EIGHTH AMENDMENT TO CREDIT AGREEMENT
Dated as of July 29, 1997
THIS EIGHTH 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, by
that certain Fifth Amendment to Credit Agreement dated as of
August 8, 1996, among the Borrowers, Lender, Guarantors and
Holding, by that certain Amendment to Promissory Note and Sixth
Amendment to Credit Agreement dated as of January 28, 1997,
among Borrowers, Lender, Guarantors and Holding, and by that
certain Second Amendment to Promissory Note and Seventh
Amendment to Credit Agreement dated as of May 8, 1997, among
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 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 (said note, as
heretofore extended and modified, the "Existing Note"); and,
WHEREAS, the Existing Note, as heretofore extended, has an
existing principal balance of $1,993,419.88, 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 $1,993,419.88 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) January 17,
1998, or (ii) the earlier date of the Lender's 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, as heretofore
modified and extended by by that certain Amendment to
Promissory Note and Sixth Amendment to Credit Agreement dated
as of January 28, 1997, among Borrowers, Lender, Guarantors and
Holding, and by that certain Second Amendment to Promissory
Note and Seventh Amendment to Credit Agreement dated as of May
8, 1997, among Borrowers, Lender, Guarantors and Holding.
(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 $1,993,419.88 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 $1,993,419.88 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 July
29, 1997, payable to the order of the Lender in the principal
sum of $1,993,419.88, bearing interest at the rate of 9.25% per
annum, payable on demand, or if no demand is made, in monthly
installments of accrued interest outstanding as of each such
payment date, commencing August 17, 1997, 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) 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. Lender's 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 15,
1997;
(b) Lender shall receive, on or before August 15, 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
$7,000.00 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 15, 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 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 January 17,
1998, 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 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 fires 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 July 29, 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 W, Xxxxx, Jr., 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., General
Partner
__________________________
By:________________________
__________________________ Title:_____________________
