Contract
THIRD
AMENDMENT TO CREDIT AGREEMENT
This
Third Amendment to Credit
Agreement (the “Amendment”) is made as of March 21, 2008, by and among
TORTOISE CAPITAL RESOURCES CORPORATION, a Maryland corporation (the
“Borrower”); U.S. BANK NATIONAL ASSOCIATION, a national banking
association, FIRST NATIONAL BANK OF KANSAS, a Kansas bank 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”); 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 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 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 so amended, 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
Banks and the Borrower agree as follows:
1. Modification
to Section 1.1 Definitions. The following definition, as set
out in Section 1.1 of the Credit Agreement, is hereby deleted in its entirety
and is hereby replaced with the following:
“Borrowing
Base” means, at any date, 30% 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), minus (iii) all other
securities and investments not included in the Securities Account.
“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 “$20,000,000” in Section
2.2(a) of the Credit Agreement is hereby deleted and is hereby replaced with
“$10,000,000.” Additionally, the reference to “$40,000,000” in
Section 2.2(a) of the Credit Agreement is hereby deleted and is hereby replaced
with “$50,000,000.”
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. Modification
to Section 3.1(d). Section 3.1(d) of the Credit Agreement is
hereby deleted in its entirety and is hereby replaced with the
following:
(d) 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 0.375% (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 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 Borrowing Base Certificate for the
immediately preceding calendar
month;
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6. Addition
to Section 6.1. The following covenant is hereby added to
Section 6.1 of the Credit Agreement:
(m) Liquidity. The
Borrower, at all times, shall cause not less than $7,500,000 in cash, cash
equivalents or unrestricted investments of publicly traded companies to be
held
in the Securities Account; provided, however, in the event that the
total principal amount in which the Borrower may borrow under this credit
facility, as described in Section 2.1 of this Agreement, is increased to
the
maximum principal amount in which the Borrower may borrow under this credit
facility, as described in Section 2.2(a) of this Agreement, the Borrower,
at all
times, shall cause not less than $10,000,000 in cash, cash equivalents, or
unrestricted investments of publicly traded companies to be held in the
Securities Account.
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. Modification
to Exhibit D. Exhibit D as attached to the Credit Agreement
is deleted and is hereby replaced with Exhibit D attached to this
Amendment.
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
the Banks 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:
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(a)
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Amendment. This
Amendment;
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(b)
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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
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(c)
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Other
Documents. Such other documents as the Agent may
reasonably request to further implement the provisions of this
Amendment
or the transactions contemplated
hereby.
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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, neither the Agent
nor any Bank is 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/or the Banks.
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 Agent and/or the Banks 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 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:
CSH
Creditor:
TJB
Creditor:
WMR
Debtor:
TM
[signature
page to follow]
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,
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the
Borrower
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By: /s/
Xxxxx
Xxxxxxx
Name: Xxxxx
Xxxxxxx
Title: CFO
U.S.
BANK
NATIONAL ASSOCIATION,
as
Agent
and as a Bank
By:
/s/ Xxxxxxx X.
Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Assistant Vice President
FIRST
NATIONAL BANK OF KANSAS,
as
a
Bank
By:
/s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title: Vice
President
BANK
OF
OKLAHOMA, N.A.,
as
a
Bank
By:
/s/ W. Xxxx
Xxxxxx
Name: W.
Xxxx Xxxxxx
Title: Vice
President
EXHIBIT
A
(Banks
and Commitments)
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Bank
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Revolving
Credit Loan Commitment Amount**
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Swingline
Loan Commitment Amount*
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Bank’s
Total Commitment Amount**
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Bank’s
Pro-Rata Percentage**
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U.S.
Bank
National
Association
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$25,000,000
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$3,000,000
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$25,000,000
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0.625000000000
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First
National Bank of Kansas
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$10,000,000
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0
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$10,000,000
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0.250000000000
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Bank
of Oklahoma, N.A.
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$5,000,000
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0
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$5,000,000
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0.125000000000
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TOTALS:
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$40,000,000
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$3,000,000
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$40,000,000
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1.000000000000
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*
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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.
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Third
Amendment to Credit Agreement
– Exhibit
A
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 Capital Resources 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.
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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”) minus all other securities and investments not
included in the Securities Account.
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$______________________
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B.
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30%
of Total Asset Value
(the
“Borrowing Base”)
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$______________________
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2. Calculation
of
Borrowing Base Availability. The Borrower’s Borrowing Base
Availability, as of __________ __, 20__, is as follows:
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A.
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Revolving
Credit Loan Commitments
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$______________________
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B.
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Current
Outstanding Balances on Revolving
Credit
Loans and Swingline Loans
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$______________________
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C.
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Current
Outstanding Balances on other
“senior
securities representing indebtedness”
(as
such term is used in the 1940 Act), if any
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$______________________
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D.
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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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$______________________
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E.
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Requested
Advance (if any)
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$______________________
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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:
(i) Senior
Securities Representing _________________%
Indebtedness
(as used in the 1940 Act)
(ii)
Senior Securities (as used in the 1940 Act)
_________________%
that
are Stock
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.
By:
________________________________
Name:
Title:
Third
Amendment to Credit Agreement – Exhibit
D
