Exhibit k.11
SECOND AMENDMENT TO CREDIT AGREEMENT
This Second Amendment to Credit Agreement (the "Amendment") is made as of
October __, 2007, by and among TORTOISE ENERGY CAPITAL CORPORATION, a Maryland
corporation (the "Borrower"); U.S. BANK NATIONAL ASSOCIATION, a national banking
association, FIFTH THIRD BANK, a Michigan banking corporation, THE BANK OF NOVA
SCOTIA, and COMERICA BANK (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 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 March 22, 2007 (the "Credit Agreement").
(b) Subject to the terms, conditions and agreements as set forth below, the
Borrower and the Banks wish to amend the Credit Agreement.
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 definition of "Borrowing
Base Availability" and the definition of "Borrowing Base" as set out in Section
1.1 of the Credit Agreement are hereby deleted in their entirety and are
replaced with the following:
"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.
"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).
2. 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.
3. 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,"
Borrower shall not be permitted to incur Debt other than as expressly
permitted in this Section 6.2(b).
4. Modification to Exhibit D. Exhibit D as attached to the Credit Agreement
is deleted and hereby replaced with Exhibit D attached to this Amendment.
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 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.
6. 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) Good Standing Certificates. 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.
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, the Agent and the Banks are not waiving any
Default or Event of Default which may exist on the date hereof.
8. 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.
9. Governing Law. This Amendment shall be governed by the same law that
governs the Credit Agreement.
[signature pages to follow]
Second Amendment to Credit Agreement - Page 2
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the
date first above written.
TORTOISE ENERGY CAPITAL CORPORATION,
the Borrower
By:_____________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, as Agent
and as a Bank
By:____________________________________
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
FIFTH THIRD BANK,
as a Bank
By:_____________________________
Name:
Title:
THE BANK OF NOVA SCOTIA,
as a Bank
By:_____________________________
Name:
Title:
Second Amendment to Credit Agreement - Signature Page
COMERICA BANK,
as a Bank
By:_____________________________
Name:
Title:
Second Amendment to Credit Agreement - Signature Page
EXHIBIT D
[Form of Borrowing Base Certificate]
BORROWING BASE CERTIFICATE
This Borrowing Base Certificate ("Certificate") is delivered pursuant to
Section 3.7(a) of the Credit Agreement (the "Credit Agreement"), dated as of
March 22, 2007, among Tortoise Energy Capital 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:
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").
B. 33-1/3% of Total Asset Value $__________________
(the "Borrowing Base")
2. Calculation of Borrowing Base Availability. The Borrower's Borrowing
Base Availability, as of __________ __, 20__, is as follows:
A. Revolving Credit Loan Commitments $__________________
B. Current Outstanding Balances on Revolving $__________________
Credit Loans and Swingline Loans
C. Current Outstanding Balances on other $_________________
"senior securities representing indebtedness"
(as such term is used in the 1940 Act), if any
D. Borrowing Base Availability $__________________
(lesser of (i) line 0X xxxxx xxxx 0X xxx xxxx 0X xx
(xx) line 2A minus line 2B)
E. Requested Advance (if any) $__________________
Second Amendment to Credit Agreement - Exhibit D
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.
TORTOISE ENERGY CAPITAL CORPORATION
By: ________________________________
Name:
Title:
Second Amendment to Credit Agreement - Exhibit D
