Exhibit (h)(30)
AMENDMENT NO. 2 TO THE CREDIT AGREEMENT
AMENDMENT NO. 2 TO THE CREDIT AGREEMENT (this "Amendment"),
dated as of March 27, 2001, among THE GALAXY FUND, THE GALAXY VIP FUND, and
GALAXY FUND II (each a "Fund" and, collectively, the "Funds") on behalf of the
separate mutual fund portfolios listed, under the name of the Fund of which such
portfolio is a portfolio, on Schedule I to the hereinafter defined Credit
Agreement (each such portfolio a "Borrower" and, collectively, the "Borrowers"),
the bank party to the Credit Agreement on the date hereof and immediately before
giving effect to this Amendment (the "Existing Bank"), DEUTSCHE BANK ALEX. XXXXX
INC. (formerly known as Deutsche Bank Securities Inc.), as Arranger and
Syndication Agent (before giving effect to this Amendment) and as Arranger and
Documentation Agent (after giving effect to this Amendment), and DEUTSCHE BANK
AG, NEW YORK BRANCH, as Administrative Agent (together with the Arranger and
Syndication Agent (before giving effect to this Amendment), the "Existing
Agents"), DANSKE BANK A\S, as Syndication Agent (after giving effect to this
Amendment), and DANSKE BANK A\S (the "New Bank"). All capitalized terms used
herein and not otherwise defined shall have the respective meanings provided
such terms in the Credit Agreement.
W I T N E S S E T H :
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WHEREAS, the Funds on behalf of the respective Borrowers, the
Existing Bank and the Existing Agents are parties to a Credit Agreement, dated
as of December 29, 1999, as amended by Amendment No. 1, dated as of December 27,
2000 (as amended, the "Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit Agreement
as herein provided;
NOW, THEREFORE, it is agreed:
1. Pursuant to Section 12.04(b) of the Credit Agreement,
the Existing Bank hereby sells and assigns to the New Bank without recourse and
without representation or warranty (other than as expressly provided herein),
and the New Bank hereby purchases and assumes from the Existing Bank, that
interest in and to all of the Existing Bank's rights and obligations under the
Credit Agreement in respect of Revolving Loans as of the date hereof that
represents the percentage interest set forth opposite the New Bank's name on
Exhibit A attached hereto (for such New Bank, its "Pro Rata Share") of all of
the Existing Bank's outstanding rights and obligations under the Credit
Agreement in respect of Revolving Loans, including, without limitation, all
rights and obligations with respect to the Pro Rata Share of the Total
Commitment and of the outstanding Revolving Loans. After giving effect to this
Amendment, each Bank's Commitment will be as set forth on Exhibit B attached
hereto.
2. On the Second Amendment Effective Date (as hereinafter
defined), the cover page of the Credit Agreement shall be amended (a) by
deleting the text "Syndicaton
Agent" and inserting in lieu thereof the text "Documentation Agent" and (b) by
inserting the text "DANSKE BANK A\S as Syndication Agent" immediately before the
text "AND DEUTSCHE BANK AG, NEW YORK BRANCH, as Administrative Agent".
3. On the Second Amendment Effective Date, the first
paragraph of the Credit Agreement shall be amended (a) by deleting the text
"Syndication Agent" and inserting in lieu thereof the text "Documentation Agent"
and (b) by inserting the text ", Danske Bank A\S, as Syndication Agent,"
immediately before the text "and Deutsche Bank AG, New York Branch, as
Administrative Agent".
4. On the Second Amendment Effective Date, Section 10.01
of the Credit Agreement shall be amended by deleting the definition of "Agents"
in its entirety and inserting in lieu thereof the following definition:
" "Agents" shall mean, collectively, the Administrative Agent,
the Arranger, the Documentation Agent and the Syndication Agent.".
5. On the Second Amendment Effective Date, Section 10.01
of the Credit Agreement shall be amended by inserting the following definition:
" "Documentation Agent" shall mean Deutsche Bank Alex. Xxxxx
Inc., in its capacity as Documentation Agent.".
6. On the Second Amendment Effective Date, the definition
of "Expiry Date" in Section 10.01 of the Credit Agreement shall be amended by
deleting the text "March 27, 2001," and inserting in lieu thereof the text
"March 26, 2002,".
7. On the Second Amendment Effective Date, the definition
of "Syndication Agent" in Section 10.01 of the Credit Agreement shall be amended
by deleting the text "Deutsche Bank Securities Inc." and inserting in lieu
thereof the text "Danske Bank A\S".
8. On the Second Amendment Effective Date, the Credit
Agreement shall be amended by deleting Schedule II thereto in its entirety and
replacing it with Exhibit B attached hereto.
9. On the Second Amendment Effective Date, the Credit
Agreement shall be amended by deleting Schedule III thereto in its entirety and
replacing it with Exhibit C attached hereto.
10. The Existing Bank (a) represents and warrants that it
is the legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any liens or security interests, (b)
makes no representation or warranty and assumes no responsibility with respect
to any statement, warranty or representation made in or in connection with the
Credit Agreement or the other Credit Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or the other Credit Documents or any other instrument or document
furnished pursuant thereto and (c) makes no
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representation or warranty and assumes no responsibility with respect to the
financial condition of any Borrower or the performance or observance by any
Borrower of any obligation under the Credit Agreement or the other Credit
Documents or any other instrument or document furnished pursuant thereto.
11. The New Bank (a) represents and warrants that it is
duly authorized to enter into and perform the terms of this Amendment, (b)
confirms that it has received a copy of the Credit Agreement and the other
Credit Documents, together with copies of the financial statements referred to
therein and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Amendment, (c)
agrees that it will, independently and without reliance upon any Agent or
Existing Agent or any Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement, (d) appoints and
authorizes the Agents (as defined after giving effect to this Amendment) to take
such action as agent on its behalf and to exercise such powers under the Credit
Agreement and the other Credit Documents as are delegated to such Agents by the
terms thereof, together with such powers as are reasonably incidental thereto,
(e) represents and warrants that it is an Eligible Transferee under Section
12.04(b) of the Credit Agreement, (f) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Bank, (g) agrees that its
review of all non-public information made available to it is subject to the
confidentiality provisions contained in Section 12.15 of the Credit Agreement
and (h) attaches the forms prescribed by the Internal Revenue Service of the
United States certifying as to the New Bank's status for purposes of determining
exemption from United States withholding taxes with respect to all payments to
be made to the New Bank under the Credit Agreement or such other documents as
are necessary to indicate that all such payments are subject to such withholding
at a rate reduced by an applicable tax treaty.
12. In accordance with Section 12.04(b) of the Credit
Agreement, on and as of the Second Amendment Effective Date and the delivery by
the New Bank of the amount (if any) required to be delivered pursuant to clause
(b) of Section 19 of this Amendment, (a) the New Bank shall be a party to the
Credit Agreement and, to the extent provided in this Amendment, have the rights
and obligations of a Bank thereunder and under the other Credit Documents, (b)
the Existing Bank shall, to the extent provided in this Amendment, relinquish
its rights and be released from its obligations under the Credit Agreement and
the other Credit Documents and (c) the Administrative Agent shall record any
transfers contemplated hereby in its records.
13. Each of the Existing Bank, the New Bank and the Agents
(as defined after giving effect to this Amendment) hereby agree that, on and as
of the Second Amendment Effective Date and the delivery by the New Bank of the
amount (if any) required to be delivered pursuant to clause (b) of Section 19 of
this Agreement, the New Bank shall be entitled to (a) all interest on its Pro
Rata Share of the Revolving Loans at the rates specified in Section 1.08 of the
Credit Agreement and (b) all Commitment Fees (if applicable) on its Pro Rata
Share of the Total Commitment at the rate specified in Section 2.01(a) of the
Credit Agreement, that, in each case, accrue on and after the Second Amendment
Effective Date and the delivery by the New Bank of the amount (if any) required
to be delivered pursuant to clause (b) of Section 19 of this
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Amendment, such interest and, if applicable, Commitment Fees, to be paid by the
Administrative Agent, upon receipt thereof from the Borrowers, directly to the
New Bank. It is further agreed that all payments of principal made by the
Borrowers on the New Bank's Pro Rata Share of the Revolving Loans that occur on
and after the Second Amendment Effective Date and the delivery by the New Bank
of the amount (if any) required to be delivered pursuant to clause (b) of
Section 19 of this Amendment will be paid directly by the Administrative Agent
to the New Bank.
14. In order to induce the Existing Bank, the Agents (as
defined after giving effect to this Amendment) and the New Bank to enter into
this Amendment, each of the Borrowers hereby represents and warrants that (a) no
Default or Event of Default exists or will exist as of the date hereof and after
giving effect to this Amendment and (b) as of the date hereof, after giving
effect to this Amendment, all representations, warranties and agreements of the
Borrowers contained in the Credit Agreement will be true and correct in all
material respects.
15. Each Borrower agrees to deliver to the New Bank,
promptly following the Second Amendment Effective Date, a Form U-1 certificate
in the form of Exhibit E to the Credit Agreement, which certificate shall be
dated the date hereof.
16. This Amendment is limited precisely as written and
shall not be deemed to be an amendment, consent, waiver or modification of any
other term or condition of the Credit Agreement, any other Credit Document or
any of the instruments or agreements referred to therein, or prejudice any right
or rights that the Existing Bank, the Agents (as defined after giving effect to
this Amendment), the New Bank or any of them may now have or may have in the
future under or in connection with the Credit Agreement, any other Credit
Document or any of the instruments or agreements referred to therein. Except as
expressly modified hereby, the terms and provisions of the Credit Agreement
shall continue in full force and effect. On and after the Second Amendment
Effective Date, whenever the Credit Agreement is referred to in the Credit
Agreement, any other Credit Document or any of the instruments, agreements or
other documents executed and delivered in connection therewith, it shall be
deemed to be a reference to the Credit Agreement as amended hereby.
17. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Borrowers and the Agents (as defined
after giving effect to this Amendment).
18. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS
THEREOF.
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19. This Amendment shall become effective on the date (the
"Second Amendment Effective Date") when (a) the Borrowers, the Agents (as
defined after giving effect to this Amendment), the Existing Bank and the New
Bank shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Administrative Agent and (b) the New Bank shall
have delivered to the Administrative Agent, for the account of the Existing
Bank, an amount (if any) equal to such New Bank's Pro Rata Share of the
Revolving Loans being assigned to such New Bank.
* * * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered on its behalf of
as of the date first above written.
THE GALAXY FUND, on behalf of the
Borrowers listed on Schedule I-A
to the Credit Agreement
By /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
THE GALAXY VIP FUND, on behalf of
the Borrowers listed on Schedule I-B
to the Credit Agreement
By /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
GALAXY FUND II, on behalf of the
Borrowers listed on Schedule I-C
to the Credit Agreement
By /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
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DEUTSCHE BANK AG, NEW YORK
BRANCH, as Administrative Agent
By /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Vice President
By /s/ Xxxxxxxxx Xxxxxxxxxx
---------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Managing Director
DEUTSCHE BANK ALEX. XXXXX INC.
as Arranger and Documentation Agent
By /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Vice President
By /s/ Xxxxxxxxx Xxxxxxxxxx
---------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Managing Director
DEUTSCHE BANK AG, NEW YORK
BRANCH
By /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Vice President
By /s/ Xxxxxxxxx Xxxxxxxxxx
---------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Managing Director
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DANSKE BANK A\S
as Syndication Agent
By /s/ Xxxxxx Xxxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Assistant Vice President
DANSKE BANK A\S
By /s/ Xxxx X. X'Xxxxx
---------------------------------
Name: Xxxx X. X'Xxxxx
Title: Vice President
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EXHIBIT A
RELEVANT PERCENTAGES
Bank Commitment Percentage
---- ---------------------
DEUTSCHE BANK AG, 66 2/3%
NEW YORK BRANCH
DANSKE BANK A\S 33 1/3%
A-1
EXHIBIT B
SCHEDULE II
COMMITMENTS
Bank Commitment
---- ----------
Deutsche Bank AG, New York Branch $100,000,000
Danske Bank A\S 50,000,000
----------
TOTAL $150,000,000
============
B-1
EXHIBIT C
SCHEDULE III
BANK ADDRESSES
Deutsche Bank AG, 31 West 52nd Street
New York Branch Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxx Xxxxx
Danske Bank A\S 000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxxxxxxx
C-1
