Exhibit f(iv)
MODIFICATION AGREEMENT
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THIS AGREEMENT is made as of this 30th 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 and a Modification Agreement dated as of June 28, 1994 (collectively, the
"Modification Agreements" and, together with the Original Credit Agreement, as
amended thereby, the "Credit Agreement").
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 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 Agreements (as amended, the "Pledge Agreement").
C. Borrower has requested and PNC, Societe and Agent have
agreed to further amend the Credit Agreement and the Pledge Agreement so that
the terms "Eligible Assets" and "Eligible Securities", as they are respectively
defined under the Credit Agreement and the Pledge Agreement, shall include, on a
temporary basis, certain additional collateral.
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. Amendment to Credit Agreement. Section 5.2 of the Credit
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Agreement is hereby amended as follows:
Subsection (x) of the definition of "Eligible Assets"
thereunder is hereby amended and restated in its entirety to read in full as
follows:
"(x) all accounts receivable due to Borrower from
brokers in connection with sales in the ordinary course of
Borrower's business of any securities constituting Eligible
Assets at the time of such sale and until July 20, 1994 (A)
all amounts due from shareholders who have exercised their
right to subscribe for additional common shares of the
Borrower pursuant to the primary subscription right or the
over-subscription privilege (the "Participating Shareholders")
under the Borrower's Rights Offering made in the Borrower's
Prospectus dated May 25, 1994 (the "Rights Offering") which
amounts have been guaranteed by a bank, trust company or NYSE
member in accordance with the Rights Offering and (B) all
payments received by State Street Bank and Trust Company, as
subscription agent under the Rights Offering, from
Participating Shareholders in accordance with the Rights
Offering."
3. Amendment to Pledge Agreement. Article 2 of the Pledge
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Agreement is hereby amended as follows:
Subsection (ix) of the definition of "Eligible Securities"
thereunder is hereby amended and restated in its entirety to read in full as
follows:
"(ix) all accounts receivable due to Borrower from
brokers in connection with sales in the ordinary course of
Borrower's business of any securities constituting Eligible
Securities at the time of such sale and until July 20, 1994
(A) all amounts due from shareholders who have exercised their
right to subscribe for additional common shares of the
Borrower pursuant to the primary subscription right or the
over-subscription privilege (the "Participating Shareholders")
under the Borrower's Rights Offering made in the Borrower's
Prospectus dated May 25, 1994 (the "Rights Offering") which
amounts have been guaranteed by a bank, trust company or NYSE
member in accordance with the Rights Offering and (B) all
payments received by State Street Bank and Trust Company, as
subscription agent
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under the Rights Offering, from Participating Shareholders
in accordance with the Rights Offering."
4. 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.
5. 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.
6. 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.
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7. 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.
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.
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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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