Exhibit f(iii)
MODIFICATION AGREEMENT
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THIS AGREEMENT is made as of this 28th day of June, 1994, by and among
CIGNA HIGH INCOME SHARES ("Borrower"), SOCIETE GENERALE ("Societe"), PNC BANK,
NATIONAL ASSOCIATION ("PNC") individually and as agent for itself and the other
banks (collectively, the "Banks") which from time to time are parties to the
hereinafter defined Credit Agreement (in such capacity, "Agent").
BACKGROUND
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A. PNC, Agent and Borrower entered into an Amended and
Restated Revolving Credit Agreement dated as of August 20, 1993 (the "Original
Credit Agreement"), as amended by a Modification Agreement dated as of March 11,
1994 (the "Modification Agreement" and, together with the Original Credit
Agreement, as amended thereby, the "Credit Agreement"). Under the Credit
Agreement, PNC agreed to make Loans in the aggregate principal amount at any
time outstanding not to exceed $76,300,000 (the "Original Commitment").
B. Pursuant to an Assignment and Assumption Agreement between
PNC and Societe dated as of March 11, 1994, PNC assigned to Societe all of its
rights under the Credit Agreement in respect of a portion of the Original
Commitment in an amount equal to $20,000,000, together with a corresponding
portion of its outstanding Loans, and Societe accepted the assignment of such
rights and assumed corresponding obligations under the Credit Agreement.
C. The Loans are evidenced by Borrower's Revolving Credit Note
in favor of PNC in the original principal amount of $56,300,000 (the "PNC Note")
and Revolving Credit Note in favor of Societe in the original principal amount
of $20,000,000 (the "Societe Note" and, together with the PNC Note, the
"Notes"). The Notes are secured by an Amended and Restated Pledge Agreement from
Borrower dated as of August 20, 1993, as amended by the Modification Agreement
(as amended, the "Pledge Agreement").
D. Borrower has requested and PNC has agreed to increase its
Commitment under the Credit Agreement to $81,300,000. In connection therewith,
PNC, Societe, Agent and Borrower desire to further amend the Credit Agreement
and the Pledge Agreement to increase the aggregate principal amount of Loans
available under the Credit Agreement to $101,300,000 and to make certain other
amendments.
NOW, THEREFORE, in consideration of the foregoing and for
good and valuable consideration, the legality and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree as
dollows:
1. Definitions. Capitalized terms used herein and not
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otherwise defined herein shall have the meanings assigned to them in the Credit
Agreement.
2. Amendment to Credit Agreement. Section 1.1 of the Credit
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Agreement is hereby amended as follows:
The references to "$76,300,000" in the third sentence of
Section 1.1 of the Credit Agreement and to "Seventy-Six Million Three Hundred
Thousand Dollars ($76,300,000)" in the fourth sentence of Section 1.1 are hereby
amended and replaced, respectively, with "$101,300,000" and "One Hundred One
Million Three Hundred Thousand Dollars ($101,300,000)".
3. Amendment to Pledge Agreement. The Pledge Agreement is
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hereby amended by deleting the reference to "$76,300,000" in the witnesseth
clause and replacing it with "$101,300,000".
4. Amendment to PNC Note. Concurrently with the execution and
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delivery of this Agreement, Borrower shall execute and deliver to PNC an Amended
and Restated Revolving Credit Note in the form of Exhibit A hereto (the
"Restated PNC Note"). Upon receipt by PNC of the Restated PNC Note, the original
PNC Note shall be cancelled and returned to Borrower.
5. Amendment to the Loan Documents. All references to the
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Credit Agreement and the Pledge Agreement in the Loan Documents and in any
documents executed in connection therewith shall be deemed to refer to the
Credit Agreement and the Pledge Agreement as heretofore amended and as amended
by this Agreement. All amendments to the Credit Agreement and the Pledge
Agreement as set forth in this Agreement shall be effective as of the date
hereof.
6. Ratification of the Loan Documents. Notwithstanding
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anything to the contrary herein contained or any claims of the parties to the
contrary, Agent, PNC, Societe and Borrower agree that the Loan Documents and
each of the documents executed in connection therewith are in full force and
effect and each such document shall remain in full force and effect, as further
amended by this Agreement, and Borrower hereby ratifies and confirms its
obligations thereunder.
7. Representations and Warranties.
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a. Borrower hereby certifies that (i) the representations and
warranties of Borrower in the Credit Agreement
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and the Pledge Agreement are true and correct in all material respects as of the
date hereof, as if made on the date hereof and (ii) no Event of Default and no
event which could become an Event of Default with the passage of time or the
giving of notice, or both, under the Credit Agreement, the Notes or the Pledge
Agreement exists on the date hereof.
b. Borrower further represents that it has all the requisite
power and authority to enter into and to perform its obligations under this
Agreement and the Restated PNC Note and that the execution, delivery and
performance of this Agreement and the Restated PNC Note have been duly
authorized by all requisite corporate action and will not violate or constitute
a default under any provision of any applicable law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award presently in effect
or of the certificate of incorporation or by-laws of Borrower, or of any
indenture, note, loan or credit agreement, license or any other agreement, lease
or instrument to which Borrower is a party or by which Borrower or any of its
properties are bound.
c. Borrower also further represents that its obligation to
repay the Societe Note and the Restated PNC Note, together with all interest
accrued thereon, is absolute and unconditional, and there exists no right of set
off or recoupment, counterclaim or defense of any nature whatsoever to payment
of the Societe Note and the Restated PNC Note.
8. Miscellaneous.
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a. Borrower shall pay or reimburse all of Agent's
out-of-pocket costs and expenses incurred in connection with this Agreement,
including without limitation, reasonable attorneys' fees, and all other charges,
fees and expenses incurred by Agent in connection with the preparation of this
Agreement.
b. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns. Nothing
expressed or referred to in this Agreement is intended or shall be construed to
give any person or entity other than the parties hereto any legal or equitable
right, remedy or claim under or with respect to this Agreement, or any provision
hereof.
c. In the event any provisions of this Agreement shall be held
invalid or unenforceable by any court of competent jurisdiction, such holding
shall not invalidate or render unenforceable any other provision hereof.
d. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
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e. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
f. The headings used in this Agreement are for convenience of
reference only, do not form a part of this Agreement and shall not affect in any
way the meaning or interpretation of this Agreement.
g. Any facsimile signature of any party hereto shall
constitute a legal, valid and binding execution hereof by such party.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
CIGNA HIGH INCOME SHARES
[CORPORATE SEAL]
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxx III
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Title: Vice President + Secretary Title: Vice President and Treasurer
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxx
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Title: Vice President
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PNC BANK, NATIONAL
ASSOCIATION, as Agent
By: /s/ Xxxxxx X. Xxxx
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Title: Vice President
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SOCIETE GENERALE
By: /s/ Xxxxx X. Hope
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Title: Vice President
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EXHIBIT A
AMENDED AND RESTATED REVOLVING CREDIT NOTE
$81,300,000 Philadelphia, PA
Originally issued: March 11, 1994
Amended and Restated: May 27, 1994
For value received and intending to be legally bound, CIGNA HIGH INCOME
SHARES ("Borrower") hereby promises to pay to the order of PNC BANK, NATIONAL
ASSOCIATION ("Bank") on May 1, 1996 the principal sum of Eighty-One Million
Three Hundred Thousand Dollars ($81,300,000), or the aggregate unpaid principal
amount of all Loans made by Bank to Borrower pursuant to Section 1 of the
Amended and Restated Revolving Credit Agreement dated as of August 20, 1993, as
amended by a Modification Agreement dated as of March 11, 1994 and a
Modification Agreement dated as of May 27, 1994 (as amended, the "Loan
Agreement"), between Borrower, PNC Bank, National Association, as Agent, Bank,
and the other Banks party thereto, whichever is less, and to pay interest from
the date hereof on the unpaid principal amount hereof in arrears commencing on
May 31, 1994 at the rate and in the manner set forth in the Loan Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THIS NOTE SHALL
AUTOMATICALLY CONVERT TO A DEMAND NOTE ON THE THIRTIETH (30TH) DAY (THE "DEMAND
CONVERSION DATE") FOLLOWING THE DATE ON WHICH THE SHAREHOLDERS OF BORROWER
APPROVE THE CONVERSION OF BORROWER TO AN OPEN-END INVESTMENT COMPANY, AND IN
SUCH EVENT BANK MAY WITHOUT FURTHER NOTICE DECLARE THIS NOTE DUE AND PAYABLE AND
DEMAND PAYMENT OF ALL SUMS OUTSTANDING HEREUNDER AT ANY TIME ON OR AFTER THE
DEMAND CONVERSION DATE.
This Note evidences indebtedness incurred under, and is entitled to the
benefits of, the Loan Agreement, as the same may be amended from time to time,
which, among other things, contains provisions for acceleration of the maturity
hereof and for a higher rate of interest hereunder upon the happening of an
Event of Default (as defined therein), for prepayments on account of principal
hereof prior to the maturity thereof upon the terms and conditions therein
specified and for certain security interests granted by Borrower.
This Note amends, restates and supersedes the prior note of Borrower to
Bank dated March 11, 1994 in the principal amount of $56,300,000 (the "Original
Note"). Without duplication, this Note shall in no way extinguish Borrower's
unconditional obligation to repay all indebtedness heretofore evidenced by the
Original Note, is given in substitution for, and not as payment of, the Original
Note, and is no way intended to constitute a novation of the Original Note.
This Note is executed on behalf of Borrower by officers of Borrower as
officers and not individually, and the obligations of or arising out of this
Note are not binding upon any of the trustees, officers, shareholders, employees
or agents of Borrower individually but are binding only upon the assets and
property of Borrower.
CIGNA HIGH INCOME SHARES
By:
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Title:
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A-2
