SEVENTH AMENDMENT TO CREDIT AGREEMENT
Exhibit k.16
SEVENTH AMENDMENT TO CREDIT AGREEMENT
This Seventh Amendment to Credit Agreement (the “Amendment”) is made as of March 9,
2011, by and among TORTOISE ENERGY CAPITAL CORPORATION, a Maryland corporation (the
“Borrower”); U.S. BANK NATIONAL ASSOCIATION, a national banking association, and BANK OF
AMERICA, N.A. (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 March 22, 2007,
as amended by the First Amendment to Credit Agreement dated as of May 29, 2007, as further amended
by the Second Amendment to Credit Agreement dated as of October 31, 2007, as further amended by the
Third Amendment to Credit Agreement dated as of March 21, 2008, as further amended by the Fourth
Amendment to Credit Agreement dated as of March 20, 2009, as further amended by the Fifth Amendment
to Credit Agreement dated as of June 20, 2009, and as further amended by the Sixth Amendment to
Credit Agreement dated as of June 20, 2010 (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 Bank of Nova Scotia (“Scotia”), has agreed to become a “Bank” under the Credit
Agreement and shall have an initial Revolving Credit Loan Commitment of $5,000,000.
(c) The Banks are willing to add Scotia as a Bank 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. New Bank. The Bank of Nova Scotia (“Scotia Bank”) shall become and is hereby added
as a “Bank” under the Credit Agreement. By executing this Amendment below, Scotia Bank (i) agrees
that it is a party to the Credit Agreement, having all the rights and obligations of a Bank
thereunder and under the other Credit Documents, including, without limitation, the obligation to
make Revolving Credit Loans, and (ii) appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under the Credit Agreement and the other Credit
Documents as are delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto.
2. Modification to Section 1.1 Definitions. The definition of “Permitted Debt” as set out in
Section 1.1 of the Credit Agreement is hereby deleted in its entirety and is replaced with the
following:
“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) the
Senior Notes; (3) Debt to the Banks under this Agreement; (4) interest rate
protection agreements; and (5) other Debt approved in advance by Required Banks in a
writing delivered to the Borrower.
3. Increase in Revolving Credit Facility. The reference to “$35,000,000” in Section 2.1 of
the Credit Agreement is hereby deleted in its entirety and is hereby replaced with “$40,000,000”.
4. Modification to Section 7.1. Section 7.1(a) is hereby deleted in its entirety and replaced
with the following:
(a) General. The Borrower fails to pay any amounts when due with respect to
the Loans, or fails to perform or observe any other obligation of the Borrower to
the Agent or the Banks under the Credit Documents or any other term, covenant or
other provision in any Credit Document in accordance with the terms thereof and, if
such default is curable (it being specifically agreed that no default may be cured
after the Termination Date), the Borrower fails to cure such default within five
days after written notice from the Agent specifying in reasonable detail the nature
of such default is received by the Borrower; or
5. Modification to Section 9.4. Section 9.4(e) is hereby deleted in its entirety and replaced
with the following:
(e) Participations. The Borrower expressly recognizes and agrees
that the Banks may sell, without the consent of the Borrower, to other financial
institutions participations in the Loans and other credit extensions incurred by the
Borrower pursuant hereto; provided however, (i) no such sale (even if to an
affiliate of a Bank or other Bank) shall relieve the selling Bank from any of its
obligations under this Agreement and the other Credit Documents, and (ii) the
Borrower shall continue to deal solely and directly with the selling Bank in
connection with such Bank’s rights and obligations under this Agreement.
6. Revolving Credit Notes. Contemporaneously with the execution and delivery of this
Amendment, the Borrower, as maker, shall execute and deliver a revolving credit note, in the stated
principal amount of $5,000,000, in favor of Scotia Bank, as payee (the “Scotia Bank Note”),
which Scotia 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.
7. Modification to Exhibit A. Exhibit A to the Credit Agreement is hereby deleted in its
entirety and is hereby replaced with Exhibit A attached to this Amendment.
8. Reaffirmation of Credit Documents. The Borrower reaffirms its obligations under the Credit
Agreement, as amended hereby, and the other Credit Documents to which it is a party or by which it
is bound, and represents, warrants and covenants to the Agent and the Banks, as a material
inducement to the Agent and each 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 the Agent’s or any Bank’s actions or inactions in
respect of any of the foregoing, and (b) all representations and warranties made by or on behalf of
the Borrower in the Credit Agreement and the other Credit Documents are true and complete on the
date hereof as if made on the date hereof.
9. Conditions Precedent to Amendment. Except to the extent waived in a writing signed by the
Agent and delivered to the Borrower, the Agent and the Banks shall have no duties under this
Amendment until the Agent shall have received fully executed originals of each of the following,
each in form and substance satisfactory to the Agent:
(a) Amendment. This Amendment;
Seventh Amendment to Credit Agreement — Page 2
(b) The Nova Scotia Note. The Nova Scotia Bank Note;
(c) Form U-1. A Form U-1 for the Borrower whereby, among other things, (i) the maximum
principal amount of Revolving Credit Loans that may be outstanding from time to time under
the Credit Agreement is noted as being $40,000,000, and (ii) the Borrower concurs (and the
Borrower does hereby concur) with the assessment of the market value of the margin stock or
other investment property described in the attachment to such Form U-1 as of the date
provided in such attachment;
(d) Secretary’s Certificate. A certificate from the Secretary or Assistant Secretary
of the Borrower certifying to the Agent that, among other things, (i) attached thereto as an
exhibit is a true and correct copy of the resolutions of the board of directors of the
Borrower authorizing the Borrower to enter into the transactions described in this Amendment
and the execution, delivery and performance by the Borrower of any documents related to this
Amendment, (ii) the articles of incorporation and by-laws of the Borrower as delivered to
the Agent pursuant to the Secretary’s Certificate dated February __, 2011, from the
Borrower’s secretary remain in full force and effect and have not been amended or otherwise
modified or revoked, and (iii) attached thereto as exhibits are certificates of good
standing, each of recent date, from the Secretary of State of Maryland and the Secretary of
State of Kansas, certifying the good standing and authority of the Borrower in such states
as of such dates; and
(e) Other Documents. Such other documents as the Agent may reasonably request to
further implement the provisions of this Amendment or the transactions contemplated hereby.
10. No Other Amendments; No Waiver of Default. Except as amended hereby, the Credit Agreement
and the other Credit Documents shall remain in full force and effect and be binding on the parties
in accordance with their respective terms. By entering into this Amendment, the Agent and the
Banks are not waiving any Default or Event of Default which may exist on the date hereof.
11. Expenses/Fees. 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 the Banks.
12. 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.
13. Governing Law. This Amendment shall be governed by the same law that governs the Credit
Agreement.
[Remainder of Page Intentionally Left Blank]
Seventh Amendment to Credit Agreement — Page 3
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: | ||||||
| Creditor: | ||||||
| Debtor: | ||||||
[signature page(s) to follow]
Seventh Amendment to Credit Agreement — Initial Page
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above
written.
| TORTOISE ENERGY CAPITAL CORPORATION, the Borrower |
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| By: | ||||||
| Title: Chief Financial Officer | ||||||
| U.S. BANK NATIONAL ASSOCIATION, as Agent and as a Bank |
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| By: | ||||||
| Title: Vice President | ||||||
| THE BANK OF NOVA SCOTIA, as a Bank |
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| By: | ||||||
| Title: | ||||||
| BANK OF AMERICA, N.A. as a Bank |
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| By: | ||||||
| Title: | ||||||
Seventh Amendment to Credit Agreement — Signature Page
EXHIBIT A
(Banks and Commitments)
| Revolving | ||||||||||||||||
| Credit Loan | Swingline Loan | |||||||||||||||
| Commitment | Commitment | Bank’s Total | Bank’s Pro-Rata | |||||||||||||
| Bank | Amount | Amount* | Commitment Amount | Percentage | ||||||||||||
U.S. Bank National
Association |
$ | 20,000,000 | $5,000,000 | $20,000,000 | 0.5 | |||||||||||
The Bank of Nova
Scotia |
$ | 5,000,000 | 0 | $ 5,000,000 | 0.125 | |||||||||||
Bank of America, N.A. |
$ | 15,000,000 | 0 | $15,000,000 | 0.375 | |||||||||||
TOTALS: |
$ | 40,000,000 | $5,000,000 | $40,000,000 | 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. |
Seventh Amendment to Credit Agreement — Exhibit A
