THIRD AMENDMENT TO CREDIT AGREEMENT
THIRD
AMENDMENT TO CREDIT AGREEMENT
This
Third Amendment to Credit Agreement (the “Amendment”) is made
and effective as of March 20, 2009, by and between TORTOISE NORTH AMERICAN
ENERGY CORPORATION, a Maryland corporation (the “Borrower”), and U.S.
BANK NATIONAL ASSOCIATION, a national banking association (“U.S. Bank”), 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) U.S.
Bank and the Borrower are parties to that certain Credit Agreement dated as of
April 25, 2007, as amended by the First Amendment to Credit Agreement dated
as of March 21, 2008, as further amended by the Second Amendment to Credit
Agreement dated as of October 31, 2008 (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 for
90 days.
(c) U.S.
Bank is 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. 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, 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
3.1(a). All references to “0.75%” in Section 3.1(a) of
the Credit Agreement are hereby deleted and are hereby replaced with
“2.00%”.
Modification to Section
3.1(c). The reference to “0.150%” in Section 3.1(c) of the
Credit Agreement is hereby deleted and is hereby replaced with
“0.250%”.
3. 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.
4. 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 $10,000,000, in favor
of U.S. Bank, as payee (the “New Note”), which New
Note shall amend, restate and replace the Note dated as of October 31, 2008,
from the Borrower, as maker, to U.S. Bank, as payee, in the stated principal
amount of $15,000,000 (the “Old Note”), and which
New Note, as the same may be amended, renewed, restated, replaced or
consolidated from time to time, shall be the “Revolving Credit Note” referred to
in the Credit Agreement.
5. 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
U.S. Bank, as a material inducement to U.S. 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 U.S. 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.
6. Conditions Precedent to
Amendment. Except to the extent waived in a writing signed by
U.S. Bank and delivered to the Borrower, U.S. Bank shall have no duties under
this Amendment until U.S. Bank shall have received fully executed originals of
each of the following, each in form and substance satisfactory to U.S.
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
$10,000,000, 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 U.S. 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 U.S. Bank 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 U.S. Bank may reasonably
request to further implement the provisions of this Amendment or the
transactions contemplated hereby.
7. 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, U.S. Bank is not waiving any Default or Event of Default
which may exist on the date hereof.
8. Expenses. The
Borrower agrees to pay and reimburse U.S. 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 U.S. Bank.
Credit
Agreement - Page 2
9. 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.
10. 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 U.S. 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 U.S. 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:
__________
Debtor:
___________
[signature
pages to follow]
Credit
Agreement - Page 4
IN
WITNESS WHEREOF, the parties have entered into this Amendment as of the date
first above written.
TORTOISE NORTH
AMERICAN ENERGY CORPORATION, the Borrower
By: _______________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Agent and as a
Bank
By: _______________________________
Name: Xxxxxxx X.
Xxxxx
Title: Vice
President
Credit
Agreement - Page 5
EXHIBIT
A
(Bank and
Commitments)
|
Bank
|
Revolving
Credit Loan Commitment Amount
|
Swingline
Loan Commitment Amount*
|
Bank’s
Total Maximum Commitment Amount
|
Bank’s
Pro-Rata Percentage
|
|
U.S.
Bank National Association
|
$10,000,000
|
$3,000,000
|
$10,000,000
|
1.000000000000
|
|
TOTALS:
|
$10,000,000
|
$3,000,000
|
$10,000,000
|
1.000000000000
|
* As
more particularly described in the Agreement, the Swingline Loan Commitment is a
subcommitment under the Revolving Credit Loan
Commitment. 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
Commitment.
Credit
Agreement - Page 6
