Exhibit (h)(15)
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: Xxxxxxxx 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
