AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit k.7
AMENDMENT NO. 3 TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Amendment No. 3 dated as of June 11, 2019 (this “Amendment”), is entered into
by and among TORTOISE MIDSTREAM ENERGY FUND, INC., a Maryland corporation, (f/k/a TORTOISE MLP FUND, INC.), as the Borrower (the “Borrower”) each Lender party hereto, and BANK OF AMERICA, N.A., a national banking association, as
Administrative Agent (the “Administrative Agent”).
Recitals
A. The Borrower, the Lenders and the Administrative Agent have entered into that certain Amended and Restated Credit Agreement dated as of June 15,
2015 as amended by that Amendment No. 1 dated June 12, 2017 and as amended by that Amended No. 2 dated September 4, 2018 (as further amended, modified, extended, restated, replaced, or supplemented from time to time, the “Credit Agreement”).
B. On January 7, 2019, the Borrower changed its name from Tortoise MLP Fund, Inc. to Tortoise Midstream Energy Fund, Inc.
C. The Borrower, the Lenders and the Administrative Agent desire to amend the Credit Agreement, including an amendment to reflect Borrower’s name
change.
D. The Amendment is subject to the representations and warranties of the Borrower and upon the terms and conditions
set forth in this Amendment.
Agreement
Now, Therefore, in consideration of the foregoing Recitals, and other good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the Borrower, the Lenders and the Administrative Agent hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used herein but not
otherwise defined herein shall have the meaning assigned to such terms in the Credit Agreement.
SECTION 2. Amendments.
2.1 The Credit Agreement is hereby amended by replacing all references to “Tortoise MLP Fund, Inc.” with “Tortoise Midstream Energy Fund, Inc.”
2.2 Section 1.01 of the Credit Agreement is hereby amended by amending and restating the defined term of “Applicable Rate” in its entirety to read
as follows:
““Applicable Rate” means, for any day, the rate per annum set forth below opposite the applicable Level then in effect (based on the Percentage Utilization), it being understood that the
Applicable Rate for (a) any Loans, will be the percentage set forth under the column “Loans”, and (b) the Commitment Fee, will be the percentage set forth under the column “Commitment Fee”:
|
Applicable Rate
|
|||
| Level |
Percentage
Utilization
|
Loans |
Commitment
Fee
|
|
1
|
< 50.00%
|
1.10%
|
0.25%
|
|
2
|
> 50.00% but
< 70.00%
|
1.10%
|
0.15%
|
|
3
|
> 70.00%
|
1.10%
|
0.00%
|
The initial Applicable Rate shall be set forth at Level 2 until the next change in Percentage Utilization, as determined by the Administrative Agent. Any adjustment in the Applicable Rate shall be applicable to all
Credit Extensions then existing or subsequently made or issued.”
2.3 Section 1.01 of the Credit Agreement is hereby amended by amending and restating the defined term of “Maturity Date” in its entirety to read as
follows:
“Maturity Date” means June 12, 2021, provided, however, that if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
2.4 Section 1.01 of the Credit Agreement is hereby amended by adding the following defined terms in alphabetical order to read in their entirety as
follows:
““BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered
bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).”
2.5 Article 10 of the Credit Agreement is hereby amended by adding a new Section 10.21 to read in its entirety as follows:
“10.21Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide
support, through a guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as
follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (together with the regulations
promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated
to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
Tortoise Midstream Energy Fund- Amendment No. 3 to Amended and Restated Credit Agreement
2
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution
Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC
Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights
in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default
Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be
exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that
rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.”
SECTION 3. Representations and Warranties. When the Borrower signs
this Amendment, the Borrower represents and warrants to the Lenders and Administrative Agent that: (a) immediately after giving effect to this Amendment, no Default or Event of Default exists, (b) after giving effect to this Amendment, the
representations and warranties in the Agreement are true in all material respects (or in all respects as to any representation or warranty which, by its terms, is qualified as to materiality) as of the date of this Amendment as if made on the date
of this Amendment (except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true in all material respects (or in all respects as to any representation or warranty which, by its terms,
is qualified as to materiality) as of such earlier date), (c) the Borrower has taken all necessary action to authorize the execution, delivery and performance of this Amendment, (d) the information included in the Beneficial Ownership Certification
most recently provided to the Bank, if applicable, is true and correct in all respects and (e) as of the date of this Amendment and throughout the term of the Credit Agreement, no Borrower or Guarantor, if any, is (1) an employee benefit plan
subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (2) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986 (the “Code”); (3) an entity deemed to hold “plan
assets” of any such plans or accounts for purposes of ERISA or the Code; or (4) a “governmental plan” within the meaning of ERISA.
Tortoise Midstream Energy Fund- Amendment No. 3 to Amended and Restated Credit Agreement
3
SECTION 4. Expenses. The Borrower agrees to pay to the Administrative Agent upon demand, the amount of any
and all reasonable and documented out-of-pocket expenses, including the reasonable fees and expenses of its counsel, which the Administrative Agent may incur in connection with the preparation, documentation, and negotiation of this Amendment and
all related documents.
SECTION 5. Reaffirmation. The Borrower (a) affirms all of its obligations under the Loan Documents and (b)
agrees that this Amendment and all documents, agreements and instruments executed in connection herewith do not operate to reduce or discharge the Borrower’s obligations under the Loan Documents.
SECTION 6. Conditions. The effectiveness of this Amendment is
conditioned upon the Administrative Agent receipt of the following items, in form and substance reasonably acceptable to the Administrative Agent:
6.1 A fully executed counterpart of this Amendment from the Borrower and any guarantor and/or collateral pledgor.
6.2 The delivery of an officer certificate by a Responsible Officer of the Borrower certifying (i) resolutions adopted by the Borrower approving and
consenting to this Amendment, (ii) incumbency, the articles of incorporation, the bylaws and the existence and good standing of the Borrower, and (iii) providing certifications as to no Default and representations and warranties substantially as
set forth in Section 3 to this Amendment.
6.3 The delivery of a Form U-1 by the Borrower in form and substance satisfactory to the Administrative Agent.
6.4 KYC Information.
(a) Upon the request of the Lenders or Administrative Agent, the Borrower shall have provided to the Lender or Administrative Agent, and the Lender
or Administrative Agent shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the
PATRIOT Act.
(b) If the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall have provided a Beneficial Ownership
Certification to the Lenders and Administrative Agent if so requested.
6.5 Payment by the Borrower to the Administrative Agent (i) for the account of the Lenders on a pro rata basis in accordance with their respective
Commitments an upfront fee equal to 10 basis points of the aggregate Commitments, and (ii) of all other fees and expenses that are payable in connection with the consummation of the transactions contemplated hereby, including payment of all
outstanding fees and expenses previously incurred and all fees and expenses incurred in connection with this Amendment, including any fees required to be paid under Section 5 of this Amendment.
Tortoise Midstream Energy Fund- Amendment No. 3 to Amended and Restated Credit Agreement
4
6.6 Receipt of all other documents and legal matters in connection with the transactions contemplated by this Amendment, reasonably satisfactory in
form and substance to the Administrative Agent and its counsel.
SECTION 7. Effect of Amendment. Except as provided in this Amendment, all of the terms and conditions of
the Agreement, including but not limited to any Waiver of Jury Trial or Dispute Resolution Provision contained therein, shall remain in full force and effect.
SECTION 8. Counterparts. This Amendment may be executed in multiple counterparts, including both
counterparts that are executed on paper and counterparts that are electronic records and executed electronically, and each such executed counterpart (and any copy of an executed counterpart that is an electronic record) shall be deemed an original
of this Amendment.
SECTION 9. Governing Law; Consent to Jurisdiction; Service of Process; Waiver of Jury Trial.
9.1 THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK; PROVIDED THAT THE ADMINISTRATIVE AGENT AND THE
LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
9.2 The jurisdiction, service of process and waiver of jury trial provisions set forth in Sections 10.14 and 10.15 of the Credit Agreement are hereby
incorporated by reference, mutatis mutandis.
SECTION 10. General Release. In consideration of the Lenders’ and Administrative Agent’s willingness to
enter into this Amendment, the Borrower hereby releases and forever discharges the Lenders and Administrative Agent and the Lenders’ and Administrative Agent’s, respective predecessors, successors, assigns, officers, managers, directors, employees,
agents, attorneys, representatives, and affiliates (collectively, the “Bank Group”), from any and all presently existing claims, demands, damages, liabilities, actions and causes of action of any nature whatsoever, including, without
limitation, all claims, demands, and causes of action for contribution and indemnity, whether arising at law or in equity, whether known or unknown, whether liability be direct or indirect, liquidated or unliquidated, whether absolute or
contingent, foreseen or unforeseen, and whether or not heretofore asserted, which the Borrower may have or claim to have against any of the Bank Group arising out of facts or events in any way related to the Loan Documents and/or the loan
transactions evidenced thereby and which have occurred on or prior to the date hereof.
SECTION 11. Counterparts. This Amendment may be executed in any
number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment or any other
document required to be delivered hereunder, by fax transmission or e-mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Amendment. Without limiting the foregoing, upon the request of
any party, such fax transmission or e-mail transmission shall be promptly followed by such manually executed counterpart.
Tortoise Midstream Energy Fund- Amendment No. 3 to Amended and Restated Credit Agreement
5
SECTION 12. Successors and Assigns. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and assigns.
SECTION 13. Further Assurances. The Borrower agrees to promptly take such action, upon the request of the
Administrative Agent, as is necessary to carry out the intent of this Amendment.
SECTION 14. Entirety. This Amendment and the other Loan Documents embody the entire agreement among the
parties hereto and supersede all prior agreements and understandings, oral or written, if any, relating to the subject matter hereof.
[Remainder of Page Intentionally Left Blank]
Tortoise Midstream Energy Fund- Amendment No. 3 to Amended and Restated Credit Agreement
6
In Witness Whereof, the parties hereto have caused this Amendment to be executed as of the date first
written above.
|
By:
|
/s/ P. Xxxxxxx Xxxxx
|
|
|
Name: P. Xxxxxxx Xxxxx
|
||
|
Title: Chief Executive Officer
|
||
Tortoise Midstream Energy Fund- Amendment No. 3 to Amended and Restated Credit Agreement
S-1
|
BANK OF AMERICA, N.A., as
|
||
|
Administrative Agent
|
||
|
By:
|
/s/ Xxxxxxxx Xxxxxx-Xxxxx | |
|
Name: Xxxxxxxx Xxxxxx-Xxxxx
|
||
|
Title: Vice President
|
||
Tortoise Midstream Energy Fund- Amendment No. 3 to Amended and Restated Credit Agreement
S-2
|
BANK OF AMERICA, N.A., as a Lender
|
||
|
By:
|
/s/ Xxxx Xxxx | |
|
Name: Xxxx Xxxx
|
||
|
Title: Senior Vice President
|
||
Tortoise Midstream Energy Fund- Amendment No. 3 to Amended and Restated Credit Agreement
S-3
|
THE BANK OF NOVA SCOTIA, as a Lender
|
||
|
By:
|
/s/ Xxxxx Xxxx | |
|
Name: Xxxxx Xxxx
|
||
|
Title: Director
|
||
Tortoise Midstream Energy Fund- Amendment No. 3 to Amended and Restated Credit Agreement
S-4
|
U.S. BANK NATIONAL ASSOCIATION, as a Lender
|
||
|
By:
|
/s/ Xxxxx Xxxxx | |
|
Name: Xxxxx Xxxxx
|
||
|
Title: Assistant Vice President
|
||
Tortoise Midstream Energy Fund- Amendment No. 3 to Amended and Restated Credit Agreement
S-5
