SECURITY AGREEMENT
This Security Agreement (this "Agreement") is made as of January 31, 2006,
between TORTOISE NORTH AMERICAN ENERGY CORPORATION, a Maryland corporation (the
"Borrower"), and U.S. BANK NATIONAL ASSOCIATION (the "Bank").
Preliminary Statements:
(a) The Bank may now or hereafter extend credit to the Borrower pursuant to
a Credit Agreement, dated on or about the date hereof, between the Borrower and
the Bank (as amended, renewed, restated, replaced, consolidated or otherwise
modified from time to time, the "Credit Agreement"). Capitalized terms used and
not defined in this Agreement have the meanings given to them in the Credit
Agreement.
(b) To induce the Bank to extend credit to the Borrower pursuant to the
Credit Agreement, the Borrower has agreed to grant to the Bank a security
interest in certain existing and future property to secure all of its existing
and future obligations to the Bank, including, without limitation, all of its
obligations under the Credit Agreement, the Note and the other Credit Documents.
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged by the Borrower, the Borrower
agrees with the Bank as follows:
1. Security Interest. The Borrower grants to the Bank a security interest
in all of the Borrower's right, title and interest in and to the following,
whether such property or the Borrower's right, title or interest therein or
thereto is now owned or existing or hereafter acquired or arising and wherever
such property may now or hereafter be located (collectively, the "Collateral"):
(a) all investment property, including, without limitation, securities
account number 291150800 (together with any related or replacement
account, the "Securities Account") held at the Bank or any successor
(in such capacity, the "Securities Intermediary") and all security
entitlements and all other financial assets at any time relating
thereto, together with all dividends and other distributions in
respect of the foregoing; and
(b) all instruments, accounts and general intangibles; and
(c) all proceeds of the foregoing.
2. Obligations Secured. The security interest above secures the payment and
performance of all obligations of the Borrower to the Bank, whether such
obligations are existing, future, direct, indirect, acquired, monetary,
nonmonetary, liquidated, unliquidated, joint, several, joint and several,
contingent or otherwise, and however created, incurred or arising, and all
replacements, renewals, amendments and other modifications thereof, including,
without limitation, all principal, interest, fees, expenses and other amounts,
if any, owing at any time under the Credit Agreement, the Note, this Agreement
or the other Credit Documents (collectively, the "Obligations").
3. Lien Perfection and Protection. The Borrower represents and warrants to
and covenants with the Bank as follows: (a) the Borrower is the sole owner and
entitlement holder of the Securities Account and is the only Person who has any
right to withdraw or to sell, transfer or otherwise dispose of any monies,
security entitlements or other assets in the Securities Account, except for the
Bank's rights under this Agreement and the Control Agreement; (b) attached
hereto as an Exhibit A is a true and accurate statement reflecting all of the
assets held in the Securities Account as of the date indicated on
such statement; (c) the Borrower is a Maryland corporation; (d) the Borrower
will take such action or cause others to take such action as is necessary for
the Bank to obtain control under Articles 8 and 9 of the applicable Uniform
Commercial Code of any Collateral at any time consisting of investment property;
(e) if any Collateral at any time consists of promissory notes or other
instruments or tangible chattel paper, the Borrower shall promptly deliver
possession of such promissory notes, other instruments and tangible chattel
paper to the Bank together with such endorsements thereto as the Bank may
request; (f) if any Collateral is in the possession of a third party at any
time, the Borrower will join with the Bank in notifying the third party of the
Bank's security interest and obtaining an acknowledgment from the third party
that it is holding the Collateral for the benefit of the Bank; (g) if any
Collateral at any time is of a type that compliance with any statute, regulation
or treaty of the United States is a condition to attachment, perfection or
priority of, or the Bank's ability to enforce, the Bank's security interest in
the Collateral, the Borrower shall execute and deliver such assignments and
other documents and authorize such filings as the Bank may request in respect
thereof; and (h) no notice to, consent of or approval by any Person, including,
without limitation, any issuer of any Collateral or any governmental authority,
is necessary for the Borrower to enter into the transactions described in this
Agreement or for the Bank to exercise any of its rights or remedies described in
this Agreement, except to the extent the Bank is obligated under applicable law
to give any notices to the Borrower in connection with any foreclosure or other
disposition of the Collateral. The parties also acknowledge that U.S. Bank
National Association recently acquired from Wachovia Bank, National Association
and/or one or more of its affiliates (collectively, "Wachovia") certain of
Wachovia's corporate trust and institutional custody lines of business,
including its role as custodian and securities intermediary with respect to the
Securities Account. Accordingly, insofar as the account statement attached as
Exhibit A hereto may reference Wachovia, the parties agree that (i) the
securities account and financial assets described therein are part of the
Collateral encumbered hereby and shall remain so even if such securities account
is subsequently re-numbered or re-named, and (ii) the securities intermediary
for such securities account is U.S. Bank National Association.
4. Good Title; No Other Liens. The Borrower represents and warrants to the
Bank that the Borrower owns the Collateral and that the Bank has a perfected
first priority security interest in the Collateral free and clear of any Liens
except for Permitted Liens.
5. Protection of Collateral; Bank's Rights. The Borrower will (a) maintain
possession of the Collateral at all times (except for such Collateral as is to
be delivered to the Bank pursuant to the terms hereof) and defend the Borrower's
title to the Collateral and the Bank's security interest therein against the
claims of all other persons; (b) not use, or permit the Collateral to be used,
in violation of any law; (c) not create or permit any security interest in or
other Lien upon any part of the Collateral, except for Permitted Liens; (d) not
sell or otherwise transfer or dispose of any Collateral or any interest of the
Borrower therein (except that, so long as no Event of Default is in effect, (i)
the Borrower may sell security entitlements held in the Securities Account
provided that the proceeds thereof (net of customary brokerage commissions) are
promptly credited to the Securities Account, and (ii) the Borrower may make cash
distributions from the Securities Account to pay operating expenses incurred in
the ordinary course of the Borrower's business); (e) pay when due all taxes and
assessments on the Collateral; and (f) deliver to the Bank such schedules or
reports describing the Collateral and its value and such other information
regarding the Collateral as the Bank may reasonably request from time to time.
The Borrower authorizes the Bank to file of record such Uniform Commercial Code
financing statements as the Bank so elects in its discretion to perfect the
security interest granted or purported to be granted pursuant to this Agreement
or to otherwise assure the Bank with respect to its rights and remedies granted
or purported to be granted hereunder or otherwise available at law or in equity.
6. No Liens; No Termination or Transfer of Securities Account. Without
limiting any other provisions of this Agreement, the Borrower shall not grant or
suffer to exist any security interest in, claim
or other Lien on any Collateral (including, without limitation, the Securities
Account) to secure any Obligations except for Permitted Liens. The Borrower
shall not terminate or take any action to terminate the Securities Account or,
except as otherwise provided herein, transfer or take any action to transfer any
assets therein in each case without obtaining the Bank's prior written consent,
which consent may be withheld or conditioned in the Bank's sole and absolute
direction.
7. Bank's Remedies Upon Default. If an Event of Default is in effect, the
Bank may (a) declare all or any of the Obligations to be immediately due and
payable by giving notice thereof to the Borrower, whereupon such Obligations
shall become immediately due and payable, without presentment, demand, protest
or further notice of any kind, all of which are hereby waived by the Borrower;
(b) take immediate possession of the Collateral; (c) sell or otherwise dispose
of all or any Collateral, at public or private sale or sales in lots or in bulk,
all as the Bank in its sole discretion deems advisable, or realize on Collateral
through direct collection to the extent permitted by applicable law; and (d)
exercise any other rights or remedies available at law, in equity or by
agreement.
8. Foreclosure Sales. The Borrower agrees that at least 10 days written
notice to the Borrower at the Borrower's address of any public or private
foreclosure sale or other disposition of any Collateral shall be reasonable
notice thereof, and that any such sale may be at such locations as the Bank may
designate in such notice. All public or private foreclosure sales may be
adjourned from time to time by giving oral notice thereof at the time and place
of such sale or in such other manner permitted by applicable law. The Bank shall
have the right to sell, lease or otherwise dispose of any Collateral for cash,
credit, or any combination thereof, and the Bank may purchase all or any part of
the Collateral at any public sale or, if permitted by law, any private sale,
and, in lieu of actual payment of such purchase price, the Bank may setoff and
credit the amount of such price against the Obligations without impairing the
Borrower's or any other party's liability for any deficiency in respect thereof.
The proceeds realized from any sale of any Collateral may be applied, after the
Bank is in receipt of good funds, as follows: (a) first, to the Bank, for all
reasonable costs and expenses, including, without limitation, reasonable
attorneys' fees and expenses, incurred by the Bank for collection, removal,
storage, processing, protection, insurance, demonstration, sale or delivery of
the Collateral, and for any other Obligations constituting costs or expenses;
(b) second, to the Bank, for any Obligations constituting interest; (c) third,
to the Bank, for any Obligations constituting principal; (d) fourth, to the
Bank, for any Obligations not included in (a) through (c) above; and (e) fifth
and finally, to any other party, to the extent it is lawfully entitled to any
remaining proceeds. If any deficiency remains after any foreclosure sale, the
Borrower and any guarantor shall remain jointly and severally liable for such
deficiency.
9. Collection; Power of Attorney. If any Collateral consists of accounts,
instruments, general intangibles, chattel paper or investment property, the
Borrower irrevocably appoints the Bank, for so long as any Event of Default is
in effect, as the Borrower's agent and attorney-in-fact to collect, enforce,
compromise, release and generally exercise all of the Borrower's rights and
remedies in respect of such Collateral and any proceeds of the foregoing, and to
endorse any checks or other items of payment in respect of such Collateral which
come into the Bank's possession or control, in any case either in the Borrower's
name or the Bank's name.
10. Expenses; Bank May Perform; Indemnification. Upon demand by the Bank,
the Borrower shall pay to the Bank the amount of all reasonable costs and
expenses, including, without limitation, reasonable attorneys fees and expenses,
which the Bank incurs following an Event of Default in connection with (a) the
custody, preservation, use of, or the sale of, collection from or other
realization upon any of the Collateral, (b) the exercise or enforcement of any
of the Bank's rights under this Agreement, or (c) the failure by the Borrower to
pay, perform or observe any of the Borrower's obligations under any of the
Credit Documents or any other agreement to which the Bank and the Borrower are
parties. So long as any Event of Default is in effect, the Bank may, but shall
not be
obligated, to perform any obligation of the Borrower under this Agreement if the
same is not performed by the Borrower in accordance with the terms hereof. The
Borrower irrevocably appoints the Bank as the Borrower's agent and
attorney-in-fact, so long as any Event of Default is in effect, to pay or
perform any unpaid or unperformed obligations of the Borrower under this
Agreement. The Borrower indemnifies the Bank from and against any and all
claims, losses and liabilities now or hereafter arising out of or relating to
this Agreement or any of the Obligations (including, without limitation,
enforcement of this Agreement and the Bank's exercise of its rights and remedies
hereunder), except for claims, losses or liabilities resulting solely from the
Bank's gross negligence or willful misconduct.
11. Securities Laws; Private Sales. The Borrower acknowledges that, because
all or part of the Collateral may not be registered under federal, state or
other securities laws (collectively, together with related federal, state or
other rules and regulations, "Securities Laws"), or because of the relationship
of the Borrower to the Collateral or the issuer of all or part of the
Collateral, or because of other facts or circumstances which may now or
hereafter exist, the Bank's legal or practical ability to foreclose on or
otherwise dispose of all or any part of the Collateral may be severally limited,
or subject to other restrictions, and that such limitations or restrictions may
materially and adversely affect the price at which, but for such limitations or
restrictions, the Collateral could have been sold and/or the manner in which the
Collateral could have been sold. Because of these limitations and restrictions,
the Borrower agrees that it shall be commercially reasonable for the Bank to
dispose of all or any part of the Collateral by a private sale, even though
there may be a public market for all or part of the Collateral, and to dispose
of all or part of the Collateral by sale thereof to an investment bank, broker,
market maker or other buyer, even though such buyer may intend to resell all or
part the Collateral it purchased at a price which exceeds the price paid by such
buyer or keep such Collateral for its own account, and even though the price
obtained by virtue of a private sale may be less than that that could be
obtained by a public auction or, if a public market exists for the Collateral,
by sale thereof in such public market.
12. Bank's Duties. The powers conferred on the Bank under this Agreement
are solely to protect its interest in the Collateral and shall not impose any
duty upon it to exercise any such powers. Except for the safe custody of any
Collateral in the Bank's possession and the accounting for monies actually
received by the Bank under this Agreement, the Bank shall have no duty in
respect of any Collateral nor shall the Bank have any duty to take any steps to
preserve any rights against any Collateral or against any person.
13. Borrower Remains Liable. If any Collateral consists of contracts or
agreements, (a) the Borrower shall remain liable under such contracts or
agreements to the extent set forth therein to perform all of the Borrower's
duties thereunder to the same extent as if this Agreement had not been executed,
(b) the exercise by the Bank of any of its rights under this Agreement shall not
release the Borrower from any of the Borrower's duties under any such contracts
or agreements, and (c) the Bank shall not have any obligation or liability under
such contracts or agreements by reason of this Agreement, nor shall the Bank be
obligated to perform any of the duties of the Borrower thereunder or to take any
action to collect or enforce any claim for payment assigned hereunder.
14. Standards for Exercising Rights and Remedies. To the extent that
applicable law imposes duties on the Bank to exercise remedies in a commercially
reasonable manner, the Borrower acknowledges and agrees that it is not
commercially unreasonable for the Bank (a) to fail to incur expenses reasonably
deemed significant by the Bank to prepare Collateral for disposition, (b) to
fail to obtain third party consents for access to Collateral to be disposed of,
or to obtain or, if not required by other law, to fail to obtain governmental or
third party consents for the collection or disposition of Collateral to be
collected or disposed of, (c) to fail to exercise collection remedies against
account debtors or other persons obligated on Collateral or to fail to remove
liens or encumbrances on or any adverse claims against Collateral, (d) to
exercise collection remedies against account debtors and other persons
obligated on Collateral directly or through the use of collection agencies and
other collection specialists, (e) to advertise dispositions of Collateral
through publications or media of general circulation, whether or not the
Collateral is of a specialized nature, (f) to contact other persons, whether or
not in the same business as the Borrower, for expressions of interest in
acquiring all or any portion of the Collateral, (g) to hire one or more
professional auctioneers to assist in the disposition of Collateral, whether or
not the Collateral is of a specialized nature, (h) to dispose of Collateral by
utilizing internet sites that provide for the auction of assets of the types
included in the Collateral or that have the reasonable capability of doing so,
or that match buyers and sellers of assets, (i) to dispose of assets in
wholesale rather than retail markets, (j) to disclaim disposition warranties,
(k) to purchase insurance or credit enhancements to insure the Bank against
risks of loss, collection or disposition of Collateral or to provide to the Bank
a guaranteed return from the collection or disposition of Collateral, or (l) to
obtain the services of brokers, investment bankers, consultants and other
professionals to assist the Bank in the collection or disposition of any of the
Collateral. The Borrower acknowledges that the purpose of this Section is to
provide non-exhaustive indications of what actions or omissions by the Bank
would fulfill the Bank's duties under the Uniform Commercial Code or other law
of any relevant jurisdiction in the Bank's exercise of remedies against the
Collateral and that other actions or omissions by the Bank shall not be deemed
to fail to fulfill such duties solely on account of not being indicated in this
Section. Without limiting the foregoing, nothing in this Section shall be
construed to grant any rights to the Borrower or to impose any duties on the
Bank that would not have been granted or imposed by this Agreement or by
applicable law in the absence of this Section.
15. Bank's Right to Monitor Securities Account. The Borrower irrevocably
authorizes the Bank at all times to monitor all aspects of the Securities
Account (including, without limitation, the identity and value of the financial
assets held therein and all trading and other transactions affecting the
Securities Account) by such on-line or other electronic means as may be provided
by the Securities Intermediary from time to time. The Borrower irrevocably
authorizes and instructs the Securities Intermediary to make such information
and means of access available to the Bank at all times, and the Borrower hereby
indemnifies the Securities Intermediary for any loss, damage or expense the
Securities Intermediary may incur at any time in connection therewith, except
for any such loss, damage or expense arising out of the Securities
Intermediary's gross negligence or willful misconduct. The Securities
Intermediary shall be a third-party beneficiary of this Section and shall be
entitled to rely on its provisions without further action on any Person's part.
16. Further Assurances. The Borrower agrees to execute and deliver such
documents and to take such other action as the Bank may reasonably request from
time to time to evidence or further protect or preserve the Bank's rights
granted or intended to be granted hereby.
17. Governing Law; Consent to Forum; Waiver of Jury Trial. This Agreement
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. 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 agrees that all service of process upon
the Borrower may be made by certified or registered mail directed to the
Borrower at the Borrower's last known address, as reflected in the Bank's
records, 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 the Borrower 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 Obligations, the
Collateral or the Bank's actions or inactions in respect of any of the foregoing
in any jurisdiction other than the Chosen Forum. 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 this Agreement, the other Credit Documents,
the Obligations, the Collateral or the Bank's actions or inactions in respect of
any of the foregoing.
18. Miscellaneous. No amendment or waiver of any provision of this
Agreement nor consent to any departure by the Borrower herefrom shall be
effective unless the same shall be in writing and signed by the Bank, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given. The section headings herein are solely for
convenience and shall not be deemed to limit or otherwise affect the meaning or
scope of any part of this Agreement. This document shall be construed without
regard to any presumption or rule requiring construction against the party
causing such document or any portion thereof to be drafted. If any provision of
this Agreement shall be unlawful, then such provision shall be null and void,
but the remainder of this Agreement shall remain in full force and effect and be
binding on the parties. This Agreement shall be binding upon the successors and
assigns of the parties, except that the Borrower may not assign any of the
Borrower's duties hereunder without obtaining the Bank's prior written consent,
which consent may be withheld in the Bank's sole and absolute discretion. The
Bank may assign any of the Bank's rights under this Agreement or any of the
Obligations without the consent of the Borrower. This Agreement may be validly
executed and delivered by fax or other electronic transmission and in one or
more counterpart signature pages.
[signature page(s) to follow]
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date written above.
TORTOISE NORTH AMERICAN ENERGY CORPORATION
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Financial Officer
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
Security Agreement - Signature Page
Exhibit A
(see attached Securities Account statement)
Security Agreement -Exhibit A
