Exhibit 2(k)(3)(ii)
THE HIGH YIELD PLUS FUND, INC.
SECOND AMENDMENT
To
CREDIT AGREEMENT
This Second Amendment (this "AMENDMENT") dated as of September 1, 1995
amends the Credit Agreement dated as of October 31, 1993 as amended by the First
Amendment dated as of October 30, 1994 (as so amended, the "CREDIT AGREEMENT"),
between THE HIGH YIELD PLUS FUND, INC. (the "BORROWER" and THE FIRST NATIONAL
BANK OF BOSTON (the "BANK"). Capitalized terms used herein but not otherwise
defined shall have the meanings assigned to them in the Credit Agreement.
WHEREAS, the Borrower and the Bank have executed the Credit Agreement
providing for a revolving credit facility for borrowings by the Borrower to
leverage its investment portfolio in amounts up to $30,000,000; and
WHEREAS, the Borrower has requested that the credit facility be extended
for an additional period of time, and the Bank is willing to so extend the
facility on the terms and conditions set forth below;
NOW, THEREFORE, the Bank and the Borrower agree as follows:
SECTION 1. AMENDMENT TO THE CREDIT AGREEMENT.
Section 2.4 of the Credit Agreement is hereby amended by deleting the date
"October 27, 1995" and substituting therefor the date "August 31, 1996."
SECTION 2. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants as follows:
(a) The execution and delivery of this Amendment and the performance by
the Borrower of the Credit Agreement as amended hereby, are within the powers of
the Borrower, have been duly authorized by all necessary and proper action on
the part of the Borrower, and do not and will not (i) violate or contravene any
provision of the Borrower's Articles of Incorporation or bylaws, or any
amendment thereof, (ii) violate or contravene any provision of the Borrower's
Prospectus or Registration Statement, (iii) conflict with, or result in a breach
of any material term, condition or provision of, or constitute a default under
or result in the creation of any mortgage, lien, pledge, charge, security
interest or other encumbrance upon any of the property or assets of the Borrower
under, any agreement, trust deed, indenture, mortgage or other instrument to
which the Borrower is a party or by which the Borrower or any of its property or
assets is bound or affected, or (iv) violate or contravene any provision of any
material law, regulation, order, ruling or interpretation thereunder or any
decree, order or judgment of any court or governmental or regulatory authority,
bureau, agency or official.
(b) This Amendment and the Credit Agreement as amended hereby and all the
provisions hereof and thereof constitute the legally valid and binding
obligations of the Borrower enforceable against the Borrower in accordance with
their terms, except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and except to the extent that the availability
of equitable remedies is subject to the discretion of the court before which any
proceeding therefor may be brought.
(c) No authorization, approval, consent or other action by, and no notice
to or filing with, any shareholder or creditor of the Borrower, or governmental
or regulatory agency or authority, is required to make valid and legally binding
the execution and delivery by the Borrower of this Amendment and the performance
of the Credit Agreement as amended hereby or the consummation by the Borrower of
the transactions contemplated hereby and thereby, or the exercise by the Bank of
its rights and remedies hereunder or thereunder.
SECTION 3. CONDITIONS TO EFFECTIVENESS.
This effectiveness of this Amendment is conditioned upon the following:
(a) receipt by the Bank and the Borrower of a duly executed counterpart of
this Amendment;
(b) receipt by the Bank of a certificate of the Secretary or an Assistant
Secretary of the Borrower with respect to (i) resolutions of the Board of
Directors of the Borrower authorizing the execution and delivery of this
Amendment and (ii) identification of the officer(s) authorized to execute,
deliver and take all other actions required under this Amendment and the Credit
Agreement as amended hereby, providing specimen signatures of such officers;
(c) the representations and warranties contained in Section 4 of the
Credit Agreement shall be true and correct in all material respects as of the
date hereof as though made on and as of the date hereof, except that the
references in Section 4 to "this Agreement" shall mean and be deemed to be
references to the Credit Agreement as amended hereby; and
(d) No Default under the Credit Agreement shall have occurred and be
continuing.
SECTION 4. MISCELLANEOUS.
(a) On and after the date hereof, each reference in the Credit Agreement
to "this Agreement" or words of like import shall mean and be deemed to be a
reference to the Credit Agreement as amended hereby.
2
(b) Except as amended and modified hereby, the Credit Agreement is in all
respects ratified and confirmed as of the date hereof, and the terms, covenants
and agreements therein shall remain in full force and effect.
(c) This Amendment and modifications to the Credit Agreement set forth
herein shall be deemed to be a document executed under seal and shall be
governed by and construed in accordance with the laws of The Commonwealth of
Massachusetts.
(d) This Amendment may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
THE HIGH YIELD PLUS FUND, INC.
By:
---------------------------
Title: President
THE FIRST NATIONAL BANK OF BOSTON
By:
----------------------------
Title: Division Executive
3
