exh10_1.htm


    
       

      FIFTH
        AMENDMENT TO CREDIT AGREEMENT

       

      This
        Fifth Amendment to Credit Agreement (the “Amendment”) is made and
        effective as of March 20, 2009, by and among TORTOISE CAPITAL RESOURCES
        CORPORATION, a Maryland corporation (the “Borrower”); U.S. BANK NATIONAL
        ASSOCIATION, a national banking association, and FIRST NATIONAL BANK OF KANSAS,
        a Kansas bank (each a “Bank” and, collectively, the “Banks”); and
        U.S. BANK NATIONAL ASSOCIATION, a national banking association, as the lender
        for Swingline Loans (in such capacity, the “Swingline Lender”), 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 April
        25,
        2007, as amended by the First Amendment to Credit Agreement dated as of July
        18,
        2007, as further amended by the Second Amendment to Credit Agreement dated
        as of
        September 28, 2007, as further amended by the Third Amendment to Credit
        Agreement dated as of March 21, 2008, and as further amended by the Fourth
        Amendment to Credit Agreement dated as of March 28, 2008 (as so amended,
        and as
        the same may be further amended, renewed, restated, replaced, consolidated
        or
        otherwise modified from time to time, the “Credit
        Agreement”).

       

      (b)           The
        Borrower has requested to renew and extend the term of the Credit Agreement
        for
        90 days.

       

      (c)           The
        Banks are willing to agree to the foregoing request, subject, however, to
        the
        terms, conditions, and agreements set for the below.

       

      NOW,
        THEREFORE, for good and valuable consideration, the receipt and sufficiency
        of
        which are hereby acknowledged, the Banks and the Borrower agree as
        follows:

       

      1.  Modification
        to Section 1.1 Definitions.  The following definitions set
        forth in Section 1.1 of the Credit Agreement are hereby deleted in their
        entirety and are hereby replaced with the following:

       

          “Daily
        Reset Libor Rate” means an annual rate of interest equal to the one-month
        LIBOR rate for Dollars quoted by the Agent from Reuters Screen LIBOR01 Page
        (or,
        any successor or substitute thereto selected by the Agent in its sole
        discretion), which shall be that one-month LIBOR rate in effect and reset
        each
        Business Day, adjusted for any reserve requirement and any subsequent costs
        arising from a change in government regulation; provided, however, in
        no event and at no time shall the Daily Resent Libor Rate be less than two
        and
        one-half percent (2.50%) per annum.

       

          “Libor
        Rate” means, for any Interest Period, the rate per annum determined by the
        Agent to equal the quotient of (1) the London interbank offered rate for
        Dollars
        for such Interest Period, as quoted two Business Days immediately preceding
        the
        date of the proposed Libor Loan from Reuters Screen LIBOR01 Page (or, any
        successor or substitute thereto selected by the Agent in its sole discretion),
        divided by (2) one minus the Eurocurrency Reserve Requirement for such
        Interest Period; provided, however, in no event and at no time shall
        the Libor Rate be less than two and one-half percent (2.50%) per
        annum.

       

          “Termination
        Date” means June 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 “$40,000,000”
in Section 2.1 of the Credit Agreement is hereby deleted and is
        hereby replaced
        with “$25,000,000”.

       

            3.  Modification
        to Section 2.2(a).  The last two paragraphs of Section 2.2(a)
        of the Credit Agreement are hereby deleted in their entirety and are hereby
        replaced with the following:

       

      In
        no event shall any Bank be obligated
        to make a Revolving Credit Loan if any Default or Event of Default exists
        or
        would result from the making of such Revolving Credit
        Loan.  Notwithstanding anything in this Agreement to the contrary, on
        and after March 20, 2009, the Borrower shall not have the right to re-borrow
        any
        principal that has been previously borrowed and repaid.

       

            4.  Modification
        to Section 2.4(a).  Section 2.4(a) of the Credit Agreement is
        hereby deleted in its entirety and is hereby replaced with the
        following:

       

      (a)           The
        Borrower shall have the right to terminate in whole or reduce in part the
        unused
        portion of the Commitments, upon notice as provided herein; provided,
        however, that each reduction in the Revolving Credit Loan Commitments is an
        amount of not less than $1,000,000 and whole multiples of $1,000,000;
provided, further, that no reduction shall be permitted if, after
        giving effect thereto, and to any prepayment made therewith, the outstanding
        and
        unpaid principal amount of the Loans shall exceed the
        Commitments.  Any reduction in part of the unused portion of a Bank’s
        Revolving Credit Loan Commitment shall be made in the proportion that such
        Bank’s Revolving Credit Loan Commitment bears to the total amount of the
        Revolving Credit Loan Commitments.  Notwithstanding anything in this
        Agreement to the contrary, in the event that the Borrower shall prepay any
        Revolving Credit Loan, and thereby reduce the outstanding principal amount
        of
        any such Revolving Credit Loan, the Revolving Credit Loan Commitments, in
        each
        instance and without any further action on the part of any party hereto,
        shall
        thereby be permanently reduced to and deemed to be an amount equal to the
        outstanding principal balance of the Revolving Credit Loans immediately
        following said prepayment, and the Borrower, thereafter, shall not have the
        right to re-borrow any principal that has been previously borrowed and
        repaid.

       

            5.  Modification
        to Section 3.1(a).  All references to “1.75%” in Section
        3.1(a) of the Credit Agreement are hereby deleted and are hereby replaced
        with
“3.00%”.

       

            6.  Modification
        to Section 3.1(d).  Section 3.1(d) of the Credit Agreement is
        hereby deleted in its entirety and is hereby replaced with the
        following:

       

      (d)           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 0.500% (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, and (b) the average outstanding
        principal balance at the end of each day for such preceding fiscal
        quarter.

       

            7.  Modification
        to Section 3.3.  The following is added as the last sentence
        to Section 3.3 of the Credit Agreement:

       

       Any
        voluntary prepayments shall
        reduce the Revolving Credit Loan Commitments in accordance with Section 2.4(a)
        of this Agreement.

       

            8.  Modification
        to Section 3.4.  The following is hereby added to Section 3.4
        of the Credit Agreement:

       

      (c)           Sale
        of Collateral.  In the event that the Borrower shall sell or
        liquidate, or cause to be sold or liquidated, any Collateral, the Borrower
        shall
        pay the proceeds from any such sale or liquidation as a mandatory prepayment
        of
        the Loans as follows: (1) the Borrower shall pay 100% of the proceeds from
        the
        sale and/or liquidation of any Collateral that consists of private investments
        as a mandatory prepayment of the Loans, and (2) the Borrower shall pay 50%
        of
        the proceeds from the sale and/or liquidation of any Collateral that consists
        of
        publicly traded investments as a mandatory prepayment of the Loans.

       

      (d)           Reductions
        of Commitments.  Any mandatory prepayments made pursuant to this
        Section 3.4 shall reduce the Revolving Credit Loan Commitments in accordance
        with Section 2.4(a) of this Agreement.

       

            9.  Modification
        to Exhibit A.  Exhibit A as attached to the Credit Agreement
        is deleted and is hereby replaced with Exhibit A, attached to this
        Amendment.

       

            10.  New
        Notes.  Contemporaneously with the execution and delivery of
        this Amendment, the Borrower, as maker, shall execute and deliver (a) a new
        revolving credit note, in the stated principal amount of $18,000,000, in
        favor
        of U.S. Bank National Association, as payee (the “New U.S. Bank Note”),
        which New U.S. Bank Note shall amend, restate and replace the Note dated
        as of
        September 28, 2007, from the Borrower, as maker, to U.S. Bank National
        Association, as payee, in the stated principal amount of $25,000,000 (the
        “Old U.S. Bank Note”), and which New U.S. Bank 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, and (b) a new
        revolving credit note, in the stated principal amount of $7,000,000, in favor
        of
        First National Bank of Kansas, as payee (the “New First National Bank
        Note”), which New First National Bank Note shall amend, restate and replace
        the Note dated as of September 28, 2007, from the Borrower, as maker, to
        First
        National Bank of Kansas, as payee, in the stated principal amount of $10,000,000
        (the “Old First National Bank Note”), and which New First National Bank
        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.

       

            11.  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
        the Banks 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.

       

            12.  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)  New
        U.S. Bank Note.  The New U.S. Bank Note;

       

                (c)  New
        First National Bank Note.  The New First National Bank
        Note;

       

        
(d)  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
        $25,000,000, 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;

       

          (e)  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) the
        articles of incorporation and by-laws of the Borrower as delivered to the
        Agent
        pursuant to the Secretary’s Certificate dated April 25, 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

       

          (f)  Other
        Documents.  Such other documents as the Agent may
        reasonably request to further implement the provisions of this Amendment
        or the
        transactions contemplated hereby.

       

            13.  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, neither the Agent
        nor any Bank is waiving any Default or Event of Default which may exist on
        the
        date hereof.

       

            14.  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/or the Banks.

       

            15.  Affirmation
        of Security Interest.  The Borrower hereby confirms and
        agrees that any and all liens, security interests and other security or
        Collateral now or hereafter held by the Agent and/or the Banks as security
        for
        payment and performance of the Notes and the Obligations are renewed hereby
        and
        carried forth to secure payment and performance of the Notes and the
        Obligations.  The Credit Documents are and remain legal, valid and
        binding obligations of the parties thereto, enforceable in accordance with
        their
        respective terms.

       

            16.  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.

       

            17.  Governing
        Law.  This Amendment shall be governed by the same law that
        governs the Credit Agreement.

       

      [Remainder
        of Page Intentionally Left Blank]

       


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      K.S.A.
        §16-118 Required Notice.  This statement is provided pursuant to
        K.S.A. §16-118:  “THIS AMENDMENT TO CREDIT AGREEMENT IS A FINAL
        EXPRESSION OF THE AMENDMENT TO CREDIT AGREEMENT BETWEEN 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 AMENDMENT TO 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:
        __________

       

      Debtor:
        ___________

       

      [signature
        page to follow]

      


       


      
        
                

            Fifth
              Amendment to Credit Agreement – Initial
              Page      
      

                    
      
    

          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      IN
        WITNESS WHEREOF, the parties have entered into this Amendment as of the date
        first above written.

       

      


      
        	
                 

              	
                TORTOISE
                  CAPITAL RESOURCES CORPORATION,

              


      

      
        	
                 

              	
                the
                  Borrower

              


      

      


      


      By:____________________________________

             Name:

             Title:

      


      


      U.S.
        BANK
        NATIONAL ASSOCIATION,

      as
        Agent
        and as a Bank

      


      


      By:____________________________________

            Name:
        Colleen S. Hayes

            Title:
        Vice President

      


      


      FIRST
        NATIONAL BANK OF KANSAS,

      as
        a
        Bank

      


      


      By:
        ___________________________________

             Name:

             Title:


      
        
                

                    Fifth
              Amendment to Credit Agreement –
Signature
              Page      
      

                    
      
    

          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      EXHIBIT
        A

       

      (Banks
        and Commitments)

       

      


       

      
        	
                 

                Bank

              	
                Revolving
                  Credit Loan 

                Commitment
                  Amount

              	
                Swingline
                  Loan Commitment Amount*

              	
                Bank’s
                  Total Commitment Amount

              	
                Bank’s
                  Pro-Rata Percentage**

              
	
                U.S.
                  Bank

                National
                  Association

              	
                $18,000,000

              	
                $3,000,000

              	
                $18,000,000

              	
                0.720000000000

              
	
                First
                  National Bank of Kansas

              	
                $7,000,000

              	
                0

              	
                $7,000,000

              	
                0.280000000000

              
	
                        TOTALS:

              	
                $25,000,000

              	
                $3,000,000

              	
                $25,000,000

              	
                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.

              


      

       

      


      Fifth
        Amendment to Credit Agreement – Exhibit
        A