EXHIBIT(b)(3)
AMENDMENT
Dated as of February 28, 2000
This AMENDMENT among EIN ACQUISITION CORP., a Florida corporation (together
with any successor by merger, the "Borrower"), UTRECHT-AMERICA FINANCE CO., a
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Delaware corporation (the "Initial Lender"), and COOPERATIEVE CENTRALE
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RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH,
("Rabobank"), as Agent (as defined in the Credit Agreement referred to below)
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for the Lenders (as defined in the Credit Agreement referred to below).
PRELIMINARY STATEMENTS. The Borrower, the Initial Lender and the Agent
have entered into a Credit Agreement dated as of January 21, 2000 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement";
the terms defined in the Credit Agreement being used herein as therein defined).
Each of the Borrower, the Initial Lender and the Agent wish to amend the Credit
Agreement as hereinafter set forth.
NOW, THEREFORE, the Borrower, the Initial Lender and the Agent hereby agree
as follows:
SECTION 1. Amendment to Credit Agreement. Section 2.01 of the Credit
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Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 2 hereof, hereby amended by
deleting the date "March 6, 2000" appearing in clause (z) thereof and
substituting, in lieu thereof, the date "March 10, 2000".
SECTION 2. Conditions of Effectiveness. This Amendment shall become
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effective when, and only when, the Bank shall have received counterparts of this
Amendment executed by the Borrower.
SECTION 3. Representations and Warranties of the Borrower. The Borrower
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represents and warrants as follows:
(a) The representations and warranties contained in the Credit Agreement
are true and correct on and as of the date hereof as though made on and as of
the date hereof.
(b) The execution, delivery and performance by the Borrower of this
Amendment, and the Credit Agreement, as amended hereby, are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action and do not contravene (i) the Borrower's charter or by-laws, or
(ii) any law or contractual restriction binding on or affecting the Borrower,
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or result in, or require, the creation of any lien, security interest or other
charge or encumbrance upon or with respect to any of its properties.
(c) No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for the
due execution, delivery and performance by the Borrower of this Amendment or the
Credit Agreement, as amended hereby.
(d) This Amendment and the Credit Agreement, as amended hereby,
constitute, legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their respective terms, subject,
however, to the effect on such enforceability of (i) any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and (ii) general principles of equity (regardless whether such
enforceability is considered in a proceeding in equity or at law).
(e) There is no pending or threatened action or proceeding affecting the
Borrower or any of its subsidiaries before any court, governmental agency or
arbitrator, which may materially adversely affect the condition, financial or
otherwise, or operations of the Borrower.
(f) No event has occurred and is continuing which constitutes an Event of
Default or would constitute an Event of Default but for the requirement that
notice be given or time elapse or both.
SECTION 4. Reference to and Effect on the Credit Agreement. (a) Upon the
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effectiveness of Section 1 hereof, on and after the date hereof, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import shall mean and be a reference to the Credit Agreement as
amended hereby, and each reference in the Note and the other Loan Documents to
the Credit Agreement shall mean and be a reference to the Credit Agreement as
amended hereby.
(b) Except as specifically amended above, the Credit Agreement and the
Note shall remain in full force and effect and are hereby ratified and confirmed
in all respects.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of the Bank under the Credit Agreement, nor constitute a waiver of any
provision of the Credit Agreement.
SECTION 5. Execution in Counterparts. This Amendment may be executed in
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any number of counterparts, each of which when so executed and delivered shall
be deemed to be an original and all of which taken together shall constitute but
one and the same instrument.
SECTION 6. Governing Law. This Amendment shall be governed by, and
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construed in accordance with, the laws (without giving effect to the conflicts
of laws principles thereof) of the State of New York.
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SECTION 7. Final Agreement. This Amendment represents the final agreement
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between the Borrower, the Initial Lender and the Agent as to the subject matter
hereof and may not be contradicted by evidence of prior, contemporaneous or
subsequent oral agreements of the parties. There are no unwritten oral
agreements between the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
EIN ACQUISITION CORP.
By /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: President
UTRECHT-AMERICA FINANCE CO.
By /s/ Hans den Xxxx
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Authorized Officer
By /s/ Xxxxx X. XxXxxx
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Authorized Officer
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By /s/ Hans den Xxxx
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Authorized Officer
By /s/ Xxxxx X. XxXxxx
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Authorized Officer
