FIFTH
AMENDMENT TO CREDIT AGREEMENT
This
Fifth Amendment to Credit Agreement (the “Amendment”) is made and
effective as of March 20, 2009, by and among TORTOISE CAPITAL RESOURCES
CORPORATION, a Maryland corporation (the “Borrower”); U.S. BANK NATIONAL
ASSOCIATION, a national banking association, and FIRST NATIONAL BANK OF KANSAS,
a Kansas bank (each a “Bank” and, collectively, the “Banks”); and
U.S. BANK NATIONAL ASSOCIATION, a national banking association, as the lender
for Swingline Loans (in such capacity, the “Swingline Lender”), 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 further amended by the Second Amendment to Credit Agreement dated
as of
September 28, 2007, as further amended by the Third Amendment to Credit
Agreement dated as of March 21, 2008, and as further amended by the Fourth
Amendment to Credit Agreement dated as of March 28, 2008 (as so amended,
and as
the same may be further amended, renewed, restated, replaced, consolidated
or
otherwise modified from time to time, the “Credit
Agreement”).
(b) The
Borrower has requested to renew and extend the term of the Credit Agreement
for
90 days.
(c) The
Banks are willing to agree to the foregoing request, subject, however, to
the
terms, conditions, and agreements set for the 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. Modification
to Section 1.1 Definitions. The following definitions set
forth in Section 1.1 of the Credit Agreement are hereby deleted in their
entirety and are hereby replaced with the following:
“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; provided, however, in
no event and at no time shall the Daily Resent Libor Rate be less than two
and
one-half percent (2.50%) per annum.
“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 from Reuters Screen LIBOR01 Page (or, any
successor or substitute thereto selected by the Agent in its sole discretion),
divided by (2) one minus the Eurocurrency Reserve Requirement for such
Interest Period; provided, however, in no event and at no time shall
the Libor Rate be less than two and one-half percent (2.50%) per
annum.
“Termination
Date” means June 20, 2009; provided, however, if such day is not a
Business Day, the Termination Date shall be the immediately preceding Business
Day.
2. Decrease
in Revolving Credit Facility. The reference to “$40,000,000”
in Section 2.1 of the Credit Agreement is hereby deleted and is
hereby replaced
with “$25,000,000”.
3. Modification
to Section 2.2(a). The last two paragraphs of Section 2.2(a)
of the Credit Agreement are hereby deleted in their entirety and are hereby
replaced with the following:
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. Notwithstanding anything in this Agreement to the contrary, on
and after March 20, 2009, the Borrower shall not have the right to re-borrow
any
principal that has been previously borrowed and repaid.
4. Modification
to Section 2.4(a). Section 2.4(a) of the Credit Agreement is
hereby deleted in its entirety and is hereby replaced with the
following:
(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. Notwithstanding anything in this
Agreement to the contrary, in the event that the Borrower shall prepay any
Revolving Credit Loan, and thereby reduce the outstanding principal amount
of
any such Revolving Credit Loan, the Revolving Credit Loan Commitments, in
each
instance and without any further action on the part of any party hereto,
shall
thereby be permanently reduced to and deemed to be an amount equal to the
outstanding principal balance of the Revolving Credit Loans immediately
following said prepayment, and the Borrower, thereafter, shall not have the
right to re-borrow any principal that has been previously borrowed and
repaid.
5. Modification
to Section 3.1(a). All references to “1.75%” in Section
3.1(a) of the Credit Agreement are hereby deleted and are hereby replaced
with
“3.00%”.
6. Modification
to Section 3.1(d). Section 3.1(d) of the Credit Agreement is
hereby deleted in its entirety and is hereby replaced with the
following:
(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 0.500% (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)) for
such
preceding fiscal quarter of the difference between (a) the Banks’ total credit
facility commitments under this Agreement, and (b) the average outstanding
principal balance at the end of each day for such preceding fiscal
quarter.
7. Modification
to Section 3.3. The following is added as the last sentence
to Section 3.3 of the Credit Agreement:
Any
voluntary prepayments shall
reduce the Revolving Credit Loan Commitments in accordance with Section 2.4(a)
of this Agreement.
8. Modification
to Section 3.4. The following is hereby added to Section 3.4
of the Credit Agreement:
(c) Sale
of Collateral. In the event that the Borrower shall sell or
liquidate, or cause to be sold or liquidated, any Collateral, the Borrower
shall
pay the proceeds from any such sale or liquidation as a mandatory prepayment
of
the Loans as follows: (1) the Borrower shall pay 100% of the proceeds from
the
sale and/or liquidation of any Collateral that consists of private investments
as a mandatory prepayment of the Loans, and (2) the Borrower shall pay 50%
of
the proceeds from the sale and/or liquidation of any Collateral that consists
of
publicly traded investments as a mandatory prepayment of the Loans.
(d) Reductions
of Commitments. Any mandatory prepayments made pursuant to this
Section 3.4 shall reduce the Revolving Credit Loan Commitments in accordance
with Section 2.4(a) of this Agreement.
9. Modification
to Exhibit A. Exhibit A as attached to the Credit Agreement
is deleted and is hereby replaced with Exhibit A, attached to this
Amendment.
10. New
Notes. Contemporaneously with the execution and delivery of
this Amendment, the Borrower, as maker, shall execute and deliver (a) a new
revolving credit note, in the stated principal amount of $18,000,000, in
favor
of U.S. Bank National Association, as payee (the “New U.S. Bank Note”),
which New U.S. Bank Note shall amend, restate and replace the Note dated
as of
September 28, 2007, from the Borrower, as maker, to U.S. Bank National
Association, as payee, in the stated principal amount of $25,000,000 (the
“Old U.S. Bank Note”), and which New U.S. Bank 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, and (b) a new
revolving credit note, in the stated principal amount of $7,000,000, in favor
of
First National Bank of Kansas, as payee (the “New First National Bank
Note”), which New First National Bank Note shall amend, restate and replace
the Note dated as of September 28, 2007, from the Borrower, as maker, to
First
National Bank of Kansas, as payee, in the stated principal amount of $10,000,000
(the “Old First National Bank Note”), and which New First National Bank
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.
11. 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.
12. 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) New
U.S. Bank Note. The New U.S. Bank Note;
(c) New
First National Bank Note. The New First National Bank
Note;
(d) 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
$25,000,000, 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;
(e) 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 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 April 25, 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
(f) Other
Documents. Such other documents as the Agent may
reasonably request to further implement the provisions of this Amendment
or the
transactions contemplated hereby.
13. 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.
14. Expenses. The
Borrower agrees to pay and reimburse the Agent and/or the Banks for all
out-of-pocket costs and expenses incurred in connection with the negotiation,
preparation, execution, delivery, operation, enforcement and administration
of
this Amendment, including the reasonable fees and expenses of counsel to
the
Agent and/or the Banks.
15. Affirmation
of Security Interest. The Borrower hereby confirms and
agrees that any and all liens, security interests and other security or
Collateral now or hereafter held by the Agent and/or the Banks as security
for
payment and performance of the Notes and the Obligations are renewed hereby
and
carried forth to secure payment and performance of the Notes and the
Obligations. The Credit Documents are and remain legal, valid and
binding obligations of the parties thereto, enforceable in accordance with
their
respective terms.
16. 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.
17. Governing
Law. This Amendment shall be governed by the same law that
governs the Credit Agreement.
[Remainder
of Page Intentionally Left Blank]
K.S.A.
§16-118 Required Notice. This statement is provided pursuant to
K.S.A. §16-118: “THIS AMENDMENT TO CREDIT AGREEMENT IS A FINAL
EXPRESSION OF THE AMENDMENT TO CREDIT AGREEMENT BETWEEN THE BANKS (AS CREDITORS)
AND THE BORROWER (AS DEBTOR) AND SUCH WRITTEN AMENDMENT TO CREDIT AGREEMENT
MAY
NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR ORAL AMENDMENT TO CREDIT AGREEMENT
OR OF A CONTEMPORANEOUS ORAL AMENDMENT TO CREDIT AGREEMENT BETWEEN THE BANKS
AND
THE BORROWER.” THE FOLLOWING SPACE CONTAINS ANY NON-STANDARD TERMS,
INCLUDING THE REDUCTION TO WRITING OF ANY PREVIOUS ORAL AMENDMENT TO CREDIT
AGREEMENT:
NONE.
The
creditors and debtor, by their respective initials or signatures below, confirm
that no unwritten amendment to credit agreement exists between the
parties:
Creditor:
__________
Creditor:
__________
Debtor:
___________
[signature
page to follow]
Fifth
Amendment to Credit Agreement – Initial
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:
Vice President
FIRST
NATIONAL BANK OF KANSAS,
as
a
Bank
By:
___________________________________
Name:
Title:
Fifth
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
|
$18,000,000
|
$3,000,000
|
$18,000,000
|
0.720000000000
|
|
First
National Bank of Kansas
|
$7,000,000
|
0
|
$7,000,000
|
0.280000000000
|
|
TOTALS:
|
$25,000,000
|
$3,000,000
|
$25,000,000
|
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.
|
Fifth
Amendment to Credit Agreement – Exhibit
A