EXHIBIT K.7
CREDIT AGREEMENT
dated as of October 18, 2005
between
TORTOISE ENERGY CAPITAL CORPORATION
and
U.S. BANK NATIONAL ASSOCIATION
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$65,000,000 Revolving Credit Facility
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CREDIT AGREEMENT
This Credit Agreement is made as of October 18, 2005 by and between
TORTOISE ENERGY CAPITAL CORPORATION, a Maryland corporation (the "Borrower"),
with its chief executive office located at 00000 Xxxxxx, Xxxxx 000, Xxxxxxxx
Xxxx, Xxxxxx 00000, and U.S. BANK NATIONAL ASSOCIATION, a national banking
association (the "Bank"), with an office located at 0000 Xxxx 00xx Xxxxxx,
Xxxxxxxx Xxxx, Xxxxxx 00000.
The parties agree as follows:
SECTION 1
GENERAL DEFINITIONS
1.1 Definitions. When used in this Agreement, the following terms have
the following meanings:
"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 or otherwise modified from time to time.
"Business Day" means a day on which the Bank is open for business to
the general public other than a Saturday or Sunday.
"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 Bank pursuant to the Security Agreement or
any of the other Credit Documents or which otherwise secures the payment or
performance of any Obligation.
"Common Listed Equity Units" means any of the following financial
assets held in the Securities Account: (1) securities traded on a national
securities exchange in the United States, (2) cash and cash equivalents that
have a readily obtainable market value, and (3) bonds rated Baa or better by the
applicable national rating agency.
"Common Listed Equity Units Value" means, at any date, the value of all
Common Listed Equity Units as customarily determined by the Securities
Intermediary and as reflected in the account statement for the Securities
Account (or as would be reflected if an account statement for the Securities
Account were to be issued by the Securities Intermediary as of such date).
"Control Agreement" means the Securities Account Control Agreement or
similar control agreement to be executed by the Borrower, the Securities
Intermediary and the Bank 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 this Agreement, the Note, the Security
Agreement, the Control Agreement and any other agreements or documents existing
on or after the Closing Date evidencing, securing, guaranteeing 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.
"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, or arising out of non-compete or non-solicitation agreements
entered into in connection with asset or equity acquisitions; (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" 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.
"Default Rate" has the meaning provided in Section 3.1 of this
Agreement.
"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.
"Event of Default" has the meaning provided in Section 7.1 of this
Agreement.
"GAAP" means generally accepted accounting principles in effect from
time to time in the United States of America.
"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.
"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. The term "Loan" may refer to
all Revolving Credit Loans then outstanding or, as the context so requires, any
particular Revolving Credit Loan then outstanding under this Agreement.
"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 Bank under
the Credit Documents.
"Note" means the Revolving Credit 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 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 Bank; (3) Debt which is subordinated to the
Obligations pursuant to the terms of a subordination agreement satisfactory in
form and content to the Bank in its sole discretion; and (4) other Debt approved
in advance by the Bank in a writing delivered to the Borrower.
"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 Bank.
"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.
"Revolving Credit Loan" has the meaning provided in Section 2.2 of this
Agreement.
"Revolving Credit Note" has the meaning provided in Section 2.2 of this
Agreement.
"Securities Account" has the meaning provided in the Security
Agreement.
"Securities Account Value" means, at any date, the value of all
financial assets in the Securities Account as customarily determined by the
Securities Intermediary and as reflected in the account statement for the
Securities Account (or as would be reflected if an account
statement for the Securities Account were to be issued by the Securities
Intermediary as of such date).
"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 Bank and by which the
Borrower shall grant to the Bank, as security for the Obligations, a security
interest in all of the Borrower's presently owned or hereafter acquired
investment assets, including without limitation, all of the Borrower's
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.
"Termination Date" means December 31, 2005.
"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 Bank shall so request, the Bank
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 Bank financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
SECTION 2
CREDIT FACILITY
2.1 Total Credit Facility. The Bank agrees, subject to the terms and
conditions of this Agreement, to make a total credit facility of up to
$65,000,000 available to the Borrower upon its request therefor, as provided in
this Section 2.
2.2 Revolving Credit Loans.
(a) General. The Bank 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 from the Closing Date to the Business
Day immediately preceding the Termination Date up to a maximum principal amount
at any time outstanding equal to $65,000,000. In no event shall the Bank be
obligated to make any 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.
(b) Revolving Credit Note. All Revolving Credit Loans shall be
evidenced by, and shall be payable in accordance with the terms and conditions
of, a promissory note substantially in the form of Exhibit A hereto (as amended,
renewed, restated, replaced, consolidated or otherwise modified from time to
time, the "Revolving Credit Note").
SECTION 3
FINANCE CHARGES, REPAYMENT AND OTHER TERMS
3.1 Interest Rate.
(a) General. Interest on each advance hereunder shall accrue
at an annual rate equal to 0.85% plus the one-month LIBOR rate quoted by the
Bank from Telerate Page 3750 or any successor thereto, which shall be that
one-month LIBOR rate in effect two New York Banking Days prior to the beginning
of each calendar month, adjusted for any reserve requirement and any subsequent
costs arising from a change in government regulation, such rate to be reset at
the beginning of each succeeding month. The term "New York Banking Day" means
any day (other than a Saturday or Sunday) on which commercial banks are open for
business in New York, New York. If the initial advance under this Agreement
occurs other than on the first day of the month, the initial one-month LIBOR
rate shall be that one-month LIBOR rate in effect two New York Banking Days
prior to the date of the initial advance, which rate plus the percentage
described above shall be in effect for the remaining days of the month of the
initial advance; such one-month LIBOR rate to be reset at the beginning of each
succeeding month. The Bank's internal records of applicable interest rates shall
be determinative in the absence of manifest error.
(b) Default Rate. 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 rate per annum equal to three percent (3.0%) 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 Bank 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 the Bank within five (5) days after its due date.
(d) Computation of Interest. Interest on the outstanding
principal balance of all Loans and all other Obligations 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 Bank so elects, on the basis of twelve 30-day months
for the actual number of days elapsed).
(e) Usury. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under the 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 the Bank has charged or received
interest hereunder or under the other Credit Documents in excess of the highest
applicable rate, the Bank shall apply such excess to any other Obligations then
due and payable, whether principal, interest, fees or otherwise, and shall
refund the remainder of such excess interest, if any, 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 the Obligations as
follows:
(a) Revolving Credit Loan.
(1) Interest. Accrued interest on outstanding
principal balance of the Revolving Credit
Loan is payable on the earlier to occur of
(A) the first day of each month (beginning
November 1, 2005), or (B) the Termination
Date.
(2) Principal. The outstanding principal balance
of the Revolving Credit Loan is payable on
the Termination Date.
(b) Other Obligations. Costs, fees and expenses and any other
Obligations payable 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 has the right, without penalty
or premium, to prepay the Loan, in whole or in part, at any time and from time
to time after the Closing Date.
3.4 Mandatory Prepayments.
(a) Loan to Value. If, at any time, the outstanding principal
balance of the Loan exceeds 50% of the Common Listed Equity Units Value, the
Borrower shall immediately prepay the Loan in an amount sufficient to reduce the
aggregate unpaid principal balance of the Loan by an amount equal to such
excess.
(b) Legal Requirement. If at any time the Borrower or the
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 Loan or to pledge or to cause to be pledged
any additional collateral in connection with the Loan, the Borrower shall
immediately prepay the Loan 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 Investment Company Act of 1940, as amended.
3.5 Method of Payment. Payments due the Bank under this Agreement and
the other Credit Documents shall be made in immediately available funds to the
Bank at its office described in the introductory paragraph of this Agreement
unless the Bank gives notice to the contrary. Payments so received at or before
1:00 p.m. Kansas City time on any Business Day shall be deemed to have been
received by the Bank on that Business Day. Payments received after 1:00 p.m.
Kansas City time on any Business Day shall be deemed to have been received on
the next Business Day, and interest, if payable in respect of such payment,
shall accrue thereon until such next Business Day.
3.6 Use of Proceeds. The Revolving Credit Loans shall be used solely
for purposes of: (1) purchasing additional Collateral in the form of security
entitlements, provided that immediately upon such
acquisition the Bank has a perfected first priority security interest in such
additional Collateral as security for the Obligations, with such security
interest being perfected by "control" within the meaning of UCC Section
8-106(d)(2), pursuant to the Security Agreement and the Control Agreement; (2)
the Borrower's general working capital and other general corporate needs; and
(3) paying costs and expenses incurred in connection with the closing of the
transactions contemplated by this Agreement.
3.7 Notice and Manner of Borrowing. The Borrower shall give the Bank
notice of its intention to borrow under any Revolving Credit Loan at least one
Business Day before the Business Day such Loan is to be disbursed to the
Borrower, and shall specify: (1) the proposed funding date of such Loan; and (2)
the amount of such Loan. All notices given under this Section by the Borrower
shall be irrevocable and shall be given not later than 11:00 a.m. Kansas City
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 agrees that
the Bank may rely and act upon any request for a Loan from any individual who
the Bank, absent gross negligence or willful misconduct, believes to be a
representative of the Borrower.
3.8 Capital Adequacy. If the Bank 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 Bank 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 Bank's capital as a consequence of
its obligations hereunder to a level below that which the Bank could have
achieved but for such adoption, change or compliance (taking into consideration
the Bank's policies with respect to capital adequacy) by an amount deemed by the
Bank, in its sole discretion, to be material, then from time to time, after
submission by the Bank to the Borrower of a written demand therefor, the
Borrower shall pay to the Bank such additional amount or amounts as will
compensate the Bank for such reduction. A certificate of the Bank 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 Bank, and the method by which such amounts were determined. In
determining such amount, the Bank may use any reasonable averaging and
attribution method.
3.9 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 Bank
from or on behalf of the Borrower, and the Borrower agrees that the 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 Bank or
its agent against the Obligations, in such manner as the Bank may deem
advisable, notwithstanding any entry by the Bank upon any of its books and
records.
3.10 Periodic Statement. The Bank may 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 Bank shall be
deemed final, binding and conclusive upon the Borrower unless the Bank 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.
SECTION 4
LENDING CONDITIONS
4.1 Credit Documents. Notwithstanding anything herein or in the other
Credit Documents to the contrary, the Bank shall not be obligated to make the
initial Loan under this Agreement to the Borrower until the Bank has received
the following documents, duly executed and delivered by all parties thereto, and
otherwise satisfactory in form and content to the Bank:
(a) Credit Agreement. This Agreement;
(b) Note. The Revolving Credit Note;
(c) Security Agreement. The Security Agreement;
(d) UCC Financing Statements. Acknowledgment copies of
filed UCC-1 financing statements from the Borrower,
as debtor, to the Bank, as secured party, covering
the Collateral, from such jurisdictions as the Bank
deems necessary or desirable to perfect its security
interest in the Collateral;
(e) Control Agreement. The Control Agreement;
(f) Loan Disbursement Instructions. Written instructions
from the Borrower to the Bank directing the
disbursement of the proceeds of the initial Loan made
pursuant to this Agreement;
(g) Form U-1. A Form U-1 for the Borrower whereby, among
other things, the Borrower represents and warrants
that the Loan proceeds may be used to purchase or
carry margin stock, the Borrower hereby concurring
with the assessment of the market value of the
Collateral described therein as of the date provided
therein;
(h) Opinion of Borrower's Counsel. The favorable written
opinion to the Bank of Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx
LLP, counsel to the Borrower, regarding the Borrower,
the Credit Documents and the transactions
contemplated by this Agreement and the other Credit
Documents;
(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, certified by the Secretary of State or other
appropriate official of the Borrower's jurisdiction
of incorporation, and (4) a certificate of good
standing for the Borrower, dated on or immediately
prior to the Closing Date, from the Secretary or
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 Bank may reasonably request in
connection with the transactions described in or
contemplated by the Credit Documents.
If the Bank, 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 Bank shall not be deemed to have waived the Borrower's
compliance therewith, nor to have waived any of the Bank's other rights under
this Agreement; and in any event the Bank, if it so elects, may declare an
immediate Event of Default if the Borrower fails to furnish to the Bank 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.
4.2 Additional Conditions Precedent to Initial Loan. The Bank's
obligation to make the initial Loan under this Agreement shall also be subject
to the satisfaction, in the Bank's sole judgment, of each of the following
conditions precedent:
(a) Since the date of the financial statements submitted
by the Borrower to the Bank 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 Bank'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 Bank which
the Borrower is obligated to pay hereunder.
4.3 Conditions Precedent to All Loans. The obligation of the 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 Bank,
if the Bank so requests, a request for advance,
setting forth in writing the amount of the Loan
requested and the other information required pursuant
to this Agreement; provided, however, that the
foregoing condition precedent shall not prevent the
Bank, if it so elects in its sole discretion, from
making a Loan pursuant to the Borrower's non-written
request therefor; and
(c) The Bank 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, 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 have been met.
SECTION 5
REPRESENTATIONS AND WARRANTIES
5.1 Representations, Warranties and Covenants of the Borrower. The
Borrower represents, and warrants to the Bank 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 Bank.
(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) 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.
(e) Financial Statements. All financial statements of the
Borrower which have been furnished to the Bank 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. As of the Closing Date, 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
Bank.
(f) Litigation. There is no pending or threatened action or
proceeding affecting the Borrower or and 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.
(g) Existing Debt. The Borrower has no Debt other than
Permitted Debt.
(h) 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.
(i) Stock and Records. 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.
(j) 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.
(k) 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.
(l) Title to Property; Liens. The Borrower has good and
marketable title to all property purported to be owned by it, and the Bank has a
perfected first priority Lien on all investment assets of the Borrower
(including, without limitation, all investment property), instruments, accounts
and general intangibles) subject to no other Lien except for Permitted Liens.
(m) Insolvency. After the execution and delivery of the Credit
Documents and the disbursement of the initial Loan 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.
(n) 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.
SECTION 6
COVENANTS
6.1 Affirmative Covenants. So long as any Obligations remain unpaid or
the Bank has any commitment to extend credit to or for the benefit of the
Borrower, the Borrower covenants to the Bank 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 Environmental Laws, except where
such failure to comply could not reasonably be expected to have a Material
Adverse Effect.
(b) Reporting Requirements. The Borrower shall furnish to the
Bank such information respecting the condition or operations, financial or
otherwise, of the Borrower as the Bank may reasonably request from time to time.
(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 required by applicable
law to be qualified to do 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) 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 Bank's satisfaction.
(e) Employee Plans. The Borrower shall: (1) notify the Bank
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 Bank'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 Bank 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 Bank 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 Bank 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 Bank may
from time to time request.
(f) Notice of Default. The Borrower shall give prompt written
notice to the Bank 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 Bank 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.
(g) Books and Records; Inspection; Bank 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 Bank and Persons designated by the Bank to visit
and inspect its properties, 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 Bank and Persons
designated by the Bank to perform reviews of such books and financial records
when and as requested by the Bank.
(h) Bank May Perform Obligations; Further Assurances. After
and during the continuation of an Event of Default, the Borrower shall permit
the Bank, if the Bank 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 Bank, on demand, or, if the Bank so elects, by the Bank 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 Bank in
connection therewith and all costs and expenses incurred by or on behalf of the
Bank in connection therewith. The Borrower further 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 Bank 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 Bank's rights and
remedies under, or as contemplated by, the Credit Documents or at law or in
equity.
6.2 Negative Covenants. So long as any Obligations remain unpaid or the
Bank has any commitment to extend credit to or for the benefit of the Borrower,
the Borrower covenants to the Bank 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.
(b) Debt. The Borrower shall not create or suffer to exist any
Debt except for Permitted Debt.
(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 making investments in Persons in
the ordinary course of its business. The Borrower shall not sell, lease or
otherwise transfer any property, except for the disposition of obsolete
equipment and except as otherwise permitted under the Security Agreement and the
Control Agreement with respect to the Collateral.
(d) Subsidiaries; New Business. The Borrower shall not create
any subsidiary, or render any services or otherwise enter into any business
which is not substantially similar to that existing on the Closing Date.
(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 Bank's written consent, change its fiscal
year.
(g) 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.
SECTION 7
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 Bank
specifying in reasonable detail the nature of such
default is received by the Borrower; provided,
however, that the Borrower shall not have any cure
rights under this Subsection (a) if the outstanding
principal balance of the Loans exceeds 80% of the
Common Listed Equity Units Value at any time after
the Closing Date; 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 Bank prompt written
notice thereof; or
(d) Cross-Default. The Borrower fails to pay any Debt
(other than a monetary Obligation due the 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 entitle 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 any of
the Obligations or the validity, perfection or
priority of any Lien granted or purported to be
granted to the Bank; or
(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 Bank shall cease to have a duly perfected
first priority security interest in the Collateral
subject to no other Lien except for Permitted Liens.
7.2 Obligation to Lend; Acceleration. After the occurrence and during
the continuation of any Default, the Bank may declare the obligation of the 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 Bank may declare the Note, all
interest thereon, and all other Obligations to be forthwith due and payable,
whereupon the Note, 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 Bank
elects (any such election to be in the Bank's sole and absolute discretion) to
make one or more advances under this Agreement or to not accelerate all or any
of the Obligations, any such election shall not preclude the Bank from electing
thereafter (in its sole and absolute discretion) to not make advances or to
accelerate all or any of the Obligations, as the case may be.
7.3 Remedies. Upon or after the occurrence and during the continuation
of any Event of Default, the Bank has and may 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 Bank 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 Bank at a place designated by the Bank
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
Bank to the Borrower or any other Person for the use of such premises or such
Collateral.
(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 Bank, 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 Bank may designate in such notice.
The Bank 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 Bank 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 Bank 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 Bank is in receipt of good funds, as follows: first, to
the reasonable costs, expenses and attorneys' fees and expenses incurred by the
Bank for collection and for acquisition, completion, protection, removal,
storage, sale and delivery of the Collateral; second, to any fees or expenses
due the Bank under the Credit Documents; third, to interest due upon any of the
Obligations; and fourth, to the principal of the Obligations; or in such other
manner as the Bank may elect in its sole discretion. If any deficiency shall
arise, the Borrower shall remain liable to the Bank 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 Bank 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 the 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 Bank
has made any demand under this Agreement or the other Credit Documents and
although such Obligations may be unmatured. The rights of the Bank under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of setoff) which the Bank may have.
SECTION 8
MISCELLANEOUS
8.1 Notices. Except as otherwise provided herein, all notices, requests
and demands to or upon a party to this Agreement to be effective shall be in
writing and shall be deemed validly given upon receipt thereof, whether by
personal delivery, U.S. mail, fax, other electronic transmission or otherwise,
in each case addressed as follows:
If to the Bank:
U.S. Bank National Association
0000 Xxxx 00xx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attn.: Xx. Xxxx Xxxxxxx
Fax No.: 000-000-0000
with a copy (which shall not constitute notice) to:
Shook, Hardy & Bacon L.L.P.
0000 Xxxxx Xxxx.
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn.: Xxxx Xxxxxxxx, Esq.
Fax No.: 000-000-0000
If to the Borrower:
Tortoise Energy Capital Corporation
00000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Attn.: Xxxxx Xxxxxxx
Fax No.: 000-000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxxxx, Esq.
Fax No.: 000-000-0000
or to such other address or telecopy number as each party may designate for
itself by like notice given in accordance with this Section.
8.2 Power of Attorney. The Borrower irrevocably designates, makes,
constitutes and appoints the Bank, and all Persons designated by the Bank, 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 the Bank has no
duty to extend credit to or for the benefit of the Borrower), and the Bank, and
any Persons designated by the Bank, 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 Bank'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 Bank or under the 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 Bank 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 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
Bank's determination, to fulfill the Borrower's obligations under this
Agreement.
8.3 Indemnity. The Borrower agrees to indemnify, defend and hold
harmless the Bank and each shareholder, director, officer, employee, agent,
attorney and other representative of or contractor for the Bank 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 Bank
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 Bank and each shareholder, director,
officer, employee, agent, attorney and other representative of or contractor for
the Bank 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 Bank 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.
8.4 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 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 and the Bank.
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 Bank's 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 Bank's rights, title, interests,
remedies, powers and duties hereunder or thereunder; provided, however, that,
unless an Event of Default is then in effect or the Termination Date has
occurred, the Bank shall not have the right to sell this Agreement or any of the
other Credit Documents without first obtaining the Borrower's prior written
consent thereto.
8.5 Reimbursement of Expenses. If, at any time or times prior or
subsequent to the Closing Date, regardless of whether an Event of Default then
exists or any of the transactions contemplated hereunder are concluded, the Bank
employs counsel for advice or other representation, or incurs reasonable legal
and/or appraisers', liquidators', investment bankers' expenses and/or other
costs or out-of-pocket expenses in connection with: (a) the negotiation and
preparation of this Agreement and any of
the other Credit Documents, any amendment or other modification of this
Agreement or any of the other Credit Documents; (b) any litigation, contest,
dispute, suit, proceeding or action (whether instituted by the Bank, the
Borrower or any other Person) in any way relating to the Collateral, this
Agreement, any of the other Credit Documents or the Borrower's affairs; (c) any
attempt to enforce any rights of the Bank against the Borrower or any other
Person which may be obligated to the Bank by virtue of this Agreement or any of
the other Credit Documents, including, without limitation, any account debtors,
irrespective of whether litigation is commenced in pursuance of such rights;
and/or (d) any attempt to inspect, verify, protect, preserve, restore, collect,
sell, manufacture, liquidate or otherwise dispose of or realize upon the
Collateral (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 by the Borrower to the Bank, and shall be additional Obligations and be
secured by the Collateral and may be funded, if the Bank so elects, by the Bank
making a Revolving Credit Loan or other loan under this Agreement on the
Borrower's behalf and paying the same to the Persons to whom such Expenses are
payable. Additionally, if any taxes (excluding taxes imposed upon or measured by
the income of the Bank) shall be payable on account of the execution or delivery
of this Agreement or the other Credit Documents, or the execution, delivery,
issuance or recording of any of the Credit Documents, or the creation of any of
the Obligations hereunder, by reason of any federal, state or local statute or
other law existing on or after the Closing Date, the Borrower will pay all such
taxes, including, but not limited to, any interest and penalties thereon, and
will indemnify and hold the Bank harmless from and against all liabilities in
connection therewith.
8.6 Indulgences Not Waivers. The 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 Bank thereafter to demand strict compliance
and performance therewith. Any suspension or waiver by the 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 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 Bank and directed and delivered to
the Borrower.
8.7 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.
8.8 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 and the Bank. This provision, however, shall not be
deemed to modify Section 8.4 hereof.
8.9 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 Bank on which the Borrower may in any way be liable and
ratifies and confirms whatever the Bank 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 Bank to exercise any of the
Bank's 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 Bank's
rights in respect of the Collateral. The Borrower also waives any right of
setoff or similar right the Borrower may at any time have against the 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 Bank giving rise to any such
right of setoff or similar right, the Borrower agrees not to assert such claim
as a defense or right of setoff with respect to the Borrower's Obligations under
the Credit Documents or otherwise, and to instead assert any such claim, if the
Borrower so elects to assert such claim, in a separate proceeding against the
Bank and not as a part of any proceeding or as a defense to any claim initiated
by the Bank to enforce any of the Bank's rights under any of the Credit
Documents.
8.10 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.
8.11 USA Patriot Act Notice. The Bank 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
Bank to identify the Borrower in accordance with the Act. The Borrower agrees to
provide such information and take such other action as the Bank may request from
time to time to enable the Bank to comply with the provisions of the Act with
respect to the transactions described in the Credit Documents.
8.12 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 Xxxxxxx
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 in
Section 8.1 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 Borrower further agrees not
to assert against the Bank (except by way of a defense or counterclaim in a
proceeding initiated by the Bank) any claim or other assertion of liability
relating to any of the Credit Documents, the Obligations, the Collateral or the
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 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.
8.13 Waiver of Jury Trial; Limitation on Damages. To the fullest extent
permitted by law, and as separately bargained-for consideration to the Bank, the
Borrower waives any right to trial by jury (which the 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 Obligations, the Collateral or the
Bank's 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
Bank, the Borrower also waives any right it may have at any time to claim or
recover in any litigation or other dispute involving the 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 Bank is 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.
8.14 K.S.A. Section 16-118 Required Notice. This statement is provided
pursuant to K.S.A. Section 16-118: "THIS CREDIT AGREEMENT IS A FINAL EXPRESSION
OF THE CREDIT AGREEMENT BETWEEN THE CREDITOR 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 CREDITOR AND
DEBTOR." THE FOLLOWING SPACE CONTAINS ANY NON-STANDARD TERMS, INCLUDING THE
REDUCTION TO WRITING OF ANY PREVIOUS ORAL CREDIT AGREEMENT:
NONE.
THE CREDITOR AND DEBTOR, BY THEIR RESPECTIVE INITIALS OR SIGNATURES
BELOW, CONFIRM THAT NO UNWRITTEN CREDIT AGREEMENT EXISTS BETWEEN THE PARTIES:
CREDITOR: _______________
DEBTOR: _________________
[signature page(s) to follow]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized representatives as of the date
first above written.
TORTOISE ENERGY CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: CFO
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
Exhibit A - Page 1
Exhibit A
REVOLVING CREDIT NOTE
$65,000,000 October 18, 2005
For value received, the undersigned, TORTOISE ENERGY CAPITAL
CORPORATION, a Maryland corporation (the "Borrower"), promises to pay to the
order of U.S. BANK NATIONAL ASSOCIATION, a national banking association (the
"Bank"; which term shall include any subsequent holder hereof), in lawful money
of the United States of America, without setoff, deduction or counterclaim, the
principal sum of Sixty-Five Million and 00/100 Dollars ($65,000,000.00) or, if
different, the principal amount outstanding under Section 2.2 of the Credit
Agreement referred to below.
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 or on or about October 18,
2005, between the Borrower and the Bank, as the same may be amended, renewed,
restated, replaced, consolidated or otherwise modified from time to time (the
"Credit Agreement"). 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 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 termination of the Credit Agreement or the occurrence of an Event
of Default shall entitle the Bank, at its option, to declare the then
outstanding principal balance hereof, all accrued interest thereon, and all
other amounts, if any, payable in respect of this Note to be, and the same shall
thereupon become, immediately due and payable without notice to or demand on the
Borrower, all of which the Borrower waives.
Time is of the essence of this Note. To the fullest extent permitted by
applicable law, the Borrower, for itself and its successors and assigns, waives
presentment, demand, protest, notice of dishonor, and any and all other notices,
demands and consents in connection with the delivery, acceptance, performance,
default or enforcement of this Note, and consents 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.
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.
[signature page to follow]
Exhibit A - Page 2
IN WITNESS WHEREOF, the Borrower has executed and delivered this Note
as of the date first above written.
TORTOISE ENERGY CAPITAL CORPORATION
By:
--------------------------------
Name:
Title:
Exhibit A - Page 3
