Contract
SEVENTH
AMENDMENT TO CREDIT AGREEMENT
This
Seventh Amendment to Credit Agreement (the “Amendment”) is made as of
August 20, 2009, by and between TORTOISE CAPITAL RESOURCES CORPORATION,
a
Maryland corporation (the “Borrower”); and U.S. BANK NATIONAL
ASSOCIATION, a national banking association (the “Bank”); and 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
Bank and the Borrower are parties to a Credit Agreement dated as of April
25,
2007, as amended by the First Amendment to Credit Agreement dated as of
July 18,
2007, as further amended by the Second Amendment to Credit Agreement dated
as of
September 28, 2007, as further amended by the Third Amendment to Credit
Agreement dated as of March 21, 2008, as further amended by the Fourth
Amendment
to Credit Agreement dated as of March 28, 2008, as further amended by the
Fifth
Amendment to Credit Agreement dated as of March 20, 2009, and as further
amended
by the Sixth 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 February 20, 2010.
(c) The
Bank is willing to agree to the foregoing request, subject, however, to
the
terms, conditions, and agreements set for the below.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the Bank and the Borrower agree as
follows:
1. Modification
to Section 1.1 Definitions. The following definitions as set
forth in Section 1.1 of the Credit Agreement are hereby deleted in their
entirety and are hereby replaced with the following:
“Borrowing
Base” means, at any date, 20% of the amount, after giving effect to any
requested Loan on such date (if applicable), of (i) the total value of
the
Borrower’s assets, minus (ii) all liabilities and indebtedness not
represented by “senior securities” (as such term is used in the 1940 Act),
minus (iii) all other securities and investments not included in the
Securities Account.
“Termination
Date” means February 20, 2010; 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 “$11,700,000”
in Section 2.1 of the Credit Agreement is hereby deleted and is
hereby replaced
with “$5,000,000.”
3. Modification
to Swingline Loans. The parties agree that from and after
the date of this Amendment, the Swingline Loan Commitment shall be $0.00,
and
the Swingline Loans, and the obligations to make Swingline Loans, shall
be
terminated. For avoidance of doubt, no Bank, including the Swingline
Lender, shall have any obligation to provide Swingline Loans to the
Borrower. The parties further agree that the provisions and terms of
the Credit Agreement, and in any other Credit Document, relating to Swingline
Loans are hereby deemed to be inapplicable and of no force and effect,
without
further action by any party. Only upon express written agreement by
all parties to the Credit Agreement, and any other Credit Document relating
to
Swingline Loans, shall Swingline Loans, and the provisions relating thereto,
be
deemed to be reinstated and effective.
4. Modification
to Section 3.4(a). Section 3.4(a) of the Credit Agreement is
hereby deleted in its entirety and is hereby replaced with the
following:
(a) Borrowing
Base. The sum of the outstanding balance of the Loans shall not,
at any time, exceed the Borrowing Base. If at any time the sum of the
outstanding balance of Loans exceeds the amount permitted hereby, the Borrower
shall immediately prepay the Loans in an amount equal to the amount of
such
excess.
5. Modification
to Section 3.4(c). Section 3.4(c) of the Credit Agreement is
hereby deleted in its entirety and is hereby replaced with the
following:
(c) Sale
of Collateral. In the event that the Borrower shall sell or
liquidate, or cause to be sold or liquidated, any Collateral, the Borrower
shall
pay 100% of the proceeds from any such sale or liquidation as a mandatory
prepayment of the Loans.
6. Modification
to Section 3.6. Section 3.6 of the Credit Agreement is
hereby deleted in its entirety and replaced with the following:
3.6 Use
of Proceeds. The Revolving Credit Loans shall be used solely for
purposes of: (1) the refinancing of the existing senior indebtedness of
the
Borrower to U.S. Bank National Association; (2) the Borrower’s acquisition of
investment property in the ordinary course of its business; and (3) paying
costs
and expenses incurred in connection with the closing of the transactions
contemplated by this Agreement.
7. Modification
to Exhibit A. Exhibit A as attached to the Credit Agreement
is deleted and is hereby replaced with Exhibit A, attached to this
Amendment.
8. New
Note. Contemporaneously with the execution and delivery of
this Amendment, the Borrower, as maker, shall execute and deliver a new
revolving credit note, in the stated principal amount of $5,000,000, in
favor of
U.S. Bank National Association, as payee (the “New Note”), which New Note
shall amend, restate and replace the Note dated as of June 20, 2009, from
the
Borrower, as maker, to U.S. Bank National Association, as payee, in the
stated
principal amount of $11,700,000 (the “Old Note”), and which New Note, as
the same may be amended, renewed, restated, replaced or consolidated from
time
to time, shall be 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 Bank, as a material inducement to the 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 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 Bank and delivered to the Borrower, the Bank shall
have no
duties under this Amendment until the Bank shall have received fully executed
originals of each of the following, each in form and substance satisfactory
to
the Bank:
(a) Amendment. This
Amendment;
(b) New
Note. The New Note;
(c) Form
U-1. A Form U-1 for the Borrower whereby, among other
things, (i) the maximum principal amount of Revolving Credit Loans that
may be
outstanding from time to time under the Credit Agreement is noted as being
$5,000,000, 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 Bank that, among
other
things, (i) attached thereto as an exhibit is a true and correct copy of
the
resolutions of the board of directors of the Borrower authorizing the Borrower
to enter into the transactions described in this Amendment and the execution,
delivery and performance by the Borrower of such Credit Documents, (ii)
the
articles of incorporation and by-laws of the Borrower as delivered to the
Agent
pursuant to the Secretary’s Certificate dated April 25, 2007 from the
Borrower’s secretary remain in full force and effect and have not been amended
or otherwise modified or revoked, and (iii) attached thereto as exhibits
are
certificates of good standing, each of recent date, from the Secretary
of State
of Maryland and the Secretary of State of Kansas, certifying the good standing
and authority of the Borrower in such states as of such dates; and
(e) Other
Documents. Such other documents as the Bank 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 Bank is 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 Bank for all out-of-pocket costs
and
expenses incurred in connection with the negotiation, preparation, execution,
delivery, operation, enforcement and administration of this Amendment,
including
the reasonable fees and expenses of counsel to the Bank.
13. Affirmation
of Security Interest. The Borrower hereby confirms and
agrees that any and all liens, security interests and other security or
Collateral now or hereafter held by the Bank as security for payment and
performance of the Notes and the Obligations are renewed hereby and carried
forth to secure payment and performance of the Notes and the
Obligations. The Credit Documents are and remain legal, valid and
binding obligations of the parties thereto, enforceable in accordance with
their
respective terms.
14. 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.
15. Governing
Law. This Amendment shall be governed by the same law that
governs the Credit Agreement.
[Remainder
of Page Intentionally Left Blank]
K.S.A.
§16-118 Required Notice. This statement is provided pursuant to
K.S.A. §16-118: “THIS AMENDMENT TO CREDIT AGREEMENT IS A FINAL
EXPRESSION OF THE AMENDMENT TO CREDIT AGREEMENT BETWEEN THE BANK (AS CREDITOR)
AND THE BORROWER (AS DEBTOR) AND SUCH WRITTEN AMENDMENT TO CREDIT AGREEMENT
MAY
NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR ORAL AMENDMENT TO CREDIT AGREEMENT
OR OF A CONTEMPORANEOUS ORAL AMENDMENT TO CREDIT AGREEMENT BETWEEN THE
BANK AND
THE BORROWER.” THE FOLLOWING SPACE CONTAINS ANY NON-STANDARD TERMS,
INCLUDING THE REDUCTION TO WRITING OF ANY PREVIOUS ORAL AMENDMENT TO CREDIT
AGREEMENT:
NONE.
The
creditor and debtor, by their respective initials or signatures below,
confirm
that no unwritten amendment to credit agreement exists between the
parties:
Creditor: SMU
Debtor: TM
[signature
page 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.
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|
TORTOISE
CAPITAL RESOURCES CORPORATION,
|
|
|
the
Borrower
|
By: /s/
Xxxxx
Xxxxxxx
Name:
Xxxxx X.
Xxxxxxx
Title:
Chief
Financial Officer
U.S.
BANK NATIONAL
ASSOCIATION,
as
Agent and as the
Bank
By: /s/
Xxxxxx
Xxxxxx
Name:
Xxxxxx
Xxxxxx
Title:
Vice
President
Seventh
Amendment to Credit Agreement
– Signature
Page
EXHIBIT
A
(Banks
and Commitments)
|
Bank
|
Revolving
Credit Loan Commitment Amount
|
Swingline
Loan Commitment Amount*
|
Bank’s
Total Commitment Amount
|
Bank’s
Pro-Rata Percentage**
|
|
U.S.
Bank
National
Association
|
$5,000,000
|
$0
|
$5,000,000
|
1.000000000000
|
|
TOTALS:
|
$5,000,000
|
$0
|
$5,000,000
|
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
