AMENDMENT TO PROMISSORY Nom AND
SIXTH AMENDMENT TO CREDIT AGREEMENT
Dated as of January 28, 1997
THIS AMENDMENT TO PROMISSORY NOTE AND SIXTH AMENDMENT
TO CREDIT AGREEMENT (this "Amendment") is being entered into by
and among XXXXXXX-XXXXX DEVELOPMENT CORPORATION, a Louisiana
corporation ("Development Corporation"), LUTCHER & XXXXX CYPRESS
LUMBER COMPANY, a Louisiana partnership in commendam ("Lumber
Company") (Development Corporation and Lumber Company,
collectively, the "Borrowers"), and THE FIRST NATIONAL BANK OF
LAKE XXXXXXX, a national banking association (the "Lender"), with
THE ESTATE OF XXXX XXXXXXXXX XXXXX, THE ESTATE OF XXXX X. XXXXX,
THE XXXX XXXXXXXXX XXXXX IRREVOCABLE TRUST, XXXXXXX XXXX STREAM,
THE XXXX XXXX TRUST, XXXXXX X. STREAM, III, THE SUCCESSION OF
XXXXXX XXXXXXXXX, and XXXXXXXX XXXXXX XXXXXXXXX (collectively,
the "("Guarantors"), as intervenors, and with X. X. HOLDING
ASSOCIATES, L. P., A LOUISIANA PARTNERSHIP IN COMMENDAM
("Holding"), also as intervenor.
WITNESSETH:
THAT,
WHEREAS, the Borrowers and the Lender have heretofore
entered into that certain Credit Agreement dated as of November
16, 1987, as heretofore amended by that certain First Amendment
to Credit Agreement dated as of May 29, 1991, between the
Borrowers and the Lender, by that certain Second Amendment to
Credit Agreement dated as of May 26, 1994, among the Borrowers,
Lender, Guarantors and Holding, by that certain Third Amendment
to Credit Agreement dated as of June 15, 1995, among the
Borrowers, Lender, Guarantors and Holding, by that certain Fourth
Amendment to Credit Agreement dated as of January 16, 1996, among
the Borrowers, Lender, Guarantors and Holding, and by that
certain Fifth Amendment to Credit Agreement dated as of August 8,
1996, among the Borrowers, Lender, Guarantors and Holding (said
Credit Agreement, as so amended, the "Original Credit
Agreement"); and,
WHEREAS, pursuant to the Original Credit Agreement, the
Borrowers owed and delivered to the Lender a promissory note made
by the Borrowers dated August 8, 1996, payable to the order of
the Lender in the principal sum of $2,393,419.88, bearing
interest at the rate of 9.25% per annum (the "Existing Note"),-
and,
WHEREAS, the Existing Note has an existing principal
balance of $2,293,419.88, which amount is due and payable in full
under the terms of the Existing Note; and,
WHEREAS, the Borrowers, the Guarantors, and Holding have
all requested the Lender to extend the maturity date of the
Existing Note, and the Lender has agreed to do so, subject to the
terms and conditions of this Amendment.
NOW, THEREFORE, the patties hereto agree as follows:
SECTION 1. Amendments to the Existing Note and the Original
Credit Agreement.
(a) Section 1.1.4 of the Original Credit Agreement is
hereby amended to read in its entirety as follows:
"Commitment" stall mean the obligation of the
Lender to extend the maturity date of the Existing
Note under the terms and conditions set forth herein.
(b) Section 1.1.20 of the Original Credit Agreement is
hereby amended to read in its entirety as follows:
"Maturity Date" means the earlier to occur of (1)
March 17, 1997, or (11) the earlier date of the
Lenders acceleration of the Obligations pursuant to
Section 8.1 hereof
(c) Section 1.1.21 of the Original Credit Agreement is
hereby amended to read in its entirety as follows:
"Existing Note" means that certain promissory
note made by the Borrowers dated August 8, 1996,
payable to the order of the Lender in the principal
sum of $2,393,419.88.
(d) Section 2.1 of the Original Credit Agreement is
hereby amended to read in its entirety as follows:
The Lender agrees, subject to the terms and conditions
hereof, to renew and extend $2,293,419.88 of the
indebtedness of the Borrowers heretofore evidenced by
the Existing Note from the date hereof until the
Maturity Date.
(e) Section 2.2 of the Original Credit Agreement is
hereby amended to read in its entirety as follows:
The Note. The $2,293,419.88 in indebtedness heretofore
evidenced by the Existing Note shall continue to be
evidenced by the Existing Note, as amended hereby. The
Existing Note is hereby amended so that it shall
continue to be payable on demand, or if no demand is
made, in monthly installments of accrued and unpaid
interest, with such payments to be due and payable on
the 17th day of each month from the date hereof
through and until the Maturity Date, at which time all
principal and accrued interest shall be payable in
full (said note, as so amended, is herein referred to
as the "Note").
Likewise, the Existing Note is also hereby amended as provided in
the foregoing amendment to Section 2.2 of the Original Credit
Agreement by amending the payment provisions and maturity date
such that the Existing Note shall continue to be payable on
demand, or if no demand is made, in monthly installments of
accrued and unpaid interest, with such payments to be due and
payable on the 17th day of each month from the date hereof
through and until the March 17, 1997, at which time all principal
and accrued interest shall be payable in full. In addition, all
references in the Original Credit Agreement to the term "Note"
are hereby amended to refer the Note, as defined herein.
(f) Article IV of the Original Credit Agreement is
hereby deleted in its entirety and replaced with the following:
ARTICLE IV
CONDITIONS PRECEDENT AND CONDITIONS
SUBSEQUENT
4.1 The obligation of Lender to honor the
Commitment is subject to the following conditions
precedent:
(a) The representations and warranties of
Borrowers set forth herein, or in any other document
furnished to under in connection herewith, shall be
true and correct, when made and on and as of the date
of the renewal of the Obligations pursuant hereto, as
if restated in flail on and as of such date;
(b) Lender shall have received specific corporate
resolutions of Development Corporation and Holdings
and proof Of authority for the person or persons
signing this Amendment, the Note or any of the
Collateral Documents on behalf of Lumber Company or
any Guarantor which is a trust or estate, all of which
must be satisfactory in form and substance to Lender;
(c) Lender shall have received, in form and
substance, satisfactory to Lender, fully executed
counterparts of this Amendment, the Note, and the
modification to the Lumber Company Note;
(d) No Default or Event of Default exists hereunder
or shall result from the transactions contemplated
hereby (except as may have been waived by Lender in
writing);
(e) Lender shall have received opinions of counsel
for Borrowers, Guarantors and Holding, in form and
substance satisfactory to Lender; and,
(f) Lender shall have received a fully executed
counterpart of an amendment to the Servicing Agreement,
in form and substance satisfactory to it.
4.2 Conditions Subsequent. Lenders obligations to
allow the Obligations to remain outstanding shall be
subject to the satisfaction of the following conditions
subsequent:
(a) To the extent the opinion of counsel to
Borrowers cannot state that no court orders am
required in connection with the transactions
contemplated hereby from the Succession of Xxxxxx
Xxxxxxxxx, tile Estate of Xxxx X. Xxxxx, and the
Estate of Xxxx Xxxxxxxxx Xxxxx, such court order shall
be obtained to Lender's satisfaction on or prior to
February 28, 1997;
(b) Lender shall xxxxx, on or before February 23,
1997, an endorsement to the title policy insuring the
Mortgage pursuant to which the title shall be brought
current through the date of this Amendment, which
shall evidence no liens against the Lands and Leases
covered by the Mortgage other than the Mortgage and
other mortgages or liens which have been consented to
in writing by the Lender; and,
(c) Holding shall continue to deposit a minimum of
$15,000.00 per month, in the deposit account affected
by the Holding Assignment of Deposit Account.
(g) Section 8.1 of the Original Credit Agreement is
hereby amended to revise subparagraph (i) thereof to read in its
entirety as follows:
(i) Failure of the Borrowers to deliver to
the Lender the title insurance endorsement required
pursuant to section 4.2(b) hereof on or prior to
February 28, 1997, or the failure of the Borrowers to
timely obtain and deliver to Lender the court orders,
if any, required pursuant to Section 4.2(a) hereof;
SECTION 2. No Defaults; Representations True. The Borrowrs,
the Guarantors, and Holding hereby represent and warrant that, to
the best of their knowledge, no Event of Default or potential
Event of Default has occurred and is continuing as of the date
hereof under the Original Credit Agreement, as amended hereby,
and that, to the best of their knowledge, all of the
representations, warranties, and covenants made in the Note and
in Original Credit Agreement, and in all other documents
pertaining or relating to the Original Credit Agreement, as
amended hereby, are, as of the date hereof true and correct in
all material aspects.
SECTION 3. No Defenses The Borrowers represent and
warrant that there is no defense, offset, compensation,
counterclaim or reconventional demand with respect to amounts due
under, or performance of, the terms of the Note; and to the
extent any such defense, offset, compensation, counterclaim or
reconventional demand or other causes of action might exist
whether known or unknown, such items are hereby waived by the
Borrowers.
SECTION 4. Modification of Lumber Company Note. The Lender
agrees to allow the Borrowers to enter into a modification of the
Lumber Company Note, as defined in the Original Credit Agreement,
which the Lender currently holds in pledge pursuant to the Lumber
Company Note Pledge, as defined in the Original Credit Agreement,
to provide that its payment terms are the same as the payment
terms of the Note, as amended hereby.
SECTION 5. Conditions Precedent. This Amendment is
expressly subject to the prior satisfaction of the conditions
precedent set forth in Articles 4.1 of the Original Credit
Agreement, as amended hereby.
SECTION 6. No Novation. Nothing in this Agreement shall
constitute the satisfaction or extinguishment of the amounts owed
under the Existing Note, nor shall it be a novation of the
amounts owed under the Existing Note, as the same has been
amended hereby. Nothing contained in this Agreement shall he
deemed to imply any obligation of the Lender to renew the Note
beyond its extended final maturity date of March 17, 1997, or
beyond the date of the Lender's earlier acceleration thereof
pursuant to Section 8.1 of the Original Credit Agreement, as
amended hereby.
SECTION 7. Ratification and Confirmation. Except as
expressly modified herein, all terms and provisions of the
Existing Note and of the Original Credit Agreement, and all terms
and provisions of all other documents securing or evidencing the
obligations of the Borrowers under the Original Credit Agreement,
as amended hereby (including without limitation those Collateral
Documents described in Section 3.2 of the Original Credit
Agreement) are hereby ratified and confirmed, and shall be and
shall remain in full force and effect, enforceable in accordance
with their terms. The Borrowers hereby confirm and ratify all
Collateral Documents to which they are a party, and agree that
such instruments shall continue to apply to and secure payment
of; without limitation, the indebtedness of the Borrowers to the
Lender arising pursuant to the Original Credit Agreement (as
amended hereby) and the Note. The Borrowers and the Lender
hereby acknowledge that the Collateral Note (as defined in the
Original Credit Agreement) has been constantly held by the Lender
since November 16, 1987, pursuant to the terms of the Pledge (as
defined in the Original Credit Agreement), and that the Lender
shall continue to hold the Collateral Note in pledge pursuant to
the terms and provisions of the Pledge (as defined in the Or-i
Credit Agreement), as confirmed and ratified hereby.
SECTION 8. Intervention by Guarantors. Now to these
presents intervene the Guarantors (including without limitation,
the undersigned representative of the Succession of Xxxxxx X.
Xxxxxxxxx, who acknowledges, confirms and ratifies the Guaranty
of Xxxxxx X. Xxxxxxxxx and the prior pledge of Xxxxxx X.
Xxxxxxxxx of his partnership interest in Lumber Company pursuant
to the Partnership Pledge, and the undersigned representative of
the Estate of Xxxx Xxxxxxxxx Xxxxx, who acknowledges, confirms
and ratifies the Guaranty of Xxxx Xxxxxxxxx Xxxxx), who hereby
agree to the terms of this Agreement, who further confirm and
ratify (i) their respective Guaranties, as defined in the
Original Credit Agreement, guaranteeing payment of the
indebtedness of the Borrowers to the Lender, and (ii) the
Partnership Pledge, as defined in the Original Credit Agreement,
and who agree that such Guaranties and Partnership Pledge shall
continue to apply to and secure payment of, without limitation,
the indebtedness of the Borrowers to the Lender arising pursuant
to the Original Credit Agreement (as amended hereby) and the
Note, as amended hereby.
SECTION 9. Intervention by Holding. Now to these presents
intervenes Holding, who hereby agrees to the terms of this
Amendment. Holding does hereby further confirm and ratify the
Holding Security Agreement, the Holding Collateral Assignment,
the Lumber Company Note (as modified), the vendors lien and
mortgage securing the Lumber Company Note, and the Lumber Company
Note Pledge (subject to the terms of the modification of the
Lumber Company Note as anticipated herein), and the Holding
Assignment of Deposit Account, and agrees that such instruments
shall continue to apply to and secure payment of; without
limitation, the indebtedness of the Borrowers to the Lender
arising pursuant to the Original Credit Agreement (as amended
hereby) and the Note (as amended hereby). Lumber Company, Holding
and the Lender hereby acknowledge that the Lumber Company Note
has been constantly held by the Lender since May 29, 1991,
pursuant to the terms of the Lumber Company Note Pledge, and that
the Lender shall continue to hold the Lumber Company Note (as
modified with the consent of Lender pursuant to the provisions of
Section 4 hereof) in pledge pursuant to the terms and provisions
of the Lumber Company Note Pledge, as confirmed and ratified
hereby.
SECTION 10. Fees and Expenses. Holding hereby agrees to
pay all fees, taxes, costs and expenses of the Lender in
connection with the preparation, negotiation, execution, and
delivery of this Amendment and of all Collateral Documents (or
modifications or confirmations thereof) executed in connection
with the transactions contemplated hereby, including without
limitation the disbursements and reasonable fees of counsel to
the Lender and the costs of the endorsement to the title policy
required hereunder, and the Borrowers and Holding hereby agree to
bound in solido to the Bank for the payment of all costs and
expenses of the Lender in connection with the enforcement of the
Original Credit Agreement, as amended hereby, the Note or the
other Collateral Documents, including reasonable attorney's fees
and disbursements incurred in connection therewith.
SECTION 11. Further Assurances. The Borrowers, Guarantors,
and Holding agree to do, execute, acknowledge and deliver, all
and every such further acts and instruments as the Lender may
reasonably require for the better assuring and confirming unto
the Lender an singular the rights granted or intended to be
granted hereby or hereunder.
SECTION 12. Capitalized Terms. All capitalized terms used
herein and not otherwise defined herein shall have the meanings
ascribed to them in the Original Credit Agreement.
SECTION 13. Counterparts. This Amendment may be executed
by the parties hereto in any number of separate counterparts,
each of which when so executed and delivered shall be deemed to
be an original and all of which when taken together shall
constitute but one and the same instrument.
SECTION 14. Governing Law; Binding Effect. This Amendment
shall be governed by and construed in accordance with the laws of
the State of Louisiana and shall be binding upon the parties
hereto and their respective successors and assigns.
SECTION 15. Headings. Section headings in this Amendment
are included herein for the convenience of reference only and
shall not constitute part of this Amendment for any other
purpose.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by themselves or their duly
authorized representatives as of January 28, 1997.
WITNESSES: THE BORROWERS:
XXXXXXX-XXXXX DEVELOPMENT CORPORATION
_______________________
By:_________________________
Xxxx X. Xxxxx, III, President
________________________
LUTCHER & XXXXX CYPRESS LUMBER COMPANY,
A Louisiana partnership in Commendam
By: The Xxxx Xxxxxxxxx Xxxxx Irrevocable Trust,
its General Partner
________________________
By:____________________
Xxxx X. Xxxxx, Xx.,
its Successor Trustee
________________________
________________________
By:________________________
Xxxxxxx Xxxx Stream,
its General Partner
________________________
THE LENDER:
THE FIRST NATIONAL BANK OF LAKE
XXXXXXX
________________________
By:____________________________
Xxxxx X. Xxxxxxx,
Executive Vice President
________________________
THE INTERVENORS:
ESTATE OF XXXX XXXXXXXXX XXXXX
_______________________
By:____________________________
Xxxx X. Xxxxx, Xx.,
______________________ Its Executor
ESTATE OF XXXX X. XXXXX
______________________
By:_____________________________
Xxxx X. Xxxxx, III
______________________ Independent Co-Executor
THE XXXX XXXXXXXXX XXXXX
IRREVOCABLE TRUST
_______________________
By:___________________________
Xxxx X. Xxxxx, Xx.,
_______________________ its Successor Trustee
_______________________
______________________________
XXXXXXX XXXX STREAM
_______________________
XXXX XXXX TRUST
________________________
By:___________________________
Xxxxxx X. Xxxxx, III,
________________________ its Co-Trustee
________________________
By:__________________________
Xxxxx X. Xxxxxxxxxxx,
______________________ its Co-Trustee
______________________
_______________________________
XXXXXX X. STREAM, III
______________________
SUCCESSION OF XXXXXX X. XXXXXXXXX
______________________
By:______________________________
Xxxxxxxx Xxxxxx Xxxxxxxxx,
_____________________ Executrix
_____________________
_________________________________
XXXXXXXX XXXXXX XXXXXXXXX
______________________
X.X. HOLDING ASSOCIATES, L.P.,
A Louisiana Partnership in
Commendam
By: XCL Land Ltd., its
General Partner
__________________________
By:________________________
Title:_____________________
__________________________
