Exhibit 99.B(k)(iii)(3)
EXECUTION COPY
AMENDMENT NO. 3
to
REVOLVING CREDIT AND SECURITY AGREEMENT
THIS AMENDMENT NO. 3 TO REVOLVING CREDIT AND SECURITY AGREEMENT (the
"AMENDMENT") is made as of October 15, 2004 by and among ING PRIME RATE TRUST
(the "BORROWER"), CRC FUNDING, LLC, as Conduit Lender (the "LENDER"), CITIBANK,
N.A., as Secondary Lender (the "SECONDARY LENDER"), and CITICORP NORTH AMERICA,
INC., in its capacity as contractual representative (the "AGENT") under that
certain Revolving Credit and Security Agreement dated as of July 16, 2003 by and
among the Borrower, the Lender, the Secondary Lender and the Agent (as amended
as of February 2, 2004 and July 13, 2004 and as the same may be further amended,
restated, supplemented or otherwise modified, the "CREDIT AGREEMENT"). Defined
terms used herein and not otherwise defined herein shall have the meaning given
to them in the Credit Agreement.
WITNESSETH
WHEREAS, the Borrower, the Lender, the Secondary Lender and the Agent
are parties to the Credit Agreement; and
WHEREAS, the Borrower, the Lender, the Secondary Lender and the Agent
have agreed to amend the Credit Agreement on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto have agreed to the following amendment to the Credit Agreement:
1. AMENDMENT TO THE CREDIT AGREEMENT. Effective as of October 15,
2004 (the "EFFECTIVE DATE") and subject to the satisfaction of the conditions
precedent set forth in SECTION 3 below, the Credit Agreement is hereby amended
as follows:
1.1. The definition of "TOTAL COMMITMENT" now appearing in SECTION 1.01 of
the Credit Agreement is amended to delete the amount "$435,000,000"
and to substitute therefor the amount "$480,000,000".
2. INCREASE FEE. For the avoidance of doubt, as set forth in the Fee
Letter, the Borrower agrees to pay to the Agent an Increase Fee (as defined in
the Fee Letter) in an amount equal to $67,500, payable in equal quarterly
installments on the first Settlement Date falling in each October, January,
April and July (a "DESIGNATED MONTH"), commencing on the first Settlement Date
in the first Designated Month following the Effective Date and ending on the
first Settlement Date in July, 2008.
3. CONDITIONS OF EFFECTIVENESS. The effectiveness of this Amendment
is subject to the conditions precedent that the Agent shall have received duly
executed originals of (i) an opinion of Dechert LLP, counsel to the Borrower,
(ii) a letter substantially in the form of
SCHEDULE I attached hereto from the Advisor and the Administrator reaffirming
their respective Letter Agreement and acknowledged and agreed to by the Agent
and (iii) duly executed originals of this Amendment from each of the Borrower,
the Lender, the Secondary Lender and the Agent.
4. REPRESENTATIONS AND WARRANTIES OF THE BORROWER.
4.1. The Borrower hereby represents and warrants that this Amendment and
the Credit Agreement as previously executed and as amended hereby,
constitute legal, valid and binding obligations of the Borrower and
are enforceable against the Borrower in accordance with their terms
(except as enforceability may be limited by bankruptcy, insolvency, or
similar laws affecting the enforcement of creditors' rights
generally).
4.2. Upon the effectiveness of this Amendment and after giving effect
hereto, the Borrower hereby (i) reaffirms all covenants,
representations and warranties made in the Credit Agreement as amended
hereby, and agrees that all such covenants, representations and
warranties are true and correct in all material respects as of the
effective date of this Amendment, except for changes in the Schedules
to the Credit Agreement reflecting events, conditions or transactions
permitted by or not in violation of the Credit Agreement (unless such
representation and warranty is made as of a specific date, in which
case such representation and warranty shall be true and correct in all
material respects as of such date) and (ii) certifies that no Default
or Event of Default has occurred and is continuing.
5. REFERENCE TO THE EFFECT ON THE CREDIT AGREEMENT.
5.1. Upon the effectiveness of SECTION 1 hereof, on and after the date
hereof, each reference in the Credit Agreement (including any
reference therein to "this Credit Agreement," "hereunder," "hereof,"
"herein" or words of like import referring thereto) or in any other
Program Document shall mean and be a reference to the Credit Agreement
as amended hereby.
5.2. Except as specifically amended above, the Credit Agreement and all
other documents, instruments and agreements executed and/or delivered
in connection therewith, shall remain in full force and effect, and
are hereby ratified and confirmed.
5.3. The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of the Agent, the
Lender or the Secondary Lender, nor constitute a waiver of any
provision of the Credit Agreement or any other documents, instruments
and agreements executed and/or delivered in connection therewith.
6. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE.
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7. HEADINGS. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one
and the same agreement.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
day and year first above written.
ING PRIME RATE TRUST, as Borrower
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
CRC FUNDING, LLC, as the Lender
By:
--------------------------------
Name: Xxxxxx Xx
Title: Vice President
CITIBANK, N.A., as Secondary Lender
By:
--------------------------------
Name: Xxxxxx Xx
Title: Vice President
CITICORP NORTH AMERICA, INC., as
Agent
By:
--------------------------------
Name: Xxxxxx Xx
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 3 TO REVOLVING CREDIT AND SECURITY AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed as of the
day and year first above written.
ING PRIME RATE TRUST, as Borrower
By:
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
CRC FUNDING, LLC, as the Lender
By: /s/ Xxxxxx Xx
--------------------------------
Name: Xxxxxx Xx
Title: Vice President
CITIBANK, N.A., as Secondary Lender
By: /s/ Xxxxxx Xx
--------------------------------
Name: Xxxxxx Xx
Title: Vice President
CITICORP NORTH AMERICA, INC., as
Agent
By: /s/ Xxxxxx Xx
--------------------------------
Name: Xxxxxx Xx
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 3 TO REVOLVING CREDIT AND SECURITY AGREEMENT
REAFFIRMATION LETTER
Reference is hereby made to that certain Amendment No. 3 to Revolving
Credit and Security Agreement (the "AMENDMENT") made as of October 15, 2004 by
and among ING Prime Rate Trust (the "BORROWER"), CRC Funding, LLC, as Conduit
Lender (the "LENDER"), Citibank, N.A., as Secondary Lender (the "SECONDARY
LENDER"), and Citicorp North America, Inc., in its capacity as contractual
representative (the "AGENT") under that certain Revolving Credit and Security
Agreement, dated as of July 16, 2003, by and among the Borrower, the Lender, the
Secondary Lender and the Agent (as amended as of February 2, 2004 and July 13,
2004 and as the same may be further amended, restated, supplemented or otherwise
modified, the "CREDIT AGREEMENT"). Defined terms used herein and not otherwise
defined herein shall have the meaning given to them in the Credit Agreement.
Each of the Advisor and the Administrator hereby acknowledges that all
references to the Credit Agreement in the Letter Agreement to which it is a
party shall mean and be references to such Credit Agreement as amended by the
Amendment. Each of the Advisor and the Administrator hereby reaffirms all of its
obligations under the Letter Agreement to which it is a party, which Letter
Agreement remains in full force and effect before and after giving effect to the
amendment described in the Amendment and the amendment described herein as so
amended hereby, if applicable, and such Letter Agreement is hereby ratified and
confirmed.
ING INVESTMENTS, LLC, as Advisor
By: /s/ Xxxxxx X. Naka
--------------------------------
Name: Xxxxxx X. Naka
Title: SVP
ING FUNDS SERVICES, LLC, as the
Administrator
By: /s/ Xxxxxx X. Naka
--------------------------------
Name: Xxxxxx X. Naka
Title: SVP
SIGNATURE PAGE TO REAFFIRMATION OF LETTER AGREEMENTS
Acknowledged and agreed to this 15th day of October, 2004 by,
CITICORP NORTH AMERICA, INC., as Agent
By: /s/ Xxxxxx Xx
--------------------------------
Name: Xxxxxx Xx
Title: Vice President
SIGNATURE PAGE TO REAFFIRMATION OF LETTER AGREEMENTS
