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EXHIBIT 10.4
SECOND AMENDMENT TO CREDIT AGREEMENT
This Amendment is agreed to as of the 30th day of April, 1998, by and
among Xxxxxx-Xxxx Inc., a Georgia corporation, and Xxxxxx-Xxxx International
L.L.C., a Georgia general partnership (the "Borrowers"); Norwest Bank Minnesota,
National Association, a national banking association, as Agent under the Credit
Agreement described below (in such capacity, the "Agent"); and Norwest Bank
Minnesota, National Association, a national banking association, SunTrust Bank,
Atlanta, a Georgia banking corporation, The Sumitomo Bank, Limited, a Japanese
banking corporation, and Southtrust Bank of Georgia, N.A., a national banking
association, as Banks (the "Banks").
The Borrower, the Agent and the Banks are each parties to a Credit
Agreement (together with all amendments, modifications and restatements thereof,
the "Credit Agreement") dated as of July 16, 1996, as amended by a First
Amendment to Credit Agreement (the "First Amendment") dated November 17, 1997.
The Borrowers, the Agent and the Banks wish to increase the line of
credit established under the Credit Agreement and to shorten the maturity of
that line of credit.
ACCORDINGLY, in consideration of the mutual covenants contained in the
Credit Agreement and herein, the parties hereby agree as follows:
1. Definitions. All terms defined in the Credit Agreement that
are not otherwise defined herein shall have the meanings given them in the
Credit Agreement.
2. Amendment. The definitions of "Commitment Amount" and
"Commitment Termination Date" in Section 1.1 of the Credit Agreement are hereby
amended in their entirety to read as follows:
"Commitment Amount" means, with respect to each Bank, the amount set
forth opposite that Bank's name below or on any Assignment Certificate,
unless said amount is reduced pursuant to Section 2.11, in which event
it means the amount to which said amount is reduced:
Norwest Bank Minnesota, National Association $35,000,000
SunTrust Bank, Atlanta $35,000,000
The Sumitomo Bank, Limited $20,000,000
Southtrust Bank of Georgia, N.A. $10,000,000
"Commitment Termination Date" means September 1, 1998, or the earlier
date of termination in whole of the Commitments pursuant to Section
2.11 or 7.2.
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3. Representations and Warranties. The Borrowers hereby represent
and warrant to the Agent and the Banks as follows:
(a) The Borrowers have all requisite power and authority,
corporate or otherwise, to execute and deliver the First Amendment and
this Amendment, and to perform the First Amendment, this Amendment and
the Credit Agreement as amended thereby and hereby. This Amendment and
the First Amendment have been duly and validly executed and delivered
to the Agent and the Banks by the Borrowers, and the First Amendment,
this Amendment and the Credit Agreement as amended hereby constitute
the Borrowers' legal, valid and binding obligations enforceable in
accordance with their terms.
(b) The execution, delivery and performance by the
Borrowers of the First Amendment and this Amendment, and the
performance of the Credit Agreement as amended thereby and hereby, have
been duly authorized by all necessary corporate action and do not and
will not (i) require any authorization, consent or approval by any
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (ii) violate the Borrowers'
articles of incorporation or bylaws or any provision of any law, rule,
regulation or order presently in effect having applicability to the
Borrowers, or (iii) result in a breach of or constitute a default under
any indenture or agreement to which the Borrowers are a party or by
which the Borrowers or their properties may be bound or affected.
(c) All of the representations and warranties contained
in Article IV of the Credit Agreement are correct on and as of the date
hereof as though made on and as of such date, except to the extent that
such representations and warranties relate solely to an earlier date.
4. Conditions. The amendments set forth in paragraph 2 shall be
effective only if the Agent has received (or waived the receipt of) each of the
following, in form and substance satisfactory to the Agent, on or before the
date hereof (or such later date as the Required Banks may agree to in writing):
(a) This Amendment, duly executed by the Borrowers and
each Bank.
(b) A certificate of the secretary or assistant secretary
of the Company (i) certifying as accurate resolutions of the board of
directors of the Company evidencing approval of the First Amendment,
this Amendment, the Credit Agreement as amended hereby, and the other
matters contemplated hereby, (ii) stating that there have been no
amendments to or restatements of the articles of incorporation or
bylaws of the company as furnished to the Agent in connection with the
execution and delivery of the Credit Agreement other than those that
may be attached to the certificate, and (iii) certifying the names of
the managers of LJ International that are authorized to sign the First
Amendment and this Amendment, together with the true signatures of such
officers.
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(c) A certificate of the managing member, secretary or
assistant secretary of LJ International (i) certifying that such person
is the keeper of or otherwise responsible for the maintenance of the
minute books of LJ International, (ii) certifying that the First
Amendment, this Amendment and the Credit Agreement as amended hereby
have been duly approved by all necessary action of the managing member
of LJ International and attaching true and correct copies of the
applicable resolutions granting such approval, (iii) stating that there
have been no amendments to or restatements of the Organizational
Documents of LJ International as furnished to the Agent in connection
with the execution and delivery of the Credit Agreement other than
those that may be attached to the certificate, and (iv) certifying the
names of the officers of the Company that are authorized to sign the
First Amendment and this Amendment, together with the true signatures
of such officers.
(d) A signed copy of the opinion of counsel for the
Borrowers, addressed to the Agent and the Banks, confirming the matters
set forth in paragraph 3 hereof (other than paragraph (c) thereof), and
such other matters as the Required Banks may in their sole discretion
request.
5. Miscellaneous. The Borrowers shall pay all costs and expenses
of the Agent, including attorneys' fees, incurred in connection with the
drafting and preparation of this Amendment and any related documents. Except as
amended by this Amendment, all of the terms and conditions of the Credit
Agreement shall remain in full force and effect. This Amendment may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which counterparts of this
Amendment, taken together, shall constitute but one and the same instrument.
This Amendment shall be governed by the substantive law of the State of
Minnesota.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date first above written.
XXXXXX-XXXX INC. XXXXXX-XXXX INTERNATIONAL LLC
By: /s/ Xxxxx X. Xxxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxxxx
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Its: V.P. Its: V.P.
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NORWEST BANK MINNESOTA, SUNTRUST BANK, ATLANTA
NATIONAL ASSOCIATION, AS AGENT AND
AS A BANK
By: /s/ Xxxxx X. Xxxxx
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Its: V.P.
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By /s/ Xxxxx Xxxxxx
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Its: Vice President By: /s/ Xxxxxxxx X. Xxxxx
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Its: Banking Officer
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THE SUMITOMO BANK, LIMITED SOUTHTRUST BANK OF GEORGIA,
N.A.
By: /s/ X. X. Xxxxxxxx
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Its: Vice President
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By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
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Its: Senior Vice President & Regional Its: Vice President
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Manager (East)
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