SIXTH AMENDMENT TO CREDIT AGREEMENT
Exhibit k.12
SIXTH AMENDMENT TO CREDIT AGREEMENT
This Sixth Amendment to Credit Agreement (the “Amendment”) is made and effective as of
June 20, 2010, 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., a national banking association (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 that certain 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, and as further
amended by the Fifth 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, reduce 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) The Banks are willing to agree to the foregoing requests, 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. Decrease in Revolving Credit Facility. The reference to “$40,000,000” in Section 2.1 of
the Credit Agreement is hereby deleted and is hereby replaced with “$35,000,000”.
3. Modification to Section 2.2(a). The second paragraph of Section 2.2(a) of the Credit
Agreement is hereby deleted in its entirety and is hereby replaced with the following:
Notwithstanding anything herein to the contrary, on or after June 20, 2010, the Borrower may
increase the total amount of this credit facility, as such amount is provided in Section 2.1 above,
in an aggregate principal amount of up to $10,000,000 (for a total credit facility in an aggregate
principal amount of up to $45,000,000) subject to the arrangement of additional commitments with
financial institutions acceptable to the Borrower and the Agent; provided that in each case (1) no
Bank will be required to increase its Revolving Credit Loan Commitment, (2) the Agent shall have no
responsibility to
arrange any such additional commitments unless the Agent shall consent to such undertaking in a
prior writing; and in any event, the Agent’s responsibility to arrange any additional commitments
shall be subject to such conditions, including, but not limited to, fee arrangements, as the Agent
may provide in connection therewith, (3) there is no continuing Default or Event of Default, and
(4) the conditions to making a Revolving Credit Loan, as provided in Section 4.3(a) below, are
satisfied.
4. 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%”.
5. 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%”.
6. 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).
7. 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.
8. New Notes. Contemporaneously with the execution and delivery of this Amendment, the
Borrower, as maker, shall execute and deliver (a) a new revolving credit note, in the stated
principal amount of $20,000,000, in favor of U.S. Bank National Association, as payee (the “New
U.S. Bank Note”), which New U.S. Bank Note shall amend, restate and replace the Note dated as
of March 20, 2009, from the Borrower, as maker, to U.S. Bank National Association, as payee, in the
stated principal amount of $30,000,000 (the “Old U.S. Bank Note”), and which New U.S. Bank
Note, as the same may be amended, renewed, restated, replaced or consolidated from time to time,
shall be a “Revolving Credit Note” referred to in the Credit Agreement; and (b) a new revolving
credit note, in the stated principal amount of $15,000,000, in favor of Bank of America, N.A., as
payee (the “New Bank of America Note”), which New Bank of America Note shall amend, restate
and replace the Note dated as of June 20, 2009, from the Borrower, as maker, to Bank of America,
N.A., as payee, in the stated principal amount of $10,000,000 (the “Old Bank of America
Note”), and which New Bank of America 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.
9. 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.
10. 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:
Sixth Amendment to Credit Agreement — Page 2
(a) Amendment. This Amendment;
(b) New U.S. Bank Note. The New U.S. Bank Note;
(c) New Bank of America Note. The New Bank of America Note;
(d) Form U-1. A Form U-1 for the Borrower whereby, among other things, (i) the maximum
principal amount of Revolving Credit Loans that may be outstanding from time to time under
the Credit Agreement is noted as being $35,000,000, and (ii) the Borrower concurs (and the
Borrower does hereby concur) with the assessment of the market value of the margin stock or
other investment property described in the attachment to such Form U-1 as of the date
provided in such attachment;
(e) Secretary’s Certificate. A certificate from the Secretary or Assistant Secretary
of the Borrower certifying to the Agent that, among other things, (i) attached thereto as an
exhibit is a true and correct copy of the resolutions of the board of directors of the
Borrower authorizing the Borrower to enter into the transactions described in this Amendment
and the execution, delivery and performance by the Borrower of 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 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
(f) Other Documents. Such other documents as the Agent may reasonably request to
further implement the provisions of this Amendment or the transactions contemplated hereby.
11. 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.
12. Expenses. The Borrower agrees to pay and reimburse the Agent and/or the Banks for all
out-of-pocket costs and expenses incurred in connection with the negotiation, preparation,
execution, delivery, operation, enforcement and administration of this Amendment, including the
reasonable fees and expenses of counsel to the Agent and the Banks.
13. 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.
14. Governing Law. This Amendment shall be governed by the same law that governs the Credit
Agreement.
Sixth 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: __________
Debtor: ___________
[signature page(s) to follow]
Sixth 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 |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Chief Financial Officer | |||
| U.S. BANK NATIONAL ASSOCIATION, as Agent and as a Bank |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Vice President | |||
| BANK OF AMERICA, N.A. as a Bank |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President | |||
Sixth 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 | 0.57142857142857 | |||||||||
Bank of America, N.A. |
$ | 15,000,000 | 0 | $ | 15,000,000 | 0.42857142857143 | ||||||||||
TOTALS: |
$ | 35,000,000 | $ | 5,000,000 | $ | 35,000,000 | 1.00000000000000 | |||||||||
| * | 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. |
Sixth Amendment to Credit Agreement — Exhibit A
