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EXHIBIT (b)(1)
CREDIT AGREEMENT
AGREEMENT dated as of March 14, 1991 between VAN XXXXXX XXXXXXX PRIME
RATE INCOME TRUST, a Massachusetts Business Trust (the "Borrower"), and XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, a New York State banking corporation
(the "Bank").
SECTION 1. INTERPRETATIONS AND DEFINITIONS
1.1 Definitions. The following terms, as used herein, shall have the
following respective meanings:
"Affiliate" means any Person which directly or indirectly controls, is
under common control with, or is controlled by another Person.
"Assignee" has the meaning set forth in Section 8.3.
"Base Rate" means, for any day, a rate per annum equal to the higher of
(i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal
Funds Rate for such day.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer
Plan and which is maintained or otherwise contributed to by any member of the
ERISA Group.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto.
"Commitment" means the obligation of the Bank to lend the amount set
forth in Section 2.1 hereof, as such amount may be reduced from time to time
pursuant to Section 2.7 hereof.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, including, without limitation,
reimbursement obligations related to letters of credit, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee which are
capitalized in accordance with generally accepted accounting principles, (v)
all Debt of others secured by a Lien on any asset of such Person, whether or
not such Debt is assumed by such Person, and (vi) all Debt of others Guaranteed
by such Person; provided, however, that reverse repurchase agreements shall not
constitute Debt for purposes hereof.
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"Default" means any condition or event which constitutes
an Event of Default or which with the giving of notice or
lapse of time, or both, would unless cured or waived become an
Event of Default.
"Dollars" and the sign "$" mean lawful money of the
United States of America.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in New York City
are authorized by law to close.
"Domestic Lending Office" means the principal office of
the Bank located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or such other branch (or affiliate) as the Bank may hereafter
designate as its Domestic Lending Office.
"Effective Date" means the date this Agreement becomes
effective in accordance with Section 3.1 hereof.
"ERISA" means the Employee Retirement Income Security Act
of 1974, as amended, or any successor statue.
"Event of Default" has the meaning set forth in Section 7
hereof.
"Federal Funds Rate" means, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100th
of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the
Domestic Business Day next succeeding such day, provided that
(i) if such day is not a Domestic Business Day, the Federal
Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so
published on the next succeeding Domestic Business Day, and
(ii) if no such rate is so published on such next succeeding
Domestic Business Day, the Federal Funds Rate for such day
shall be the average rate quoted to the Bank on such day on
such transactions as determined by the Bank.
"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or indirectly
guaranteeing any Debt or other obligation of any other Person
and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities
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or services, to take-or-pay, to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose
of assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part),
provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course
of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Interest Payment Date" means the day which is 30 days
after the date of each Loan, and each day which is 30 days
thereafter.
"Interest Period" means the period commencing on the date
of a Loan and ending 30 days thereafter.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or other encumbrance
of any kind in respect of such asset. For purposes of this
Agreement, the Borrower shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement
relating to such asset.
"Loan" and "Loans" means a Loan made pursuant to Section
2.1.
"Multiemployer Plan" means at any time an employee
pension benefit plan within the meaning of Section 4001(a) (3)
of ERISA to which any member of the ERISA Group is then making
or accruing an obligation to make contributions or has within
the preceding five plan years made contributions, including
for these purposes any Person which ceased to be a member of
the ERISA Group during such five year period.
"Net Asset Value" means, at any date, Total Assets minus
Total Liabilities.
"Note" means the promissory note of the Borrower,
substantially in the form of Exhibit A hereto, evidencing the
obligation of the Borrower to repay the Loans.
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"Parent" means, with respect to the Bank, any Person
controlling the Bank.
"Participant" has the meaning set forth in Section 8.3.
"Person" means an individual, a corporation, a
partnership, an association, a business trust or any other
entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV
of ERISA or subject to the minimum funding standards under
Section 412 of the Internal Revenue Code and either (i) is
maintained, or contributed to, by any member of the ERISA
Group for employees of any member of the ERISA Group or
(ii) has at any time within the preceding five years been
maintained, or contributed to, by any Person which was at such
time a member of the ERISA Group for employees of any Person
which was at such time a member of the ERISA Group.
"Prime Rate" means the rate of interest publicly
announced by Xxxxxx Guaranty Trust Company of New York in New
York City from time to time as its Prime Rate.
"Quarterly Tender Date" means the date set by the Board
of Trustees of the Borrower for the expiration of a tender
offer for shares of beneficial interest of the Borrower from
its shareholders.
"Refunding Loan" means a Loan which, after application of
the proceeds thereof, results in no net increase in the
outstanding principal amount of Loans made by the Bank.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from
time to time.
"Subsidiary" means any corporation or other entity of
which securities or other ownership interests having ordinary
voting power to elect a majority of the Board of Directors or
other persons performing similar functions are at the time
directly or indirectly owned by the Borrower.
"Termination Date" has the meaning set forth in Section
2.8(a).
"Total Assets" means at any date, all assets of the
Borrower which in accordance with generally accepted
accounting principles would be classified as assets upon a
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balance sheet of the Borrower prepared as of such date.
"Total Liabilities" means at any date, all liabilities of
the Borrower which in accordance with generally accepted
accounting principles would be classified as liabilities upon
a balance sheet of the Borrower prepared as of such date.
1.2 Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein
shall be interpreted, all accounting determinations hereunder
shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from
time to time, applied on a basis consistent (except for
changes concurred in by the Borrower's independent public
accountants) with the most recent audited financial statements
of the Borrower delivered to the Bank.
SECTION 2. THE LOANS.
2.1 Revolving Credit. The Bank agrees, on the terms and
conditions set forth in this Agreement, to make Loans to the
Borrower from time to time in amounts not exceeding in the
aggregate at any one time outstanding the lesser of
$50,000,000 or 100% of the Net Asset Value of the Borrower at
the time of any Loan (the "Commitment"). Each Loan under this
Section 2.1 shall be in the minimum principal amount of
$500,000 or any larger multiple thereof (except that any such
Loan may be in the amount of the unused Commitment). After
the date hereof and prior to the Termination Date and within
the foregoing limits, the Borrower may borrow under this
Section 2.1, repay or to the extent permitted by Section 2.10
hereof prepay Loans and reborrow under this Section 2.1.
2.2 Method of Borrowing; Availability of Loans.
(a) With respect to each Loan made pursuant to
Section 2.1 hereof, the Borrower shall give the Bank notice
not later than 10:00 a.m. (New York City time) on the date of
such Loan, specifying:
(i) the date of such Loan, which shall be a
Domestic Business Day; and
(ii) the principal amount of such Loan;
provided, however, that no Loan shall be made unless the date
of such Loan would fall within 5 Domestic Business Days
following a Quarterly Tender Date or if such Loan would cause
the total Debt of the Borrower to exceed 10% of the Borrower's
Net Asset Value. Each notice of Borrowing shall also contain
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in detail reasonably satisfactory to the Bank, (i) a
computation of Borrower's Net Asset Value as of one Domestic
Business Day prior to the date of such Loan and (ii) the
amount of Debt of the Borrower outstanding on such date, other
than Debt arising pursuant to this Agreement and the Note,
certified by a duly authorized officer of the Borrower.
(b) On the date of each Loan the Bank will make the
proceeds thereof available to the Borrower by 3:00 p.m. (New
York City time), in immediately available funds at the
Domestic Lending Office.
(c) If the Bank makes a new Loan hereunder on a day
on which the Borrower is to repay all or any part of an
outstanding Loan, the Bank shall apply the proceeds of its new
Loan to make such repayment and only an amount equal to the
difference (if any) between the amount being borrowed and the
amount being repaid shall be made available by the Bank to the
Borrower as provided in subsection (b) of this Section or
remitted by the Borrower to the Bank as provided in Section
2.11 hereof, as the case may be.
2.3 The Note.
(a) The Loans shall be evidenced by a single Note
payable to the order of the Bank for the account of its
Domestic Lending Office. Such Note shall be dated on or
before the date of the first Loan and shall set forth the
maximum amount of the Bank's Commitment as the maximum
principal amount thereof.
(b) The Bank shall record the date, the amount and
the maturity of each Loan made by it and the date and amount
of each payment of principal made by the Borrower with respect
thereto and, prior to any transfer of the Note, shall endorse
on the schedule forming a part thereof appropriate notations
to evidence the foregoing information with respect to each
Loan then outstanding; provided that the failure of the Bank
to make any such recordation or endorsement shall not affect
the obligations of the Borrower hereunder or under the Note.
The Bank is hereby irrevocably authorized by the Borrower to
endorse the Note as set forth above and to attach to and make
a part of the Note a continuation of any such schedule as and
when required.
2.4 Maturity of Loans. Each Loan shall mature, and the
principal amount thereof shall be due and payable, on the last
day of the Interest Period applicable to such Loan.
2.5 Interest Rate. Each Loan shall bear interest on the
outstanding principal amount thereof, for each day from the
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date such Loan is made until it becomes due, at a rate per
annum equal to the Base Rate for such day. Such interest
shall be payable on each Interest Payment Date. Any overdue
principal of or interest on any Base Rate Loan shall bear
interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the rate otherwise
applicable to Base Rate Loans for such day.
2.6 Arrangement Fee; Commitment Fee.
(a) The Borrower shall pay an arrangement fee to the Bank
in the amount of $25,000 upon execution of this Agreement.
(b) The Borrower shall pay to the Bank a commitment fee
computed at the rate of 3/8 of 1% per annum on the daily
average amount by which the Commitment exceeds the aggregate
outstanding principal amount of the Loans. For purposes of
this Section 2.6(b), the "Commitment" shall be deemed to be
$50,000,000. Such commitment fee shall accrue from and
including March 14, 1991 to but excluding the Termination Date
and shall be payable quarterly on the last day of each March,
June, September and December and upon the date of termination
of the Commitment in its entirety.
2.7 Optional Termination or Reduction of Commitment.
The Borrower may, upon at least three Domestic Business Days
notice to the Bank, (i) terminate the Commitment at any time,
if no Loans are outstanding at such time or (ii) reduce from
time to time by an aggregate amount of $1,000,000 or any
larger multiple thereof, the Commitment in excess of the
aggregate outstanding principal amount of the Loans. If the
Commitment is terminated in its entirety, the accrued
commitment fee shall be payable on the effective date of such
termination.
2.8 Mandatory Termination or Reduction of Commitment;
Notice of Annual Meeting; Extension of Commitment.
(a) The Commitment shall terminate on January 31,
1992, or such date to which the Commitment is extended
pursuant to the provisions of Section 2.8(b), ("the
Termination Date"), and any Loans then outstanding (together
with accrued interest thereon) shall be due and payable on
such date.
(b) Not more than 75 nor less than 60 days before
the Termination Date, the Borrower may request in writing that
the Bank extend the Commitment by an additional period of time
of 364 days or less to be agreed upon between the Bank and the
Borrower at the time of such request. If the Bank, in its
sole discretion, decides to extend the Commitment as herein
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provided, it shall so notify the Borrower not less than 30
days before the Termination Date in writing, along with any
modifications to or additional terms for the Agreement which
it will require in consideration for such extension. If the
Borrower and the Bank reach agreement as to the terms for such
extension not less than 10 days prior to the Termination Date,
the Commitment shall be extended for an additional period of
364 days, and the term "Termination Date" shall thereafter
refer to the date that the Commitment, as so extended, will
terminate. If the Commitment is not extended as provided in
this Section 2.8(b), this agreement will automatically
terminate on the then current Termination Date without further
action by the Borrower or the Bank.
2.9 Principal Repayments. Any Loans outstanding shall
be repaid in full not later than 5 Domestic Business Days
prior to the earlier of the Quarterly Tender Date next
following the date of such Loan or the Termination Date.
2.10 Optional Prepayments. The Borrower may, upon at
least one Domestic Business Day's notice to the Bank, prepay
the Loans without premium or penalty in whole at any time or
from time to time in part in amounts aggregating $500,000 or
any multiple thereof by paying the principal amount being
prepaid together with accrued interest thereon to the date of
prepayment.
2.11 General Provisions as to Payments. The Borrower
shall make each payment of principal of, and interest on, the
Loans and of commitment fees hereunder not later than 11:00
am. (New York City time) on the date when due in funds
immediately available in New York City at the principal office
of the Bank in New York for the account of the Domestic
Lending Office. Whenever any payment of principal of, or
interest on, the Loans or of any commitment fee shall be due
on a day which is not a Domestic Business Day, the date for
payment thereof shall be extended to the next succeeding
Domestic Business Day. If the date for any payment of
principal is extended by operation of law or otherwise,
interest shall be payable for such extended time.
2.12 Computation of Interest and Fees. Interest based
on the Prime Rate and commitment fees shall be computed on the
basis of a year of 365 days (or 366 days in a leap year) and
paid for actual days elapsed (including the first day but
excluding the last day). All other interest and fees shall be
computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first but
excluding the last day).
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SECTION 3. CONDITIONS.
3.1 Initial Loan. The obligation of the Bank to make
the initial Loan hereunder shall be subject to the
satisfaction by the Borrower of the following conditions:
(a) receipt of the Bank of counterparts hereof
signed by each of the parties hereto;
(b) receipt by the Bank of a duly executed Note
dated on or before the Effective Date complying with the
provisions of Section 2.3 hereof;
(c) receipt by the Bank of an opinion of counsel
for the Borrower in the form of Exhibit B hereto;
(d) receipt by the Bank of a certificate signed by
the President or any Vice President of the Borrower,
dated the Effective Date, to the effect set forth in
clauses (b) and (c) of Section 3.2 hereof; and
(e) receipt by the Bank of all documents it may
reasonably request relating to the existence of the
Borrower, the necessary authority for and the validity of
this Agreement and the Note, and any other matters
relevant hereto, all in form and substance reasonably
satisfactory to the Bank.
3.2 Loans. The obligation of any Bank to make a Loan on
the occasion of any borrowing is subject to the satisfaction
of the following conditions:
(a) receipt by the Bank of the notice from the
Borrower required by Section 2.2 hereof;
(b) the fact that, immediately after such Loan, no
Default shall have occurred and be continuing; and
(c) the fact that the representations and
warranties of the Borrower contained in this Agreement
(except in the case of a Refunding Loan, the
representations and warranties set forth in Sections
5.4(c) and 5.5 as to any matter which has theretofore
been disclosed in writing by the Borrower to the Bank)
shall be true on and as of the date of such Loan.
Each borrowing hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of
such borrowing as to the facts specified in clause (b) and
clause (c) of this Section.
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SECTION 4. CHANGE IN CIRCUMSTANCES AFFECTING LOANS.
4.1 Regulatory Changes.
(a) If the Bank shall have determined that, after
the date hereof, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein,
or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable
agency charged with the interpretation or administration
thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on the capital
of the Bank (or its Parent) as a consequence of the Bank's
obligations hereunder to a level below that which the Bank (or
its Parent) could have achieved but for such adoption, change
or compliance (taking into consideration the Bank's policies
with respect to capital adequacy) by an amount deemed by the
Bank to be material, then from time to time, within 15 days
after demand by the Bank, the Borrower shall pay to the Bank
(or its Parent) such additional amount or amounts as will
compensate the Bank for such reduction; provided, however,
that the Borrower's obligation to pay the Bank shall be
limited to the reduced amount that is attributable to the
period commencing 90 days prior to the date on which the Bank
gave notice to the Borrower pursuant to Section 4.1(b) of the
event entitling the Bank to such compensation.
(b) The Bank will promptly notify the Borrower of
any event of which it has knowledge, occurring after the date
hereof, which will entitle the Bank to compensation pursuant
to this Section. A certificate of the Bank claiming
compensation under this Section, setting forth the additional
amount or amounts to be paid to it hereunder and indicating in
reasonable detail the Bank's calculations in determining such
amounts, shall be conclusive in the absence of manifest error.
In determining such amount, the Bank may use any reasonable
averaging and attribution methods.
SECTION 5. REPRESENTATIONS AND WARRANTIES. The Borrower
hereby represents and warrants to the Bank that:
5.1 Existence and Power. (a) The Borrower is a business
trust, validly existing under the laws of the Commonwealth of
Massachusetts, and has all necessary powers and all material
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
(b) The Borrower is a registered, closed-end
investment company under the Investment Company Act of 1940,
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as amended, and has registered the sale of its common shares
of beneficial interest under the Securities Act of 1933, as
amended, pursuant to a registration statement, including the
related prospectus, that is currently effective.
5.2 Authorization; No Contravention. The execution,
delivery and performance by the Borrower of this Agreement and
the Note are within the Borrower's powers, have been duly
authorized by all necessary action, require no action by or in
respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under,
any provision of applicable law or regulation, including, but
not limited to, the Investment Company Act of 1940, as
amended, and the regulations promulgated thereunder, or of the
trust agreement or any related documents of the Borrower or of
any agreement, judgment, injunction, order, decree or other
instrument binding upon the Borrower or result in the creation
or imposition of any Lien on any asset of the Borrower.
5.3 Binding Effect. This Agreement constitutes a valid
and binding agreement of the Borrower and the Note, when
executed and delivered in accordance with this Agreement, will
constitute a valid and binding obligation of the Borrower,
subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law
affecting creditors' rights generally.
5.4 Financial Information.
(a) The statement of assets and liabilities of the
Borrower as at July 31, 1990 and the related statements of
operations and changes in net assets of the Borrower for the
fiscal period then ended, certified by KMPG Peat Marwick,
certified public accountants, a copy of which has been
delivered to the Bank, fairly present in conformity with
generally accepted accounting principles, the financial
position of the Borrower at such date and the results of
operations for such fiscal period.
(b) The unaudited statement of assets and
liabilities of the Borrower as at January 31, 1991 and the
related unaudited statements of operations and changes in net
assets of the Borrower for the period then ended, fairly
present in accordance with generally accepted accounting
principles applied on a basis consistent with the financial
statements referred to in subsection (a) of this Section, the
financial position of the Borrower as at such date and the
results of operations for such period (subject to normal year-
end adjustments).
(c) Since July 31, 1990 there has been no material
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adverse change in the business, financial position, results of
operations or prospects of the Borrower.
5.5 Litigation. There is no action, suit or proceeding
pending against, or to the knowledge of the Borrower
threatened against or affecting, the Borrower before any court
or arbitrator or any governmental body, agency or official in
which there is a reasonable likelihood of an adverse decision
which could materially adversely affect the business,
financial position or results of operations of the Borrower or
which in any manner draws into question the validity of this
Agreement or the Note.
5.6 ERISA. The Borrower does not have any Plan,
Multiemployer Plan or Benefit Arrangement subject to ERISA.
5.7 Taxes. The Borrower has filed all United States
Federal income tax returns, or extensions relating thereto,
and all other material tax returns, or extensions relating
thereto, which are required to be filed by it, if any, and has
paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Borrower, except for any such taxes
being contested in good faith and by appropriate proceedings,
and for which adequate reserves have been established. The
charges, accruals and reserves on the books of the Borrower in
respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate.
5.8 Subsidiaries. The Borrower has no Subsidiaries.
5.9 Compliance with Investment Restrictions. The
Borrower's assets are being invested in accordance with the
investment policies and restrictions contained in its most
recent prospectus, except for such non-compliances which,
singly or in the aggregate, do not and would not materially
and adversely affect the financial condition or the business
taken as a whole of the Borrower, or its ability to perform
its obligations hereunder.
5.10 Compliance with Laws. The Borrower is in
compliance with all applicable laws, statutes, ordinances,
decrees, requirements, orders, judgments, rules, regulations
of, and the terms of any license or permit issued by, any
governmental authority including, but not limited to, the
Investment Company Act of 1940, as amended, the failure to
comply with which would materially and adversely affect the
financial condition or the business taken as a whole of the
Borrower, or its ability to perform its obligations hereunder.
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SECTION 6. COVENANTS.
So long as the Commitment shall be in effect or the Note
is outstanding, unless compliance shall have been waived in
writing by the Bank, the Borrower agrees that:
6.1 Information. The Borrower will deliver to the Bank:
(a) as soon as available and in any event within 75
days after the end of each fiscal year of the Borrower, a
statement of assets and liabilities of the Borrower as at
the end of such year, and statements of operations and
changes in net assets of the Borrower for such year,
setting forth in each case in comparative form the
figures for the preceding fiscal year, all reported on in
a manner acceptable to the Bank by KPMG Peat Marwick or
other independent certified public accountants of
nationally recognized standing;
(b) as soon as available and in any event within 45
days after the end of the first semi-annual period of
each fiscal year of the Borrower, a statement of assets
and liabilities of the Borrower, as at the end of such
period, statements of operations and changes in net
assets of the Borrower for such period, a certificate
setting forth the computation of the aggregate amount of
shares repurchased pursuant to a tender offer and new
sales of shares of the Borrower for such period and
setting forth in each case in comparative form the
figures for the corresponding portion of the Borrower's
previous fiscal year, all certified (subject to normal
year-end adjustments) as to fairness of presentation,
generally accepted accounting principles and consistency
by the chief financial officer or the chief accounting
officer of the Borrower;
(c) simultaneously with the delivery of each set of
financial statements referred to in clauses (a) and (b)
above, a certificate of the chief financial officer or
the chief accounting officer of the Borrower (i) stating
whether the Borrower was in compliance with the
requirements of the Investment Restriction Paragraph
referred to in Section 6.6 on the date of such financial
statements, (ii) stating whether, to the best of such
officer's knowledge, any Default exists on the date of
such certificate and, if any Default then exists, setting
forth the details thereof and the action which the
Borrower is taking or proposes to take with respect
thereto and (iii) certifying that since the date of the
most recent financial statements delivered to the Bank,
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no material adverse change has occurred in the business,
financial position, results of operations or prospects of
the Borrower or, if any such material adverse change has
occurred, setting forth the details thereof and the
action which the Borrower is taking or proposes to take
with respect thereto;
(d) simultaneously with the delivery of each set of
financial statements referred to in clause (a) above, a
statement of the firm of independent public accountants
which reported on such statements (i) to the effect that
nothing has come to their attention to cause them to
believe that any Default existed on the date of such
statements and (ii) confirming the calculations set forth
in the officer's certificate delivered simultaneously
therewith pursuant to clause (c) above;
(e) within five days after the president, chief
financial officer or assistant treasurer of the Borrower
obtains knowledge of any Default, if such Default is then
continuing, a certificate of the chief financial officer
or the chief accounting officer of the Borrower setting
forth the details thereof and the action which the
Borrower is taking or proposes to take with respect
thereto;
(f) promptly upon the mailing thereof to the
shareholders of the Borrower generally, copies of all
financial statements, reports and proxy statements so
mailed;
(g) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto
and any registration statements on Form S-8 or its
equivalent) prospectuses, and annual, quarterly or
monthly reports which the Borrower shall have filed with
the Securities and Exchange Commission;
(h) if at any time the value of all "margin stock"
(as defined in Regulation U) owned by the Borrower
exceeds (or would, following application of the proceeds
of an intended Loan hereunder, exceed) 25% of the value
of the total assets of the Borrower, in each case as
reasonably determined by the Borrower, prompt notice of
such fact;
(i) promptly upon any decision by the Board of
Trustees of the Borrower that Van Xxxxxx Xxxxxxx
Investment Advisory Corp. shall cease to be investment
advisor to the Borrower, notice of such decision; and
15
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(j) from time to time such additional information
regarding the financial position or business of the
Borrower as the Bank may reasonably request.
6.2 Maintenance of Property; Insurance. The Borrower
will maintain in force with financially sound and reputable
insurers, policies with respect to its property and business
against such risks and contingencies and in such amounts as is
customary in the case of closed-end funds engaged in similar
lines of business of comparable size and financial strength.
6.3 Conduct of Business and Maintenance of Existence.
The Borrower will continue to engage in business of the same
general type as now conducted by it, and will preserve, renew
and keep in full force and effect, its existence as a business
trust and its rights, privileges and franchises necessary or
desirable in the normal conduct of its business.
6.4 Compliance with Laws; Notice of Proceedings. (a)
The Borrower will comply in all material respects with the
requirements of its trust agreement and any related documents
and all material provisions of applicable laws, ordinances,
rules, regulations, including but not limited to, the
Investment Company Act of 1940, as amended and the regulations
promulgated thereunder, and requirements of governmental
authorities, except where the necessity of compliance
therewith is contested in good faith by appropriate
proceedings.
(b) The Borrower will promptly give notice in
writing to the Bank of all litigation, arbitral proceedings
and regulatory proceedings affecting the Borrower or the
property of the Borrower, except litigation or proceedings
which, if adversely determined, would not result in the
reasonable likelihood of a material and adverse affect on the
financial condition or the business taken as a whole of the
Borrower.
6.5 Inspection of Property, Books and Records. The
Borrower will keep proper books of record and account in which
full, true and correct entries shall be made of all dealings
and transactions in relation to its business and activities;
and will permit representatives of the Bank at the Bank's
expense to visit and inspect any of properties, to examine and
make abstracts from any of its respective books and records
and to discuss its respective affairs, finances and accounts
with its respective officers, employees and independent public
accountants, all at such reasonable times and as often as may
reasonably be desired.
6.6 Concentration of Risk. (a) The Borrower will not
16
- 16 -
amend or otherwise alter the provisions of paragraph 1 under
the heading "Investment Restrictions" appearing on page 25 of
the Borrower's prospectus dated March 4, 1991, (the
"Investment Restriction Paragraph") without the consent of the
Bank, which consent will not be unreasonably withheld.
(b) The Borrower will not permit the aggregate amount of
its Total Assets invested in any one Person (for purposes of
this Section 6.6(b), "Person" shall not include any bank or
financial institution from whom assets are purchased by the
Borrower) to exceed 5% of the Borrower's Total Assets.
6.7 Negative Pledge. The Borrower will not create,
assume or suffer to exist any Lien on any asset now owned or
hereafter acquired by it, except for Liens arising in the
ordinary course of its business which (i) do not secure Debt,
(ii) do not secure any obligation in an amount exceeding
$5,000,000 and (iii) do not in the aggregate materially
detract from the value of its assets or materially impair the
use thereof in the operation of its business.
6.8 Consolidations, Mergers and Sales of Assets. The
Borrower will not (i) consolidate or merge with or into any
other Person or (ii) sell, lease or otherwise transfer,
directly or indirectly, all or substantially all of the assets
of the Borrower to any other Person, other than sales of
assets in the ordinary course of its business.
6.9 Debt. The Borrower will not permit its total Debt
(including Debt incurred under this Agreement and the Note) to
exceed the lesser of $75,000,000 or 10% of the Borrower's Net
Asset Value.
6.10 Use of Proceeds. The proceeds of any Loan may only
be used, directly or indirectly, in connection with the
consummation of the tender offer for shares of beneficial
interest of the Borrower expiring on the Quarterly Tender Date
next preceding such Loan. No part of the proceeds of any Loan
hereunder will be used, directly or indirectly, for the
purpose, whether immediate, incidental or ultimate of buying
or carrying any "margin stock" within the meaning of
Regulation U. If requested by the Bank, the Borrower will
furnish to the Bank in connection with any Loan hereunder a
statement in conformity with the requirements of Federal
Reserve Form U-l referred to in Regulation U.
6.11 Pari Passu. The indebtedness of the Borrower
hereunder will rank at least pari passu with all other Debt of
the Borrower.
SECTION 7. EVENTS OF DEFAULT.
17
- 17 -
If any one or more of the following events ("Events of
Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay (i) when due, any
principal of any loan or (ii) within three days of when
due, interest on any Loan or any commitment fee; or
(b) the Borrower shall fail to observe or perform
any covenant contained in Section 6.1(e) or Sections 6.6
to 6.9 (inclusive) hereof; or
(c) the Borrower shall fail to observe or perform
any covenant or agreement contained in this Agreement
(other than those covered by clause (a) or (b) above) for
30 days after written notice thereof has been given to
the Borrower by the Bank; or
(d) any representation, warranty, certification or
statement made by the Borrower in this Agreement or in
any certificate, financial statement or other document
delivered pursuant to this Agreement shall prove to have
been incorrect in any material respect upon the date when
made or deemed made; or
(e) The Borrower shall fail to comply with the
fundamental investment policies and the investment
restrictions set forth in its trust agreement or
prospectus; or
(f) the Borrower shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts under
any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property,
or shall consent to any such relief or to the appointment
of or taking possession by any such official in an
involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as
they become due, or shall take any corporate action to
authorize any of the foregoing; or
(g) an involuntary case or other proceeding shall
be commenced against the Borrower seeking liquidation,
reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its
18
- 18 -
property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against the
Borrower under the federal bankruptcy laws as now or
hereafter in effect; or
(h) the Borrower shall fail to comply with all
material provisions of the Investment Company Act of
1940, as amended, or the regulations promulgated
thereunder; or
(i) judgments or orders for the payment of money in
excess of $5,000,000 in the aggregate shall be rendered
against the Borrower and such judgments or orders shall
continue unsatisfied and unstayed for a period of 10
days; or
(j) during any period of twelve consecutive
calendar months, individuals who were trustees of the
Borrower on the first day of such period shall cease to
constitute a majority of the board of trustees of the
Borrower;
then, and in every such event, (1) in the case of any of the
Events of Default specified in paragraphs (f) or (g) above,
the Commitment shall thereupon automatically be terminated and
the principal of and accrued interest on the Note shall
automatically become due and payable without presentment,
demand, protest or other notice or formality of any kind, all
of which are hereby expressly waived and (2) in the case of
any other Event of Default specified above, the Bank may, by
notice in writing to the Borrower, terminate the Commitment
hereunder, if still in existence, and it shall thereupon be
terminated, and the Bank may, by notice in writing to the
Borrower, declare the Note and all other sums payable under
this Agreement to be, and the same shall thereupon forthwith
become, due and payable without presentment, demand, protest
or other notice or formality of any kind, all of which are
hereby expressly waived.
SECTION 8. MISCELLANEOUS.
8.1 Notices. All notices, requests and other
communications hereunder shall be in writing (including
bankwire, telex, facsimile transmission or similar writing).
Each such notice, request or other communication shall be
effective (i) if given by telex or facsimile transmission,
when such telex is transmitted to the telex number specified
in this Section and the appropriate answerback is received, or
when such facsimile transmission is confirmed, (ii) if given
19
- 19 -
by mail, 72 hours after such communication is deposited in the
mails with first class postage prepaid, addressed as specified
in this Section or (iii) if given by any other means, when
delivered at the address specified in this Section; provided
that notices to the Bank pursuant to Sections 2.2 and 2.10
hereof which are given otherwise than by telex or facsimile
transmitting machine shall not be effective until received by
the Bank. Any such notice, request, demand or communication
shall be delivered or addressed as follows:
(i) if to the Borrower, to it at 0000 Xxxxxxxxxxx
Xxxx, Xxxxx, Xxxxxxxx 00000; Attention: Xxxxxx
XxXxxxxxx;
(ii) if to the Bank, delivered or addressed to the
address or telex number set forth on the signature pages
hereof for its Domestic Lending Office;
or at such other address or telex number as any party hereto
may designate by written notice to the other party hereto.
8.2 Amendments and Waivers; Cumulative Remedies.
(a) None of the terms of this Agreement may be
waived, altered or amended except by an instrument in writing
duly executed by the Borrower and the Bank.
(b) No failure or delay by the Bank in exercising
any right, power or privilege hereunder or under the Note
shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies provided herein shall be
cumulative and not exclusive of any rights or remedies
provided by law.
8.3 Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and shall inure to the benefit
of the Borrower and the Bank and their respective successors
and assigns, except that the Borrower may not assign or
otherwise transfer any of its rights under this Agreement
without the prior written consent of the Bank.
(b) The Loans are being made by the Bank in the
ordinary course of its business and not with a view toward
distribution, it being understood that the Bank may sell
participations and assignments in its Commitment and the Loans
as provided herein. The Bank may at any time assign, subject
to the Borrower's consent, which consent shall not be
unreasonably withheld, to one or more banks or other
institutions (each an "Assignee",) all, or a proportionate part
20
- 20 -
of all, of its rights under this Agreement and the Note. The
Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in
its Commitment or any or all of its Loans. In the event of
any such grant by the Bank of a participating interest to a
Participant, whether or not upon notice to the Borrower the
Bank shall remain responsible for the performance of its
obligations hereunder, and the Borrower shall continue to deal
solely and directly with the Bank in connection with the
Bank's rights and obligations under this Agreement. Any
agreement pursuant to which the Bank may grant such a
participating interest shall provide that the Bank shall
retain the sole right and responsibility to enforce the
obligations of the Borrower hereunder including, without
limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided that
such participation agreement may provide that the Bank will
not agree to any modification, amendment or waiver of this
Agreement (i) which increases or decreases the Commitment of
the Bank (ii) reduces the principal of or rate of interest on
any Loan or fees hereunder or (iii) postpones the date fixed
for any payment of principal of or interest on any Loan or any
fees hereunder without the consent of the Participant. The
Borrower agrees that each Participant shall, to the extent
provided in its participation agreement, be entitled to the
benefits of Section 4 hereof with respect to its participating
interest.
(c) The Bank may at any time assign all or any
portion of its rights under this Agreement and the Note to a
Federal Reserve Bank. No such assignment shall release the
Bank from its obligations hereunder.
(d) No Assignee, Participant or other transferee of
the Bank's rights shall be entitled to receive any greater
payment under Section 4.1 hereof than the Bank would have been
entitled to receive with respect to the rights transferred,
unless such transfer is made with the Borrower's prior written
consent or at a time when the circumstances giving rise to
such greater payment did not exist.
8.4 Expenses; Documentary Taxes; Indemnification. (a)
The Borrower shall pay (i) all out-of-pocket expenses and
internal charges of the Bank (including reasonable fees and
disbursements of counsel and time charges of attorneys who may
be employees of the Bank) in connection with any waiver or
consent hereunder or any amendment hereof or any Default or
alleged Default hereunder and (ii) if there is an Event of
Default, all out-of-pocket expenses and internal charges
incurred by the Bank (including fees and disbursements of
counsel and time charges of attorneys who may be employees of
21
- 21 -
the Bank) in connection with such Event of Default and
collection and other enforcement proceedings resulting
therefrom. The Borrower shall indemnify the Bank against any
transfer taxes, documentary taxes, assessments or charges made
by any governmental authority by reason of the execution and
delivery of this Agreement or the Note.
(b) The Borrower agrees to indemnify the Bank and
hold the Bank harmless from and against any and all
liabilities, losses, damages, costs and expenses of any kind,
including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by the Bank in
connection with any investigative, administrative or judicial
proceeding (whether or not the Bank shall be designated a
party thereto) relating to or arising out of this Agreement or
any actual or proposed use of proceeds of Loans hereunder;
provided that the Bank shall not have the right to be
indemnified hereunder for its own gross negligence or willful
misconduct as determined by a court of competent jurisdiction.
8.5 Counterparts; Integration. This Agreement may be
signed in any number of counterparts with the same effect as
if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement
and understanding between the parties hereto and supersedes
any and all prior agreements and understandings, oral or
written, relating to the subject matter hereof.
8.6 Headings; Table of Contents. The section and
subsection headings used herein and the Table of Contents have
been inserted for convenience of reference only and do not
constitute matters to be considered in interpreting this
Agreement.
8.7 Governing Law; Submission to Jurisdiction; Waiver of
Jury Trial. This Agreement and the Note shall be governed by
and construed in accordance with the laws of the State of New
York. The Borrower hereby submits to the nonexclusive
jurisdiction of the United States District Court for the
Southern District of New York and of any New York State Court
sitting in New York City for purposes of all legal proceedings
arising out of or relating to this Agreement or the
transactions contemplated hereby. The Borrower irrevocably
waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue
of any such proceeding brought in such a court and any claim
that any such proceeding brought in such a court has been
brought in an inconvenient forum. THE BORROWER, AND THE BANK
HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
22
- 22 -
Section 8.8. Liability of Shareholders, Trustees and
Officers. This Agreement is executed on behalf of the
Borrower by officers of the Borrower solely in their capacity
as such officers, and shall not constitute their personal
obligation either jointly or severally in their individual
capacities. No trustee, officer or shareholder of the
Borrower shall be liable for any obligations of the Borrower
under this Agreement and the Borrower shall be solely liable
therefore; all parties hereto shall look solely to the
Borrower's estate for the payment of any claim, or the
performance of any obligation, hereunder.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed and delivered by their proper
and duly authorized officers as of the day and year first
above written.
VAN XXXXXX XXXXXXX PRIME RATE
INCOME TRUST
By: /s/ Xxxxxx Xxxx III
Title: Vice President & Treasurer
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ X.X. Xxxxx
Vice president
Domestic Lending Office:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTENTION: Xxxx Xxxxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telex: 177615 MGT UT
000.xx
4/10/91
23
AMENDMENT NO. 2
TO CREDIT AGREEMENT
Amendment, dated as of January 31, 1992 to the Credit
Agreement dated as of March 14, 1991 (the "Agreement") between Van
Xxxxxx Xxxxxxx Prime Rate Income Trust (the "Borrower") and Xxxxxx
Guaranty Trust Company of New York (the "Bank").
The parties hereto desire to amend the Agreement subject to
the terms and conditions of this Amendment, as hereinafter
provided. Accordingly, the parties hereto agree as follows:
1. Definitions. Except as otherwise defined herein,
capitalized terms used herein have the respective meanings assigned
to them in the Agreement.
2. Amendments. (a) The following definition is added to
Section 1.1 in the appropriate alphabetical location:
"`Material Debt' means Debt of the Borrower arising in one or
more related or unrelated transactions, in the aggregate
principal or face amount exceeding $1,000,000."
(b) The definition of Termination Date contained in Section 1.1 is
amended to read in its entirety as follows:
"`Termination Date' has the meaning set forth in Section
2.8."
(c) Section 2.8(a) is redesignated Section 2.8 and amended to read
in its entirety as follows:
"The Commitment shall terminate on January 30, 1993, or such
date to which the Commitment is extended pursuant to the
provisions of Section 2.8(b), (the "Termination Date"), and
any Loans then outstanding (together with accrued interest
thereon) shall be due and payable on such date."
(c) Section 2.8(b) is deleted in its entirety.
(d) The following new provisions shall be added to the Agreement
as Sections 7(k) and 7(l):
"(k) the Borrower shall fail to make any payment in respect of
any Material Debt (other than the Note) when due or within any
applicable grace period; or
(l) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables
24
- 2 -
respect of any Material Debt (other than the Note) when
due or within any applicable grace period; or
(1) any event or condition shall occur which results in
the acceleration of the maturity of any Material Debt or
enables (or, with the giving of notice or lapse of time
or both, would enable) the holder of such Debt or any
Person acting on such holder's behalf to accelerate the
maturity thereof;"
3. Representations. The Borrower hereby confirms and
repeats each of the representations and warranties set forth
in the Agreement on and as of the date of this Amendment as
if made on and as of such date and as if each reference
therein to the Agreement referred to the Agreement as
modified hereby, and represents and warrants that no Event of
Default or other event which, with the giving of notice or
the lapse of time, or both, would constitute such an Event of
Default has occurred and is continuing.
4. Agreement as Amended. Except as expressly amended
hereby, the Agreement shall continue in full force and effect
in accordance with the terms thereof.
5. Governing Law. This Amendment, and the Agreement as
amended hereby, shall be construed in accordance with and
governed by the laws of the State of New York.
6. Severability. In case any one or more of the
provisions contained in this Amendment should be invalid,
illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired
thereby.
7. Counterparts; Effective Date. This Amendment may be
executed in any number of counterparts, each of which shall
constitute an original but all of which when taken together
shall constitute one and the same instrument. This Amendment
shall become effective as of the date first above written
upon receipt by the Bank of counterparts hereof executed by
each of the parties hereto.
25
-3-
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their duly authorized officers as
of the day and year first above written.
VAN XXXXXX XXXXXXX PRIME
RATE INCOME TRUST
By: /s/ Xxxx Xxxxxxxx
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Xxxxxx-Xxx Dicteroro
Title: Vice President
DOC/CGK1048.D
26
AMENDMENT NO. 3
TO CREDIT AGREEMENT
Amendment No. 3, dated as of January 30, 1993 to the Credit
Agreement dated as of March 14, 1991, as amended (the "Agreement")
between Van Xxxxxx Xxxxxxx Prime Rate Income Trust (the "Borrower")
and Xxxxxx Guaranty Trust Company of New York (the "Bank").
The parties hereto desire to amend the Agreement subject to
the terms and conditions of this Amendment No. 3, as hereinafter
provided. Accordingly, the parties hereto agree as follows:
1. Definitions. Except as otherwise defined herein,
capitalized terms used herein have the respective meanings assigned
to them in the Agreement.
2. Amendment. Section 2.8 is hereby amended to read in its
entirety as follows:
"The Commitment shall terminate on January 29, 1994 (the
"Termination Date"), and any Loans then outstanding (together
with accrued interest thereon) shall be due and payable on
such date."
3. Representations. The Borrower hereby confirms and repeats
each of the representations and warranties set forth in the
Agreement on and as of the date of this Amendment No. 3 as if made
on and as of such date and as if each reference therein to the
Agreement referred to the Agreement as modified hereby, and
represents and warrants that no Event of Default or other event
which, with the giving of notice or the lapse of time, or both,
would constitute such an Event of Default has occurred and is
continuing.
4. Agreement as Amended. Except as expressly amended hereby,
the Agreement shall continue in full force and effect in accordance
with the terms thereof; and any reference to the Agreement at any
time hereafter shall refer to the Agreement as amended hereby.
5. Governing Law. This Amendment No. 3, and the Agreement as
amended hereby, shall be construed in accordance with and governed
by the laws of the State of New York.
6. Severability. In case any one or more of the provisions
contained in this Amendment No. 3 should be invalid, illegal or
unenforceable in any respect, the validity, legality and
27
-2-
enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
7. Counterparts; Effective Date. This Amendment No. 3 may be
executed in any number of counterparts, each of which shall
constitute an original but all of which when taken together shall
constitute one and the same instrument. This Amendment No. 3 shall
become effective as of the date first above written upon receipt
by the Bank of counterparts hereof executed by each of the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 3 to be executed by their duly authorized officers as
of the day and year first above written.
VAN XXXXXX XXXXXXX PRIME
RATE INCOME TRUST
By: /s/ Xxxxxx Xxxx III
Title: V.P. & Treasurer
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Xxxx X. Xxxx
Title: Vice President
*
28
AMENDMENT NO. 4
TO CREDIT AGREEMENT
Amendment No. 4, dated as of January 19, 1994 to the Credit
Agreement dated as of March 14, 1991, as amended (the "Agreement")
between Van Xxxxxx Xxxxxxx Prime Rate Income Trust (the "Borrower")
and Xxxxxx Guaranty Trust Company of New York (the "Bank").
The parties hereto desire to amend the Agreement subject to
the terms and conditions of this Amendment No. 4, as hereinafter
provided. Accordingly, the parties hereto agree as follows:
1. Definitions. Except as otherwise defined herein,
capitalized terms used herein have the respective meanings assigned
to them in the Agreement.
2. Amendment. Section 2.8 is hereby amended to read in its
entirety as follows:
"The Commitment shall terminate on January 28, 1995 (the
"Termination Date"), and any Loans then outstanding (together
with accrued interest thereon) shall be due and payable on
such date."
3. Representations. The Borrower hereby confirms and repeats
each of the representations and warranties set forth in the
Agreement on and as of the date of this Amendment No. 4 as if made
on and as of such date and as if each reference therein to the
Agreement referred to the Agreement as modified hereby, and
represents and warrants that no Event of Default or other event
which, with the giving of notice or the lapse of time, or both,
would constitute such an Event of Default has occurred and is
continuing.
4. Agreement as Amended. Except as expressly amended hereby,
the Agreement shall continue in full force and effect in accordance
with the terms thereof; and any reference to the Agreement at any
time hereafter shall refer to the Agreement as amended hereby.
5. Governing Law. This Amendment No. 4, and the Agreement as
amended hereby, shall be construed in accordance with and governed
by the laws of the State of New York.
6. Severability. In case any one or more of the provisions
contained in this Amendment No. 4 should be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
7. Counterparts; Effective Date. This Amendment No. 4 may be
29
- 2 -
executed in any number of counterparts, each of which shall
constitute an original but all of which when taken together shall
constitute one and the same instrument. This Amendment No. 4 shall
become effective as of the date first above written upon receipt by
the Bank of counterparts hereof executed by each of the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 4 to be executed by their duly authorized officers as
of the day and year first above written.
VAN XXXXXX XXXXXXX PRIME
RATE INCOME TRUST
By: /s/ Xxxxxx Xxxx III
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Xxxxxx X. XxXxx
Title: VICE PRESIDENT
30
AMENDMENT NO. 5
TO CREDIT AGREEMENT
Amendment No. 5, dated as of January 27, 1995 to the Credit
Agreement dated as of March 14, 1991, as amended (the "Agreement")
between Van Xxxxxx Xxxxxxx Prime Rate Income Trust (the "Borrower")
and Xxxxxx Guaranty Trust Company of New York (the "Bank").
The parties hereto desire to amend the Agreement subject to
the terms and conditions of this Amendment No. 5, as hereinafter
provided. Accordingly, the parties hereto agree as follows:
1. Definitions. Except as otherwise defined herein,
capitalized terms used herein have the respective meanings assigned
to them in the Agreement.
2. Amendment.
(a) Section 2.8 of the Credit Agreement is hereby amended
to read in its entirety as follows:
"The Commitment shall terminate on January 26, 1996 (the
"Termination Date"), and any Loans then outstanding (together
with accrued interest thereon) shall be due and payable on
such date."
(b) Section 2.6(b) of the Credit Agreement is hereby
amended by reducing the commitment fee from 3/8 of 1% to 1/4 of 1%.
3. Representations. The Borrower hereby confirms and repeats
each of the representations and warranties set forth in the
Agreement on and as of the date of this Amendment No. 5 as if made
on and as of such date and as if each reference therein to the
Agreement referred to the Agreement as modified hereby, and
represents and warrants that no Event of Default or other event
which, with the giving of notice or the lapse of time, or both,
would constitute such an Event of Default has occurred and is
continuing.
4. Agreement as Amended. Except as expressly amended hereby,
the Agreement shall continue in full force and effect in accordance
with the terms thereof; and any reference to the Agreement at any
time hereafter shall refer to the Agreement as amended
hereby.
5. Governing Law. This Amendment No. 5, and the Agreement as
31
- 2 -
amended hereby, shall be construed in accordance with and governed
by the laws of the State of New York.
6. Severability. In case any one or more of the provisions
contained in this Amendment No. 5 should be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
7. Counterparts; Effective Date. This Amendment No. 5 may be
executed in any number of counterparts, each of which shall
constitute an original but all of which when taken together shall
constitute one and the same instrument. This Amendment No. 5 shall
become effective as of the date first above written upon receipt by
the Bank of counterparts hereof executed by each of the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 5 to be executed by their duly authorized officers as
of the day and year first above written.
VAN XXXXXX XXXXXXX PRIME
RATE INCOME TRUST
By: /s/ Xxxxxx Xxxx III
Title: V.P. & Treasurer
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Xxxxxx X. XxXxx
Title: VICE PRESIDENT
