Exhibit K12
THIRD AMENDMENT TO CREDIT AGREEMENT
This Third Amendment to Credit Agreement (the "Amendment") is made as of
March 21, 2008, by and among TORTOISE ENERGY CAPITAL CORPORATION, a Maryland
corporation (the "Borrower"); U.S. BANK NATIONAL ASSOCIATION, a national banking
association, FIFTH THIRD BANK, a Michigan banking corporation, COMERICA BANK,
and BANK HAPOALIM B.M. (each a "Bank" and, collectively, the "Banks"); U.S. BANK
NATIONAL ASSOCIATION, a national banking association, as the lender for
Swingline Loans (in such capacity, the "Swingline Lender"); U.S. BANK NATIONAL
ASSOCIATION, a national banking association, as agent for the Banks hereunder
(in such capacity, the "Agent"); and U.S. BANK NATIONAL ASSOCIATION, a national
banking association, as lead arranger hereunder (in such capacity, the "Lead
Arranger"). 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 Banks and the Borrower are parties to a Credit Agreement dated as
of March 22, 2007, as amended by the First Amendment to Credit Agreement, dated
as of May 29, 2007, as further amended by the Second Amendment to Credit
Agreement, dated as of October 31, 2007 (as so amended, the "Credit Agreement").
(b) The Borrower has requested that the term of the Credit Agreement be
extended for 364 days.
(c) The Banks are 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 parties agree as follows:
1. Modification to Section 1.1 Definitions. The following definition set
forth in Section 1.1 of the Credit Agreement is hereby deleted in its entirety
and is hereby replaced with the following:
"Termination Date" means, March 20, 2009; provided, however, if such
day is not a Business Day, the Termination Date shall be the immediately
preceding Business Day.
2. Decrease in Revolving Credit Facility. The reference to "$150,000,000"
in Section 2.1 of the Credit Agreement is hereby deleted and is hereby replaced
with "$92,500,000."
3. Modification to Section 2.2(a). The following is hereby added as a new
paragraph following the last full paragraph of Section 2.2(a) of the Credit
Agreement.
Notwithstanding anything herein to the contrary, on or after the Closing
Date, the Borrower may increase the total amount of this credit facility, as
such amount is provided in Section 2.1 above, in an aggregate principal amount
of up to $67,500,000 (for a total credit facility in an aggregate amount of up
to $160,000,000) subject to the arrangement of additional commitments with
financial institutions acceptable to the Borrower and the Agent; provided that
in each case (1) no Bank will be required to increase its Revolving Credit Loan
Commitment, (2) the Agent shall have no responsibility for arranging any such
additional commitments without the Agent's prior written consent and subject to
such conditions, including, but not limited to fee arrangements, as the Agent
may provide in connection therewith, (3) there is no continuing Default or Event
of Default and (4) the conditions to making a Revolving Credit Loan, as provided
in Section 4.3(a) below, are satisfied.
4. Modification to Section 2.3(a). The reference to "Sections 7(e)" in
Section 2.3(a) of the Credit Agreement is hereby deleted and is hereby replaced
with "Section 7.1(e)."
5. Addition of Unused Line Fee. Section 3.1 of the Credit Agreement shall
be modified such that subsection (c) and subsection (d) of Section 3.1 of the
Credit Agreement are hereby modified to be subsection (d) and subsection (e) of
Section 3.1 of the Credit Agreement, respectively. The following is hereby added
as subsection (c) of Section 3.1 of the Credit Agreement:
(c) Unused Line Fee. The Borrower shall pay to the Agent (to be
allocated by the Agent to the Banks in accordance with their respective
Pro-Rata Shares), on the first day of each fiscal quarter, for the
immediately preceding fiscal quarter, an unused line fee (the "Unused Line
Fee") at a rate per annum equal to 0.150% (calculated on a daily basis,
computed on the basis of a 360-day year for the actual number of days
elapsed (or if the Agent so elects, on the basis of twelve 30-day months
for the actual number of days elapsed)) for such preceding fiscal quarter
of the difference between (a) the Banks' total credit facility commitments
under this Agreement (including any increase of such commitments pursuant
to Section 2.2 above), and (b) the average outstanding principal balance at
the end of each day for such preceding fiscal quarter.
6. Modification to Section 6.1(b)(3). Section 6.1(b)(3) of the Credit
Agreement is hereby deleted in its entirety and is hereby replaced with the
following:
(3) Borrowing Base Certificate. So long as any Loan remains
unpaid, and no later than the first (1st) Business Day of
each calendar month, a Borrowing Base Certificate for the
immediately preceding calendar month; and
7. Modification to Exhibit A. Exhibit A as attached to the Credit Agreement
is hereby deleted in its entirety and is hereby replaced with Exhibit A attached
to this Amendment.
8. New Note. Contemporaneously with the execution and delivery of this
Amendment, the Borrower, as maker, shall execute and deliver a new revolving
credit note, in the stated principal amount of $12,500,000, in favor of Fifth
Third Bank, as payee (the "New Note"), which New Note shall amend, restate and
replace the Note dated as of March 22, 2007, from the Borrower, as maker, to
Fifth Third Bank, as payee, in the stated principal amount of $20,000,000 (the
"Old Note"), and which New Note, as the same may be amended, renewed, restated,
replaced or consolidated from time to time, shall be a "Revolving Credit Note"
referred to in the Credit Agreement.
9. Reaffirmation of Credit Documents. The Borrower reaffirms its
obligations under the Credit Agreement, as amended hereby, and the other Credit
Documents to which it is a party or by which it is bound, and represents,
warrants and covenants to the Agent and the Banks, as a material inducement to
the Agent and each 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,
as amended hereby, or any of the other Credit Documents to which it is a party,
or the Agent's or any 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.
10. Conditions Precedent to Amendment. Except to the extent waived in a
writing signed by the Agent and delivered to the Borrower, the Agent and the
Banks shall have no duties under this Amendment until the Agent shall have
received fully executed originals of each of the following, each in form and
substance satisfactory to the Agent:
Third Amendment to Credit Agreement - Page 2
(a) Amendment. This Amendment;
(b) Revolving Credit Note. The New Note;
(c) Form U-1. A Form U-1 for the Borrower whereby, among other things,
(i) the maximum principal amount of Revolving Credit Loans that may be
outstanding from time to time under the Credit Agreement is noted as being
$92,500,000, and (ii) the Borrower concurs (and the Borrower does hereby
concur) with the assessment of the market value of the margin stock or
other investment property described in the attachment to such Form U-1 as
of the date provided in such attachment;
(d) Secretary's Certificate. A certificate from the Secretary or
Assistant Secretary of the Borrower certifying to the Agent that, among
other things, (i) attached thereto as an exhibit is a true and correct copy
of the resolutions of the board of directors of the Borrower authorizing
the Borrower to enter into the transactions described in this Amendment and
the execution, delivery and performance by the Borrower of such Credit
Documents, (ii) except as amended and/or supplemented by the Articles
Supplementary, dated April 3, 2007, attached thereto as an exhibit, the
articles of incorporation and by-laws of the Borrower as delivered to the
Agent pursuant to the Secretary's Certificate dated March 22, 2007 from the
Borrower's secretary remain in full force and effect and have not been
amended or otherwise modified or revoked, and (iii) attached thereto as
exhibits are certificates of good standing, each of recent date, from the
Secretary of State of Maryland and the Secretary of State of Kansas,
certifying the good standing and authority of the Borrower in such states
as of such dates; and
(e) Other Documents. Such other documents as the Agent may reasonably
request to further implement the provisions of this Amendment or the
transactions contemplated hereby.
11. 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 in accordance with their respective
terms. By entering into this Amendment, the Agent and the Banks are not waiving
any Default or Event of Default which may exist on the date hereof.
12. Expenses. The Borrower agrees to pay and reimburse the Agent and/or the
Banks for all out-of-pocket costs and expenses incurred in connection with the
negotiation, preparation, execution, delivery, operation, enforcement and
administration of this Amendment, including the reasonable fees and expenses of
counsel to the Agent and the Banks.
13. 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.
14. Governing Law. This Amendment shall be governed by the same law that
governs the Credit Agreement.
[Remainder of Page Intentionally Left Blank]
Third Amendment to Credit Agreement - Page 3
K.S.A. ss.16-118 Required Notice. This statement is provided pursuant to K.S.A.
ss.16-118: "THIS AMENDMENT TO CREDIT AGREEMENT IS A FINAL EXPRESSION OF THE
BANKS (AS CREDITORS) AND THE BORROWER (AS DEBTOR) AND SUCH WRITTEN AMENDMENT TO
CREDIT AGREEMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR ORAL CREDIT
AGREEMENT OR OF A CONTEMPORANEOUS ORAL AMENDMENT TO CREDIT AGREEMENT BETWEEN THE
BANKS AND THE BORROWER." THE FOLLOWING SPACE CONTAINS ANY NON-STANDARD TERMS,
INCLUDING THE REDUCTION TO WRITING OF ANY PREVIOUS ORAL AMENDMENT TO CREDIT
AGREEMENT:
NONE.
The creditors and debtor, by their respective initials or signatures below,
confirm that no unwritten amendment to credit agreement exists between the
parties:
Creditor: __________
Creditor: __________
Creditor: __________
Creditor: __________
Debtor: ___________
[signature pages to follow]
Third Amendment to Credit Agreement - Initial Page
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the
date first above written.
TORTOISE ENERGY CAPITAL CORPORATION,
the Borrower
By:
--------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Agent and as a Bank
By:
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
FIFTH THIRD BANK,
as a Bank
By:
--------------------------------------
Name:
Title:
COMERICA BANK,
as a Bank
By:
--------------------------------------
Name:
Title:
BANK HAPOALIM B.M.,
as a Bank
By:
--------------------------------------
Name:
Title:
Third Amendment to Credit Agreement - Signature Page
EXHIBIT A
(Banks and Commitments)
--------------------------------------------------------------------------------
Revolving Credit Bank's Total
Loan Commitment Swingline Loan Commitment Bank's Pro-Rata
Bank Amount Commitment Amount* Amount Percentage
--------------------------------------------------------------------------------
U.S. Bank $40,000,000 $15,000,000 $40,000,000 0.432432432433
National
Association
--------------------------------------------------------------------------------
Fifth Third
Bank $12,500,000 0 $12,500,000 0.135135135135
--------------------------------------------------------------------------------
Comerica
Bank $20,000,000 0 $20,000,000 0.216216216216
--------------------------------------------------------------------------------
Bank
Hapoalim
B.M. $20,000,000 0 $20,000,000 0.216216216216
--------------------------------------------------------------------------------
TOTALS: $92,500,000 $15,000,000 $92,500,000 1.000000000000
--------------------------------------------------------------------------------
* As more particularly described in the Agreement, the
Swingline Loan Commitment is a subcommitment under the
Revolving Credit Loan Commitments. Accordingly, extensions
of credit under the Swingline Loan Commitment act to reduce,
on a dollar-for-dollar basis, the amount of credit otherwise
available under the Revolving Credit Loan Commitments.
Third Amendment to Credit Agreement - Exhibit A
