Exhibit f(v)
MODIFICATION AGREEMENT
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THIS AGREEMENT is made as of this 1st day of December, 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, a Modification Agreement dated as of June 28, 1994 and a Modification
Agreement dated as of June 30, 1994 (collectively, the "Modification Agreements"
and, together with the Original Credit Agreement, as amended thereby, the
"Credit Agreement") to which Societe became a party by an assignment of a
portion of PNC's interest pursuant to an Assignment and Assumption Agreement
dated as of March 11, 1994.
B. The Loans (as defined in the Credit Agreement) are
evidenced by Borrower's Revolving Credit Note in favor of PNC in the principal
amount of $81,300,000 (the "PNC Note") and Revolving Credit Note in favor of
Societe in the 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 Agreements (as amended, the "Pledge Agreement").
C. Borrower has requested and PNC, Societe and Agent have
agreed to (i) further amend the Credit Agreement (a) to extend the termination
date set forth therein, and (b) so that the term "Eligible Assets" as defined in
the Credit Agreement shall include certain additional securities; (ii) further
amend the Pledge Agreement so that the term "Eligible Securities" as defined in
the Pledge Agreement shall include certain additional securities; (iii) amend
the PNC Note; and (iv) amend the Societe Note.
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
follows:
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. Amendments to Credit Agreement. The Credit Agreement is
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hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby
amended by striking the term "May 1, 1996" from the first sentence of such
Section and replacing it with "May 1, 1997".
(b) The definition of "Eligible Assets" that
appears in Section 5.2 of the Credit Agreement is hereby amended as
follows:
(i) by striking the word "and" that precedes
subsection (x) of such definition and inserting the following
language immediately following the word "sale" in subsection
(x) of such definition:
"; and (xi) U.S. dollar-denominated fixed
income securities issued by foreign
governments and other foreign issuers
that are held by the Custodian in the
Commonwealth of Massachusetts or in the
possession of clearing corporations in
the State of New York;";
(ii) by inserting "or (xi)" immediately
following "(v)" in subsection (y) of such definition; and
(iii) by adding the following new category
of securities and corresponding percentage limitation at the
end of such definition:
"20% U.S. dollar-denominated fixed income
securities described in (xi) above."
3. Amendments to Pledge Agreement. The definition of "Eligible
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Securities" that appears in Article 2 of the Pledge Agreement is hereby amended
as follows:
(a) by striking the word "and" that precedes
subsection (ix) of such definition and inserting the following language
immediately following the word "sale" in subsection (ix) of such definition:
"; and (x) U.S. dollar-denominated fixed
income securities issued by foreign
governments and other foreign issuers
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that are held by the Custodian in the
Commonwealth of Massachusetts or in the
possession of clearing corporations in
the State of New York;"
(b) by inserting the term "or (x)" immediately
following the term "(iv)" in subsection (y) of such definition; and
(c) by adding the following new category of
securities and corresponding percentage limitation at the end of
such definition:
"20% U.S. dollar-denominated fixed income
securities described in (x) above."
4. Amendments to Notes. (a) The PNC Note is hereby amended (i)
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by replacing the date "May 1, 1996" that appears in the first paragraph thereof
with "May 1, 1997" and (ii) by inserting the words "and as such may be further
amended from time to time" immediately following the term "May 27, 1994" in the
first paragraph thereof.
(b) The Societe Note is hereby amended (i) by
replacing the date "May 1, 1996" that appears in the first paragraph thereof
with "May 1, 1997" and (ii) by inserting the words "and as such may be further
amended from time to time" immediately following the term "March 11, 1994" in
the first paragraph thereof.
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.
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7. Representations and Warranties.
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(a) Borrower hereby certifies that (i) the
representations and warranties of Borrower in the Credit Agreement 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 that the execution, delivery and performance of this
Agreement 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 Notes, 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 Notes.
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.
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(d) This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Pennsylvania.
(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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