SECOND AMENDMENT TO CREDIT AGREEMENT
EXHIBIT
k.12
SECOND
AMENDMENT TO CREDIT AGREEMENT
This
Second Amendment to Credit Agreement (the “Amendment”) is made as of
October 31, 2007, by and among TORTOISE ENERGY INFRASTRUCTURE 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.
|
the
Borrower
|
|||
|
|
By:
|
||
| Name: Xxxx Xxxxx | |||
| Title: Asst. Treasurer | |||
|
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: Xxxxxx X. Xxxxxx | |||
| Title: Vice President | |||
|
THE
BANK OF NOVA SCOTIA,
as
a Bank
|
|||
|
|
By:
|
||
| Name: Xxxxx Xxxxxxx | |||
| Title: Director | |||
Second
Amendment to Credit Agreement - Signature Page
|
COMERICA
BANK,
as
a Bank
|
|||
|
|
By:
|
||
| Name: Xxxx Xxxxxxxx | |||
| Title: AVP | |||
|
BANK
HAPOALIM B.M.
as
a Bank
|
|||
|
|
By:
|
||
| Name: Xxxxx Xxxxxxxxx | |||
| Title: Vice President | |||
|
|
By:
|
||
| Name: Xxxxxxx XxXxxxxxxx | |||
| Title: Senior Vice President | |||
|
BMO
CAPITAL MARKETS FINANCING INC.,
as
a Bank
|
|||
|
|
By:
|
||
| Name: Xxxxx X. Haven | |||
| Title: Managing Director | |||
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 Infrastructure
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 IB minus line 2B and line 2C
or (ii) 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 0000
Xxx)
|
$______________
|
|
|
(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.
Second
Amendment to Credit Agreement - Exhibit D
