MODIFICATION OF NON-NEGOTIABLE PROMISSORY
NOTE AND WAIVER AGREEMENT
Dated as of June _______, 1995
BE IT KNOWN that on the dates and at the places hereinafter
set forth below, before us, the undersigned Notaries Public, duly
commissioned and qualified in and for our respective
jurisdictions and in the presence of the undersigned competent
witnesses,
PERSONALLY CAME AND APPEARED:
LUTCHER & MOORE CYPRESS LUMBER COMPANY, a Louisiana
partnership in commendam, ("Lumber Company"), herein
represented by its Managing General Partners, Mary Elizabeth
Mecom Irrevocable Trust, represented by its Trustee, Mary
Elizabeth Mecom, and Matilda Gray Stream; and
L. M. HOLDING ASSOCIATES, L. P., a Louisiana partnership in
commendam,("Holding"), appearing through its sole General
Partner XCL Land Ltd., a Louisiana corporation represented
by its duly authorized undersigned officer; and
who declared that:
WHEREAS, Holding has heretofore executed a promissory note
dated May 29, 1991, payable to the order of Lumber Company in the
original principal amount of $5,900,000.00, bearing interest at
the rate of eleven percent (11%) per annum, due in installments
as more fully described therein, (the "Note") a copy of which is
attached hereto and paraphed by the Notary before whom Matilda
Gray Stream, on behalf of Lumber Company has executed these
presents for identification herewith.
WHEREAS, the Note has been modified pursuant to the terms of
that certain Modification of Non-Negotiable Promissory Note and
Waiver Agreement dated as of September 1993 (herein "Mod-1") by
and among the parties hereto;
WHEREAS, the Note has been further Modified pursuant to the
terms of that certain Modification of Non-Negotiable Promissory
Note and Waiver Agreement dated April, 1994;
WHEREAS, the Note has been further Modified pursuant to the
terms of that certain Modification of Non-Negotiable Promissory
Note and Waiver Agreement dated May, 1994;
WHEREAS, Holding has requested that Lumber Company further
allow for the Modification of the Note and Lumber Company has
agreed to the same;
NOW THEREFORE, in consideration of the payments made on the
Note by Holding to Lumber Company, Holding and Lumber Company
hereby agree as follows:
1. MODIFICATION OF THE NOTE. The Note is hereby modified to
provide that the remaining principal is the sum of $2,883,717.84
and bears interest from and after June 15, 1995, at the rate of
Ten (10%) percent per annum, payable on demand, and if no demand
is made, in six (6) monthly installments of $52,300.00 each,
commencing July 15, 1995, and continuing on the same day of each
consecutive month thereafter, plus a final payment of all
outstanding principal and accrued interest due on January 13,
1996, unless sooner paid.
2. NO DEFAULTS, REPRESENTATIONS TRUE. Holding hereby
represents and warrants that no Event of Default or potential
Event of Default has occurred and is continuing as of the date
hereof under the Vendor's Lien and Mortgage, which secures the
payment of the Note, except for those which are being
specifically waived by Lumber Company herein, and that all the
representations of warranties and covenants made in the Note and
in the Vendor's Lien and Mortgage and all other documents
pertaining to or relating to the Note and the Vendor's Lien and
Mortgage are as of the date hereof true and correct in all
material respects.
3. NO DEFENSES. Holding hereby represents and warrants that
there is no defense, off-set, compensation, counter-claim or
reconventional demand with respect to the amounts due under, or
performance of, the terms of the Note; and to the extent any such
defense, off-set, compensation, counterclaim or reconventional
demand or other causes of action might exist whether known or
unknown, such items are hereby waived by Holding.
4 NO NOVATION. Nothing in this Agreement shall constitute the
satisfaction or extinguishment of the amount owed under the Note,
nor shall it be a novation of the amount owed under the Note.
5. RATIFICATION AND CONFORMATION. Except as expressly
modified herein, all terms and provisions of the Note and the
Vendor's Lien and Mortgage and all terms and provisions of all
other documents securing or evidencing the obligation of Holding
to Lumber Company under the Note and Vendor's Lien and Mortgage
are hereby ratified and confirmed, and shall be and remain in
full force and effect, enforceable in accordance with their
terms.
6. PAYMENT OF FEES AND EXPENSES. Holding agrees to pay and/or
reimburse the reasonable fees and expenses of counsel to Lumber
Company in connection with the collection of the Note, and the
negotiations and documentation of the Modification Agreements
signed in connection herewith and pay any title insurance
premiums as may be due in connection with the extension of the
Title Insurance insuring this Bank.
7. COUNTERPART ORIGINALS. This amendment may be executed by
the parties hereto in any number of separate counterparts, each
of which when so executed and delivered shall he deemed to be an
original and all of which taken together shall constitute but one
and the same instrument.
8. PARAPHED. The parties hereto authorize and direct the
Notary before whom Matilda Gray Stream executed this Agreement on
behalf of Lutcher & Moore Cypress Lumber Company, to paraph the
Note for identification with this Agreement.
THUS DONE AND SIGNED in my office at New Orleans, Louisiana,
on the _____ day of June, 1995, before the undersigned competent
witnesses, and me, Notary, after due reading of the whole.
WITNESSES: LUTCHER & MOORE CYPRESS LUMBER
COMPANY, a partnership in commendam
---------------------
BY: ------------------------------
--------------------- MATILDA GRAY STREAM, General Partner
------------------------------
NOTARY PUBLIC
My commission is for life
(SEAL)
THUS DONE AND SIGNED in my office at Houston, Texas, on the
____ day of June, 1995, before the undersigned competent
witnesses, and me, Notary, after due reading of the whole.
WITNESSES: LUTCHER & MOORE CYPRESS LUMBER
COMPANY, a partnership in commendam
------------------- BY: MARY ELIZABETH MECOM IRREVOCABLE
TRUST, (General Partner)
------------------- BY: ------------------------------
MARY ELIZABETH MECOM, its Trustee
----------------------------
NOTARY PUBLIC
My commission expires ------------------
(SEAL)
THUS DONE AND SIGNED in my office at Lafayette, Louisiana,
on the 29th day of June, 1995, before the undersigned competent
witnesses, and me, Notary, after due reading of the whole.
WITNESSES: L.M. HOLDINGS ASSOCIATES, L.P.
/s/ Clifford E. Klingler By: XCL Land Ltd.
------------------------ General Partner
/s/ John H. Haslam /s/ Pam Shanks
------------------------ By:----------------------------
Title: VP, CFO and Treasurer
/s/ Suzanne Marse Bourque
---------------------------
NOTARY PUBLIC
(SEAL)
My commission is for life.