FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST
AMENDMENT TO CREDIT AGREEMENT
This
First Amendment to Credit Agreement (the “Amendment”) is made
as of March 21, 2008, by and among TORTOISE NORTH AMERICAN ENERGY CORPORATION, a
Maryland corporation (the “Borrower”); U.S. BANK
NATIONAL ASSOCIATION, a national banking association, and BANK OF OKLAHOMA,
N.A., a national banking association, (each a “Bank” and,
collectively, the “Banks”); U.S. BANK
NATIONAL ASSOCIATION, a national banking association, as the lender for
Swingline Loans (in such capacity, the “Swingline Lender”);
and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as agent for
the Banks hereunder (in such capacity, the “Agent”); and U.S.
BANK NATIONAL ASSOCIATION, a national banking association, as lead arranger
hereunder (in such capacity, the “Lead
Arranger”). Capitalized terms used and not defined herein 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
April 25, 2007 (the “Credit
Agreement”).
(b) The
Borrower has requested that the term of the Credit Agreement be extended for 364
days.
(c) The
Banks are willing to agree to the foregoing request, subject, however, to the
terms, conditions and agreements set forth below.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Modification to Section 1.1
Definitions. Section 1.1 of the Credit Agreement is
modified as follows:
A. The
following definitions are hereby added to Section 1.1 of the Credit
Agreement:
“Assignment and
Assumption” means an assignment and assumption entered into by a Bank and
another Person (with the consent of any party whose consent is required pursuant
to Section 9.4), and accepted by the Agent, in substantially the form of Exhibit F or any
other form approved by the Agent.
“Borrowing Base
Availability” means, at any time, the lesser of: (a)
the Borrowing Base less current outstanding balances on the Revolving Credit
Loans and Swingline Loans and less current outstanding balances on other “senior
securities representing indebtedness” (as such term is used in the 1940 Act), if
any or (b) the
Revolving Credit Loan Commitments less current outstanding balances on the
Revolving Credit Loans and Swingline Loans.
B. 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, 33-1/3% of the amount, after giving effect to any requested
Loan on such date, 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).
“Revolving Credit Loan
Commitment” means, as to each Bank, its obligation to make Revolving
Credit Loans under Section 2.2 hereof in an aggregate principal amount at any
time outstanding not to exceed the amount set forth opposite such Bank’s name on
Exhibit A
hereto under the column entitled “Revolving Credit Loan Commitment Amount,” or
as such amount may be modified by any assignment made pursuant to this
Agreement.
“Termination Date”
means, March 20, 2009; provided, however, if such
day is not a Business Day, the Termination Date shall be the immediately
preceding Business Day.
2. Modification to
Section 2.2(a). The reference to “$10,000,000” in
Section 2.2(a) of the Credit Agreement is hereby deleted and is hereby
replaced with “$5,000,000.” Additionally, the reference to
“$25,000,000” in Section 2.2(a) of the Credit Agreement is hereby deleted and is
hereby replaced with “$20,000,000.”
3. Modification to Section
2.3(a). The reference to “Sections 7(e)” in
Section 2.3(a) of the Credit Agreement is hereby deleted and is hereby
replaced with “Section 7.1(e).”
4. Addition of Unused Line
Fee. Section 3.1 of the Credit Agreement shall be
modified such that subsection (c) and subsection (d) of Section 3.1 of the
Credit Agreement are hereby modified to be subsection (d) and subsection (e) of
Section 3.1 of the Credit Agreement, respectively. The following is
hereby added as subsection (c) of Section 3.1 of the Credit
Agreement:
(c) Unused Line
Fee. The Borrower shall pay to the Agent (to be allocated by
the Agent to the Banks in accordance with their respective Pro-Rata Shares), on
the first day of each fiscal quarter, for the immediately preceding fiscal
quarter, an unused line fee (the “Unused Line Fee”) at
a rate per annum equal to 0.150% (calculated on a daily basis, computed on the
basis of a 360-day year for the actual number of days elapsed (or if the Agent
so elects, on the basis of twelve 30-day months for the actual number of days
elapsed)) for such preceding fiscal quarter of the difference between (a) the
Banks’ total credit facility commitments under this Agreement (including any
increase of such commitments pursuant to Section 2.2 above), and (b) the average
outstanding principal balance at the end of each day for such preceding fiscal
quarter.
5. 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) Combined Loan to
Value. If, at any time, the Borrowing Base Availability is
less than zero, the Borrower shall immediately prepay the Loans in an amount
equal to the extent to which the Borrowing Base Availability is less than
zero. By way of example, if the Borrowing Base Availability is
-$100,000, then the Borrower shall immediately prepay the Loans in an amount
equal to $100,000.
6. Modification to
6.1(b)(3). Section 6.1(b)(3) of the Credit Agreement is
hereby deleted in its entirety and is hereby replaced with the
following:
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(3)
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Borrowing Base
Certificate. So long as any Loan remains unpaid, and no
later than the first (1st)
Business Day of each calendar month,
a
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First
Amendment to Credit Agreement - Page 2
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Borrowing
Base Certificate for the immediately preceding calendar month;
and
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7. Modification to Section
6.2(b). Section 6.2(b) of the Credit Agreement is hereby
deleted in its entirety and is hereby replaced with the following:
(b) Debt. The
Borrower shall not create or suffer to exist any Debt except for Permitted
Debt. The Borrower acknowledges and agrees that notwithstanding any
reference in this Agreement to “senior securities,” the Borrower shall not be
permitted to incur Debt other than as expressly permitted in this Section
6.2(b).
8. Modification to Section
9.4. Section 9.4 of the Credit Agreement is hereby deleted in
its entirety and is hereby replaced with the following:
9.4 Entire Agreement;
Modification of Agreement; Sale of Interest.
(a) Entire
Agreement. 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.
(b) Modifications. This
Agreement may not be modified, altered or amended, except by an agreement in
writing signed by the Borrower and the Required Banks, and any provisions of
this Agreement or the other Credit Documents may be waived by the Required
Banks; provided,
however, that, notwithstanding the foregoing, no amendment or waiver
shall be effective, without first obtaining the written consent of all Banks,
that (a) extends the due date of any principal, interest or fee payment in
respect of the Loans; (b) changes the amount or duration of any Bank’s
Commitment; (c) releases the Borrower, in whole or in part, from any obligation
under the Credit Documents to pay any principal or interest under the Loans; (d)
reduces the rate of interest or fees provided hereunder; or (e) changes the
definition of “Required Banks” or amends the terms of this Section 9.4, or that
otherwise has the effect of impairing any of the consent requirements contained
in this Section 9.4 or in any other provision of this Agreement or the other
Credit Documents where the consent of all the Banks or the Required Banks is
required in connection with any matter.
(c) Assignment by
Borrower. 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.
(d) Assignment by
Banks.
(i) Any
Bank may assign all or any part of such Bank’s rights or obligations under this
Agreement (including all or any part of its Commitment or the Loans owing to it,
the Notes or any of the other Credit Documents); provided, however, that each
assignment shall be subject to the following conditions: (1) the amount of the
Commitment being assigned shall equal at least $5,000,000, (2) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Bank’s rights and obligations, (3) the assignor and the assignee Bank
shall execute and deliver to the Agent an Assignment and Assumption, and (4) the
assignor Bank shall pay to the Agent,
First
Amendment to Credit Agreement - Page 3
for its
own account and not for the pro-rata benefit of the Banks, an assignment fee of
$3,500; provided
further, unless an Event of Default is then in effect or the Termination
Date has occurred, the Banks shall not have the right to make any such
assignment without first obtaining the Agent’s and the Borrower’s prior written
consent (which consent shall not be unreasonably withheld or
delayed). Notwithstanding anything herein to the contrary, no consent
shall be required in connection with any assignment to another Bank or an
affiliate of a Bank. For purposes of this Section 9.4, an affiliate
of a Bank means any Person that directly, or indirectly through intermediaries,
is controlled by, controls or is under common control with such Bank; for
purposes of Section 9.4, “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.
(ii) Upon
any assignment, as described in paragraph (i) above, (1) the assignee Bank
thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a
Bank under this Agreement, and (2) the assigning Bank thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Bank’s rights and obligations under
this Agreement, such Bank shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.15, 9.2 and 9.3 with respect to
facts and circumstances occurring prior to the effective date of such
assignment. Any assignment or transfer by a Bank of its rights or
obligations under this Agreement that does not comply with this subsection shall
be treated for purposes of this Agreement as a sale by such Bank of a
participation in such rights and obligations in accordance with subsection (e)
of this Section 9.4.
(iii) The
Agent shall maintain at one of its offices in Minneapolis, Minnesota, a copy of
each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Banks, and the Commitments of, and
principal amounts of the Loans owing to, each Bank pursuant to the terms hereof
from time to time (the “Register”). The
entries in the Register shall be conclusive and the Borrower shall treat each
person whose name is recorded in the Register pursuant to the terms hereof as a
Bank hereunder for all purposes of this Agreement absent any manifest error,
notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Agent, the Swingline Lender and
any Bank, at any reasonable time and from time to time upon reasonable
notice.
(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, that
no Bank shall sell or otherwise transfer any participation interest in any Loans
or any other rights or interests under any of the Credit Documents to any other
Person (other than one or more affiliates of a Bank or another Bank) without
first obtaining the prior written consent of the Agent (which consent shall not
be unreasonably withheld or delayed); provided further, (i) no such
sale or transfer (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.
First
Amendment to Credit Agreement - Page 4
(f) Certain
Pledges. Any Bank may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Bank, including any pledge or assignment to secure
obligations to a Federal Reserve Bank organized under Section 4 of the Federal
Reserve Act, 12 U.S.C. Section 341, and this Section 9.4 shall not apply to any
such pledge or grant of a security interest; provided, however, that no
such pledge or assignment shall release such Bank from any of its obligations
hereunder or substitute any such pledgee or assignee for such Bank as a party
hereto.
9. Modification to Exhibit
D. Exhibit D as attached to the Credit Agreement is hereby
deleted in its entirety and is hereby replaced with Exhibit D attached to
this Amendment.
10. Addition of Exhibit
E. Exhibit E attached to
this Amendment is hereby added as Exhibit E to the Credit
Agreement.
11. 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.
12. 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;
(b) 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 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
(c) Other
Documents. Such other documents as the Agent may reasonably
request to further implement the provisions of this Amendment or the
transactions contemplated hereby.
13. 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.
First
Amendment to Credit Agreement - Page 5
14. 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.
15. 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.
16. Governing Law. This
Amendment shall be governed by the same law that governs the Credit
Agreement.
[Remainder
of Page Intentionally Left Blank]
First
Amendment to Credit Agreement - Page 6
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 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 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
pages to follow]
First
Amendment to Credit Agreement - Page 7
IN
WITNESS WHEREOF, the Parties have entered into this Amendment as of the date
first above written.
| TORTOISE NORTH AMERICAN ENERGY CORPORATION, the Borrower | |||
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By:
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| Name: | |||
| Title: | |||
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U.S.
BANK NATIONAL ASSOCIATION,
as
Agent and as a Bank
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By:
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| Name: Xxxxxxx X. Xxxxx | |||
| Title: Assistant Vice President | |||
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BANK
OF OKLAHOMA, N.A.,
as
a Bank
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By:
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| Name: | |||
| Title: | |||
First
Amendment to Credit Agreement - Page 8
EXHIBIT
D
[Form of
Borrowing Base Certificate]
BORROWING
BASE CERTIFICATE
This
Borrowing Base Certificate (“Certificate”) is
delivered pursuant to Section _______ of the Credit Agreement (the “Credit Agreement”),
dated as of April 25, 2007, among Tortoise North American Energy
Corporation, a Maryland corporation (the “Borrower”); certain
lenders (the “Banks”); U.S. Bank
National Association, a national banking association, as the lender for
Swingline Loans (in such capacity, the “Swingline Lender”);
and U.S. Bank National Association, a national banking association, 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
Certificate have the meanings given to them in the Credit
Agreement.
The
undersigned hereby certifies that he or she is an authorized xxxxxx of the
Borrower and, as such, is authorized to execute and deliver this Certificate on
behalf of the Borrower and, certifies to the Agent that:
1. Borrowing Base
Calculation. The Borrowing Base for the Borrower, as of
_________ __, 20__, is as follows:
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A.
After giving effect to any Requested Advance,
total
value of assets minus all liabilities
and
indebtedness
not represented by “senior securities”
(as
such term is used in the 1940 Act)
(the
Borrower’s “Total Asset
Value”).
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$__________________
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B.33-1/3%
of Total Asset Value
(the
“Borrowing Base”)
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$__________________
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2. Calculation of Borrowing
Base Availability. The Borrower’s Borrowing Base Availability,
as of __________ __, 20__, is as follows:
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A. Revolving
Credit Loan Commitments
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$__________________
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B.
Current Outstanding Balances on Revolving
Credit
Loans and Swingline Loans
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$__________________
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C.
Current Outstanding Balances on other
“senior
securities representing indebtedness”
(as
such term is used in the 1940 Act), if any
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$_________________
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D.
Borrowing Base Availability
(lesser
of (i) line 0X xxxxx xxxx 0X xxx xxxx 0X xx
(xx)
line 2A minus line 2B)
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$__________________
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E.
Requested Advance (if any)
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$__________________
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First
Amendment to Credit Agreement - Page 9
3. Compliance with 1940
Act. As of ______________, 20__, the Borrower is in material
compliance with the 1940 Act, including but not limited to, all leverage
regulations specified in the 1940 Act. As of the date hereof, the
Borrower’s applicable “Asset Coverage,” determined as required by Section
18(f)(1) of the 1940 Act, for the following is:
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(i)
Senior Securities
Representing
Indebtedness (as used in the 1940
Act)
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_________________%
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(ii)
Senior Securities (as used in the 1940
Act)
that are Stock
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_________________%
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4. Reliance. This
Certificate is delivered to the Agent for its benefit and the benefit of the
Banks, the Swingline Lender and the Lead Arranger and may be conclusively relied
upon by all such Persons.
IN
WITNESS WHEREOF, the undersigned has executed this certificate on behalf of the
Borrower as of the date first above written.
| TORTOISE NORTH AMERICAN ENERGY CORPORATION | |||
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By:
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| Name: | |||
| Title: | |||
First
Amendment to Credit Agreement - Page 10
EXHIBIT
E
[Form of
Assignment and Assumption]
ASSIGNMENT
AND ASSUMPTION AGREEMENT
This
Assignment and Assumption Agreement is made as of _____________ __, 20__, by and
between [NAME OF ASSIGNOR] (the “Assignor”) and [NAME
OF ASSIGNEE] (the “Assignee”). Reference
is made to the Credit Agreement, dated as of April 25, 2007, among Tortoise
North American Energy Corporation; U.S. Bank National Association, as Agent,
Lead Arranger, Swingline Lender and a Bank; Bank of Oklahoma, N.A., as a Bank;
and the other Banks party thereto, as amended or otherwise modified from time to
time in accordance with its terms (the “Credit
Agreement”). Capitalized terms used and not defined herein
have the meanings given to them in the Credit Agreement.
The
Assignor and Assignee hereby agree as follows:
1. The
Assignor hereby sells and assigns to the Assignee without recourse and without
representation or warranty (other than as expressly provided herein), and the
Assignee hereby purchases and assumes from the Assignor, that interest in and to
all of the Assignor’s rights and obligations under the Credit Agreement as of
the date hereof which represents the percentage interests specified in Item 1 of
Annex I hereto (the “Assigned Share”) of
all of the outstanding rights and obligations under the Credit Agreement
relating to the facilities listed in Item 1 of Annex I hereto, including,
without limitation, all rights and obligations with respect to the Assigned
Share of the Revolving Credit Loans. After giving effect to such sale
and assignment, the amount of the Assignee’s Revolving Credit Loan Commitment
will be as set forth in Item 1(a) of Annex I hereto.
2. The
Assignor (a) represents and warrants that it is the legal and beneficial owner
of the interest being assigned by it hereunder and that such interest is free
and clear of any lien or adverse claim; (b) makes no representation or warranty
and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the other
Credit Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or the other Credit
Documents or any other instrument or document furnished pursuant thereto; and
(c) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of Borrower’s obligations under the Credit
Agreement or the other Credit Documents to which it is a party or any other
instrument or document furnished pursuant thereto.
3. The
Assignee (a) confirms that it has received a copy of the Credit Agreement and
the other Credit Documents, together with copies of the financial statements
referred to therein and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption Agreement; (b) agrees that it will, independently and
without reliance upon the Agent, the Lead Arranger, the Swingline Lender, the
Assignor or any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (c) 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; and (d) agrees that it will perform in accordance
with the terms all of the obligations which by the terms of the Credit Agreement
are required to be performed by it as a Bank.
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Amendment to Credit Agreement - Page 11
4. Following
the execution of this Assignment and Assumption Agreement by the Assignor and
the Assignee, an executed original hereof (together with all attachments) will
be delivered to the Agent. The effective date of this Assignment and
Assumption Agreement shall be the date of execution hereof by the Assignor and
the Assignee and receipt by the Agent of the $3,500 assignment fee referred to
in Section 9.4(d) of the Credit Agreement, or such later date, if any, which may
be specified in Item 2 of Annex I hereto (the “Settlement
Date”).
5. Upon
the delivery of a fully executed original hereof to the Agent, as of the
Settlement Date, (a) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Assumption Agreement, have the
rights and obligations of a Bank thereunder and under the other Credit
Documents, including, without limitation, the obligation to make Revolving
Credit Loans, (b) the Assignor shall, to the extent provided in this Assignment
and Assumption Agreement, relinquish its rights and be released from its
obligations under the Credit Agreement and the other Credit Documents, and (c)
the Agent shall maintain at one of the Agent’s offices in Minneapolis, Minnesota
a copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and each Bank pursuant to the terms hereof from time to
time (the “Register”), and the
entries in the Register shall be conclusive absent manifest error, and the
Borrower, the Agent and the Banks shall treat each Person whose name is recorded
on the Register pursuant to the terms of the Credit Agreement as a Bank under
the Credit Agreement.
6. It
is agreed that the Assignee shall be entitled to all interest on the Assigned
Share of the Revolving Credit Loans. It is further agreed that all
payments of principal made on the Assigned Share of the Loans which occur on and
after the Settlement Date will be paid directly by the Agent to the
Assignee. Upon the Settlement Date, the Assignee shall pay to the
Assignor an amount specified by the Assignor in writing which represents the
Assigned Share of the principal amount of the Loans made by the Assignor
pursuant to the Credit Agreement which are outstanding on the Settlement Date
and which are being assigned hereunder. The Assignor and the Assignee
shall make all appropriate adjustments, if any, in payments under the Credit
Agreement for periods prior to the Settlement Date directly between themselves
on the Settlement Date.
7. This
Assignment and Assumption Agreement shall be governed by, and construed in
accordance with the laws of the same law that governs the Credit
Agreement.
[signature
page to follow]
First
Amendment to Credit Agreement - Page 12
IN
WITNESS WHEREOF, the parties hereto have caused their duly authorized officers
to execute and deliver this Assignment and Assumption Agreement, as of the date
first above written.
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[NAME
OF ASSIGNOR],
as
Assignor
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By:
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| Name: | |||
| Title: | |||
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[NAME
OF ASSIGNEE],
as
Assignee
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By:
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| Name: | |||
| Title: | |||
First
Amendment to Credit Agreement - Page 13
Consent to Assignment and
Assumption
Pursuant
to Section 9.4 of the Credit Agreement, the undersigned, as the Borrower and the
Agent under the Credit Agreement, hereby consent to the Assignment and
Assumption referred to above and the other agreements and provisions set forth
above (the “Consent”). The
undersigned further agree to execute and deliver such documents and take such
other action as Assignor or Assignee may reasonably request from time to time to
further evidence the foregoing Assignment and Assumption and other agreements
and provisions. Further, as a material inducement to Assignor to
transfer, and to Assignee to acquire, such right, title and interest in the
Loans and other extensions of credit, as provided in the above Assignment and
Assumption and as evidenced by the Credit Agreement and the other Credit
Documents referred to therein (all such documents being collectively referred to
herein as the “Transaction
Documents”), the Borrower represents and warrants to Assignor and
Assignee that there is no Event of Default then in effect and the Termination
Date has not occurred. Capitalized terms used and not defined in this
Consent have the meanings given to such terms in the Assignment and Assumption
above or in the Credit Agreement, as the case may be. This Consent
shall be governed by the same law that governs the Credit
Agreement. This Consent may be validly executed and delivered by fax
or other electronic transmission and in multiple counterparts by different
parties hereto.
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the
Borrower
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By:
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| Name: | |||
| Title: | |||
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[NAME
OF AGENT],
as
Agent
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By:
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| Name: | ||||
| Title: | ||||
Agreemen
First Amendment to Credit t - Page 14
Annex I to Assignment and
Assumption Agreement
1. Amounts:
Revolving
Credit Loan Commitment Amount
(a) Amount
of Assigned Share1 $_____________
(b) Aggregate
Amount for all
Banks $_____________
(c) Assignee’s
Assigned Share Percentage2
$_____________
2. Settlement
Date: ____________,
20__
