THIRD AMENDMENT TO CREDIT AGREEMENT
Dated as of June 15, 1995
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this
"Amendment") is being entered into by and among LUTCHER-MOORE
DEVELOPMENT CORPORATION, a Louisiana corporation ("Development
Corporation"), LUTCHER & MOORE 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 CHARLES, a national banking
association (the "Lender"), with MARY ELIZABETH MECOM, THE ESTATE
OF JOHN W. MECOM, THE MARY ELIZABETH MECOM IRREVOCABLE TRUST,
MATILDA GRAY STREAM, THE OPAL GRAY TRUST, HAROLD H. STREAM, III,
THE SUCCESSION OF EDWARD CARMOUCHE, and VIRGINIA MARTIN CARMOUCHE
(collectively, the "Guarantors"), as intervenors, and with L. M.
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, and by that certain Second Amendment to Credit Agreement
dated as of May 26, 1994, 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 May 26, 1994, payable to the order of
the Lender in the principal sum of $3,250,000.00, which promissory
note was amended by that certain Act of Correction to Promissory
Note dated June 1, 1994, by and between Lender and Borrowers (as
so amended, the "Existing Note"); and,
WHEREAS, the Existing Note has an existing principal balance
of $2,883,717.84, 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 $2,883,717.84 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 15, 1996, 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 May 26, 1994, payable
to the order of the Lender in the principal sum of
$3,250,000.00, as amended by that certain Act of
Correction to Promissory Note between Borrowers and
Lender dated June 1, 1994.
(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
$2,883,717.84 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 $2,883,717.84 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 June 15, 1995,
1995, payable to the order of the Lender in the
principal sum of $2,883,717.84, bearing interest at the
rate of 10% per annum, payable on demand, or if no
demand is made, in six (6) installments of $52,300.00
each, commencing July 15, 1995, 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;
(f) Lender shall have received a deposit
of $283,000.00 in the deposit account affected by the
Holding Assignment of Deposit Account; and,
(g) 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 Edward
Carmouche and the Estate of John W. Mecom, such court
orders shall be obtained to Lender's satisfaction within
45 days of the date hereof;
(b) Lender shall receive, on or before July 15,
1995, 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
$13,000 per month (commencing July, 1995),
exclusive of the $283,000.00 deposit required
pursuant to Section 4.1(f) hereof, 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 July 15, 1995, 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 June 15, 1996, 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 Edward M.
Carmouche, who acknowledges, confirms and ratifies the Guaranty of
Edward M. Carmouche and the prior pledge of his partnership
interest in Lumber Company pursuant to the Partnership Pledge),
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 June 15, 1995.
WITNESSES: THE BORROWERS:
/s/ David R. McDaniel
----------------------- LUTCHER-MOORE DEVELOPMENT
CORPORATION
/s/ J. William Becknell /s/ John W. Mecom III
----------------------- By:-------------------------
John W. Mecom, III, President
LUTCHER & MOORE CYPRESS LUMBER
COMPANY, A Louisiana Partnership
in Commendam
/s/ Pearline Tate
----------------------- By:---------------------------
The Mary Elizabeth Mecom
Irrevocable Trust, its
GeneralPartner
/s/ J. William Becknell /s/ Mary Elizabeth Mecom
----------------------- By:------------------------------
Mary Elizabeth Mecom,
its Trustee
----------------------- By:------------------------------
Matilda Gray Stream, its
General Partner
------------------------ THE LENDER:
THE FIRST NATIONAL BANK OF LAKE
CHARLES
------------------------ By:------------------------------
Wayne B. Gabbert,
Executive Vice President
THE INTERVENORS:
/s/ Pearline Tate
------------------------
/s/ Mary Elizabeth Mecom
/s/ J. William Becknell -------------------------------
------------------------ MARY ELIZABETH MECOM
ESTATE OF JOHN W. MECOM
/s/ Pearline Tate
------------------------
/s/ Mary Elizabeth Mecom
/s/ J. william Becknell By:-------------------------------
------------------------ Mary Elizabeth Mecom,
Independent Co-Executrix
/s/ David R. McDaniel
------------------------
/s/ John W. Mecom III
/s/ J. William Becknell By:--------------------------------
------------------------ John W. Mecom, III,
Independent Co-Executor
THE MARY ELIZABETH MECOM
IRREVOCABLE TRUST
/s/ Pearline Tate
------------------------
/s/ Mary Elizabeth Mecom
/s/ J. William Becknell By:---------------------------------
------------------------ Mary Elizabeth Mecom, its
Trustee
------------------------
---------------------------------
------------------------ MATILDA GRAY STREAM
OPAL GRAY TRUST
------------------------
By:------------------------------
------------------------ Harold Newton, its Co-Trustee
------------------------
By:------------------------------
------------------------ Bruce N. Kirkpatrick, its
Co-Trustee
------------------------
----------------------------------
------------------------ HAROLD H. STREAM, III
SUCCESSION OF EDWARD M. CARMOUCHE
-------------------------
By:-------------------------------
------------------------- Virginia Martin Carmouche,
Executrix
--------------------------
-------------------------------
-------------------------- VIRGINIA MARTIN CARMOUCHE
L.M. HOLDING ASSOCIATES, L.P.,
A Louisiana Partnership in Commendam
By: XCL Land Ltd., General Partner
-------------------------- /s/ Pam Shanks
By:-------------------------------
-------------------------- Title:VP, CFO and Treasurer