First Amendment to Credit Agreement - Exhibit F
EXHIBIT
k.11
FIRST
AMENDMENT TO CREDIT AGREEMENT
This
First Amendment to Credit Agreement (the “Amendment”) is made as of
May 29, 2007, by and among TORTOISE ENERGY INFRASTRUCTURE CORPORATION, a
Maryland corporation (the “Borrower”); U.S. BANK NATIONAL ASSOCIATION, a
national banking association, FIFTH THIRD BANK, a Michigan banking corporation,
THE BANK OF NOVA SCOTIA, and COMERICA BANK (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 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 (the “Credit Agreement”).
(b) Subject
to the terms, conditions and agreements as set forth below, the Borrower
and the
Banks wish to amend the Credit Agreement.
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. Section 1.1 is
modified as follows:
A. The
definition of “Revolving Credit Loan Commitment” as set out in Section 1.1
of the Credit Agreement is hereby deleted in its entirety and is replaced
with
the following:
“Revolving
Credit Loan Commitment” means, as to each Bank, its obligation to make
Revolving Credit Loans under Section 2.2 hereof in an aggregate principal
amount at any time outstanding not to exceed the amount set forth opposite
such
Bank’s name on Exhibit A hereto under the column entitled “Revolving
Credit Loan Commitment Amount,” or as such amount may be modified by any
assignment made pursuant to this Agreement.
B. The
following defined term is hereby added to Section 1.1:
“Assignment
and Assumption” means an assignment and assumption entered into by a Bank
and another Person (with the consent of any party whose consent is required
pursuant to Section 9.4), and accepted by the Agent, in substantially the
form of Exhibit F or any other form approved by the
Agent.
2. Modification
to Section 9.4. Section 9.4 is deleted in its
entirety and hereby replaced with the following:
9.4 Entire
Agreement; Modification of Agreement; Sale of Interest.
(a) Entire
Agreement. 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.
(b) Modifications. This
Agreement may not be modified, altered or amended, except by an agreement
in
writing signed by the Borrower and the Required Banks, and any provisions
of
this Agreement or the other Credit Documents may be waived by the Required
Banks; provided, however, that, notwithstanding the foregoing, no
amendment or waiver shall be effective, without first obtaining the written
consent of all Banks, that (a) extends the due date of any principal, interest
or fee payment in respect of the Loans; (b) changes the amount or duration
of
any Bank’s Commitment; (c) releases the Borrower, in whole or in part, from any
obligation under the Credit Documents to pay any principal or interest under
the
Loans; (d) reduces the rate of interest or fees provided hereunder; or (e)
changes the definition of “Required Banks” or amends the terms of this
Section 9.4, or that otherwise has the effect of impairing any of the
consent requirements contained in this Section 9.4 or in any other
provision of this Agreement or the other Credit Documents where the consent
of
all the Banks or the Required Banks is required in connection with any
matter.
(c) Assignment
by Borrower. 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.
(d) Assignment
by Banks.
(i) Any
Bank may assign all or any part of such Bank’s rights or obligations under this
Agreement (including all or any part of its Commitment or the Loans owing
to it,
the Notes or any of the other Credit Documents); provided, however,
that each assignment shall be subject to the following conditions: (1) the
amount of the Commitment being assigned shall equal at least $5,000,000,
(2)
each partial assignment shall be made as an assignment of a proportionate
part
of all the assigning Bank’s rights and obligations, (3) the assignor and the
assignee Bank shall execute and deliver to the Agent an Assignment and
Assumption, and (4) the assignor Bank shall pay to the Agent, for its own
account and not for the pro-rata benefit of the Banks, an assignment fee
of
$3,500; provided further, unless an Event of Default is then in effect
or the Termination Date has occurred, the Banks shall not have the right
to make
any such assignment without first obtaining the Agent’s and the Borrower’s prior
written consent (which consent shall not be unreasonably withheld or delayed).
Notwithstanding anything herein to the contrary, no consent shall be required
in
connection with any assignment to another Bank or an affiliate of a
Bank. For purposes of this Section 9.4, an affiliate of a Bank
means any Person that directly, or indirectly through intermediaries, is
controlled by, controls or is under common control with such Bank; for purposes
of Section 9.4, “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.
(ii) Upon
any assignment, as described in paragraph (i) above, (1) the assignee Bank
thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations
of a
Bank under this Agreement, and (2) the assigning Bank thereunder shall, to
the
extent of the interest assigned by such Assignment and Assumption, be released
from its obligations under this Agreement (and, in the case of an Assignment
and
Assumption covering all of the assigning Bank’s rights and obligations under
this Agreement, such
Bank
shall cease to be a party hereto) but shall continue to be entitled to the
benefits of Sections 3.15, 9.2 and 9.3. Any
assignment or transfer by a Bank of its rights or obligations under this
Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Bank of a participation in such
rights and obligations in accordance with subsection (e) of this
Section 9.4.
(iii) The
Agent shall maintain at one of its offices in Minneapolis, Minnesota, a copy
of
each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Banks, and the Commitments
of, and
principal amounts of the Loans owing to, each Bank pursuant to the terms
hereof
from time to time (the “Register”). The entries in the
Register shall be conclusive and the Borrower shall treat each person whose
name
is recorded in the Register pursuant to the terms hereof as a Bank hereunder
for
all purposes of this Agreement absent any manifest error, notwithstanding
notice
to the contrary. The Register shall be available for inspection by
the Borrower, the Agent, the Swingline Lender and any Bank, at any reasonable
time and from time to time upon reasonable notice.
(e) Participations. The
Borrower expressly recognizes and agrees that the Banks may sell, without
the
consent of the Borrower, to other financial institutions participations in
the
Loans and other credit extensions incurred by the Borrower pursuant hereto;
provided, however, that no Bank shall sell or otherwise transfer any
participation interest in any Loans or any other rights or interests under
any
of the Credit Documents to any other Person (other than one or more affiliates
of a Bank or another Bank) without first obtaining the prior written consent
of
the Agent (which consent shall not be unreasonably withheld or delayed);
provided further, (i) no such sale or transfer (even if to an affiliate
of a Bank or other Bank) shall relieve the selling Bank from any of its
obligations under this Agreement and the other Credit Documents, and (ii)
the
Borrower shall continue to deal solely and directly with the selling Bank
in
connection with such Bank’s rights and obligations under this
Agreement.
(f) Certain
Pledges. Any Bank may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Bank, including any pledge or assignment to secure
obligations to a Federal Reserve Bank organized under Section 4 of the
Federal Reserve Act, 12 U.S.C. Section 341, and this Section 9.4 shall
not apply to any such pledge or grant of a security interest; provided,
however, that no such pledge or assignment shall release such Bank from any
of its obligations hereunder or substitute any such pledgee or assignee for
such
Bank as a party hereto.
3. Addition
of Exhibit F. The Credit Agreement is modified to add
Exhibit F - Form of Assignment and Assumption, which is attached
to
this Amendment as Exhibit F.
4. Modification
to Section 6.1. Section 6.1(m) is hereby deleted
in its entirety and replaced with the following:
(m) Credit
Rating. The Borrower shall maintain a minimum unsecured credit
rating, with respect to the Senior Notes, of (i) “A-2” by ▇▇▇▇▇’▇ Investor
Service, Inc. and (ii) “A” by Fitch, Inc.
5. 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
First
Amendment to Credit Agreement - Page 3
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.
6. 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:
(a) Amendment. This
Amendment;
(b) Good
Standing Certificates. 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
(c) Other
Documents. Such other documents as the Agent may
reasonably request to further implement the provisions of this Amendment
or the
transactions contemplated hereby.
7. 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.
8. 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.
9. Governing
Law. This Amendment shall be governed by the same law that
governs the Credit Agreement.
[signature
pages to follow]
First
Amendment to Credit Agreement
- Page 4
IN
WITNESS WHEREOF, the parties have entered into this Amendment as of the date
first above written.
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the
Borrower
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By:
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| Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: Chief Financial Officer | |||
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U.S.
BANK NATIONAL ASSOCIATION,
as
Agent and as a Bank
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By:
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| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: Assistant Vice President | |||
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FIFTH
THIRD BANK,
as
a Bank
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By:
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| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: Vice President | |||
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THE
BANK OF NOVA SCOTIA,
as
a Bank
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By:
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| Name: ▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: Managing Director | |||
First
Amendment to Credit Agreement - Signature Page
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COMERICA
BANK,
as
a Bank
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By:
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| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Title: Assistant Vice President | |||
First
Amendment to Credit Agreement - Signature Page
EXHIBIT F
[Form
of
Assignment and Assumption]
ASSIGNMENT
AND ASSUMPTION AGREEMENT
Reference
is made to the Credit Agreement, dated as of March 22, 2007, among Tortoise
Energy Infrastructure Corporation; U.S. Bank National Association, as Agent,
Lead Arranger, Swingline Lender and a Bank; Fifth Third Bank, as a Bank;
The
Bank of Nova Scotia, as a Bank; Comerica Bank, as a Bank; and the other Banks
party thereto, as amended or otherwise modified from time to time in accordance
with its terms (the “Credit Agreement”). Capitalized terms
used and not defined herein have the meanings given to them in the Credit
Agreement.
____________________
(the “Assignor”) and ____________________ (the “Assignee”) hereby
agree as follows:
1. The
Assignor hereby sells and assigns to the Assignee without recourse and without
representation or warranty (other than as expressly provided herein), and
the
Assignee hereby purchases and assumes from the Assignor, that interest in
and to
all of the Assignor’s rights and obligations under the Credit Agreement as of
the date hereof which represents the percentage interests specified in Item
1 of
Annex I hereto (the “Assigned Share”) of all of the outstanding rights
and obligations under the Credit Agreement relating to the facilities listed
in
Item 1 of Annex I hereto, including, without limitation, all rights and
obligations with respect to the Assigned Share of the Revolving Credit Loans.
After giving effect to such sale and assignment, the amount of the Assignee’s
Revolving Credit Loan Commitment will be as set forth in Item 1(a) of Annex
I
hereto.
2. The
Assignor (a) represents and warrants that it is the legal and beneficial
owner
of the interest being assigned by it hereunder and that such interest is
free
and clear of any lien or adverse claim; (b) makes no representation or warranty
and assumes no responsibility with respect to any statements, warranties
or
representations made in or in connection with the Credit Agreement or the
other
Credit Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or the other Credit
Documents or any other instrument or document furnished pursuant thereto;
and
(c) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of Borrower’s obligations under the Credit
Agreement or the other Credit Documents to which it is a party or any other
instrument or document furnished pursuant thereto.
3. The
Assignee (a) confirms that it has received a copy of the Credit Agreement
and
the other Credit Documents, together with copies of the financial statements
referred to therein and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption Agreement; (b) agrees that it will, independently
and
without reliance upon the Agent, the Lead Arranger, the Swingline Lender,
the
Assignor or any other Bank, and based on such documents and information as
it
shall deem appropriate at the time, continue to make its own credit decisions
in
taking or not taking action under the Credit Agreement; (c) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement and the other Credit Documents as
are
delegated to the Agent by the terms thereof, together with such powers as
are
reasonably incidental thereto; and (d) agrees that it will perform in accordance
with the terms all of the obligations which by the terms of the Credit Agreement
are required to be performed by it as a Bank.
First
Amendment to Credit Agreement - Exhibit F
4. Following
the execution of this Assignment and Assumption Agreement by the Assignor
and
the Assignee, an executed original hereof (together with all attachments)
will
be delivered to the Agent. The effective date of this Assignment and
Assumption Agreement shall be the date of execution hereof by the Assignor
and
the Assignee and receipt by the Agent of the $3,500 assignment fee referred
to
in Section 9.4(d) of the Credit Agreement, or such later date, if any,
which may be specified in Item 2 of Annex I hereto (the “Settlement
Date”).
5. Upon
the delivery of a fully executed original hereof to the Agent, as of the
Settlement Date, (a) the Assignee shall be a party to the Credit Agreement
and,
to the extent provided in this Assignment and Assumption Agreement, have
the
rights and obligations of a Bank thereunder and under the other Credit
Documents, including, without limitation, the obligation to make Revolving
Credit Loans, (b) the Assignor shall, to the extent provided in this Assignment
and Assumption Agreement, relinquish its rights and be released from its
obligations under the Credit Agreement and the other Credit Documents, and
(c)
the Agent shall maintain at one of the Agent’s offices in Minneapolis, Minnesota
a copy of each Assignment and Assumption delivered to it and a register for
the
recordation of the names and each Bank pursuant to the terms hereof from
time to
time (the “Register”), and the entries in the Register shall be
conclusive absent manifest error, and the Borrower, the Agent and the Banks
shall treat each Person whose name is recorded on the Register pursuant to
the
terms of the Credit Agreement as a Bank under the Credit Agreement.
6. It
is agreed that the Assignee shall be entitled to all interest on the Assigned
Share of the Revolving Credit Loans. It is further agreed that all
payments of principal made on the Assigned Share of the Loans which occur
on and
after the Settlement Date will be paid directly by the Agent to the
Assignee. Upon the Settlement Date, the Assignee shall pay to the
Assignor an amount specified by the Assignor in writing which represents
the
Assigned Share of the principal amount of the Loans made by the Assignor
pursuant to the Credit Agreement which are outstanding on the Settlement
Date
and which are being assigned hereunder. The Assignor and the Assignee
shall make all appropriate adjustments, if any, in payments under the Credit
Agreement for periods prior to the Settlement Date directly between themselves
on the Settlement Date.
7. This
Assignment and Assumption Agreement shall be governed by, and construed in
accordance with the laws of the same law that governs the Credit
Agreement.
[signature
page to follow]
First
Amendment to Credit Agreement - Exhibit F
IN
WITNESS WHEREOF, the parties hereto have caused their duly authorized officers
to execute and deliver this Assignment and Assumption Agreement, as of the
date
first above written.
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[NAME
OF ASSIGNOR]
as
Assignor
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By:
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| Name: | |||
| Title: | |||
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[NAME
OF ASSIGNEE]
as
Assignee
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By:
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| Name: | |||
| Title: | |||
First
Amendment to Credit Agreement - Exhibit F
Consent
to Assignment and Assumption
Pursuant
to Section 9.4 of the Credit Agreement, the undersigned, as the Borrower
and the Agent under the Credit Agreement, hereby consent to the Assignment
and
Assumption referred to above and the other agreements and provisions set
forth
above (the “Consent”). The undersigned further agree to
execute and deliver such documents and take such other action as Assignor
or
Assignee may reasonably request from time to time to further evidence the
foregoing Assignment and Assumption and other agreements and
provisions. Further, as a material inducement to Assignor to
transfer, and to Assignee to acquire, such right, title and interest in the
Loans and other extensions of credit, as provided in the above Assignment
and
Assumption and as evidenced by the Credit Agreement and the other Credit
Documents referred to therein (all such documents being collectively referred
to
herein as the “Transaction Documents”), the Borrower represents and
warrants to Assignor and Assignee that there is no Event of Default then
in
effect and the Termination Date has not occurred. Capitalized terms used
and not defined in this Consent have the meanings given to such terms in
the
Assignment and Assumption above or in the Credit Agreement, as the case may
be. This Consent shall be governed by the same law that governs the
Credit Agreement. This Consent may be validly executed and delivered
by fax or other electronic transmission and in multiple counterparts by
different parties hereto.
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the
Borrower
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By:
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| Name: | |||
| Title: | |||
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[NAME
OF AGENT]
as
Agent
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By:
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| Name: | |||
| Title: | |||
First
Amendment to Credit Agreement - Exhibit F
Annex
I to Assignment and Assumption Agreement
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1.
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Amounts:
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Revolving
Credit Loan Commitment Amount
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(a) Amount
of Assigned Share(1)
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$_____________
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(b) Aggregate
Amount for all Banks
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$_____________
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(c) Assignee’s
Assigned Share Percentage(2)
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$_____________
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2.
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Settlement
Date:
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__________,
20__
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_________________
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1
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Must
be at least $5,000,000.
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2
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Line
1(a) divided by line 1(b); round to 12 decimal
places
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First
Amendment to Credit Agreement - Exhibit F