CREDIT AGREEMENT
dated as of April 4, 2006
between
TORTOISE NORTH AMERICAN ENERGY CORPORATION
and
U.S. BANK NATIONAL ASSOCIATION
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$20,000,000 Revolving Credit Facility
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CREDIT AGREEMENT
This Credit Agreement is made as of April 4, 2006 by and between TORTOISE
NORTH AMERICAN ENERGY CORPORATION, a Maryland corporation (the "Borrower"), with
its chief executive office located at 00000 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx,
Xxxxxx 00000, and U.S. BANK NATIONAL ASSOCIATION, a national banking association
(the "Bank"),with an office located at 0000 Xxxx 00xx Xxxxxx, Xxxxxxxx Xxxx,
Xxxxxx 00000.
The parties agree as follows:
Section 1
General Definitions
1.1 Definitions. When used in this Agreement, the following terms have the
following meanings:
"Affiliate" means a Person (1) which owns or otherwise has an interest in
five percent or more of any equity interest of the Borrower, (2) five percent or
more of the equity interests of which the Borrower (or any shareholder or other
equity holder, director, officer, employee or subsidiary of the Borrower or any
combination thereof) owns or otherwise has an interest in, or (3) which,
directly or through one or more intermediaries, is controlled by, controls, or
is under common control with the Borrower. For purposes of subpart (3) above,
"control" means the ability, directly or indirectly, to affect the management or
policies of a Person by virtue of an ownership interest, by right of contract or
any other means.
"Agreement" means this Credit Agreement, as amended, renewed, restated,
replaced or otherwise modified from time to time.
"Business Day" means a day on which the Bank is open for business to the
general public other than a Saturday or Sunday.
"Closing Date" means the date of this Agreement, as set forth in the
introductory paragraph of this Agreement.
"Common Listed Equity Units" means any of the following financial assets
held in the Securities Account: (1) securities traded on a national securities
exchange in the United States or the Toronto Stock Exchange, (2) cash and cash
equivalents that have a readily obtainable market value, (3) bonds rated Baa or
better by the applicable national rating agency, and (4) such other assets as
may be acceptable to the Bank in the exercise of its sole and absolute
discretion.
"Common Listed Equity Units Value" means, at any date, the value of all
Common Listed Equity Units as customarily determined by the Securities
Intermediary and as reflected in the account statement for the Securities
Account (or as would be reflected if an account statement for the Securities
Account were to be issued by the Securities Intermediary as of such date);
provided, however, that, with respect to Common Listed Equity Units of the type
described in subpart (4) of the definition thereof, the value of such assets
shall be the value assigned to such assets by the Bank, in the exercise of its
sole and absolute discretion, and without regard to the value of such assets as
reflected in an account statement for the Securities Account.
"Credit Documents" means this Agreement, the Note and any other agreements
or documents with the Bank existing on or after the Closing Date evidencing or
otherwise relating to any of the transactions described in or contemplated by
this Agreement, and any amendments, renewals, restatements, replacements,
consolidations or other modifications of any of the foregoing from time to time.
Credit Agreement - Page 1
"Debt" means any of the following: (1) indebtedness or liability for
borrowed money; (2) obligations evidenced by bonds, debentures, notes or other
similar instruments; (3) obligations for the deferred purchase price of property
or services; (4) obligations as lessee under capital leases; (5) current
liabilities in respect of unfunded vested benefits under Plans covered by ERISA;
(6) obligations under letters of credit or acceptance facilities; (7) all
guarantees, endorsements (other than for collection or deposit in the ordinary
course of business) and other contingent obligations to purchase, to provide
funds for payment, to supply funds to invest in any Person, or otherwise to
assure a creditor against loss; and (8) obligations secured by a Lien, whether
or not the obligations have been assumed.
"Default" means an event or condition the occurrence of which would, with
the lapse of time or the giving of notice or both, become an Event of Default.
"Default Rate" has the meaning provided in Section 3.1 of this Agreement.
"Environmental Laws" means all federal, state, local and other applicable
statutes, ordinances, rules, regulations, judicial orders or decrees, common law
theories of liability, governmental or quasi-governmental directives or notices
or other laws or matters existing on or after the Closing Date relating in any
respect to occupational safety, health or environmental protection.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and all rules and regulations from time to time
promulgated thereunder.
"Event of Default" has the meaning provided in Section 7.1 of this
Agreement.
"Funded Debt" means Debt of the Borrower of the type described in subparts
(1), (2), (3), (4) and (6) of the definition of "Debt" in this Section 1.1 and
includes, in any event, the Loan and the Senior Notes.
"GAAP" means generally accepted accounting principles in effect from time
to time in the United States of America.
"Hazardous Substance" means any hazardous, toxic, dangerous or otherwise
environmentally unsound substance, waste or other material, in whatever form, as
defined or described in, or contemplated by, any Environmental Law and any other
hazardous, toxic, dangerous or otherwise environmentally unsound substance,
waste or other material in whatever form, or any other substance, waste or other
material regulated by any Environmental Law.
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), or preference, priority, or other security agreement or preferential
arrangement, charge or encumbrance of any kind or nature whatsoever, including,
without limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing, or the filing of any financing statement under the Uniform Commercial
Code or comparable law of any jurisdiction to evidence any of the foregoing.
"Loans" means all Revolving Credit Loans. The term "Loan" may refer to all
Revolving Credit Loans then outstanding or, as the context so requires, any
particular Revolving Credit Loan then outstanding under this Agreement.
"Material Adverse Effect" means (1) a material adverse effect on the
assets, liabilities, business, prospects, operations, income or condition,
financial or otherwise, of the Borrower, (2) a material impairment of the
ability of the Borrower to pay, perform or observe its obligations under the
Credit
Credit Agreement - Page 2
Documents, or (3) a material impairment of the enforceability or availability of
the rights or remedies stated to be available to the Bank under the Credit
Documents.
"Note" means the Revolving Credit Note.
"Permitted Debt" means any of the following: (1) accrued expenses and trade
account payables incurred in the ordinary course of the Borrower's business; (2)
the Senior Notes; (3) Debt to the Bank; and (4) other Debt approved in advance
by the Bank in a writing delivered to the Borrower.
"Permitted Liens" means any of the following: (1) Liens for taxes,
assessments or governmental charges not delinquent or being contested in good
faith and by appropriate proceedings and for which adequate reserves in
accordance with GAAP are maintained on the Borrower's books; (2) Liens arising
out of deposits in connection with workers' compensation, unemployment
insurance, old age pensions or other social security or retirement benefits
legislation; (3) deposits or pledges to secure bids, tenders, contracts (other
than contracts for the payment of money), leases, statutory obligations, surety
and appeal bonds, and other obligations of like nature arising in the ordinary
course of the Borrower's business; (4) Liens imposed by law, such as mechanics',
workers', materialmen's, carriers' or other like Liens (excluding, however, any
Lien in favor of a landlord) arising in the ordinary course of the Borrower's
business which secure the payment of obligations which are not past due or which
are being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP are maintained on the Borrower's
books; and (5) rights of way, zoning restrictions, easements and similar
encumbrances affecting the Borrower's real property which do not materially
interfere with the use of such property.
"Person" means an individual, corporation, limited liability company,
partnership, trust, governmental entity or any other entity, organization or
group whatsoever.
"Plan" means an employee benefit plan (as defined in Section 3(3) of ERISA)
maintained for employees of the Borrower on or after the Closing Date.
"Prior Credit Agreement" has the meaning provided in Section 3.11 of this
Agreement.
"Revolving Credit Loan" has the meaning provided in Section 2.2 of this
Agreement.
"Revolving Credit Note" has the meaning provided in Section 2.2 of this
Agreement.
"Securities Account" means securities account number 291150800 held at the
Securities Intermediary.
"Securities Intermediary" means U.S. Bank National Association.
"Senior Notes" means the Borrower's $40,000,000 aggregate original
principal amount Auction Rate Senior Notes, Series A, due April 3, 2046.
"Termination Date" means June 1, 2006.
1.2 Accounting and Other Terms.
(a) General. All accounting terms not specifically defined herein
shall be construed in accordance with GAAP. Unless the context clearly requires
otherwise, all references to "dollars" or "$" are to United States dollars. This
Agreement and the other Credit Documents shall be construed without regard to
any presumption or rule requiring construction against the party causing any
such document or any portion thereof to be drafted. The Section and other
headings in this Agreement and any
Credit Agreement - Page 3
index at the beginning of this Agreement are for convenience of reference only
and shall not limit or otherwise affect any of the terms of this Agreement.
Similarly, any page footers or headers or similar word processing, document or
page identification numbers in this Agreement or any index or exhibit are for
convenience of reference only and shall not limit or otherwise affect any of the
terms of this Agreement, nor shall there be any requirement that any such
footers or other numbers be consistent from page to page. Unless the context
clearly requires otherwise, any reference to a Section of this Agreement refers
to all Sections and Subsections thereunder. Any pronoun used herein shall be
deemed to cover all genders. Defined terms used in this Agreement may be set
forth in Section 1.1 or other Sections of this Agreement, and all such
definitions defined in the singular shall have a corresponding meaning when used
in the plural and vice versa.
(b) Changes in GAAP. If at any time any change in GAAP would affect
the computation of any financial ratio or requirement set forth in any Credit
Document, and either the Borrower or the Bank shall so request, the Bank and the
Borrower shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP; provided,
however, that, until so amended, (1) such ratio or requirement shall continue to
be computed in accordance with GAAP prior to such change therein, and (2) the
Borrower shall provide to the Bank financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting forth
a reconciliation between calculations of such ratio or requirement made before
and after giving effect to such change in GAAP.
Section 2
Credit Facility
2.1 Total Credit Facility. The Bank agrees, subject to the terms and
conditions of this Agreement, to make a total credit facility of up to
$20,000,000 available to the Borrower upon its request therefor, as provided in
this Section 2.
2.2 Revolving Credit Loans.
(a) General. The Bank agrees, subject to the terms and conditions of
this Agreement, to make revolving credit loans ("Revolving Credit Loans") to the
Borrower from time to time from the Closing Date to the Business Day immediately
preceding the Termination Date up to a maximum principal amount at any time
outstanding equal to $20,000,000. In no event shall the Bank be obligated to
make any Revolving Credit Loan if (1) after giving effect to such Revolving
Credit Loan, the aggregate outstanding principal balance of Funded Debt would
exceed 50% of the Common Listed Equity Units Value, or (2) any Default or Event
of Default exists or would result from the making of such Revolving Credit Loan.
Subject to the terms and conditions of this Agreement, the Borrower may borrow,
repay and re-borrow under the Revolving Credit Loan facility.
(b) Revolving Credit Note. All Revolving Credit Loans shall be
evidenced by, and shall be payable in accordance with the terms and conditions
of, a promissory note substantially in the form of Exhibit A hereto (as amended,
renewed, restated, replaced, consolidated or otherwise modified from time to
time, the "Revolving Credit Note").
Section 3
Finance Charges, Repayment And Other Terms
3.1 Interest Rate.
(a) General. Interest on each advance hereunder shall accrue at an
annual rate equal to 0.75% plus the one-month LIBOR rate quoted by the Bank from
Telerate Page 3750 or any successor thereto, which shall be that one-month LIBOR
rate in effect two New York Banking Days prior to the
Credit Agreement - Page 4
beginning of each calendar month, adjusted for any reserve requirement and any
subsequent costs arising from a change in government regulation, such rate to be
reset at the beginning of each succeeding month. The term "New York Banking Day"
means any day (other than a Saturday or Sunday) on which commercial banks are
open for business in New York, New York. If the initial advance under this
Agreement occurs other than on the first day of the month, the initial one-month
LIBOR rate shall be that one-month LIBOR rate in effect two New York Banking
Days prior to the date of the initial advance, which rate plus the percentage
described above shall be in effect for the remaining days of the month of the
initial advance; such one-month LIBOR rate to be reset at the beginning of each
succeeding month. The Bank's internal records of applicable interest rates shall
be determinative in the absence of manifest error.
(b) Default Rate. Upon or after the occurrence and during the
continuation of any Event of Default, the principal amount of each Loan shall
bear interest at a rate per annum equal to three percent (3.0%) above the
interest rate that would otherwise apply under Section 3.1(a) above (the
"Default Rate").
(c) Computation of Interest. Interest on the outstanding principal
balance of all Loans and all other obligations, if any, under the Credit
Documents with respect to which interest accrues pursuant to the terms of this
Agreement shall be calculated on a daily basis, computed on the basis of a
360-day year for the actual number of days elapsed (or, if the Bank so elects,
on the basis of twelve 30-day months for the actual number of days elapsed).
(d) Usury. In no contingency or event whatsoever shall the aggregate
of all amounts deemed interest hereunder or under the Note and charged or
collected pursuant to the terms of this Agreement or any other Credit Documents
exceed the highest rate permissible under any law which a court of competent
jurisdiction shall, in a final determination, deem applicable thereto. If such a
court determines that the Bank has charged or received interest hereunder or
under the other Credit Documents in excess of the highest applicable rate, the
Bank shall apply such excess to any other obligations then due and payable by
the Borrower under the Credit Documents, whether principal, interest, fees or
otherwise, and shall refund the remainder of such excess interest, if any, to
the Borrower, and such rate shall automatically be reduced to the maximum rate
permitted by such law.
3.2 Payments of Principal, Interest and Costs. Except as otherwise provided
in this Agreement, the Borrower agrees to pay the Borrower's obligations under
the Credit Documents as follows:
(a) Revolving Credit Loan.
(1) Interest. Accrued interest on outstanding principal balance
of the Revolving Credit Loan is payable on the earlier to
occur of (A) the first day of each month (beginning May 1,
2006), or (B) the Termination Date.
(2) Principal. The outstanding principal balance of the
Revolving Credit Loan is payable on the Termination Date.
(b) Other Obligations. Costs, fees and expenses and any other
obligations payable by the Borrower pursuant to this Agreement or the other
Credit Documents shall be payable as and when provided in this Agreement or the
other Credit Documents, as the case may be, or, if no specific provision for
payment is made, on demand.
3.3 Voluntary Prepayments. The Borrower has the right, without penalty or
premium, to prepay the Loan, in whole or in part, at any time and from time to
time after the Closing Date.
Credit Agreement - Page 5
3.4 Mandatory Prepayments.
(a) Combined Loan to Value. If, at any time, the aggregate outstanding
principal balance of Funded Debt exceeds 50% of the Common Listed Equity Units
Value, the Borrower shall immediately prepay the Loan in an amount sufficient to
reduce the aggregate unpaid principal balance of the Loan by an amount equal to
such excess.
(b) Legal Requirement. If at any time the Borrower or the Bank, as the
case may be, is required by applicable law to prepay or to cause to be prepaid
all or any portion of the Loan, the Borrower shall immediately prepay the Loan
in an amount sufficient to satisfy such legal requirement. For purposes of the
preceding sentence, "applicable law" and "legal requirement" shall include,
without limitation, any legal requirement or restriction imposed by virtue of
Regulation U of the Board of Governors of the Federal Reserve System or the
Investment Company Act of 1940, as amended, or the rules and regulations
promulgated thereunder.
3.5 Method of Payment. Payments due the Bank under this Agreement and the
other Credit Documents shall be made in immediately available funds to the Bank
at its office described in the introductory paragraph of this Agreement unless
the Bank gives notice to the contrary. Payments so received at or before 1:00
p.m. Kansas City time on any Business Day shall be deemed to have been received
by the Bank on that Business Day. Payments received after 1:00 p.m. Kansas City
time on any Business Day shall be deemed to have been received on the next
Business Day, and interest, if payable in respect of such payment, shall accrue
thereon until such next Business Day.
3.6 Use of Proceeds. The Revolving Credit Loans shall be used solely for
purposes of: (1) the Borrower's acquisition of investment property in the
ordinary course of its business; (2) the Borrower's general working capital and
other general corporate needs; and (3) paying costs and expenses incurred in
connection with the closing of the transactions contemplated by this Agreement.
3.7 Notice and Manner of Borrowing. The Borrower shall give the Bank notice
of its intention to borrow under any Revolving Credit Loan at least one Business
Day before the Business Day such Loan is to be disbursed to the Borrower, and
shall specify: (1) the proposed funding date of such Loan; and (2) the amount of
such Loan. All notices given under this Section by the Borrower shall be
irrevocable and shall be given not later than 11:00 a.m. Kansas City time on the
day which is not less than the number of Business Days specified above for such
notice. For purposes of this Section, the Borrower agrees that the Bank may rely
and act upon any request for a Loan from any individual who the Bank, absent
gross negligence or willful misconduct, believes to be a representative of the
Borrower.
3.8 Capital Adequacy. If the Bank determines that the adoption of any law,
rule or regulation regarding capital adequacy, or any change therein or in the
interpretation or application thereof or compliance by the Bank with any request
or directive regarding capital adequacy (whether or not having the force of law)
from any central bank or governmental authority, does or shall have the effect
of reducing the rate of return on the Bank's capital as a consequence of its
obligations hereunder to a level below that which the Bank could have achieved
but for such adoption, change or compliance (taking into consideration the
Bank's policies with respect to capital adequacy) by an amount deemed by the
Bank, in its sole discretion, to be material, then from time to time, after
submission by the Bank to the Borrower of a written demand therefor, the
Borrower shall pay to the Bank such additional amount or amounts as will
compensate the Bank for such reduction. A certificate of the Bank claiming
entitlement to payment as set forth in this Section shall be conclusive in the
absence of manifest error. Such certificate shall set forth the nature of the
occurrence giving rise to such payment, the additional amount or amounts to be
paid to the Bank, and the method by which such amounts were determined. In
determining such amount, the Bank may use any reasonable averaging and
attribution method.
Credit Agreement - Page 6
3.9 Application of Payments and Collections. The Borrower irrevocably
waives the right to direct the application of any and all payments and
collections at any time or times after the Closing Date received by the Bank
from or on behalf of the Borrower, and the Borrower agrees that the Bank has the
continuing exclusive right to apply and reapply any and all such payments and
collections received at any time or times after the Closing Date by the Bank or
its agent against the Borrower's obligations under the Credit Documents, in such
manner as the Bank may deem advisable, notwithstanding any entry by the Bank
upon any of its books and records.
3.10 Periodic Statement. The Bank may account to the Borrower with a
periodic statement of loan balances, charges and payments made or received
pursuant to this Agreement, and any such statement rendered by the Bank shall be
deemed final, binding and conclusive upon the Borrower unless the Bank is
notified by the Borrower in writing to the contrary within 45 days after the
date such statement is made available to the Borrower. Any such notice by the
Borrower shall only be deemed an objection to those items specifically objected
to in such notice.
3.11 Termination of Prior Facility. The Borrower terminates any right it
has to obtain credit under the Credit Agreement, dated as of January 31, 2006,
between the Borrower and the Bank (the "Prior Credit Agreement"); and the Bank
and the Borrower agree that the Prior Credit Agreement shall be deemed
terminated except for any indemnification or other provisions therein in favor
of the Bank which are expressly stated to survive the termination of such
agreement or the repayment of the obligations evidenced thereby. The Bank
terminates its security interest in the Collateral (as defined in the Security
Agreement referred to in the Prior Credit Agreement); and the Bank and the
Borrower agree that the Security Agreement and the Control Agreement, each as
defined in the Prior Credit Agreement, shall be deemed terminated except for any
indemnification or other provisions contained therein in favor of the Bank which
are expressly stated to survive the termination of either such agreement or the
repayment of the obligations secured thereby. The Bank further authorizes the
Borrower or its agents to terminate of record Uniform Commercial Code financing
statement number 181257941, from the Borrower, as debtor, to the Bank, as
secured party, filed on February 6, 2006, in the Uniform Commercial Code records
of the Maryland Department of Assessments and Taxation.
Section 4
Lending Conditions
4.1 Credit Documents. Notwithstanding anything herein or in the other
Credit Documents to the contrary, the Bank shall not be obligated to make the
initial Loan under this Agreement to the Borrower until the Bank has received
the following documents, duly executed and delivered by all parties thereto, and
otherwise satisfactory in form and content to the Bank:
(a) Credit Agreement. This Agreement;
(b) Note. The Revolving Credit Note;
(c) Loan Disbursement Instructions. If requested by the Bank,
written instructions from the Borrower to the Bank directing
the disbursement of the proceeds of the initial Loan made
pursuant to this Agreement;
(d) Form U-1. A Form U-1 for the Borrower whereby, among other
things, the Borrower represents and warrants that the Loan
proceeds may be used to purchase or carry margin stock, the
Borrower hereby concurring with the assessment of the market
value of any margin stock and other investment property
described therein as of the date provided therein;
Credit Agreement - Page 7
(e) Opinion of Borrower's Counsel. The favorable written opinion
to the Bank of Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP, counsel
to the Borrower, regarding the Borrower, the Credit
Documents and the transactions contemplated by this
Agreement and the other Credit Documents;
(f) Certificate of Borrower's Secretary. A certificate executed
by the Borrower's secretary whereby such secretary affirms
that, among other things, attached to such certificate is
(1) a copy of the Borrower's board resolutions authorizing
the borrowing of monies and all other matters set forth in
or contemplated by the Credit Documents, (2) a copy of the
Borrower's by-laws in effect on the Closing Date, (3) a copy
of the Borrower's articles or certificate of incorporation
and all amendments thereto, and (4) a certificate of good
standing for the Borrower, dated on or not more than 10 days
prior to the Closing Date, from the Secretary or State of
the state of incorporation of the Borrower and from the
Secretary of State of Kansas; and
(g) Other Items. Such other agreements, documents and assurances
as the Bank may reasonably request in connection with the
transactions described in or contemplated by the Credit
Documents.
If the Bank, in its sole and absolute discretion, elects to make a Loan
notwithstanding the Borrower's failure to comply with all of the terms of this
Section, then the Bank shall not be deemed to have waived the Borrower's
compliance therewith, nor to have waived any of the Bank's other rights under
this Agreement; and in any event the Bank, if it so elects, may declare an
immediate Event of Default if the Borrower fails to furnish to the Bank on
demand any of the Credit Documents described in this Section or otherwise fails
to comply with any condition precedent set forth in any Credit Document, in each
case irrespective of whether such failure occurs on or after the Closing Date or
the making of such Loan.
4.2 Additional Conditions Precedent to Initial Loan. The Bank's obligation
to make the initial Loan under this Agreement shall also be subject to the
satisfaction, in the Bank's sole judgment, of each of the following conditions
precedent:
(a) Since the date of the financial statements submitted by the
Borrower to the Bank immediately prior to the Closing Date,
there shall not have occurred any act or event which could
reasonably be expected to have a Material Adverse Effect;
(b) No action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or
proposed before any court, governmental agency or
legislative body to enjoin, restrain or prohibit, or to
obtain damages in respect of, or which is related to or
arises out of this Agreement or the other Credit Documents
or the consummation of the transactions contemplated hereby
or thereby or which, in the Bank's reasonable determination,
would make it inadvisable to consummate the transactions
contemplated by this Agreement or the other Credit
Documents; and
(c) The Borrower shall have paid all legal fees and other
closing or like costs and expenses of the Bank which the
Borrower is obligated to pay hereunder.
4.3 Conditions Precedent to All Loans. The obligation of the Bank to make
each Loan under this Agreement (including, without limitation, the initial Loan)
shall be subject to the further conditions precedent that, on the date of each
such Loan:
Credit Agreement - Page 8
(a) The following statements shall be true: (1) the
representations and warranties of the Borrower contained in
this Agreement and the other Credit Documents are correct on
and as of the date of such Loan as though made on and as of
such date, and (2) there exists no Default or Event of
Default as of such date, nor would any Default or Event of
Default result from the making of the Loan requested by the
Borrower;
(b) The Borrower shall have signed and sent to the Bank, if the
Bank so requests, a request for advance, setting forth in
writing the amount of the Loan requested and the other
information required pursuant to this Agreement; provided,
however, that the foregoing condition precedent shall not
prevent the Bank, if it so elects in its sole discretion,
from making a Loan pursuant to the Borrower's non-written
request therefor; and
(c) The Bank shall have received such other approvals, opinions
or documents as it may reasonably request.
The Borrower agrees that the making of a request by the Borrower for a Revolving
Credit Loan, whether in writing, by telephone or otherwise, shall constitute a
certification by the Borrower that all representations and warranties of the
Borrower in the Credit Documents are true as of the date thereof and that all
required conditions to the making of the Revolving Credit Loan have been met.
Section 5
Representations And Warranties
5.1 Representations, Warranties and Covenants of the Borrower. The Borrower
represents, and warrants to the Bank as follows:
(a) Organization and Existence. The Borrower (1) is a corporation duly
incorporated, validly existing and in good standing under the laws of the state
of its incorporation as reflected in the introductory paragraph of this
Agreement, (2) is in good standing in all other jurisdictions in which it is
required to be qualified to do business as a foreign corporation, and (3) has
obtained all licenses and permits and has filed all registrations necessary to
the operation of its business; except where the failure to so qualify or to
obtain such licenses or permits could not reasonably be expected to have a
Material Adverse Effect.
(b) Authorization by the Borrower. The execution, delivery and
performance by the Borrower of the Credit Documents (1) are within the
Borrower's corporate powers, (2) have been duly authorized by all necessary
corporate or similar action, (3) do not contravene the Borrower's articles or
certificate of incorporation or by-laws, or any law or contractual restriction
binding on or affecting the Borrower or its properties (including, without
limitation, any contractual restriction arising under or otherwise related to
the Senior Notes), and (4) do not result in or require the creation of a Lien
upon any of the Borrower's existing or future assets.
(c) Approval of Governmental Bodies. No authorization or approval or
other action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and performance by
the Borrower of the Credit Documents or the exercise by the Bank of its rights
thereunder.
(d) Enforceability of Obligations. The Credit Documents are the legal,
valid and binding obligations of the Borrower enforceable against the Borrower
in accordance with their respective terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization,
Credit Agreement - Page 9
moratorium, or similar laws affecting the enforceability of creditors' rights
generally and subject to the discretion of courts in applying equitable
remedies.
(e) Financial Statements. All financial statements of the Borrower
which have been furnished to the Bank fairly present the financial condition of
the Borrower, as of the dates reflected on the financial statements, and fairly
present the results of its operations for the period covered thereby, all in
accordance with GAAP, except for the omission of footnotes in interim financial
statements and subject to normal year-end adjustments. As of the Closing Date,
there has been no material adverse change in the financial condition or results
from operations of the Borrower since the dates of the most recent financial
statements of the Borrower submitted to the Bank.
(f) Litigation. There is no pending or threatened action or proceeding
affecting the Borrower or any of its properties before any court, governmental
agency or arbitrator which, if determined adversely to the Borrower, could
reasonably be expected to have a Material Adverse Effect.
(g) Existing Debt. The Borrower has no Debt other than Permitted Debt.
(h) Taxes. The Borrower has filed all required federal, state, local
and other tax returns and has paid, or made adequate provision for the payment
of, any taxes due pursuant thereto or pursuant to any assessment received by the
Borrower except such taxes, if any, as are being contested in good faith and as
to which adequate reserves have been provided.
(i) Stock and Records. All outstanding capital stock of the Borrower
was and is properly issued, and all books and records of the Borrower, including
but not limited to its minute books, by-laws and books of account, are accurate
and complete in all material respects. The Borrower is not obligated on or after
the Closing Date to redeem or otherwise acquire, or pay any dividends or make
any other distributions in respect of, any of its stock.
(j) Hazardous Materials. The Borrower has complied with all
Environmental Laws and all of its facilities, leaseholds, assets and other
property comply with all Environmental Laws, except where such failure to comply
could not reasonably be expected to have a Material Adverse Effect. There are no
outstanding or threatened citations, notices or orders of non-compliance issued
to the Borrower or relating to its facilities, leaseholds, assets or other
property. The Borrower has been issued all licenses, certificates, permits or
other authorizations required under any Environmental Law or by any federal,
state or local governmental or quasi-governmental entity, except where the
failure to obtain such license, certificate, permit or other authorization could
not reasonably be expected to have a Material Adverse Effect.
(k) Title to Property; Liens. The Borrower has good and marketable
title to all property purported to be owned by it subject to no Liens other than
Permitted Liens.
(l) Insolvency. After the execution and delivery of the Credit
Documents and the disbursement of the initial Loan hereunder, the Borrower will
not be insolvent within the meaning of the United States Bankruptcy Code or
unable to pay its debts as they mature.
(m) Survival of Representations. All representations and warranties
made in this Section 5 shall survive the execution and delivery of the Credit
Documents and the making of the Loans.
Credit Agreement - Page 10
Section 6
Covenants
6.1 Affirmative Covenants. So long as any Loans remain unpaid or the Bank
has any commitment to extend credit to or for the benefit of the Borrower, the
Borrower covenants to the Bank as follows:
(a) Compliance with Laws. The Borrower shall comply with all
applicable laws, rules, regulations and orders affecting the Borrower or its
properties, including, without limitation, all Environmental Laws, except where
such failure to comply could not reasonably be expected to have a Material
Adverse Effect.
(b) Reporting Requirements. The Borrower shall furnish to the Bank
such information respecting the condition or operations, financial or otherwise,
of the Borrower as the Bank may reasonably request from time to time.
(c) Preservation of Business and Corporate Existence. The Borrower
shall: (1) carry on and conduct its principal business substantially as it is
now being conducted; (2) maintain in good standing its existence and its right
to transact business in those states in which it is required by applicable law
to be qualified to do business; and (3) maintain all licenses, permits and
registrations necessary to the conduct of its business; except where the failure
to so maintain its right to transact business or to maintain such licenses,
permits or registrations could not reasonably be expected to have a Material
Adverse Effect.
(d) Payment of Taxes. The Borrower shall pay and discharge, before
they become delinquent, all taxes, assessments and other governmental charges
imposed upon it, its properties, or any part thereof, or upon the income or
profits therefrom and all claims for labor, materials or supplies which if
unpaid might be or become a Lien or charge upon any of its property, except such
items as it is in good faith appropriately contesting and as to which adequate
reserves have been provided to the Bank's satisfaction.
(e) Employee Plans. The Borrower shall: (1) notify the Bank promptly
of the establishment of any Plan, except that prior to the establishment of any
"welfare plan" (as defined in Section 3(1) of ERISA) covering any employee of
the Borrower for any period after such employee's termination of employment
other than such period required by the Consolidated Omnibus Budget
Reconciliation Act of 1986 or "defined benefit plan" (as defined in Section
3(35) of ERISA), it will obtain the Bank's prior written approval of such
establishment; (2) at all times make prompt payments or contributions to meet
the minimum funding standards of Section 412 of the Internal Revenue Code of
1986, as amended, with respect to each Plan; (3) promptly after the filing
thereof, furnish to the Bank a copy of any report required to be filed pursuant
to Section 103 of ERISA in connection with each Plan for each Plan year,
including but not limited to the Schedule B attached thereto, if applicable; (4)
notify the Bank promptly of any "reportable event" (as defined in ERISA) or any
circumstances arising in connection with any Plan which might constitute grounds
for the termination thereof by the Pension Benefit Guaranty Corporation or for
the appointment by the appropriate United States District Court of a trustee to
administer the Plan, the initiation of any audit or inquiry by the Internal
Revenue Service or the Department of Labor of any Plan or transaction(s)
involving or related to any Plan, or any "prohibited transaction" as defined in
Section 406 of ERISA or Section 4975(c) of the Internal Revenue Code of 1986, as
amended; (5) notify the Bank prior to any action that could result in the
assertion of liability under Subtitle E of Title IV of ERISA caused by the
complete or partial withdrawal from any multiemployer plan or to terminate any
defined benefit plan sponsored by the Borrower; and (6) promptly furnish such
additional information concerning any Plan as the Bank may from time to time
request.
Credit Agreement - Page 11
(f) Notice of Default. The Borrower shall give prompt written notice
to the Bank of the occurrence of any Default or Event of Default under any of
the Credit Documents. Similarly, the Borrower shall give prompt written notice
to the Bank of any failure to pay, perform or observe or any other default by
the Borrower under any other existing or future agreement by which the Borrower
is bound if such default could reasonably be expected to have a Material Adverse
Effect.
(g) Books and Records; Inspection; Bank Audits. The Borrower shall:
(1) maintain complete and accurate books and financial records in accordance
with GAAP (except that interim financial statements need not contain footnotes
and may be subject to normal year-end audit adjustments); (2) during normal
working hours permit the Bank and Persons designated by the Bank to visit and
inspect its properties, to inspect its books and financial records (including
its journals, orders, receipts and correspondence which relates to its accounts
receivable), and to discuss its affairs, finances and accounts receivable and
operations with its directors, officers, employees and agents and its
independent public accountants; and (3) permit the Bank and Persons designated
by the Bank to perform reviews of such books and financial records when and as
requested by the Bank.
(h) Further Assurances. The Borrower agrees to execute, deliver or
perform, or cause to be executed, delivered or performed, all such documents,
agreements or acts, as the case may be, as the Bank may reasonably request from
time to time to create, evidence or assure the Bank's rights and remedies under,
or as contemplated by, the Credit Documents or at law or in equity.
6.2 Negative Covenants. So long as any Loans remain unpaid or the Bank has
any commitment to extend credit to or for the benefit of the Borrower, the
Borrower covenants to the Bank as follows:
(a) Liens. The Borrower shall not create or suffer to exist any Lien
on or with respect to any of its properties, whether the Borrower owns or has an
interest in such property on the Closing Date or at any time thereafter, except
for Permitted Liens. If, notwithstanding the foregoing, the Borrower at any time
creates or suffers to exist any Lien (other than a Permitted Lien) on any
Property, including, if applicable, any proceeds thereof (such Property and, if
applicable, such proceeds being collectively referred to herein as "Encumbered
Property"), to secure any Debt (including, without limitation, any Debt
evidenced by any of the Senior Notes), the Borrower shall be deemed to have
granted to the Bank at such time, without further action on any Person's part, a
security interest in the Encumbered Property as security for all existing and
future obligations of the Borrower to the Bank under the Credit Documents. In
such event and insofar as the Encumbered Property consists of the Securities
Account or any financial assets held therein: (1) the Bank and the Securities
Intermediary shall be authorized - without notice to, the consent of or other
action by the Borrower - to take such action as the Bank deems necessary or
advisable to perfect or otherwise assure the Bank with respect to such security
interest (including, without limitation, to provide the Bank control of the
Encumbered Property held in the Securities Account, as the term "control" is
defined in ss.8-106(d)(2) of the Uniform Commercial Code as in effect in any
jurisdiction); and (2) if so requested by the Bank, the Borrower, at its
expense, shall cause the holder of any such Lien granted to a Person other than
Bank to take such action as the Bank reasonably deems necessary or advisable to
cause the priority of such Lien to rank on a pari passu basis with the Bank's
Lien.
(b) Debt. The Borrower shall not create or suffer to exist any Debt
except for Permitted Debt.
(c) Structure; Disposition of Assets. The Borrower shall not merge or
consolidate with or otherwise acquire, or be acquired by, any other Person;
provided, however, that the foregoing prohibition on acquisitions by the
Borrower shall not prohibit the Borrower from acquiring investment property in
the ordinary course of its business. The Borrower shall not sell, lease or
otherwise transfer
Credit Agreement - Page 12
any property, except for the disposition of obsolete equipment and the sale or
other disposition of investment property in the ordinary course of the
Borrower's business.
(d) Subsidiaries; New Business. The Borrower shall not create any
subsidiary, or render any services or otherwise enter into any business which is
not substantially similar to that existing on the Closing Date.
(e) Conflicting Agreements. The Borrower shall not enter into any
agreement any term or condition of which conflicts with any provision of this
Agreement or the other Credit Documents.
(f) Changes in Accounting Principles; Fiscal Year. The Borrower shall
not make any change in its principles or methods of accounting as currently in
effect, except such changes as are required by GAAP, nor shall the Borrower,
without first obtaining the Bank's written consent, change its fiscal year.
(g) Transactions With Affiliates. Other than the advisor relationship
existing on the Closing Date with Tortoise Capital Advisors, LLC, the Borrower
shall not enter into or be a party to any transaction or arrangement, including
without limitation, the purchase, sale or exchange of property of any kind or
the rendering of any service, with any Affiliate, except in the ordinary course
of and pursuant to the reasonable requirements of the Borrower's business and
upon fair and reasonable terms substantially as favorable to the Borrower as
those which would be obtained in a comparable arms-length transaction with a
non-Affiliate.
(h) Amount Invested in Single MLP. The Borrower shall not make any
investment in any single master limited partnership or other single entity if,
at the time of such investment or after giving effect thereto, the fair market
value of such investment would exceed $25,000,000.
Section 7
Default
7.1 Events of Default. Each of the following events shall constitute an
Event of Default hereunder:
(a) General. The Borrower fails to pay, perform or observe any
obligation of the Borrower to the Bank 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 days after written notice from the Bank specifying in
reasonable detail the nature of such default is received by the
Borrower; provided, however, that the Borrower shall not have any
cure rights under this Subsection (a) if the outstanding
principal balance of Funded Debt exceeds 80% of the Common Listed
Equity Units Value at any time after the Closing Date; or
(b) Other Bank Default. Any "Event of Default" (as such term is
defined in any other Credit Document to which the Borrower is a
party) occurs; or
(c) Misrepresentation. Any representation or warranty made or
furnished by the Borrower in connection with this Agreement or
the other Credit Documents proves to be incorrect, incomplete or
misleading in any material respect when made, or any such
representation or warranty becomes incorrect, incomplete or
misleading in any material respect and the Borrower fails to give
the Bank prompt written notice thereof; or
Credit Agreement - Page 13
(d) Cross-Default. The Borrower fails to pay any Debt (excluding any
monetary obligation due the Bank under the Credit Documents, as
contemplated by Subsection (a) above, but including, without
limitation, the Senior Notes) or to perform or observe any other
obligation or term in respect of such Debt, and, as a result of
any such failure, the holder of such Debt accelerates or is
entitled to accelerate the maturity thereof or requires or is
entitle to require the Borrower or some other Person to purchase
or otherwise acquire such Debt; or
(e) Insolvency. The Borrower ceases to be solvent or suffers the
appointment of a receiver, trustee, custodian or similar
fiduciary or makes an assignment for the benefit of creditors; or
any petition for an order for relief is filed by or against the
Borrower under the federal Bankruptcy Code or any similar state
insolvency statute (except, in the case of a petition filed
against the Borrower, if such proceeding is dismissed within 60
days after the petition is filed, unless prior thereto an order
for relief is entered under the federal Bankruptcy Code); or the
Borrower makes any offer of settlement, extension or composition
to their respective unsecured creditors generally; or
(f) Contest Credit Documents. The Borrower challenges or contests in
any action, suit or proceeding the validity or enforceability of
any of the Credit Documents or the legality or enforceability of
any obligation of the Borrower to the Bank under the Credit
Documents; or
(g) Judgments. One or more judgments, decrees or orders for the
payment of money in excess of $100,000 in the aggregate during
any 12-month period is rendered against the Borrower.
7.2 Obligation to Lend; Acceleration. After the occurrence and during the
continuation of any Default, the Bank may declare the obligation of the Bank to
make Loans or to otherwise extend credit hereunder to be terminated, whereupon
the same shall forthwith terminate. After the occurrence and during the
continuation of any Event of Default, the Bank may declare the Note, all
interest thereon, and all other obligations of the Borrower to the Bank under
the Credit Documents to be forthwith due and payable, whereupon the Note, all
such interest thereon and all such other obligations shall become and be
forthwith due and payable, without presentment, protest or further notice or
demand of any kind, all of which are waived by the Borrower. If, notwithstanding
the foregoing, after the occurrence and during the continuation of any Default
or Event of Default, as the case may be, the Bank elects (any such election to
be in the Bank's sole and absolute discretion) to make one or more advances
under this Agreement or to not accelerate all or any of the Borrower's
obligations, any such election shall not preclude the Bank from electing
thereafter (in its sole and absolute discretion) to not make advances or to
accelerate all or any of the Borrower's obligations, as the case may be.
7.3 Remedies. Upon or after the occurrence and during the continuation of
any Event of Default, the Bank has and may exercise from time to time all rights
and remedies available at law or in equity, all of which rights and remedies
shall be cumulative, and none of which shall be exclusive, and all of which
shall be in addition to any other rights or remedies contained in this Agreement
or any of the other Credit Documents.
7.4 Ranking of Loans; Compliance with Investment Company Act of 1940.
Notwithstanding anything herein or in the other Credit Documents to the
contrary, so long as the Senior Notes constitute senior indebtedness of the
Borrower the Loans and all other obligations of the Borrower hereunder or under
the other Credit Documents shall rank pari passu in all respects with the Senior
Notes, including with respect to distributions of the assets of the Borrower and
with respect to the payment of interest; provided, however, that, if the Bank is
deemed to have been granted a Lien pursuant to the second
Credit Agreement - Page 14
sentence of Section 6.2(a) of this Agreement, the Bank shall be entitled to
enjoy the benefits of such Lien but shall share the net proceeds of any
collateral realized on by the Bank, to the extent the Bank receives such
proceeds, with the holders of the Senior Notes on a pari passu basis. It is the
intention of the Bank and the Borrower to comply with the provisions of the
Investment Company Act of 1940, as amended, and the rules and regulations
promulgated thereunder (the "1940 Act"). If any term, condition or other
provision in this Agreement or any of the other Credit Documents is deemed by
the Securities and Exchange Commission or any court to render any Loan or other
obligation incurred under any of the Credit Documents a separate "class of
senior securities representing indebtedness," for purposes of Section 18(c) of
the 1940 Act, and to have preferential rights over the Senior Notes in violation
of Section 18(c) of the 1940 Act, the Bank and the Borrower agree to diligently
and in good faith negotiate an amendment to the applicable Credit Documents so
as to comply with Section 18(c) of the 1940 Act provided that such amendment
does not impair the Bank's fundamental economic rights under the Credit
Documents.
Section 8
Miscellaneous
8.1 Notices. Except as otherwise provided herein, all notices, requests and
demands to or upon a party to this Agreement to be effective shall be in writing
and shall be deemed validly given upon receipt thereof, whether by personal
delivery, U.S. mail, fax, other electronic transmission or otherwise, in each
case addressed as follows:
If to the Bank:
U.S. Bank National Association 0000 Xxxx
00xx Xxxxxx Xxxxxxxx Xxxx, Xxxxxx 00000
Attn.: Xx. Xxxx Xxxxxxx Fax No.:
000-000-0000
with a copy (which shall not constitute notice) to:
Shook, Hardy & Bacon L.L.P.
0000 Xxxxx Xxxx.
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn.: Xxxx Xxxxxxxx, Esq.
Fax No.: 000-000-0000
If to the Borrower:
Tortoise North American Energy Corporation
00000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Attn.: Xxxxx Xxxxxxx
Fax No.: 000-000-0000
Credit Agreement - Page 15
with a copy (which shall not constitute notice) to:
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxxxx, Esq.
Fax No.: 000-000-0000
or to such other address or telecopy number as each party may designate for
itself by like notice given in accordance with this Section.
8.2 Indemnity. The Borrower agrees to indemnify, defend and hold harmless
the Bank and each shareholder, director, officer, employee, agent, attorney and
other representative of or contractor for the Bank from and against any and all
damages, settlement amounts, expenses (including, without limitation, attorney's
fees and court costs), other losses, claims or other assertions of liability of
any nature whatsoever incurred by or on behalf of or asserted against, as the
case may be, any one or more of such indemnified parties at any time arising in
whole or in part out of the Borrower's failure to observe, perform or discharge
any of the Borrower's duties under any of the Credit Documents or any
misrepresentation made by or on behalf of the Borrower under any of the Credit
Documents. Without limiting the generality of the foregoing, this indemnity
shall extend to any claims asserted against the Bank or such other indemnitees
by any Person under any Environmental Laws or similar laws by reason of the
Borrower's or any other Person's failure to comply with laws applicable to
Hazardous Substances. The Borrower further agrees to indemnify, defend and hold
harmless the Bank and each shareholder, director, officer, employee, agent,
attorney and other representative of or contractor for the Bank from and against
any and all damages, settlement amounts, expenses (including, without
limitation, attorneys' fees and court costs), other losses, claims or other
assertions of liability of any nature whatsoever incurred by or on behalf of or
asserted against, as the case may be, any one or more of such indemnified
parties at any time in connection with any one or more indemnified parties'
actions or inactions relating in any respect to the Credit Agreement, any of the
other Credit Documents or any of the transactions described in or contemplated
by any of the foregoing, except to the extent such losses arise out of such
indemnified party's gross negligence or willful misconduct. All indemnities
given by the Borrower to the Bank under the Credit Documents, including, without
limitation, the indemnities set forth in this Section, shall survive the
repayment of the Loans and the termination of this Agreement.
8.3 Entire Agreement; Modification of Agreement; Sale of Interest. This
Agreement and the other Credit Documents, together with all other instruments,
agreements and certificates executed by the parties in connection therewith or
with reference thereto, embodies the entire agreement between the parties hereto
and thereto with respect to the subject matter hereof and thereof and supersedes
all prior agreements, understandings and inducements, whether express or
implied, oral or written. This Agreement may not be modified, altered or
amended, except by an agreement in writing signed by the Borrower and the Bank.
The Borrower may not directly or indirectly sell, assign or transfer any
interest in or rights under this Agreement or any of the other Credit Documents.
The Borrower consents to the Bank's participation, sale, assignment, transfer or
other disposition, at any time or times on or after the Closing Date, of this
Agreement and any of the other Credit Documents, or of any portion hereof or
thereof, including, without limitation, the Bank's rights, title, interests,
remedies, powers and duties hereunder or thereunder; provided, however, that,
unless an Event of Default is then in effect or the Termination Date has
occurred, the Bank shall not have the right to sell this Agreement or any of the
other Credit Documents without first obtaining the Borrower's prior written
consent thereto.
8.4 Reimbursement of Expenses. If, at any time or times prior or subsequent
to the Closing Date, regardless of whether an Event of Default then exists or
any of the transactions contemplated hereunder are concluded, the Bank employs
counsel for advice or other representation, or incurs
Credit Agreement - Page 16
reasonable legal and/or appraisers', liquidators', investment bankers' expenses
and/or other costs or out-of-pocket expenses in connection with: (a) the
negotiation and preparation of this Agreement and any of the other Credit
Documents, any amendment or other modification of this Agreement or any of the
other Credit Documents; (b) any litigation, contest, dispute, suit, proceeding
or action (whether instituted by the Bank, the Borrower or any other Person) in
any way relating to this Agreement, any of the other Credit Documents or the
Borrower's affairs; and/or (c) any attempt to enforce any rights of the Bank
against the Borrower or any other Person which may be obligated to the Bank by
virtue of this Agreement or any of the other Credit Documents irrespective of
whether litigation is commenced in pursuance of such rights (all of which are
hereinafter collectively referred to as the "Expenses"); then, in any and each
such event, such Expenses shall be payable on demand by the Borrower to the
Bank. Additionally, if any taxes (excluding taxes imposed upon or measured by
the income of the Bank) shall be payable on account of the execution or delivery
of this Agreement or the other Credit Documents, or the execution, delivery,
issuance or recording of any of the Credit Documents, or the creation of any of
the Borrower's obligations under the Credit Documents, by reason of any federal,
state or local statute or other law existing on or after the Closing Date, the
Borrower will pay all such taxes, including, but not limited to, any interest
and penalties thereon, and will indemnify and hold the Bank harmless from and
against all liabilities in connection therewith.
8.5 Indulgences Not Waivers. The Bank's failure, at any time or times on or
after the Closing Date, to require strict performance by the Borrower of any
provision of this Agreement or the other Credit Documents shall not waive,
affect or diminish any right of the Bank thereafter to demand strict compliance
and performance therewith. Any suspension or waiver by the Bank of a Default or
an Event of Default by the Borrower under this Agreement or any of the other
Credit Documents shall not suspend, waive or affect any other Default or Event
of Default by the Borrower under this Agreement or any of the other Credit
Documents, whether the same is prior or subsequent thereto and whether of the
same or of a different type. None of the undertakings, agreements, warranties,
covenants and representations of the Borrower contained in this Agreement or any
of the other Credit Documents and no Default or Event of Default by the Borrower
under this Agreement or any of the other Credit Documents shall be deemed to
have been suspended or waived by the Bank, unless such suspension or waiver is
by an instrument in writing specifying such suspension or waiver and is signed
by a duly authorized representative of the Bank and directed and delivered to
the Borrower.
8.6 Severability. Wherever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
8.7 Successors and Assigns. This Agreement and the other Credit Documents,
shall be binding upon and inure to the benefit of the successors and assigns of
the Borrower and the Bank. This provision, however, shall not be deemed to
modify Section 8.3 hereof.
8.8 General Waivers by Borrower. Except as otherwise expressly provided for
in this Agreement, the Borrower waives: (a) presentment, protest, demand for
payment, notice of dishonor demand and protest and notice of presentment,
default, notice of nonpayment, maturity, release, compromise, settlement,
extension or renewal of any or all commercial paper, accounts receivable,
contract rights, documents, instruments, chattel paper and guaranties at any
time held by the Bank on which the Borrower may in any way be liable and
ratifies and confirms whatever the Bank may do in this regard; (b) the benefit
of all valuation, appraisement and exemption laws; and (c) any and all other
notices, demands and consents in connection with the delivery, acceptance,
performance, default or enforcement of this Agreement or any of the other Credit
Documents. Subject to the following sentence, the Borrower also waives any right
of setoff or similar right the Borrower may at any time have against the Bank as
a defense to the payment or performance of the Borrower's obligations under the
Credit
Credit Agreement - Page 17
Documents. If the Borrower now or hereafter has any claim against the Bank
giving rise to any such right of setoff or similar right, the Borrower agrees
not to assert such claim as a defense or right of setoff with respect to the
Borrower's obligations under the Credit Documents, and to instead assert any
such claim, if the Borrower so elects to assert such claim, in a separate
proceeding against the Bank and not as a part of any proceeding or as a defense
to any claim initiated by the Bank to enforce any of the Bank's rights under any
of the Credit Documents.
8.9 Execution in Counterparts; Facsimile Signatures. This Agreement and the
other Credit Documents may be executed in any number of counterparts and by
different parties thereto, each of which when so executed and delivered shall be
deemed to be an original and all of which counterparts taken together shall
constitute but one and the same instrument. A signature of a party to any of the
Credit Documents sent by facsimile or other electronic transmission shall be
deemed to constitute an original and fully effective signature of such party.
8.10 USA Patriot Act Notice. The Bank notifies the Borrower that, pursuant
to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001) (the "Act"), it is required to obtain, verify and
record information that identifies the Borrower, which information includes the
name and address of the Borrower and other information that will allow the Bank
to identify the Borrower in accordance with the Act. The Borrower agrees to
provide such information and take such other action as the Bank may request from
time to time to enable the Bank to comply with the provisions of the Act with
respect to the transactions described in the Credit Documents.
8.11 Governing Law; Consent to Forum. This Agreement shall be governed by
the laws of the State of Kansas without giving effect to any choice of law rules
thereof. As part of the consideration for new value this day received, the
Borrower consents to the jurisdiction of any state court located in Xxxxxxx
County, Kansas or any federal court located in Wyandotte County, Kansas
(collectively, the "Chosen Forum"), and waives personal service of any and all
process upon it and consents that all such service of process be made by
certified or registered mail directed to the Borrower at the address stated in
Section 8.1 hereof and service so made shall be deemed to be completed upon
delivery thereto. The Borrower waives any objection to jurisdiction and venue of
any action instituted against it as provided herein and agrees not to assert any
defense based on lack of jurisdiction or venue. The Borrower further agrees not
to assert against the Bank (except by way of a defense or counterclaim in a
proceeding initiated by the Bank) any claim or other assertion of liability
relating to any of the Credit Documents, the Borrower's obligations under the
Credit Documents or the Bank's actions or inactions in respect of any of the
foregoing in any jurisdiction other than the Chosen Forum. Nothing in this
Agreement shall affect the Bank's right to bring any action or proceeding
relating to this Agreement or the other Credit Documents against the Borrower or
its properties in courts of other jurisdictions.
8.12 Waiver of Jury Trial; Limitation on Damages. To the fullest extent
permitted by law, and as separately bargained-for consideration to the Bank, the
Borrower waives any right to trial by jury (which the Bank also waives) in any
action, suit, proceeding or counterclaim of any kind arising out of or otherwise
relating to any of the Credit Documents, the Borrower's obligations under the
Credit Documents or the Bank's actions or inactions in respect of any of the
foregoing. To the fullest extent permitted by law, and as separately
bargained-for consideration to the Bank, the Borrower also waives any right it
may have at any time to claim or recover in any litigation or other dispute
involving the Bank, whether the underlying claim or dispute sounds in contract,
tort or otherwise, any special, exemplary, punitive or consequential damages or
any damages other than, or in addition to, actual damages. The Borrower
acknowledges that the Bank is relying upon and would not enter into the
transactions described in the Credit Documents on the terms and conditions set
forth therein but for the Borrower's waivers and agreements under this Section.
[remainder of page intentionally left blank]
Credit Agreement - Page 18
8.12 K.S.A. ss.16-118 Required Notice. This statement is provided pursuant
to K.S.A. ss.16-118: "THIS CREDIT AGREEMENT IS A FINAL EXPRESSION OF THE CREDIT
AGREEMENT BETWEEN THE CREDITOR AND THE DEBTOR AND SUCH WRITTEN CREDIT AGREEMENT
MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR ORAL CREDIT AGREEMENT OR OF A
CONTEMPORANEOUS ORAL CREDIT AGREEMENT BETWEEN THE CREDITOR AND DEBTOR." THE
FOLLOWING SPACE CONTAINS ANY NON-STANDARD TERMS, INCLUDING THE REDUCTION TO
WRITING OF ANY PREVIOUS ORAL CREDIT AGREEMENT:
NONE.
The creditor and debtor, by their respective initials or signatures below,
confirm that no unwritten credit agreement exists between the parties:
Creditor: _______________
Debtor: _________________
[signature page(s) to follow]
Credit Agreement - Page 19
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized representatives as of the date first
above written.
TORTOISE NORTH AMERICAN ENERGY
CORPORATION
By:______________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By:______________________________________
Name:
Title:
Credit Agreement - Signature Page
Exhibit A
REVOLVING CREDIT NOTE
$20,000,000 April 4, 2006
For value received, the undersigned, TORTOISE NORTH AMERICAN ENERGY
CORPORATION, a Maryland corporation (the "Borrower"), promises to pay to the
order of U.S. BANK NATIONAL ASSOCIATION, a national banking association (the
"Bank"; which term shall include any subsequent holder hereof), in lawful money
of the United States of America, without setoff, deduction or counterclaim, the
principal sum of Twenty Million and 00/100 Dollars ($20,000,000.00) or, if
different, the principal amount outstanding under Section 2.2 of the Credit
Agreement referred to below.
This Revolving Credit Note (the "Note") is the Revolving Credit Note
referred to in, is issued pursuant to, and is subject to the terms and
conditions of, the Credit Agreement, dated as of or on or about the date hereof,
between the Borrower and the Bank, as the same may be amended, renewed,
restated, replaced, consolidated or otherwise modified from time to time (the
"Credit Agreement"). To the extent of any direct conflict between the terms and
conditions of this Note and the terms and conditions of the Credit Agreement,
the terms and conditions of the Credit Agreement shall prevail and govern.
Capitalized terms used and not defined in this Note have the meanings given to
them in the Credit Agreement.
Interest shall accrue on the outstanding principal balance of this Note as
provided in the Credit Agreement. Principal, interest and all other amounts, if
any, payable in respect of this of this Note shall be payable as provided in the
Credit Agreement. The Borrower's right, if any, to prepay this Note is subject
to the terms and conditions of the Credit Agreement.
The termination of the Credit Agreement or the occurrence of an Event
of Default shall entitle the Bank, at its option, to declare the then
outstanding principal balance hereof, all accrued interest thereon, and all
other amounts, if any, payable in respect of this Note to be, and the same shall
thereupon become, immediately due and payable without notice to or demand on the
Borrower, all of which the Borrower waives.
Time is of the essence of this Note. To the fullest extent permitted by
applicable law, the Borrower, for itself and its successors and assigns, waives
presentment, demand, protest, notice of dishonor, and any and all other notices,
demands and consents in connection with the delivery, acceptance, performance,
default or enforcement of this Note, and consents to any extensions of time,
renewals, releases of any parties to or guarantors of this Note, waivers and any
other modifications that may be granted or consented to by the Bank from time to
time in respect of the time of payment or any other provision of this Note.
This Note shall be governed by the laws of the State of Kansas, without
regard to any choice of law rule thereof which gives effect to the laws of any
other jurisdiction.
[signature page to follow]
Exhibit A - Page 1
IN WITNESS WHEREOF, the Borrower has executed and delivered this Note as of
the date first above written.
TORTOISE NORTH AMERICAN ENERGY
CORPORATION
By:______________________________________
Name:
Title:
Exhibit A - Page 2
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (the "Amendment") is made as of
May 26, 2006, by and between TORTOISE NORTH AMERICAN ENERGY CORPORATION, a
Maryland corporation (the "Borrower"), and U.S. BANK NATIONAL ASSOCIATION, a
national banking association (the "Bank"). 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 Bank and the Borrower are parties to a Credit Agreement dated as of
April 4, 2006 (the "Credit Agreement").
(b) The Borrower has requested that the maturity date for the revolving
credit facility described in the Credit Agreement be extended from June 1, 2006
to July 14, 2006. The 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 Bank and the Borrower agree as
follows:
1. Termination Date. The definition of "Termination Date" in Section 1.1
of the Credit Agreement is amended to read as follows:
"Termination Date" means July 14, 2006.
2. Reaffirmation of Credit Documents. The Borrower reaffirms its
obligations under the Credit Agreement and the other Credit Documents to which
it is a party or by which it is bound, and represents, warrants and covenants to
the Bank, as a material inducement to the 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, any of the other Credit Documents, or the
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.
3. Conditions Precedent to Amendment. Except to the extent waived in a
writing signed by the Bank and delivered to the Borrower, the Bank shall have no
duties under this Amendment until the Bank shall have received fully executed
originals of each of the following, each in form and substance satisfactory to
the Bank:
(a) Amendment. This Amendment; and
(b) Other Documents. Such other documents as the Bank may reasonably
request to further implement the provisions of this Amendment or the
transactions contemplated hereby.
4. 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 thereto in accordance with their respective
terms. By entering into this Amendment, the Bank is not waiving any Default or
Event of Default which may exist on the date hereof.
5. 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.
6. Governing Law. This Amendment shall be governed by the same law that
governs the Credit Agreement.
[signature page(s) to follow]
First Amendment to Credit Agreement -- Page 2
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the
date first above written.
TORTOISE NORTH AMERICAN ENERGY
CORPORATION
By:______________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By:______________________________________
Name:
Title:
First Amendment to Credit Agreement -- Signature Page