communication given by any of such means to be deemed to be "in writing" for
purposes of this Agreement) and telexed, telecopied, cabled, mailed or delivered
to the intended recipient at the "Address for Notices" specified below its name
on the signature pages hereof, or, as to any party, at such other address as
shall be designated by such party in a written notice to the other parties
hereto. Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given when transmitted by telex or fax,
delivered to the cable office or personally delivered or, in the case of a
mailed notice, upon deposit with the United States Postal Service, certified
mail, return receipt requested, with postage prepaid, in each case given or
addressed as aforesaid.
9.2 Power of Attorney. The Borrower irrevocably designates, makes,
constitutes and appoints the Agent, and all Persons designated by the Agent, as
the Borrower's true and lawful attorney and agent-in-fact (such power of
attorney and agency being coupled with an interest and therefore irrevocable
until the Obligations have been indefeasibly paid in full and no Bank has any
duty to extend credit to or for the benefit of the Borrower), and the Agent, and
any Persons designated by the Agent, may, at any time except as otherwise
provided below, and without notice to or the consent of the Borrower and in
either the Borrower's or the Agent's name, but at the cost and expense of the
Borrower, (1) pay and perform any Obligation to be paid or performed under any
of the Credit Documents, (2) endorse the Borrower's name on any checks, notes,
acceptances, drafts, money orders or any other evidence of payment or proceeds
of the Collateral which come into the possession of the Agent or any Bank or
under the Agent's or any Bank's control, and (3) at any time an Event of Default
exists, (a) to the extent the Collateral may be realized upon by collection,
demand payment of all such Collateral from the obligors thereunder, enforce
payment of such Collateral by legal proceedings or otherwise, and generally
exercise all of the Borrower's rights and remedies with respect to such
Collateral, (b) settle, adjust, compromise, discharge or release any Collateral
or any legal proceedings brought to collect any of the Collateral, (c) sell or
otherwise transfer any Collateral upon such terms, for such amounts and at such
time or times as the Agent deems advisable, (d) take control, in any manner, of
any item of payment or proceeds relating to any Collateral, (e) prepare, file
and sign the Borrower's name to a proof of claim in bankruptcy or similar
document against any Collateral obligor or to any notice of Lien, assignment or
satisfaction of Lien or similar document in connection with any of the
Collateral, (f) endorse the name of
Credit Agreement - Page 32
the Borrower upon any of the items of payment or proceeds relating to any
Collateral and deposit the same to the account of the Bank on account of the
Obligations, (g) endorse the name of the Borrower upon any document of transfer
or other document or agreement relating to any Collateral, (h) use the
information recorded on or contained in any data processing equipment and
computer hardware and software relating to any Collateral and to which the
Borrower has access, and (i) do all other acts and things necessary, in the
Agent's sole determination, to fulfill the Borrower's obligations under this
Agreement.
9.3 Reimbursement of Expenses. The Borrower agrees (a) to pay or reimburse
the Agent on demand for its reasonable out-of-pocket costs and expenses
(including without limitation, the reasonable fees and expenses of counsel to
the Agent), in connection with the negotiation, preparation, execution and
delivery of this Agreement and the other Credit Documents and the making of the
Loans hereunder, (b) to pay or reimburse the Agent and the Banks for all
reasonable out-of-pocket costs and expenses of such Persons (including
reasonable counsels' fees and expenses) in connection with the enforcement of
this Agreement and any of the other Credit Documents, and all transfer, stamp,
documentary or other similar taxes, assessments or charges levied by any
Governmental Authority in respect of this Agreement, any of the Notes, or any of
the other Credit Documents (except for any such tax imposed on or measured by
the income of such Person), and (c) to pay or reimburse the Agent and the Banks
for all reasonable out-of-pocket costs and expenses (including reasonable
counsels' fees and expenses) in connection with any litigation, contest dispute,
suit, proceeding or action brought by a third party in any way relating to this
Agreement, any of the other Credit Documents or the Borrower's affairs (all of
which are hereinafter collectively referred to as the "Expenses"); then, in any
and each such event, such Expenses shall be payable on demand.
9.4 Indemnity. The Borrower agrees to indemnify, defend and hold harmless
the Agent and the Banks and each shareholder, director, officer, employee,
agent, attorney and other representative of or contractor for the Agent and/or
the Banks from and against any and all damages, settlement amounts, expenses
(including, without limitation, attorney's fees and court costs), other losses,
claims or other assertions of liability of any nature whatsoever incurred by or
on behalf of or asserted against, as the case may be, any one or more of such
indemnified parties at any time arising in whole or in part out of the
Borrower's failure to observe, perform or discharge any of the Borrower's duties
under any of the Credit Documents or any misrepresentation made by or on behalf
of the Borrower under any of the Credit Documents. Without limiting the
generality of the foregoing, this indemnity shall extend to any claims asserted
against the Agent and/or the Banks or such other indemnitees by any Person under
any Environmental Laws or similar laws by reason of the Borrower's or any other
Person's failure to comply with laws applicable to Hazardous Substances. The
Borrower further agrees to indemnify, defend and hold harmless the Agent and the
Banks and each shareholder, director, officer, employee, agent, attorney and
other representative of or contractor for the Agent and the Banks from and
against any and all damages, settlement amounts, expenses (including, without
limitation, attorneys' fees and court costs), other losses, claims or other
assertions of liability of any nature whatsoever incurred by or on behalf of or
asserted against, as the case may be, any one or more of such indemnified
parties at any time in connection with any one or more indemnified parties'
actions or inactions relating in any respect to the Credit Agreement, any of the
other Credit Documents or any of the transactions described in or contemplated
by any of the foregoing, except to the extent such losses arise out of such
indemnified party's gross negligence or willful misconduct. All indemnities
given by the Borrower to the Agent and/or the Banks under the Credit Documents,
including, without limitation, the indemnities set forth in this Section, shall
survive the repayment of the Loans and the termination of this Agreement.
9.5 Entire Agreement; Modification of Agreement; Sale of Interest. This
Agreement and the other Credit Documents, together with all other instruments,
agreements and certificates executed by the parties in connection therewith or
with reference thereto, embodies the entire agreement between the
Credit Agreement - Page 33
parties hereto and thereto with respect to the subject matter hereof and thereof
and supersedes all prior agreements, understandings and inducements, whether
express or implied, oral or written. This Agreement may not be modified, altered
or amended, except by an agreement in writing signed by the Borrower, the Agent
and the Required Banks, and any provisions of this Agreement or the other Credit
Documents may be waived by the Agent or the Required Banks; provided, however,
that, notwithstanding the foregoing, no amendment or waiver shall be effective,
without first obtaining the written consent of all Banks, that (a) extends the
due date of any principal, interest or fee, including, but not limited to any
Shared Fee, payment in respect of the Loans; (b) changes the amount or duration
of any Bank's Commitment or the amount of or the method of computing any Shared
Fee; (c) releases the Borrower, in whole or in part, from any obligation under
the Credit Documents to pay any principal or interest under the Loans or to pay
any Shared Fee; (d) reduces the rate of interest or fees provided hereunder; or
(e) changes the definition of "Required Banks" or amends the terms of this
Section 9.5, or that otherwise has the effect of impairing any of the consent
requirements contained in this Section 9.5 or in any other provision of this
Agreement or the other Credit Documents where the consent of all the Banks or
the Required Banks is required in connection with any matter. The Borrower may
not directly or indirectly sell, assign or transfer any interest in or rights
under this Agreement or any of the other Credit Documents. The Borrower consents
to the Agent's or the Banks' participation, sale, assignment, transfer or other
disposition, at any time or times on or after the Closing Date, of this
Agreement and any of the other Credit Documents, or of any portion hereof or
thereof, including, without limitation, the Agent's and the Banks' rights,
title, interests, remedies, powers and duties hereunder or thereunder; provided,
however, that any such participation, sale, assignment, transfer or other
disposition shall be in an amount of not less than $5,000,000; provided further,
that, unless an Event of Default is then in effect or the Termination Date has
occurred, the Banks shall not have the right to any such transfer of this
Agreement or any of the other Credit Documents without first obtaining the
Agent's and the Borrower's prior written consent, which may not be unreasonably
withheld. Any Bank assigning any part of its interest hereunder shall pay to the
Agent a fee in the amount of $3,500 per such assignment.
9.6 Indulgences Not Waivers. The Agent's or any Bank's failure, at any time
or times on or after the Closing Date, to require strict performance by the
Borrower of any provision of this Agreement or the other Credit Documents shall
not waive, affect or diminish any right of the Agent or the Banks thereafter to
demand strict compliance and performance therewith. Any suspension or waiver by
the Agent and/or any Bank of a Default or an Event of Default by the Borrower
under this Agreement or any of the other Credit Documents shall not suspend,
waive or affect any other Default or Event of Default by the Borrower under this
Agreement or any of the other Credit Documents, whether the same is prior or
subsequent thereto and whether of the same or of a different type. None of the
undertakings, agreements, warranties, covenants and representations of the
Borrower contained in this Agreement or any of the other Credit Documents and no
Default or Event of Default by the Borrower under this Agreement or any of the
other Credit Documents shall be deemed to have been suspended or waived by the
Agent and/or any Bank, unless such suspension or waiver is by an instrument in
writing specifying such suspension or waiver and is signed by a duly authorized
representative of the Agent and directed and delivered to the Borrower.
9.7 Severability. Wherever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
9.8 Successors and Assigns. This Agreement and the other Credit Documents,
shall be binding upon and inure to the benefit of the successors and assigns of
the Borrower, the Agent and the Banks. This provision, however, shall not be
deemed to modify Section 9.5 hereof.
Credit Agreement - Page 34
9.9 General Waivers by Borrower. Except as otherwise expressly provided for
in this Agreement, the Borrower waives: (a) presentment, protest, demand for
payment, notice of dishonor demand and protest and notice of presentment,
default, notice of nonpayment, maturity, release, compromise, settlement,
extension or renewal of any or all commercial paper, accounts receivable,
contract rights, documents, instruments, chattel paper and guaranties at any
time held by the Agent and the Banks on which the Borrower may in any way be
liable and ratifies and confirms whatever the Agent and/or the Banks may do in
this regard; (b) notice prior to taking possession or control of the Collateral
or any bond or security which might be required by any court prior to allowing
the Agent to exercise of the Agent's and/or the Banks' remedies, including the
issuance of an immediate writ of possession; (c) the benefit of all valuation,
appraisement and exemption laws; and (d) any and all other notices, demands and
consents in connection with the delivery, acceptance, performance, default or
enforcement of this Agreement or any of the other Credit Documents and/or any of
the Banks' rights in respect of the Collateral. Subject to the following
sentence, the Borrower also waives any right of set-off or similar right the
Borrower may at any time have against the Agent or any Bank as a defense to the
payment or performance of the Borrower's Obligations. If the Borrower now or
hereafter has any claim against the Agent or any Bank giving rise to any such
right of set-off or similar right, the Borrower agrees not to assert such claim
as a defense or right of set-off with respect to the Borrower's obligations
under the Credit Documents, and to instead assert any such claim, if the
Borrower so elects to assert such claim, in a separate proceeding against the
Agent or any Bank and not as a part of any proceeding or as a defense to any
claim initiated by the Agent or any Bank to enforce any of the Agent's or any
Bank's rights under any of the Credit Documents.
9.10 Execution in Counterparts; Facsimile Signatures. This Agreement and
the other Credit Documents may be executed in any number of counterparts and by
different parties thereto, each of which when so executed and delivered shall be
deemed to be an original and all of which counterparts taken together shall
constitute but one and the same instrument. A signature of a party to any of the
Credit Documents sent by facsimile or other electronic transmission shall be
deemed to constitute an original and fully effective signature of such party.
9.11 Captions. Captions and section headings appearing herein are included
solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
9.12 USA Patriot Act Notice. The Agent notifies the Borrower that, pursuant
to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 signed
into law October 26, 2001) (the "Act"), it is required to obtain, verify and
record information that identifies the Borrower, which information includes the
name and address of the Borrower and other information that will allow the Agent
to identify the Borrower in accordance with the Act. The Borrower agrees to
provide such information and take such other action as the Agent may request
from time to time to enable the Agent and the Banks to comply with the
provisions of the Act with respect to the transactions described in the Credit
Documents.
9.13 Governing Law; Consent to Forum. This Agreement shall be governed by
the laws of the State of Kansas without giving effect to any choice of law rules
thereof. As part of the consideration for new value this day received, the
Borrower consents to the jurisdiction of any state court located in Johnson
County, Kansas or any federal court located in Wyandotte County, Kansas
(collectively, the "Chosen Forum"), and waives personal service of any and all
process upon it and consents that all such service of process be made by
certified or registered mail directed to the Borrower at the address stated
pursuant to Section 9.1 hereof and service so made shall be deemed to be
completed upon delivery thereto. The Borrower waives any objection to
jurisdiction and venue of any action instituted against it as provided herein
and agrees not to assert any defense based on lack of jurisdiction or venue. The
Credit Agreement - Page 35
Borrower further agrees not to assert against the Agent or the Banks (except by
way of a defense or counterclaim in a proceeding initiated by the Agent or any
Bank) any claim or other assertion of liability relating to any of the Credit
Documents, the Obligations or Bank's actions or inactions in respect of any of
the foregoing in any jurisdiction other than the Chosen Forum. Nothing in this
Agreement shall affect the Agent's or any Bank's right to bring any action or
proceeding relating to this Agreement or the other Credit Documents against the
Borrower or its properties in courts of other jurisdictions.
9.14 Waiver of Jury Trial; Limitation on Damages. To the fullest extent
permitted by law, and as separately bargained-for consideration to the Agent and
the Banks, the Borrower waives any right to trial by jury (which the Agent and
each Bank also waives) in any action, suit, proceeding or counterclaim of any
kind arising out of or otherwise relating to any of the Credit Documents, the
Borrower's obligations under the Credit Documents or the Agent's or the Banks'
actions or inactions in respect of any of the foregoing. To the fullest extent
permitted by law, and as separately bargained-for consideration to the Agent and
the Banks, the Borrower also waives any right it may have at any time to claim
or recover in any litigation or other dispute involving the Agent or any Bank,
whether the underlying claim or dispute sounds in contract, tort or otherwise,
any special, exemplary, punitive or consequential damages or any damages other
than, or in addition to, actual damages. The Borrower acknowledges that the
Agent and the Banks are relying upon and would not enter into the transactions
described in the Credit Documents on the terms and conditions set forth therein
but for the Borrower's waivers and agreements under this Section.
9.15 Controlling Document. In the event of actual conflict in the terms and
provisions of this Agreement, the Notes or any of the other Credit Documents,
the terms and provisions of this Agreement shall prevail and control.
Credit Agreement - Page 36
9.16 K.S.A. ss.16-118 Required Notice. This statement is provided pursuant
to K.S.A. ss.16-118: "THIS CREDIT AGREEMENT IS A FINAL EXPRESSION OF THE CREDIT
AGREEMENT BETWEEN THE CREDITORS AND THE DEBTOR AND SUCH WRITTEN CREDIT AGREEMENT
MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR ORAL CREDIT AGREEMENT OR OF A
CONTEMPORANEOUS ORAL CREDIT AGREEMENT BETWEEN THE CREDITORS AND DEBTOR." THE
FOLLOWING SPACE CONTAINS ANY NON-STANDARD TERMS, INCLUDING THE REDUCTION TO
WRITING OF ANY PREVIOUS ORAL CREDIT AGREEMENT:
NONE.
The creditors and debtor, by their respective initials or signatures below,
confirm that no unwritten credit agreement exists between the parties:
Creditor: _______________
Creditor: _______________
Debtor: _________________
[signature page(s) to follow]
Credit Agreement - Page 37
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their duly authorized representatives as of the
day and year first above written.
TORTOISE CAPITAL RESOURCES CORPORATION
By:
------------------------------------
Name:
Title:
Address for Notices:
Tortoise Capital Resources Corporation
10801 Mastin Boulevard, Suite 222
Overland Park, Kansas 66210
Attn.: Terry Matlack
Fax No.: 913-981-1021
with a copy (which shall not constitute notice) to:
Blackwell Sanders Peper Martin LLP
4801 Main Street
Suite 1000
Kansas City, Missouri 64112
Attn.: Scott H. Thompson, Esq.
Fax No.: 816-983-8080
U.S. BANK NATIONAL ASSOCIATION,
as Agent, Swingline Lender, Lead Arranger and a Bank
By:
------------------------------------
Name: Colleen S. Hayes
Title: Assistant Vice President
Address for Notices:
Credit Agreement - Signature Page
U.S. Bank National Association
9900 West 87th Street
Overland Park, Kansas 66212
Attn.: Colleen Hayes
Fax No.: 913-652-5111
with a copy (which shall not constitute notice) to:
Shook, Hardy & Bacon L.L.P.
2555 Grand Blvd.
Kansas City, Missouri 64108
Attn.: Sandra L. Hawley, Esq.
Fax No.: 816-421-5547
BANK OF OKLAHOMA, N.A.
a Bank
By:
------------------------------------
Name: W. Mack Renner
Title: Vice President
Address for Notices:
Bank of Oklahoma, N.A.
One Williams Center
8th Floor
Tulsa, Oklahoma 74172
Attn: Mack Renner
Fax No: (918) 295-0400
Credit Agreement - Signature Page
EXHIBIT A
(Banks and Commitments)
- -------------------------- --------------- ------------------- ---------------------- ---------------------
Revolving
Credit Loan Swingline Loan
Commitment Commitment Bank's Total Bank's Pro-Rata
Bank Amount Amount* Commitment Amount Percentage
- -------------------------- --------------- ------------------- ---------------------- ---------------------
U.S. Bank $15,000,000 $3,000,000 $15,000,000 0.750000000000
National Association
- -------------------------- --------------- ------------------- ---------------------- ---------------------
Bank of Oklahoma, N.A. $5,000,000 0 $5,000,000 0.250000000000
- -------------------------- --------------- ------------------- ---------------------- ---------------------
TOTALS: $20,000,000 $3,000,000 $20,000,000 1.000000000000
- -------------------------- --------------- ------------------- ---------------------- ---------------------
* As more particularly described in the Agreement, the Swingline Loan
Commitment is a subcommitment under the Revolving Credit Loan
Commitments. Accordingly, extensions of credit under the Swingline
Loan Commitment act to reduce, on a dollar-for-dollar basis, the
amount of credit otherwise available under the Revolving Credit Loan
Commitments.
Credit Agreement - Exhibit B
EXHIBIT B
[Form of Revolving Credit Note]
REVOLVING CREDIT NOTE
$__________________ April ____, 2007
For value received, the undersigned, TORTOISE CAPITAL RESOURCES
CORPORATION, a Maryland corporation (the "Borrower"), hereby promises to pay to
the order of ___________________, a ______________________ (the "Bank"; which
term shall include any subsequent holder hereof), at such place as may be
expressly provided for in the Credit Agreement referred to below, the principal
sum of ___________________ and 00/100 Dollars ($_________________) or, such
lesser amount as shall equal the aggregate unpaid principal amount of the
Revolving Credit Loans made by the Bank to the Borrower under the Credit
Agreement, in lawful money of the United States of America, without set-off,
deduction or counterclaim, and in immediately available funds, on the
Termination Date, and to pay interest on the unpaid principal amount of each
such Revolving Credit Loan, at such office, in like money and funds, for the
period commencing on the date of such Revolving Credit Loan until such Revolving
Credit Loan shall be paid in full, at the rates per annum and on the date
provided in the Credit Agreement.
This Revolving Credit Note (the "Note") is the Revolving Credit Note
referred to in, is issued pursuant to, and is subject to the terms and
conditions of, the Credit Agreement, dated as of April __, 2007, among the
Borrower, the Banks named therein (including the Bank) and U.S. Bank National
Association, as Agent, Swingline Lender and Lead Arranger (as the same may be
amended, renewed, restated, replaced, consolidated or otherwise modified from
time to time, the "Credit Agreement"), and evidences Revolving Credit Loans made
by the Bank under its Revolving Credit Loan Commitment thereunder. To the extent
of any direct conflict between the terms and conditions of this Note and the
terms and conditions of the Credit Agreement, the terms and conditions of the
Credit Agreement shall prevail and govern. Capitalized terms used and not
defined in this Note have the meanings given to them in the Credit Agreement.
Interest shall accrue on the outstanding principal balance of this Note as
provided in the Credit Agreement. Principal, interest and all other amounts, if
any, payable in respect of this Note shall be payable as provided in the Credit
Agreement. The Borrower's right, if any, to prepay this Note is subject to the
terms and conditions of the Credit Agreement.
The Credit Agreement (the terms of which are hereby incorporated by
reference) provides for the acceleration of the maturity of this Note upon the
occurrence of certain events and for prepayments of Revolving Credit Loans upon
the terms and conditions specified therein.
Time is of the essence of this Note. To the fullest extent permitted by
applicable law, the Borrower and any and all sureties, guarantors and endorsers
of this Note and all other parties hereafter liable hereon waive grace,
presentment, demand, protest, notice of dishonor, any and all other notices
(including, but not limited to, notice of protest, notice of intention to
accelerate and notice of acceleration), diligence in collecting and bringing
suit against any party hereto, demands and consents in connection with the
delivery, acceptance, performance, default or enforcement of this Note, and
consent to any extensions of time, renewals, releases of any parties to or
guarantors of this Note, waivers and any other modifications that may be granted
or consented to by the Bank from time to time in respect of the time of payment
or any other provision of this Note.
Credit Agreement - Exhibit B
This Note shall be governed by the laws of the State of Kansas, without
regard to any choice of law rule thereof which gives effect to the laws of any
other jurisdiction.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Note as of
the date first above written.
TORTOISE CAPITAL RESOURCES CORPORATION
By:
--------------------------------------
Name:
Title:
Credit Agreement - Exhibit B
EXHIBIT C
[Form of Swingline Note]
SWINGLINE NOTE
$3,000,000 April ____, 2007
For value received, the undersigned, TORTOISE CAPITAL RESOURCES
CORPORATION, a Maryland corporation (the "Borrower") hereby promises to pay to
the order of U.S. BANK NATIONAL ASSOCIATION, a national banking association (the
"Swingline Lender"), at such place as may be expressly provided for in the
Credit Agreement referred to below, the principal sum of Three Million Dollars
($3,000,000), or such lesser amount as shall equal the aggregate unpaid
principal amount of the Swingline Loans made by the Swingline Lender to the
Borrower under the Credit Agreement, in lawful money of the United States of
America, and in immediately available funds, on the Termination Date, or such
earlier date as provided in the Credit Agreement, referred to below, and to pay
interest on the unpaid principal amount of each Swingline Loan, at such office,
in like money and funds, for the period commencing on the date of each Swingline
Loan until such Swingline Loan shall be paid in full, at rates per annum and on
the dates provided in the Credit Agreement.
This Swingline Note (the "Note") is the Swingline Note referred to in, is
issued pursuant to, and is subject to the terms and conditions of, the Credit
Agreement, dated as of April __, 2007, among the Borrower, the Banks named
therein (including the Bank) and U.S. Bank National Association, as Agent,
Swingline Lender and Lead Arranger, (as the same may be amended, renewed,
restated, replaced, consolidated or otherwise modified from time to time, the
"Credit Agreement"), and evidences Swingline Loans made by the Swingline Lender
under its Swingline Loan Commitment thereunder. To the extent of any direct
conflict between the terms and conditions of this Note and the terms and
conditions of the Credit Agreement, the terms and conditions of the Credit
Agreement shall prevail and govern. Capitalized terms used and not defined in
this Note have the meanings given to them in the Credit Agreement.
Interest shall accrue on the outstanding principal balance of this Note as
provided in the Credit Agreement. Principal, interest and all other amounts, if
any, payable in respect of this Note shall be payable as provided in the Credit
Agreement. The Borrower's right, if any, to prepay this Note is subject to the
terms and conditions of the Credit Agreement.
The Credit Agreement (the terms of which are hereby incorporated by
reference) provides for the acceleration of the maturity of this Note upon the
occurrence of certain events and for prepayments of Swingline Loans upon the
terms and conditions specified therein.
Time is of the essence of this Note. To the fullest extent permitted by
applicable law, the Borrower and any and all sureties, guarantors and endorsers
of this Note and all other parties hereafter liable hereon waive grace,
presentment, demand, protest, notice of dishonor, any and all other notices
(including, but not limited to, notice of protest, notice of intention to
accelerate and notice of acceleration), diligence in collecting and bringing
suit against any party hereto, demands and consents in connection with the
delivery, acceptance, performance, default or enforcement of this Note, and
consent to any extensions of time, renewals, releases of any parties to or
guarantors of this Note, waivers and any other modifications that may be granted
or consented to by the Swingline Lender from time to time in respect of the time
of payment or any other provision of this Note.
Credit Agreement - Exhibit C
This Note shall be governed by the laws of the State of Kansas, without
regard to any choice of law rule thereof which gives effect to the laws of any
other jurisdiction.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Note as of
the date first above written.
TORTOISE CAPITAL RESOURCES CORPORATION
By:
--------------------------------------
Name:
Title:
Credit Agreement - Exhibit C
EXHIBIT D
[Form of Borrowing Base Certificate]
BORROWING BASE CERTIFICATE
This Borrowing Base Certificate ("Certificate") is delivered pursuant to
Section 3.7(a) of the Credit Agreement (the "Credit Agreement"), dated as of
April __, 2007, among Tortoise Capital Resources Corporation, a Maryland
corporation (the "Borrower"); certain lenders (the "Banks"); U.S. Bank National
Association, a national banking association, as the lender for Swingline Loans
(in such capacity, the "Swingline Lender"); and U.S. Bank National Association,
a national banking association, as agent for the Banks hereunder (in such
capacity, the "Agent"); and as lead arranger hereunder (in such capacity, the
"Lead Arranger"). Capitalized terms used and not defined in this Certificate
have the meanings given to them in the Credit Agreement.
The undersigned hereby certifies that he or she is an authorized signor of
the Borrower and, as such, is authorized to execute and deliver this Certificate
on behalf of the Borrower and, certify to the Agent that:
1. Borrowing Base. The Borrowing Base for the Borrower, as of _________,
20__, is as follows:
A. A. Total value of assets ("Total Assets") $_______________
(after giving effect to any Requested Advance)
B. 25% of Total Assets ("Margined Asset Value") $_______________
(25% of line A)
C. Less outstanding other senior debt: $_______________
D. Total Borrowing Base $_______________
(line B minus line C)
E. Revolving Credit Loan Commitments $_______________
F. Less: Current Outstanding Balances on Revolving
Credit Loans and Swingline Loans $_______________
G. Total Availability $_______________
(lesser of line D and line E minus line F)
H. Requested Advance (if any) $_______________
Credit Agreement - Exhibit D
2. Compliance with 1940 Act. As of ______________, 20__, the Borrower is in
material compliance with the Investment Company Act of 1940, and the rules and
regulations promulgated thereunder, as the same may be amended from time to time
(the "1940 Act"), including but not limited to, all leverage regulations
specified in the 1940 Act.
A. Asset Coverage Ratio of Auction Rate Senior Notes and Short-Term
Borrowings: (represents the value of the Total Assets less all
liabilities and indebtedness not represented by Senior Notes, Loans
and preferred shares at the end of the period divided by Senior Notes
and Loans outstanding at the end of the period)
Percentage of Total Assets ___________%
B. Asset Coverage Ratio of Preferred Shares: (represents the value of
the Total Assets less liabilities and indebtedness not represented by
Senior Notes, Loans and preferred shares at the end of the period
divided by Senior Notes, Loans and preferred shares outstanding at the
end of the period)
Percentage of Total Assets ___________%
3. Reliance. This Certificate is delivered to the Agent for its benefit and
the benefit of the Banks, the Swingline Lender and the Lead Arranger and may be
conclusively relied upon by all such Persons.
IN WITNESS WHEREOF, the undersigned has executed this certificate on behalf
of the Borrower on ____________ __, 20__.
TORTOISE CAPITAL RESOURCES CORPORATION
By:
--------------------------------------
Name:
Title:
Credit Agreement - Exhibit D