SECOND
AMENDMENT TO CREDIT AGREEMENT
This
Second Amendment to Credit
Agreement (the “Amendment”) is made as of September 28, 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 FIRST
NATIONAL BANK OF KANSAS, a Kansas bank (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”). Capitalized terms used and not defined in this
Amendment have the meanings given to them in the Credit Agreement referred
to
below.
Preliminary
Statements
(a) The
Banks and the Borrower are parties to a Credit Agreement dated as of April
25,
2007, as amended by the First Amendment to Credit Agreement dated as of July
18,
2007 (as so amended, the “Credit Agreement”).
(b) The
Borrower has requested that the maximum principal amount of the revolving credit
facility under the Credit Agreement be increased from $35,000,000 to
$40,000,000.
(c) First
National Bank of Kansas shall become a “Bank” under the Credit Agreement and
will have a Revolving Credit Loan Commitment to the Borrower of
$5,000,000.
(d) In
addition, simultaneously herewith, U.S. Bank National Association will assign
$5,000,000 of its Revolving Credit Loan Commitment to First National Bank of
Kansas resulting in First National Bank of Kansas having a total Revolving
Credit Loan Commitment of $10,000,000.
(e) The
Banks are willing to agree to the foregoing request, subject, however, to the
terms, conditions and agreements set forth below.
NOW,
THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
Banks and the Borrower agree as follows:
1. Increase
in Revolving Credit Facility. The references to
“$35,000,000” in Section 2.1 of the Credit Agreement, and in Exhibit A of the
Credit Agreement are deleted and are replaced by “$40,000,000.”
2. New
Bank. First National Bank of Kansas shall become and is
hereby a “Bank” under the Credit Agreement.
3. Modification
to Section 1.1 Definitions.
A. The
following definition is hereby added to Section 1.1 of the Credit
Agreement:
“Borrowing
Base Availability”
means, at any time, the lesser of: (a) the Borrowing Base less current
outstanding balances on the Revolving Credit Loans and Swingline Loans and
less
current outstanding balances on other “senior securities representing
indebtedness” (as such term is used in the 1940 Act), if any or (b) the
Revolving Credit Loan Commitments less current outstanding balances on the
Revolving Credit Loans and Swingline Loans.
B. The
following definition, as set out in Section 1.1 of the Credit Agreement, is
hereby deleted in its entirety and is hereby replaced with the
following:
“Borrowing
Base” means, at any
date, 25% of the amount, after giving effect to any requested Loan on such
date,
of (i) the total value of the Borrower’s assets, minus (ii) all
liabilities and indebtedness not represented by “senior securities” (as such
term is used in the 1940 Act).
4. Modification
to Section 3.4(a). Section 3.4(a) of the Credit Agreement is
hereby deleted in its entirety and is hereby replaced with the
following:
(a) Combined
Loan to Value. If, at any time, the Borrowing Base Availability
is less than zero, the Borrower shall immediately prepay the Loans in an amount
equal to the extent to which the Borrowing Base Availability is less than
zero. By way of example, if the Borrowing Base Availability is
-$100,000, then the Borrower shall immediately prepay the Loans in an amount
equal to $100,000.
5. Modification
to Exhibit A. Effective upon execution of this Amendment and
consummation of the assignment by U.S. Bank National Association to First
National Bank of Kansas, Exhibit A as attached to the Credit Agreement is
deleted and is hereby replaced with Exhibit A attached to this
Amendment.
6. Modification
to Exhibit D. Exhibit D as attached to the Credit Agreement
is deleted and is hereby replaced with Exhibit D attached to this
Amendment.
7. Note. Contemporaneously
with the execution and delivery of this Amendment, the Borrower, as maker,
shall
execute and deliver a revolving credit note, in the stated principal amount
of
$10,000,000, in favor of First National Bank of Kansas, as payee, (the
“Note”), which Note as the same may be amended, renewed, restated,
replaced or consolidated from time to time shall be a “Revolving Credit Note”
referred to in the Credit Agreement. Such Note shall reflect First
National Bank of Kansas’ Revolving Credit Loan Commitment following the
assignment referred to in Preliminary Statement (d) above.
8. Reaffirmation
of Credit Documents. The Borrower reaffirms its obligations
under the Credit Agreement, as amended hereby, and the other Credit Documents
to
which it is a party or by which it is bound, and represents, warrants and
covenants to the Agent and the Banks, as a material inducement to the Agent
and
the Banks to enter into this Amendment, that (a) the Borrower has no and in
any
event waives any, defense, claim or right of setoff with respect to its
obligations under, or in any other way relating to, the Credit Agreement, as
amended hereby, or any of the other Credit Documents to which it is a party,
or
the Agent’s or any Bank’s actions or inactions in respect of any of the
foregoing, and (b) all representations and warranties made by or on behalf
of
the Borrower in the Credit Agreement and the other Credit Documents are true
and
complete on the date hereof as if made on the date hereof.
9. Conditions
Precedent to Amendment. Except to the extent waived in a
writing signed by the Agent and delivered to the Borrower, the Agent and the
Banks shall have no duties under this Amendment until the Agent shall have
received fully executed originals of each of the following, each in form and
substance satisfactory to the Agent:
(a) Amendment. This
Amendment;
(b) Note. The
Note;
(c) Form
U-1. A Form U-1 for the Borrower whereby, among other
things, (i) the maximum principal amount of Revolving Credit Loans that may
be
outstanding from time to time under the Credit Agreement is noted as being
$40,000,000, and (ii) the Borrower concurs (and the Borrower does hereby concur)
with the assessment of the market value of the margin stock or other investment
property described in the attachment to such Form U-1 as of the date provided
in
such attachment;
(d) Secretary’s
Certificate. A certificate from the Secretary or
Assistant Secretary of the Borrower certifying to the Agent that, among other
things, (i) attached thereto as an exhibit is a true and correct copy of the
resolutions of the board of directors of the Borrower authorizing the Borrower
to enter into the transactions described in this Amendment and the Note and
the
execution, delivery and performance by the Borrower of such Credit Documents,
(ii) the articles of incorporation and by-laws of the Borrower as delivered
to
the Agent pursuant to the Secretary’s Certificate dated July 18, 2007 from the
Borrower’s secretary remain in full force and effect and have not been amended
or otherwise modified or revoked, and (iii) attached thereto as exhibits are
certificates of good standing, each of recent date, from the Secretary of State
of Maryland and the Secretary of State of Kansas, certifying the good standing
and authority of the Borrower in such states as of such dates; and
(e) Other
Documents. Such other documents as the Agent may
reasonably request to further implement the provisions of this Amendment or
the
transactions contemplated hereby.
10. No
Other Amendments; No Waiver of Default. Except as amended
hereby, the Credit Agreement and the other Credit Documents shall remain in
full
force and effect and be binding on the parties in accordance with their
respective terms. By entering into this Amendment, neither the Agent
nor any Bank is waiving any Default or Event of Default which may exist on
the
date hereof.
11. Counterparts;
Fax Signatures. This Amendment and any documents
contemplated hereby may be executed in one or more counterparts and by different
parties thereto, all of which counterparts, when taken together, shall
constitute but one agreement. This Amendment and any documents
contemplated hereby may be executed and delivered by facsimile or other
electronic transmission and any such execution or delivery shall be fully
effective as if executed and delivered in person.
12. Governing
Law. This Amendment shall be governed by the same law that
governs the Credit Agreement.
[signature
page to follow]
Second
Amendment to Credit Agreement – Page
IN
WITNESS WHEREOF, the parties have
entered into this Amendment as of the date first above written.
|
|
TORTOISE
CAPITAL RESOURCES CORPORATION,
|
By:____________________________________
Name:
Title:
U.S.
BANK
NATIONAL ASSOCIATION,
as
Agent
and as a Bank
By:____________________________________
Name:
Colleen S. Hayes
Title:
Assistant Vice President
BANK
OF
OKLAHOMA,
as
a
Bank
By:____________________________________
Name:
W. Mack Renner
Title:
Vice President
FIRST
NATIONAL BANK OF KANSAS,
as
a
Bank
By:
___________________________________
Name:
Title:
Second
Amendment to Credit Agreement –
Signature
Page
EXHIBIT
A
(Banks
and Commitments)
|
Bank
|
Revolving
Credit Loan Commitment Amount**
|
Swingline
Loan Commitment Amount*
|
Bank’s
Total Commitment Amount**
|
Bank’s
Pro-Rata Percentage**
|
|
U.S.
Bank
National
Association
|
$25,000,000
|
$3,000,000
|
$25,000,000
|
0.625000000000
|
|
Bank
of Oklahoma, N.A.
|
$5,000,000
|
0
|
$5,000,000
|
0.125000000000
|
|
First
National Bank of Kansas
|
$10,000,000
|
0
|
$10,000,000
|
0.250000000000
|
|
TOTALS:
|
$40,000,000
|
$3,000,000
|
$40,000,000
|
1.000000000000
|
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|
*
|
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.
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**
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The
Revolving Credit Loan Commitments and Pro-Rata Percentages on this
Exhibit
A reflect the Revolving Credit Loan Commitments as they shall exist
following the assignment referred to in Preliminary Statement (d)
of this
Amendment.
|
Second
Amendment to Credit Agreement
– Exhibit
A
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 25, 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, certifies
to
the Agent that:
1. Borrowing
Base Calculation. The Borrowing Base for the Borrower, as of
_________ __, 20__, is as follows:
A. After
giving effect to any Requested
Advance, $__________________
total
value of assets
minus all liabilities and
indebtedness
not represented by “senior
securities”
(as
such term is used in the 1940
Act)
(the
Borrower’s “Total Asset
Value”).
B. 25%
of Total Asset
Value $__________________
(the
“Borrowing
Base”)
2. Calculation
of Borrowing Base Availability. The Borrower’s Borrowing Base
Availability, as of __________ __, 20__, is as follows:
A. Revolving
Credit Loan
Commitments $__________________
B. Current
Outstanding Balances on
Revolving $__________________
Credit
Loans and Swingline
Loans
C. Current
Outstanding Balances on
other $_________________
“senior
securities” (as such term is
used in the
1940
Act), if any
D. Borrowing
Base
Availability $__________________
(lesser
of (i) line 1B minus line 2B
and line 2C or
(ii)
line 2A minus line
2B)
E. Requested
Advance (if
any) $__________________
Second
Amendment to Credit Agreement
– Exhibit
D
3. Compliance
with 1940 Act. As of ______________, 20__, the Borrower is in
material compliance with the 1940 Act, including but not limited to, all
leverage regulations specified in the 1940 Act. As of the date
hereof, the Borrower’s applicable “Asset Coverage,” determined as required by
Section 18(f)(1) of the 1940 Act, for the following is:
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(i)
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Senior
Securities Representing
|
_________________%
|
|
|
Indebtedness
(as used in the 1940 Act)
|
|
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(ii)
|
Senior
Securities (as used in the 1940 Act)
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_________________%
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4. 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 as of the date first above
written.
TORTOISE
CAPITAL RESOURCES CORPORATION
By:
________________________________
Name:
Title:
Second
Amendment to Credit Agreement
– Exhibit
D