AMENDMENT NO. 5 AND LIMITED WAIVER TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 99.(b)(vi)
AMENDMENT NO. 5 AND LIMITED WAIVER TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 5 AND LIMITED WAIVER dated as of June 22, 2020 (this “Amendment”), is entered into by and among TORTOISE MIDSTREAM ENERGY FUND, INC., a Maryland corporation, (f/k/a TORTOISE MLP FUND, INC.) (the “Borrower”), the Lenders party hereto, and BANK OF AMERICA, N.A., a national banking association, as administrative agent (the “Administrative Agent”). Capitalized terms used herein but not otherwise defined herein shall have the meaning assigned to such terms in the Credit Agreement.
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, that Amendment No. 2 dated September 4, 2018, that Amendment No. 3 dated June 12, 2019, and that Amendment No. 4 dated September 5, 2019 (as further amended, modified, extended, restated, replaced, or supplemented from time to time, the “Credit Agreement”).
B. The Borrower has notified the Lenders of its breach of Section 6.16 of the Credit Agreement as of March 18, 2020 through April 14, 2020 (the “Known Default”).
C. The Borrower has also requested certain amendments to the Credit Agreement.
D. The Lenders and the Administrative Agent are willing to waive the Known Default, and the Borrower, ▇▇▇▇▇▇▇ and the Administrative Agent are willing to amend certain provisions of the Credit Agreement, in accordance with and subject to the terms and conditions set forth herein.
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. Waiver. Notwithstanding the provisions of the Credit Agreement to the contrary, the Lenders and the Administrative Agent waive, on a one-time basis, the occurrence of the Known Default.
SECTION 2. Amendment.
2.1 Section 6.16 of the Credit Agreement is hereby amended by amending and restating Section 6.16 in its entirety to read as follows:
“6.16 Asset Coverage Compliance. As of the end of each month during the Availability Period in which there exists any Outstanding Amount of Loans, the Borrower shall maintain an “Asset Coverage” (as defined in Section 18(h) of the 1940 Act), equal to or greater than the requirements of the 1940 Act as if the Borrower had incurred new indebtedness as of such date. In addition, so long as there exists any Outstanding Amount of Loans, at no time shall Borrower's “Asset Coverage” (as defined in Section 18(h) of the ▇▇▇▇ ▇▇▇) of senior securities representing indebtedness be less than 200%. Notwithstanding the foregoing, regardless of whether there exists any Outstanding Amounts of Loans, Borrower will (a) include in each Borrowing Base Certificate required hereby a calculation of the “Asset Coverage” demonstrating compliance with this Section 6.16, and (b) at any point that Borrower cannot meet the “Asset Coverage”, provide the Administrative Agent a calculation of the “Asset Coverage” within five (5) Business Days of Borrower’s knowledge of such failure to meet the “Asset Coverage”, all in form and substance satisfactory to the Administrative Agent.”
2.2 Schedule 2.01 of the Credit Agreement is hereby amended by amending and restating such Schedule in its entirety to read as set forth on the Fourth Amended and Restated Schedule 2.01 to this Amendment. Concurrently with this Amendment becoming effective the Borrower shall prepay the Committed Loans outstanding on the date of this Amendment to the extent necessary to keep the outstanding Committed Loans ratable with the revised Applicable Percentages as set forth on the Fourth Amended and Restated Schedule 2.01. The Borrower may request Loans to fund required prepayments; provided that such Loans shall not exceed the Aggregate Commitments as amended hereby.
SECTION 3. Effectiveness of Waiver. This Amendment shall be effective only to the extent specifically set forth herein and shall not (a) be construed as a waiver of any breach, Default or Event of Default other than as specifically waived herein nor as a waiver of any breach, Default or Event of Default of which the Lenders have not been informed by the Borrower, (b) affect the right of the Lenders to demand compliance by the Borrower with all terms and conditions of the Loan Documents, except as specifically modified or waived by this Amendment, (c) be deemed a waiver of any transaction or future action on the part of the Borrower requiring the Lenders’ or the Required Lenders’ consent or approval under the Loan Documents, or (d) except as waived hereby, be deemed or construed to be a waiver or release of, or a limitation upon, the Administrative Agent’s or the Lenders’ exercise of any rights or remedies under the Credit Agreement or any other Loan Document, whether arising as a consequence of any Default or Event of Default (other than an Acknowledged Event of Default) which may now exist or otherwise, all such rights and remedies hereby being expressly reserved.
SECTION 4. 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 Credit 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. 5 and Limited Waiver to Amended and Restated Credit Agreement
2
SECTION 5. 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 6. 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 7. 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:
7.1 A fully executed counterpart of this Amendment from the Borrower and any guarantor and/or collateral pledgor.
7.2 The execution and delivery of amended and restated Notes to each Lender.
7.3 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.
7.4 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 $7,500 for each Lender, 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.
7.5 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 8. 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.
Tortoise Midstream Energy Fund – Amendment No. 5 and Limited Waiver to Amended and Restated Credit Agreement
3
SECTION 9. Governing Law; Consent to Jurisdiction; Service of Process; Amendment 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. No Actions, Claims, Etc. As of the date hereof, the Borrower hereby acknowledges and confirms that it has no knowledge of any actions, causes of action, claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, against the Administrative Agent, the Lenders, or the Administrative Agent’s or the Lenders’ respective officers, employees, representatives, agents, counsel or directors arising from any action by such Persons, or failure of such Persons to act under the Credit Agreement on or prior to the date hereof.
SECTION 11. 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 12. 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.
SECTION 13. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
Tortoise Midstream Energy Fund – Amendment No. 5 and Limited Waiver to Amended and Restated Credit Agreement
4
SECTION 14. 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 15. 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. 5 and Limited Waiver to Amended and Restated Credit Agreement
5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
| TORTOISE MIDSTREAM ENERGY FUND, INC. | ||
| By: | ||
| Name: | ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Title: | Chief Executive Officer | |
Tortoise Midstream Energy Fund – Amendment No. 5 and Limited Waiver to Amended and Restated Credit Agreement
S-1
| BANK OF AMERICA, N.A., as Administrative Agent | ||
| By: | ||
| Name: | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇ | |
| Title: | Vice President | |
Tortoise Midstream Energy Fund – Amendment No. 5 and Limited Waiver to Amended and Restated Credit Agreement
S-2
| BANK OF AMERICA, N.A., as a Lender | ||
| By: | ||
| Name: | ▇▇▇▇ ▇▇▇▇ | |
| Title: | Senior Vice President | |
Tortoise Midstream Energy Fund – Amendment No. 5 and Limited Waiver to Amended and Restated Credit Agreement
S-3
| THE BANK OF NOVA SCOTIA, as a Lender | ||
| By: | ||
| Name: | ||
| Title: | ||
Tortoise Midstream Energy Fund – Amendment No. 5 and Limited Waiver to Amended and Restated Credit Agreement
S-4
| U.S. BANK NATIONAL ASSOCIATION, as a Lender | ||
| By: | ||
| Name: | ||
| Title: | ||
Tortoise Midstream Energy Fund – Amendment No. 5 and Limited Waiver to Amended and Restated Credit Agreement
S-5
FOURTH AMENDED AND RESTATED SCHEDULE 2.01
COMMITMENTS
AND APPLICABLE PERCENTAGES
| Lender | Commitment | Applicable Percentage | ||||||
| Bank of America, N.A. | $ | 30,875,000.00 | 47.▇▇▇▇▇▇▇▇▇ | % | ||||
| The Bank of Nova Scotia | $ | 15,166,666.67 | 23.▇▇▇▇▇▇▇▇▇ | % | ||||
| U.S. Bank National Association | $ | 18,958,333.33 | 29.166666667 | % | ||||
| Total | $ | 65,000,000.00 | 100.000000000 | % | ||||
Fourth Amended and Restated Schedule 2.01 to Amended and Restated Credit Agreement