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Exhibit 9e
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT (the "Second
Amendment") is made and dated as of the 13th day of November, 1995 by and
between FIRST INTERSTATE BANK OF CALIFORNIA (the "Lender") and NEW USA MUTUAL
FUNDS, INC. (the "Company") acting on behalf of THE NEW USA MUTUAL FUND (the
"Fund").
RECITALS
The Company is an open-end management investment company registered under
the Investment Company Act of 1940. The Fund is a diversified series of the
Company, which may from time to time issue additional series of funds. The
Company acting on behalf of the Fund entered into a Revolving Credit Agreement
with the Lender (as amended, modified, or waived from time to time, the
"Agreement") pursuant to which the Lender agreed to extend credit to the Fund in
an aggregate amount not to exceed the Credit Limit (as such term and all other
capitalized terms used but not otherwise defined herein are defined in the
Agreement) until the Maturity Date. The parties hereto now wish to extend the
Maturity Date.
NOW, THEREFORE, for good and valuable consideration, receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Amendment.
(a) The definition of "Maturity Date" contained in Exhibit A to the
Agreement is amended to read as follows:
"Maturity Date" shall mean (a) November 12, 1996, as such date may be
extended from time to time in writing by the Lender, in its sole
discretion; or (b) if earlier, the date the Lender terminates its
obligation to make further Loans hereunder pursuant to Paragraph 7 above."
2. Conditions to Effectiveness of Third Amendment. This Third Amendment
shall be effective on the date (the "Third Amendment Effective Date") that
counterparts have been fully executed and delivered by the Lender and the
Company; provided that this Third Amendment shall not be effective unless, as
of the Third Amendment Effective Date, (a) all of the representations and
warranties contained in this Third Amendment and the Agreement as amended hereby
are true and correct except to the extent that they expressly relate to a prior
date; and (b) no Event of Default shall have occurred and be continuing;
provided, further, that this Third Amendment shall cease to be effective or to
have any force or effect and all Obligations outstanding under the Agrement
shall be
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immediately due and payable if on or before December 13, 1995 the
Company shall fail to have delivered to the Lender in form and substance
satisfactory to the Lender and its counsel (1) certified copies of resolutions
of the Board of Directors of the Company approving the execution and delivery of
this Third Amendment; (2) a certificate of the Secretary or an Assistant
Secretary of the Company certifying the names and true signatures of the
officers of the Company authorized to sign this Third Amendment; and (3) an
opinion of counsel to the Company with respect to the effectiveness of this
Third Amendment to amend the Agreement as provided herein.
3. Representations and Warranties of the Company. As an inducement to the
Lender to enter into this Third Amendment, the Company represents and warrants
to the Lender that (a) the Company is duly organized, validly existing and in
good standing as a corporation under the laws of the State of Maryland; (b) the
Company has the corporate power and authority and the legal right to execute,
deliver and perform the Loan Documents on behalf of the Fund and has taken all
necessary corporate action to authorize the execution, delivery and performance
of the Loan Documents on behalf of the Fund; (c) this Third Amendment has been
duly executed and delivered by the Company on behalf of the Fund; (d) the
Agreement as amended hereby constitutes a legal, valid and binding obligation
of the Company enforceable against the Company in accordance with its terms,
subject to the effect of applicable bankruptcy and other similar laws affecting
the rights of creditors generally and the effect of equitable principles whether
applied in an action at law or a suit in equity; (d) the execution and delivery
of this Third Amendment and the performance of the Agreement as amended hereby
will not violate any Requirement of Law or any Contractual Obligation of the
Company or create or result in the creation of any Lien on any assets of the
Company; (e) no consent, approval, authorization of, or registration,
declaration or filing with any governmental authority is required on the part
of the Company in connection with the execution and delivery of the Third
Amendment of the performance of or compliance with the terms, provisions and
conditions of the Agreement as amended hereby.
4. Miscellaneous. This Third Amendment and the documents and agreements
referred to herein embody the entire agreement and understanding between the
parties hereto and supersede all prior agreements and understandings relating
to the subject matter hereof and thereof. All representations, warranties,
covenants and agreements herein contained on the part of the Borrower shall
survive the termination of this Third Amendment and shall be effective until
the Obligations are paid and performed in full or longer as expressly provided
herein. This Third Amendment may be executed in any number of counterparts all
of which together shall constitute one agreement. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to choice of law rules.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
be executed as of the day and year first above written.
NEW USA MUTUAL FUNDS,INC., a Maryland
corporation, as the Company
By: /s/ XXXXXXX XXXXXX
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Print Name: XXXXXXX XXXXXX
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Title: CHIEF FINANCIAL OFFICER
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FIRST INTERSTATE BANK OF CALIFORNIA,
as the Lender
By: /s/ XXX XXXXXXXXXXX
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Print Name: XXX XXXXXXXXXXX
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Title: VICE PRESIDENT
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