FIFTH AMENDMENT To CREDIT AGREEMENT
Dated as of August 8, 1996
THIS FIFTH 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, and by that certain
Fourth Amendment to Credit Agreement dated as of January 16,
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 executed and delivered to the Lender a promissory note
made by the Borrowers dated January 16, 1996, payable to the
order of the Lender in the principal sum of $2,713,056.03 (the
"Existing Note"); and,
WHEREAS, the Existing Note has an existing principal
balance of $2,393,419.88, 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 renew, extend and modify the terms of
repayment of the debt currently evidenced by the Existing Note,
and the Lender has agreed to do so, subject to the terms and
conditions of this Amendment.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendments to 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" shall mean the obligation of the
Lender to renew, extend and modify $2,393,419.88 of
the indebtedness of the Borrowers to the Lender
heretofore evidenced by 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 (i)
December 17, 1996, or (ii) 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 January 16, 1996,
payable to the order of the Lender in the principal
sum of $2,713,056.03.
(d) Section 2.1 of the Original Credit Agreement is
hereby amended to read in its entirety as follows:
The Commitment. The Lender agrees, subject to the
terms and conditions hereof, to renew and extend
$2,393,419.88 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 $2,393,419.88 in indebtedness
heretofore evidenced by the Existing Note being
renewed and extended (but not novated) pursuant to the
terms hereof shall be evidenced by a promissory note
made by both Borrowers in solido 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, payable on demand, or if no demand is
made, in four (4) installments of accrued interest
outstanding as of each such payment date, commencing
August 17, 1996, and continuing on the same day of
each month thereafter, plus a final payment of all
outstanding principal and accrued interest due on the
Maturity Date (the "Note").
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 Lender 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 full on and as of such date;
(b) Under 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 frilly 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 are
required in connection with the transactions
contemplated hereby from the Succession of Xxxxxx
Xxxxxxxxx, the Estate of Xxxx X. Xxxxx, and the Estate
of Xxxx Xxxxxxxxx Xxxxx, such court orders shall be
obtained to Lender's satisfaction on or prior to August
30, 1996;
(b) Lender shall receive, on or before August 30,
1996, 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
August 30, 1996, 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
Borrowers, 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.
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. Nothing contained in this
Agreement shall be deemed to imply any obligation of the Lender
to renew the Note beyond its final maturity date of December 17,
1996, or beyond the date of the Lenders 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
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
Original 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.
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 vendor's 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. 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 all and 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 August 8, 1996.
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 H 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:___________________________________
______________________
Title:________________________________
