FIFTH AMENDMENT TO CREDIT AGREEMENT
Exhibit k.11
FIFTH AMENDMENT TO CREDIT AGREEMENT
This Fifth Amendment to Credit Agreement (the “Amendment”) is made and effective as of June 20, 2010, by and between TORTOISE NORTH AMERICAN ENERGY CORPORATION, a Maryland corporation (the “Borrower”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association (“U.S. Bank”), as a Bank hereunder, 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) U.S. Bank and the Borrower are parties to that certain Credit Agreement dated as of April 25, 2007, as amended by the First Amendment to Credit Agreement dated as of March 21, 2008, as further amended by the Second Amendment to Credit Agreement dated as of October 31, 2008, as further amended by the Third Amendment to Credit Agreement dated as of March 20, 2009, and as further amended by the Fourth Amendment to Credit Agreement dated as of June 20, 2009 (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 until June 20, 2011, increase the amount of the total credit facility, and to make certain modifications to the terms of the Credit Agreement as set forth in the Amendment.
(c) U.S. Bank is 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 parties agree as follows:
1. Modification to Section 1.1 Definitions. The following definition set forth in Section 1.1 of the Credit Agreement is hereby deleted in its entirety and is hereby replaced with the following:
“Termination Date” means June 20, 2011; provided, however, if such day is not a Business Day, the Termination Date shall be the immediately preceding Business Day.
2. Modification to Section 3.1(a). All references to “2.00%” in Section 3.1(a) of the Credit Agreement are hereby deleted and are hereby replaced with “1.25%”.
3. Modification to Section 3.1(c). The reference to “0.250%” in Section 3.1(c) of the Credit Agreement is hereby deleted and is hereby replaced with “0.200%”.
4. Modification to Section 6.1(m). Section 6.1(m) of the Credit Agreement is hereby deleted in its entirety and is hereby replaced with the following:
(m) Credit Rating. The Borrower shall maintain a minimum unsecured credit rating with respect to the Senior Notes of “A” by Fitch, Inc. (or an equivalent nationally recognized statistical rating organization).
5. Modification to Exhibit A. Exhibit A as attached to the Credit Agreement is hereby deleted in its entirety and is hereby replaced with Exhibit A, attached to this Amendment.
6. New Note. Contemporaneously with the execution and delivery of this Amendment, the Borrower, as maker, shall execute and deliver a new revolving credit note, in the stated principal amount of $15,000,000, in favor of U.S. Bank, as payee (the “New Note”), which New Note shall amend, restate and replace the Note dated as of March 20, 2009, from the Borrower, as maker, to U.S. Bank, as payee, in the stated principal amount of $10,000,000 (the “Old Note”), and which New Note, as the same may be amended, renewed, restated, replaced or consolidated from time to time, shall be the “Revolving Credit Note” referred to in the Credit Agreement.
7. 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 U.S. Bank, as a material inducement to U.S. Bank 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 U.S. 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.
8. Conditions Precedent to Amendment. Except to the extent waived in a writing signed by U.S. Bank and delivered to the Borrower, U.S. Bank shall have no duties under this Amendment until U.S. Bank shall have received fully executed originals of each of the following, each in form and substance satisfactory to U.S. Bank:
(a) Amendment. This Amendment;
(b) New Note. The New 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 $15,000,000, 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 U.S. Bank 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 U.S. Bank pursuant to the Secretary’s Certificate dated June 20, 2009 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 U.S. Bank may reasonably request to further implement the provisions of this Amendment or the transactions contemplated hereby.
9. 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
Fifth Amendment to Credit Agreement – Page
parties in accordance with their respective terms. By entering into this Amendment, U.S. Bank is not waiving any Default or Event of Default which may exist on the date hereof.
10. Expenses. The Borrower agrees to pay and reimburse U.S. Bank 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 U.S. Bank.
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.
[Remainder of Page Intentionally Left Blank]
Fifth Amendment to Credit Agreement – Page
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 U.S. BANK (AS CREDITOR) 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 U.S. BANK 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 creditor and debtor, by their respective initials or signatures below, confirm that no unwritten amendment to credit agreement exists between the parties:
Creditor: /s/ CSH
Debtor: /s/ TM
[signature pages 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.
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NORTH AMERICAN ENERGY CORPORATION,
the Borrower
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By:
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/s/ Xxxxx Xxxxxxx | |
| Name: Xxxxx Xxxxxxx | |||
| Title: Chief Financial Officer | |||
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U.S. BANK NATIONAL ASSOCIATION,
as Agent and as a Bank
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By:
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/s/ Xxxxxxx Xxxxx | |
| Name: Xxxxxxx X. Xxxxx | |||
| Title: Vice President | |||
Fifth Amendment to Credit Agreement – Signature Page
EXHIBIT A
(Bank and Commitments)
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Bank
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Revolving Credit Loan Commitment Amount
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Swingline Loan Commitment Amount*
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Bank’s Total Maximum Commitment Amount
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Bank’s Pro-Rata Percentage
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U.S. Bank National Association
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$15,000,000
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$0
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$15,000,000
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1.000000000000
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TOTALS:
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$15,000,000
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$0
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$15,000,000
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1.000000000000
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*
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As more particularly described in the Agreement, the Swingline Loan Commitment is a subcommitment under the Revolving Credit Loan Commitment. 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 Commitment.
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Fifth Amendment to Credit Agreement – Exhibit A
