SECOND AMENDMENT TO CREDIT AGREEMENT
SECOND
AMENDMENT TO CREDIT AGREEMENT
This
Second Amendment to Credit Agreement (the “Amendment”) is made
as of October __, 2008, 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 well
as U.S. BANK NATIONAL ASSOCIATION, a national banking association, 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 so amended, the “Credit
Agreement”).
(b) The
Borrower has requested amendments to the Credit Agreement to modify the
Revolving Credit Loan Commitments.
(c) Prior
to this Amendment, Bank of Oklahoma, N.A., originally a Bank under the Credit
Agreement, has terminated its obligations with respect to its Revolving Credit
Loan Commitment under the Credit Agreement.
(d) 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 definitions, as set forth in
Section 1.1 of the Credit Agreement, are hereby deleted in their entirety
and are hereby replaced with the following:
“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 E
or any other form approved by the Agent.
“Senior Notes” means
(1) the Borrower’s $45,000,000 aggregate principal amount Auction Rate Senior
Notes, Series B and Series C, due June 17, 2011 and June 17, 2015, respectively,
and (2) any Senior Notes that the Borrower may issue subsequent to the Closing
Date.
2. Modification to
Section 2.1. Section 2.1 of the Credit Agreement is
hereby deleted and replaced with [Intentionally
Deleted].
3. Modification to
Section 2.2. The second paragraph of Section 2.2 of
the Credit Agreement is hereby deleted in its entirety.
4. Modification to Section
3.1(c). Section 3.1(c) of the Credit Agreement is hereby
deleted in its entirety and replaced with the following:
(c) 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 0.150% (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’ Revolving Credit Loan Commitments at the end of each day for such
preceding fiscal quarter and (b) the average outstanding principal balance of
all Loans at the end of each day for such preceding fiscal quarter.
5. Modification to Section
7.1(a). Section 7.1(a) of the Credit Agreement is hereby
deleted in its entirety and replaced with the following:
|
|
(a)
|
General. The
Borrower fails to pay, perform or observe any obligation of the Borrower
to the Agent or the Banks under the Credit Documents or any other term,
covenant or other provision in any Credit Document in accordance with the
terms thereof and, if such default is curable, the Borrower fails to cure
such default within five (5) Business Days after written notice from the
Agent specifying in reasonable detail the nature of such default is
received by the Borrower; or
|
6. Addition of
Section 7.1(k). The following is hereby added to Section
7.1 of the Credit Agreement:
|
|
(k)
|
Reporting
Requirements. Notwithstanding anything herein to the
contrary, the Borrower fails to perform or observe any reporting
requirement under this Agreement, including, without limitation those
listed in Section 6.1(c), or any other Credit Document, and such
failure is not cured within five (5) Business Days from the date of such
failure to perform or observe.
|
7. 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.
8. 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 $15,000,000, in favor
of U.S. Bank, as payee (the “New Note”), which New
Note shall amend, restate and replace the Note dated as of April 25, 2007, from
the Borrower, as maker, to U.S. Bank, as payee, in the stated principal amount
of $10,000,000 (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.
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
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
First
Amendment to Credit Agreement - Page 2
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
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) 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
(d) 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.
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, U.S. Bank is not waiving any Default or Event of Default
which may exist on the date hereof.
12. 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.
13. 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.
14. Governing Law. This
Amendment shall be governed by the same law that governs the Credit
Agreement.
[Remainder
of Page Intentionally Left Blank]
First
Amendment to Credit Agreement - Page 3
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 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 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]
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 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 | |||
First
Amendment to Credit Agreement - Page 5
EXHIBIT
A
(Bank and
Commitments)
|
Bank
|
Revolving
Credit Loan Commitment Amount from November 1, 2008 through and including
December 31, 2008
|
Revolving
Credit Loan Commitment Amount at all Other Times
|
Swingline
Loan Commitment Amount*
|
Bank’s
Total Maximum Commitment Amount
|
Bank’s
Pro-Rata Percentage
|
|
U.S.
Bank National Association
|
$15,000,000
|
$10,000,000
|
$3,000,000
|
$15,000,000
|
1.000000000000
|
|
TOTALS:
|
$15,000,000
|
$10,000,000
|
$3,000,000
|
$15,000,000
|
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.
|
First
Amendment to Credit Agreement - Page 6
