ACCESSION AGREEMENT (Citibank, N.A.)
Exhibit (k)(5)
ACCESSION AGREEMENT
(Citibank, N.A.)
(Citibank, N.A.)
ACCESSION AGREEMENT dated as of July 1, 2009 among (i) CITIBANK, N.A., having an address at 00
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Acceding Lender”), (ii) XXXXX XXXXXXXX ENERGY
TOTAL RETURN FUND, INC., a Maryland corporation, registered as a closed-end management investment
company under the Investment Company Act of 1940, as amended (the “Borrower”), (iii)
JPMORGAN CHASE BANK, N.A., a New York banking corporation (“JPMorgan”), as administrative
agent (the “Administrative Agent”) to that certain Credit Agreement dated as of June 26,
2009 by and among the Borrower, the lenders a party thereto (the “Lenders”) (as amended or
modified from time to time, the “Credit Agreement”), and (iv) the Lenders.
A. Capitalized terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement.
B. The Borrower has invited the Acceding Lender, and the Acceding Lender desires, to become a
party to the Credit Agreement and to assume the obligations of a Lender thereunder. The Acceding
Lender is entering into this Agreement in accordance with the provisions of the Credit Agreement in
order to become a Lender thereunder.
Accordingly, the Acceding Lender, the Borrower and the Administrative Agent agrees as follows:
SECTION 1. Accession to the Credit Agreement. (a) The Acceding Lender, as of the
Effective Date, hereby accedes to the Credit Agreement and shall thereafter have the rights and
obligations of a Lender thereunder with the same force and effect as if originally named therein as
a Lender.
(b) The Commitment of the Acceding Lender shall equal the amount set forth opposite its
signature hereto.
SECTION 2. Representations and Warrants, Agreements of Acceding Lender, etc. The
Acceding Lender (a) represents and warrants that it is (i) an Eligible Lender and (ii) legally
authorized to enter into this Agreement; (b) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements delivered pursuant to the
Credit Agreement and such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into the Credit Agreement and this Agreement; (c)
confirms that it will independently and without reliance upon the Administrative Agent or any
Lender, 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; (d) appoints and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; and (e) agrees that it will perform, in accordance with their terms all
the obligations that by the terms of the Credit Agreement are required to be performed by it as a
Lender.
SECTION 3. Effectiveness. (a) This Agreement shall become effective on the date
hereof (the “Effective Date”), subject to the Administrative Agent’s receipt of (i)
counterparts of this Agreement duly executed on behalf of the Acceding Lender and the Borrower,
(ii) if the Acceding Lender is organized under the laws of a jurisdiction outside the United
States, the forms specified in Section 2.11 of the Credit Agreement duly completed and
executed by the Acceding Lender and (iii) an Administrative Questionnaire completed in respect of
the Acceding Lender.
(b) Upon the effectiveness of this Agreement, the Administrative Agent shall (i) record the
information contained herein and in the Administrative Questionnaire in the Register and (ii) give
prompt notice thereof to the Lenders.
SECTION 4. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall constitute an original, but all of which, when taken together, shall constitute
but one instrument.
SECTION 5. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Severability. In case any one or more of the provisions contained in this
Agreement should beheld invalid, illegal or unenforceable in any respect, none of the parties
hereto shall be required to comply with such provision for so long as such provision is held to be
invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining
provisions contained herein and in the Credit Agreement shall not in any way be affected or
impaired. The parties hereto shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic affect which comes as close
as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7. Notices. All communications and notices hereunder shall be in writing and
given as provided in Section 9.2 of the Credit Agreement. All communications and notices
hereunder to the Acceding Lender shall be given to it at the address set forth under its signature
hereto, which information, together with the amount of the Acceding Lender’s Commitment,
supplements Schedule I to the Credit Agreement.
2
IN WITNESS WHEREOF, the Acceding Lender, the Borrowers and the Administrative Agent have duly
executed this Accession Agreement as of the day and year first above written.
Commitment: $10,000,000
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CITIBANK, N.A. |
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Vice President | |||
| Credit Contact Information: |
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|
Citibank, N.A. 000 Xxxx Xxxxxx Xxxxx 0000 Xxxxxxx, XX 00000 Attn. Xxxx Xxxxx E-Mail: xxxx.x.xxxxx@xxxx.xxx Telephone: (000) 000-0000 Fax: (000) 000-0000 |
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JPMORGAN CHASE BANK, N.A. as Administrative Agent |
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| By: | /s/ Xxxxxx X’Xxxxxxx Xxxx | |||
| Name: | Xxxxxx X’Xxxxxxx Horn | |||
| Title: | Vice President | |||
| XXXXX XXXXXXXX ENERGY TOTAL RETURN FUND, INC. |
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| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Chief Financial Officer | |||
