Exhibit k.10
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (the "Amendment") is made as of
May __, 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. Section 1.1 is modified as
follows:
A. The definition of "Revolving Credit Loan Commitment" as set out in
Section 1.1 of the Credit Agreement is hereby deleted in its entirety and
is replaced with the following:
"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.
B. The following defined term is hereby added to Section 1.1:
"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.
2. Modification to Section 9.4. Section 9.4 is deleted in its entirety and
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
First Amendment to Credit Agreement - Page 4 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, 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
First Amendment to Credit Agreement - Page 2
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. 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.
(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.
3. Addition of Exhibit F. The Credit Agreement is modified to add Exhibit F
- Form of Assignment and Assumption, which is attached to this Amendment as
Exhibit F.
4. Modification to Section 6.1. Section 6.1(m) is hereby deleted in its
entirety and replaced with the following:
(m) Credit Rating. The Borrower shall maintain a minimum unsecured credit
rating, with respect to the Senior Notes, of (i) "A-2" by Xxxxx'x Investor
Service, Inc. and (ii) "A" by Fitch, Inc.
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
First Amendment to Credit Agreement - Page 3
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]
First Amendment to Credit Agreement - Page 4
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,
a Bank
By:
--------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
a Bank
By:
--------------------------------------
Name:
Title:
First Amendment to Credit Agreement - Signature Page
COMERICA BANK,
a Bank
By:
--------------------------------------
Name:
Title:
First Amendment to Credit Agreement - Signature Page
EXHIBIT F
[Form of Assignment and Assumption]
ASSIGNMENT AND ASSUMPTION AGREEMENT
Reference is made to the Credit Agreement, dated as of March 22, 2007,
among Tortoise Energy Capital Corporation; U.S. Bank National Association, as
Agent, Lead Arranger, Swingline Lender and a Bank; Fifth Third Bank, as a Bank;
The Bank of Nova Scotia, as a Bank; Comerica Bank, 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 ___________________ (the
"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.
First Amendment to Credit Agreement - Exhibit F
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 - Exhibit F
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.
[NAME OF ASSIGNOR]
as Assignor
By:
--------------------------------------
Name:
Title:
[NAME OF ASSIGNEE]
as Assignee
By:
--------------------------------------
Name:
Title:
First Amendment to Credit Agreement - Exhibit F
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.
TORTOISE ENERGY CAPITAL CORPORATION,
the Borrower
By:
--------------------------------------
Name:
Title:
[NAME OF AGENT],
as Agent
By:
--------------------------------------
Name:
Title:
First Amendment to Credit Agreement - Exhibit F
Annex I to Assignment and Assumption Agreement
1. Amounts:
Revolving Credit Loan Commitment Amount
(a) Amount of Assigned Share(1) $_____________
(b) Aggregate Amount for all Banks $_____________
(c) Assignee's Assigned Share Percentage(2) $_____________
2. Settlement Date: ____________, 20__
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(1) Must be at least $5,000,000.
(2) Line 1(a) divided by line 1(b); round to 12 decimal places
First Amendment to Credit Agreement - Exhibit F
