Exhibit 10.19
AMENDMENT TO LOAN AGREEMENT
This AMENDMENT TO LOAN AGREEMENT (this "Amendment") is made
and entered into to be effective as of December 27, 2000 (the
"Amendment Date"), by and among STRATUS PROPERTIES INC., a
Delaware corporation ("Stratus"), STRATUS PROPERTIES OPERATING
CO., L.P., a Delaware limited partnership, CIRCLE C LAND CORP., a
Texas corporation, and AUSTIN 290 PROPERTIES, INC., a Texas
corporation (herein individually and collectively referred to as
the "Borrower"), and COMERICA BANK-TEXAS, a state banking
association (herein referred to as the "Lender").
W I T N E S S E T H:
WHEREAS, Borrower, as Maker, executed that certain
Promissory Note dated December 16, 1999, in the original
principal amount of $20,000,000 U.S., in favor of and payable to
the order of Lender, as Payee, which Promissory Note has been
amended (including, without limitation, a reduction in the stated
principal amount of such Promissory Note to $10,000,000.00 U.S.
and the addition of a limited revolving feature) pursuant to that
certain Amendment to Promissory Note of even date herewith
executed by Borrower and Lender (together, as amended, the
"Revolving Specific Advance Note"), which Revolving Specific
Advance Note evidences a loan (the "Revolving Specific Advance
Loan") made by Lender to Borrower in connection with and pursuant
to that certain Loan Agreement dated December 16, 1999, executed
by and among Borrower and Lender (the "Loan Agreement"), as
amended by this Amendment; and
WHEREAS, Borrower, as Maker, executed that certain Revolving
Credit Note dated December 16, 1999, in the original principal
amount of $10,000,000.00 U.S., in favor of and payable to the
order of Lender, as Payee, which Revolving Credit Note has been
amended (including, without limitation, an increase in the stated
principal amount of such Revolving Credit Note to $20,000,000.00
U.S.) pursuant to that certain Amendment to Revolving Credit Note
of even date herewith executed by Borrower and Lender (together,
as amended, the "Revolving Credit Note"), which Revolving Credit
Note evidences a loan (the "Revolving Credit Loan") made by
Lender to Borrower in connection with and pursuant to the Loan
Agreement, as amended by this Amendment (the Revolving Credit
Note and the Revolving Specific Advance Note, as amended, are
hereinafter collectively referred to as the "Notes", and the
Revolving Credit Loan and the Revolving Specific Advance Loan are
hereinafter collectively referred to as the "Loans"); and
WHEREAS, the current unpaid principal balance of the
Revolving Specific Advance Note as of the date hereof is
approximately $920,839.00 (the "Current Outstanding Principal
Balance of the Revolving Specific Advance Note"); and
WHEREAS, the current unpaid principal balance of the
Revolving Credit Note as of the date hereof is approximately
$4,434,167.00; and
WHEREAS, the Revolving Specific Advance Note and the
Revolving Credit Note are cross-defaulted and cross-
collateralized, and are secured by, among other things and
without limitation, the deeds of trust, assignments and other
items referenced in Section 5.1 of each of the Revolving Specific
Advance Note and the Revolving Credit Note, and further described
in the Loan Agreement, as the same have been amended pursuant to
that certain Modification Agreement of even date herewith
executed by Borrower and Lender (collectively, as amended, the
"Lien Instruments" or the "Security Instruments"); and
WHEREAS, Borrower hereby acknowledges that (i) Borrower is
obligated to Lender under the Notes, the Loan Agreement, the Lien
Instruments and the other Loan Documents (as such term is defined
in the Loan Agreement), (ii) Borrower has no defense, offset or
counterclaim with respect to the sums owed to Lender under the
Notes, the Loan Agreement, the Lien Instruments and the other
Loan Documents, or with respect to any covenant in the Notes, the
Loan Agreement, this Amendment, the Lien Instruments or any of
the other Loan Documents, and (iii) Lender, on and as of the date
hereof, has fully performed all obligations to Borrower which
Lender may have had or has on and as of the date hereof; and
WHEREAS, Borrower and Lender desire to enter into this
Amendment in order to modify and amend certain of the terms and
provisions of the Loan Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises
and the mutual covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower and Lender
hereby agree as follows:
1. Recitals. The recitals set forth above are true, accurate
and correct, and are incorporated herein by this reference.
2. Capitalized Terms. Any capitalized terms not defined herein
shall have the meaning ascribed to them in the Loan Agreement, as
modified hereby.
3. Modification of Loan Agreement. Borrower and Lender hereby
agree to modify the Loan Agreement as follows:
3.1 Modification of Defined Terms. The following defined terms,
as set forth in Addendum 1 of the Loan Agreement, as such terms
are used in the Loan Agreement (as modified hereby), are hereby
amended as follows:
(a) "Agreement": The term "Agreement" is hereby revised to
include this Amendment.
(b) "Deeds of Trust": The term "Deeds of Trust" is hereby
revised to include the Modification Agreement of even date with
this Amendment, executed by Borrower and Lender, whereby the
Deeds of Trust were amended as provided therein. The Deeds of
Trust, as amended, shall continue in full force and effect to
secure repayment of the Notes and the obligations of Borrower
under the Loan Agreement and this Amendment and the other Loan
Documents, as modified.
(c) "Extension Fee": The term "Extension Fee" is hereby deleted
in its entirety.
(d) "Extension Loans": The term "Extension Loans" is hereby
deleted in its entirety.
(e) "Loan Documents": The term "Loan Documents" is hereby
revised to include the Agreement (as modified by this Amendment),
the Notes (as modified by the Amendment to Promissory Note and by
the Amendment to Revolving Credit Note, as described in the
recitals to this Amendment), the Deeds of Trust (as modified by
the Modification Agreement described in subparagraph (b) above),
and all other documents, instruments or agreements included
within the definition of "Loan Documents" as set forth in the
Loan Agreement, as such documents may have been or may hereafter
be amended from time to time.
(f) "Loan Extension": The term "Loan Extension" is hereby
deleted in its entirety.
(g) "Loans": The definition of the term "Loans" is hereby
amended and replaced to read as follows:
"'Loans' shall mean, collectively, the
Revolving Credit Loan and the Revolving
Specific Advance Loan, and "Loan" shall mean
any of them."
(h) "Maximum Loan Amount": The definition of the term "Maximum
Loan Amount" is hereby amended and replaced to read as follows:
"'Maximum Loan Amount' shall mean the lesser
of: (i) thirty-five percent (35%) of the fair
market value of the Primary Collateral as
indicated by (A) the Primary Collateral
Appraisals delivered to and accepted by Bank
on or prior to the date hereof, or (B) at
Bank's option and Borrowers' expense, (1)
newly prepared and updated Primary Collateral
Appraisals acceptable to Bank effective as of
the date prepared and delivered to Bank (or
updates of the values presented in the
Primary Collateral Appraisals previously
delivered to and accepted by Bank) or (2)
recertifications of the accuracy and values
presented in the Primary Collateral
Appraisals delivered to and accepted by Bank
on or about the date hereof; provided that if
the Current Outstanding Principal Balance of
the Revolving Specific Advance Note is repaid
such that it is reduced to $10,000 or less
but the Specific Advance has not yet been
funded by Bank upon and subject to the terms
and conditions set forth herein, then thirty
percent (30%) of the fair market value of the
Primary Collateral as determined in
accordance with the foregoing; or (ii) the
sum of $30,000,000.00."
(i) "Notes": The definition of the term "Notes" is hereby
amended and replaced to read as follows:
"'Notes' shall mean, collectively, whether
one or more, the Revolving Credit Note and
the Revolving Specific Advance Note, and
"Note" shall mean any of them, executed and
delivered by Borrowers payable to the order
of Bank, evidencing the Loans, as the same
may be renewed, extended, modified, increased
or restated from time to time."
3.2 Substitution of Defined Terms. The following defined terms,
as set forth in Addendum 1 of the Loan Agreement, as such terms
are used in the Loan Agreement (as modified hereby), are hereby
amended, substituted and replaced as follows:
(a) The term "Revolving Loan" is hereby amended, substituted and
replaced to read "Revolving Credit Loan" throughout the Loan
Agreement (as modified hereby), and the definition of "Revolving
Loan" is hereby substituted and replaced with the following
"Revolving Credit Loan" definition:
"'Revolving Credit Loan' shall mean the Loan
made, or to be made, by Bank to or for the
credit of Borrowers in one or more Advances
not to exceed at any one time the Revolving
Credit Loan Maximum Amount, pursuant to this
Agreement, the Revolving Credit Note, and the
Loan Terms, Conditions and Procedures
Addendum."
(b) The term "Revolving Loan Maturity Date" is hereby amended,
substituted and replaced to read "Revolving Credit Loan Maturity
Date" throughout the Loan Agreement (as modified hereby), and
the definition of "Revolving Loan Maturity Date" is hereby
substituted and replaced with the following "Revolving Credit
Loan Maturity Date" definition:
"'Revolving Credit Loan Maturity Date' shall
mean December 16, 2002, or such earlier date
on which the entire unpaid principal amount
of the Revolving Credit Loan becomes due and
payable whether by the lapse of time,
acceleration or otherwise; provided, however,
if any such date is not a Business Day, then
the Revolving Credit Loan Maturity Date shall
be the next succeeding Business Day."
(c) The term "Revolving Loan Maximum Amount" is hereby amended,
substituted and replaced to read "Revolving Credit Loan Maximum
Amount" throughout the Loan Agreement (as modified hereby), and
the definition of "Revolving Loan Maximum Amount" is hereby
substituted and replaced with the following "Revolving Credit
Loan Maximum Amount" definition:
"'Revolving Credit Loan Maximum Amount' shall
mean Twenty Million Dollars
($20,000,000.00)."
(d) The term "Revolving Loan Note" is hereby amended,
substituted and replaced to read "Revolving Credit Note"
throughout the Loan Agreement (as modified hereby), and the
definition of "Revolving Loan Note" is hereby substituted and
replaced with the following "Revolving Credit Note" definition:
"'Revolving Credit Note' shall mean the
Revolving Credit Note dated December 16,
1999, made by Borrowers payable to the order
of the Bank, as amended by that certain
Amendment to Revolving Credit Note dated
December 27, 2000, by and between Borrowers
and Bank, as the same may be renewed,
extended, modified, increased or restated
from time to time."
(e) The term "Term Loan" is hereby amended, substituted and
replaced to read "Revolving Specific Advance Loan" throughout
the Loan Agreement (as modified hereby), and the definition
of "Term Loan" is hereby substituted and replaced with the
following "Revolving Specific Advance Loan" definition:
"'Revolving Specific Advance Loan' shall mean
the Loan made, or to be made, by Bank to or
for the credit of Borrowers in no more than
two (2) Advances, including only (1) the
initial advance under the Revolving Specific
Advance Loan which Borrowers and Lender
acknowledge has already been advanced by
Lender to Borrowers, of which approximately
$920,839.00 currently remains outstanding as
of December 27, 2000 (the "Current
Outstanding Principal Balance of the
Revolving Specific Advance Loan"), and (2)
the Specific Advance, if made hereunder, in
an amount up to but not to exceed Ten Million
Dollars ($10,000,000), which Advances
together shall not exceed at any one time the
Revolving Specific Advance Loan Maximum
Amount, pursuant to this Agreement, the
Revolving Specific Advance Note, and the Loan
Terms, Conditions and Procedures Addendum."
(f) The term "Term Loan Maturity Date" is hereby amended,
substituted and replaced to read "Revolving Specific Advance
Loan Maturity Date" throughout the Loan Agreement (as modified
hereby), and the definition of "Term Loan Maturity Date" is
hereby substituted and replaced with the following "Revolving
Specific Advance Loan Maturity Date" definition:
"'Revolving Specific Advance Loan Maturity
Date' shall mean December 16, 2002, or such
earlier date on which the entire unpaid
principal amount of the Revolving Specific
Advance Loan becomes due and payable whether
by the lapse of time, acceleration or
otherwise; provided, however, if any such
date is not a Business Day, then the
Revolving Specific Advance Loan Maturity Date
shall be the next succeeding Business Day."
(g) The term "Term Note" is hereby amended, substituted and
replaced to read "Revolving Specific Advance Note" throughout
the Loan Agreement (as modified hereby), and the definition
of "Term Note" is hereby substituted and replaced with the
following "Revolving Specific Advance Note" definition:
"'Revolving Specific Advance Note' shall mean
that certain Promissory Note dated December
16, 1999, made by Borrowers payable to the
order of the Bank, as amended by that certain
Amendment to Promissory Note dated December
27, 2000, by and between Borrowers and Bank,
as the same may be renewed, extended,
modified, increased or restated from time to
time."
3.3 Additional Defined Terms. The following defined terms are
hereby added to and made a part of Addendum 1 to the Loan
Agreement, as such terms are used in the Loan Agreement (as
modified hereby):
(a) "Revolving Specific Advance Loan Maximum Amount" shall mean
Ten Million Dollars ($10,000,000.00)."
(b) "Specific Advance" shall mean the second (and final) Advance
under the Revolving Specific Advance Loan in an amount up to
but not to exceed the sum of $10,000,000 for the purposes
stated in, and pursuant to the terms and conditions of, this
Agreement, the Revolving Specific Advance Note, and the Loan
Terms, Conditions and Procedures Addendum. The Specific
Advance shall be deemed an Advance and included in the
definition of "Advance" for all purposes of this Agreement."
3.4 Modification of Capital Structure. Notwithstanding anything
to the contrary in the Loan Agreement, Borrowers may repurchase
(i) up to $10,000,000 of the outstanding common stock of Stratus,
plus (ii) up to $10,000,000 of the mandatorily redeemable
preferred stock of Stratus currently held by Olympus Realty;
provided, however, that all other terms, conditions and
restrictions set forth in the Loan Agreement (including, without
limitation, all other terms, conditions and restrictions set
forth in Sections 5.1, 5.7 and 5.8 of the Loan Agreement) shall
remain in full force and effect, except to the extent modified by
this Amendment.
3.5 Deletion of Covenant Regarding Olympus Agreements. Section
5.16 of the Loan Agreement is hereby deleted in its entirety.
3.6 Modification of Agreements to Lend. The first two (2)
sentences of Section 1.1 of Addendum 2 of the Loan Agreement are
hereby amended and replaced in their entirety with the following:
"Bank hereby agrees to lend to Borrowers up
to but not in excess of (i) with respect to
the Revolving Credit Loan, the Revolving
Credit Loan Maximum Amount, and (ii) with
respect to the Revolving Specific Advance
Loan, the Revolving Specific Advance Loan
Maximum Amount, and Borrowers hereby agree to
borrow such sums from Bank, all upon and
subject to the terms and provisions of this
Agreement, such sums to be evidenced by,
respectively, the Revolving Credit Note and
Revolving Specific Advance Note. Subject to
the terms and provisions of this Agreement,
the Notes, and the other Loan Documents,
principal repaid on (i) the Revolving Credit
Loan, and (ii) the Revolving Specific Advance
Loan (but only for purposes of the Specific
Advance, if made hereunder), may be
reborrowed by Borrowers."
Furthermore, the third sentence of Section 1.1 of Addendum 2
of the Loan Agreement is hereby deleted in its entirety. Except
as otherwise amended as provided above, the remainder of Section
1.1 of Addendum 2 of the Loan Agreement remains intact and in
full force and effect.
3.7 Modification of Advances. Borrower and Lender hereby
acknowledge that the first Advance under the Revolving Specific
Advance Loan has been made by Lender to Borrower. The Specific
Advance, being the second and final Advance to be made under the
Revolving Specific Advance Loan, may be made by Lender to
Borrower only upon and subject to the terms and conditions set
forth in the Loan Agreement, as modified by this Amendment.
Section 1.2 of Addendum 2 of the Loan Agreement, which in part
governs Advances, is hereby amended and replaced with the
following:
"1.2 Advances. The entire amount of the Specific
Advance under the Revolving Specific Advance Loan
shall be disbursed to Borrowers in only one (1)
Advance and only upon (i) repayment of the Current
Outstanding Principal Balance of the Revolving
Specific Advance Note, such that the Current
Outstanding Principal Balance of the Revolving
Specific Advance Note has been reduced to $10,000
or less, and (ii) satisfaction of all the terms
and conditions set forth in this Agreement that
apply to the Specific Advance (including, without
limitation, the terms and conditions set forth in
this Section 1.2, and Sections 1.1, 1.3, 1.4, 2.1,
2.3, 2.4, 2.5 and 2.15 of this Addendum 2, all of
which are hereby deemed to apply to the Specific
Advance unless otherwise agreed to by Bank). The
proceeds of the Revolving Credit Loan shall be
disbursed to Borrowers in one or more Advances
upon satisfaction of the applicable conditions to
Advances set forth in this Agreement."
3.8 Modification of Limitation on Advances. Section 1.3 of
Addendum 2 of the Loan Agreement is hereby amended and replaced
with the following:
"1.3 Limitation on Advances. Under no circumstances
shall Bank be required to disburse (i) any
proceeds of the Revolving Credit Loan that would
cause the outstanding balance thereof at any one
time to exceed the Revolving Credit Loan Maximum
Amount, (ii) any proceeds of the Revolving
Specific Advance Loan that would cause the
outstanding balance thereof at any one time to
exceed the Revolving Specific Advance Loan Maximum
Amount, or (iii) any proceeds of either of the
Loans that would cause the aggregate outstanding
balance of the Loans at any one time to exceed the
Maximum Loan Amount."
3.9 Extension of Maturity Dates and Cancellation of Extension
Option. The maturity dates of the Notes are extended pursuant to
the terms of the Notes (as amended) and this Amendment, and the
loan extension option referenced in Section 1.6 is hereby deemed
to be canceled and of no further force or effect. Accordingly,
Section 1.6 of Addendum 2 of the Loan Agreement is hereby deleted
in its entirety.
3.10 Modification of Advance Procedure. Section 2.1(c)(iii) of
Addendum 2 of the Loan Agreement is hereby amended and replaced
with the following:
"(iii) the making of such Advance will not cause (A)
the aggregate principal amount outstanding on the
Revolving Specific Advance Note to exceed the
Revolving Specific Advance Maximum Amount, (B) the
aggregate principal amount outstanding on the
Revolving Credit Note to exceed the Revolving
Credit Loan Maximum Amount, or (C) the aggregate
principal amount outstanding on both the Revolving
Specific Advance Note and the Revolving Credit
Note to exceed the Maximum Loan Amount;"
3.11 Modification of Voluntary Prepayment. Section 2.2 of
Addendum 2 of the Loan Agreement is hereby amended and replaced
with the following:
"2.2 Voluntary Prepayment. Borrowers may prepay all or
part of the outstanding balance under the
Revolving Specific Advance Note and/or the
Revolving Credit Note at any time, without
premium, penalty or prejudice to the right of
Borrowers to reborrow sums of the Loans under the
terms of this Agreement, subject to the terms and
conditions of the Loan Documents."
3.12 Addition of Revolving Specific Advance Maximum Amount to
Section 2.3 of Addendum 2: Section 2.3 of Addendum 2 of the
Loan Agreement is hereby amended and replaced with the following:
"2.3 Maximum Loan Amounts and Reduction of
Indebtedness. Notwithstanding anything contained
in this Agreement to the contrary, (i) the
aggregate principal amount of the Revolving Credit
Loan at any time outstanding shall not exceed the
Revolving Credit Loan Maximum Amount, and (ii) the
aggregate principal amount of the Revolving
Specific Advance Loan at any time outstanding
shall not exceed the Revolving Specific Advance
Loan Maximum Amount. If either of said
limitations is exceeded at any time, Borrowers
shall immediately, without demand by Bank, pay to
Bank an amount not less than such excess, or, if
Bank, in its sole discretion, shall so agree,
Borrowers shall provide Bank cash collateral in an
amount not less than such excess, and Borrowers
hereby pledge and grant to Bank a security
interest in such cash collateral so provided to
Bank."
3.13 Modification of Use of Proceeds of Loans. Section 2.5 of
Addendum 2 of the Loan Agreement is hereby amended and replaced
with the following:
"2.5 Use of Proceeds of Loans. The proceeds of the
first Advance under the Revolving Specific Advance
Loan (which Advance has already been made by Bank
to Borrowers hereunder) shall be used to repay
existing and outstanding Debt of Borrowers and the
costs and expenses incurred by Borrowers in
connection with the transactions contemplated by
this Agreement, and Borrowers shall promptly
provide written evidence satisfactory to Bank that
such Debt has been paid and discharged, and that
any and all security interests, mortgages and
other Liens and encumbrances securing such Debt
have been fully discharged and terminated. The
proceeds of the Specific Advance under the
Revolving Specific Advance Loan, if made
hereunder, shall be used solely for the purpose of
repurchasing and acquiring from Olympus Realty the
mandatorily redeemable preferred stock of Stratus
currently held by Olympus Realty, the amount of
which is estimated to be $10,000,000. Borrowers
shall promptly provide written evidence
satisfactory to Bank that such preferred stock has
been repurchased as provided above. The proceeds
of the Revolving Credit Loan shall be used for
pre-development costs, such as ▇▇▇▇▇▇▇ money
deposits, and property improvements in connection
with the Land and other working capital needs of
Borrowers, including corporate and project
general, administrative and operating costs,
pursuit costs, entitlement costs, taxes, business
endeavors associated with the development of
commercial and residential real properties and for
land acquisitions in accordance with the terms of
Section 2.18 of this Addendum."
3.14 Conditions to Subsequent Advances. The conditions precedent
to subsequent Advances under the Revolving Credit Loan as set
forth in Section 2.15 of Addendum 2 of the Loan Agreement shall
also apply to the Specific Advance to the extent required by
Lender, and shall further include payment of the fees set forth
in Section 4 of this Amendment. In the event that any such
condition precedent is not so satisfied but Lender elects to make
the Specific Advance notwithstanding the same, such election
shall not constitute a waiver of such condition and the condition
shall be satisfied prior to any further Advances under the
Revolving Credit Loan. In the event Borrowers are unable to
satisfy any such condition, no such Advance shall have the effect
of precluding Lender from thereafter declaring such inability to
be an Event of Default. Furthermore, Section 2.15(e) of Addendum
2 is hereby amended to read as follows:
"(e) Upon making the Advance on the Revolving Credit
Loan then requested and/or the Specific Advance
(if such Advance is made hereunder), as the case
may be, the amount outstanding on both the
Revolving Credit Loan and Revolving Specific
Advance Loan in the aggregate shall not exceed the
Maximum Loan Amount."
3.15 Modification of Additional Land Acquisitions. Section 2.18
of Addendum 2 of the Loan Agreement is hereby amended and
replaced with the following:
"2.18 Additional Land Acquisitions. Subject to the
satisfaction of all conditions precedent to
Advances on the Revolving Credit Loan, Bank hereby
agrees to make one or more Advances on the
Revolving Credit Loan to Borrowers in an amount
not to exceed, without prior Bank approval, (i)
$3,000,000 at any one time, or (ii) $10,000,000.00
in the aggregate, for the purpose of the
acquisition of fee title to real property,
provided that Borrowers (i) provide Bank with
information about such real property as Bank may
reasonably request, (ii) execute and deliver to
Bank a deed of trust, substantially in the form of
the Deeds of Trust, granting to Bank a deed of
trust first lien on such real property, (iii)
cause the Title Company to provide Bank with a
Title Policy insuring such deed of trust as a
first lien on such real property and containing
only such exceptions to title acceptable to Bank,
and in an amount and otherwise on terms and
conditions satisfactory to Bank, and (iv) execute
and deliver to Bank its proposed disposition plan
of such real property which must be reasonably
satisfactory to Bank. Any and all real estate
assets acquired in whole or part with Advances
made under this Section are sometimes referred to
as 'Section 2.18 Assets.' Notwithstanding
anything in this Agreement to the contrary, such
Section 2.18 Assets shall, for purposes of this
Agreement, be deemed to be included as 'Other
Collateral'; provided, however, that such Section
2.18 Assets may be designated as part of the
'Primary Collateral' by obtaining an appraisal, an
environmental audit and other documents that may
be required by Bank to classify such Section 2.18
Assets as 'Primary Collateral.'"
3.16 Modification of Application of Payments. Notwithstanding
anything to the contrary set forth in Section 2.20 of Addendum 2
to the Loan Agreement or in any of the other Loan Documents, so
long as no Event of Default exists, all payments made on any of
the Loans (including, without limitation, the application of net
proceeds received from MUD Reimburseables, the application of net
proceeds from the sale of Section 2.18 Assets, the application of
net proceeds from the sale of Primary Collateral or Other
Collateral or Partnership Distributions, the application of net
proceeds from the conveyance of Primary Collateral or Other
Collateral to a Related Party, and release price proceeds from
any other source) shall be applied in the following manner only
after such time as the Current Outstanding Principal Balance of
the Revolving Specific Advance Loan has been reduced to $10,000
or less (otherwise, the provisions of such Section 2.20 shall
continue to control in full force and effect):
(1) First, such proceeds shall be applied equally (i.e. on a
50%/50% basis) to pay interest current on each of the Revolving
Specific Advance Note and the Revolving Credit Note and to
withhold an amount necessary to pay interest current at month end
(and to establish or replenish the Interest Reserve Escrow
Account);
(2) Second, such proceeds shall be applied equally (i.e. on a
50%/50% basis) to pay any other sums (other than principal) then
due and payable under each of the Revolving Specific Advance Loan
and the Revolving Credit Loan;
(3) Third, such proceeds shall be applied equally (i.e. on a
50%/50% basis) to pay the outstanding principal balance then due
under each of the Revolving Specific Advance Note and the
Revolving Credit Note; and
(4) Any remaining proceeds after application pursuant to (1),
(2) and (3) above shall be distributed to Borrowers at their
discretion.
3.17 Modification of Release Provisions. Notwithstanding
anything in the Loan Agreement to the contrary, no release price
will be required for the release of either Primary Collateral or
Other Collateral from the lien of the Deeds of Trust in the event
such Primary Collateral or Other Collateral is the subject of
additional project financing by Lender pursuant to a separate
loan between any Borrower and Lender, and only so long as (i) in
connection with such loan, Lender has a first priority lien and
security interest in such Primary Collateral or Other Collateral
securing repayment of such loan, (ii) Borrower owns 100% of the
Primary Collateral or Other Collateral which is the subject of
such separate loan, and any and all equity in the project is
funded solely by Borrower without any third-parties having any
ownership or equity interest therein, and (iii) such loan is
cross-defaulted and cross-collateralized with the Loans to the
extent required by Lender. If the Land sought to be released as
provided above is Primary Collateral, then such Primary
Collateral shall be removed from the borrowing base (i.e., such
Primary Collateral shall be removed from the loan-to-value
calculations for purposes of determining the Maximum Loan Amount
allowed hereunder). Except as modified hereby, all of the
release provisions (including, without limitation, the provisions
requiring payment of a release price) as set forth in the Loan
Agreement will continue to apply with respect to any release of
Primary Collateral or Other Collateral.
3.18 Letters of Credit.
A. Conditions to Letters of Credit. Subject to the terms and
conditions set forth below in this Section 3.19, Borrower may,
prior to the maturity date of the Notes, request Lender to issue
one or more letters of credit (each a "Letter of Credit", and
together "Letters of Credit") under and as part of the Revolving
Credit Loan, provided that the following conditions are
satisfied:
(1) such Letter of Credit and any amounts to be disbursed or
advanced under such Letter of Credit shall be used only for the
same purposes as allowed for Advances under the Revolving Credit
Loan, as set forth in Section 2.5 of Addendum 2 of the Loan
Agreement;
(2) after taking into account any such Letter of Credit,
the sum of (i) the then existing LC Obligations (as defined below), plus
(ii) the then outstanding principal balance of the Revolving
Credit Loan, does not (and shall at no time) exceed the Revolving
Credit Loan Maximum Amount. Accordingly, the amount of all LC
Obligations, if any, shall be applied against the amount of
Advances available to Borrower under the Revolving Credit Loan;
(3) the expiration date of such Letter of Credit is not more
than six (6) months after the maturity date of the Notes;
(4) such Letter of Credit shall be classified as a "Standby"
Letter of Credit in accordance with applicable laws and
regulations applicable to Lender and in accordance with the
Lender's customary practices at such times for reporting to
regulatory authorities;
(5) the issuance of such Letter of Credit will be in compliance
with all applicable governmental restrictions, policies, and
guidelines and will not subject Lender to any cost which is not
reimbursable by Borrower under the Loan Documents;
(6) the form and terms of such Letter of Credit must be
acceptable to Lender in its sole discretion;
(7) all other conditions in this Amendment to the issuance of
such Letter of Credit shall have been satisfied;
(8) immediately before and after the issuance of such Letter of
Credit, no Event of Default shall have occurred and be
continuing, and no event shall have occurred which, with the
passage of time or notice, could constitute an Event of Default;
and
(9) the representations and warranties of Borrower contained in
the Loan Agreement (as modified hereby) and the other Loan
Documents shall be true and correct on and as of the date of
issuance of such Letter of Credit.
Lender will honor any such request by Borrower for the
issuance of a Letter of Credit if the foregoing conditions
(1) through (9) (collectively, the "LC Conditions") have been met
as of the date of issuance of such Letter of Credit. Lender may
choose to honor any such request for any other Letter of Credit
but has no obligation to do so and may refuse to issue any other
requested Letter of Credit for any reason which Lender in its
sole discretion deems relevant.
For purposes hereof, (i) the term "LC Obligations" means, at
the time in question, the sum of all Matured LC Obligations plus
the maximum amounts which Lender might then or thereafter be
called upon to advance under all Letters of Credit then
outstanding, and (ii) the term "Matured LC Obligations" means all
amounts paid by Lender on drafts or demands for payment drawn or
made under as purported to be under any Letter of Credit, and all
other amounts due and owing to Lender under any application by
Borrower for any Letter of Credit to be issued by Lender (a "LC
Application"), to the extent the same have not been repaid to
Lender (with the proceeds of an Advance or otherwise).
B. Requesting Letters of Credit. Borrower must make written
application for any Letter of Credit at least five (5) business
days before the date on which Borrower desires for Lender to
issue such Letter of Credit. By making any such written
application, Borrower shall be deemed to have represented and
warranted that the LC Conditions will be met as of the date of
issuance of such Letter of Credit. Two (2) business days after
the LC Conditions have been met (or if Lender otherwise desires
to issue such Letter of Credit), Lender will issue such Letter of
Credit at Lender's office in Dallas, Texas. If any provisions of
any LC Application conflict with any provisions of this
Amendment, the provisions of this Amendment shall govern and
control.
C. Reimbursement and Participations.
(1) Reimbursement by Borrower. Each Matured LC Obligation shall
constitute an Advance under the Revolving Credit Loan. To the
extent the same has not been repaid to Lender (with the proceeds
of an Advance under the Revolving Credit Loan or otherwise),
Borrower promises to pay to Lender, or to Lender's order, on
demand, (i) the full amount of each Matured LC Obligation,
whether such obligation accrues before or after the maturity date
of the Loans, together with (ii) interest thereon at a rate per
annum equal to the Applicable Base Rate (as such term is defined
in the Revolving Credit Note) until repaid in full; provided that
after the maturity date of the Loans or following a default or an
Event of Default under the Loan Agreement or the other Loan
Documents, such interest shall accrue at the Default Rate (as
such term is defined in the Revolving Credit Note).
(2) Letter of Credit Advances. If the beneficiary of any Letter
of Credit makes a draft or other demand for payment thereunder,
then Borrower may, during the interval between the making thereof
and the honoring thereof by Lender, request Lender to make an
Advance under the Revolving Credit Loan to Borrower in the amount
of such draft or demand, which Advance shall be made concurrently
with Lender's payment of such draft or demand and shall be
immediately used by Lender to repay the amount of the resulting
Matured LC Obligation. Such a request by Borrower shall be made
in compliance with all of the provisions hereof.
D. Letter of Credit Fees.
In consideration of Lender's issuance of any Letter of Credit,
Borrower agrees to pay to Lender a letter of credit issuance
fee at a rate equal to two percent (2.0%) per annum. Each such
fee will be calculated based on the term and face amount of such
Letter of Credit and the above applicable rate and will be payable
upon issuance. In no event shall the issuance fee be less than
$500.00 for any Letter of Credit.
E. No Duty to Inquire.
(1) Drafts and Demands. Lender is authorized and instructed to
accept and pay drafts and demands for payment under any Letter of
Credit without requiring, and without responsibility for, any
determination as to the existence of any event giving rise to
said draft, either at the time of acceptance of payment or
thereafter. Lender is under no duty to determine the proper
identity of anyone presenting such a draft or making such a
demand (whether by tested telex or otherwise) as the officer,
representative or agent of any beneficiary under any Letter of
Credit, and payment by Lender to any such beneficiary when
requested by any such purported officer, representative or agent
is hereby authorized and approved. Borrower agrees to hold
Lender harmless and indemnified against any liability or claim in
connection with or arising out of the subject matter of this
section, WHICH INDEMNITY SHALL APPLY WHETHER OR NOT ANY SUCH
LIABILITY OR CLAIM IS IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE
OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY, OR ARE
CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF
ANY KIND BY LENDER, provided only that Lender shall not be
entitled to indemnification for that portion, if any, of any
liability or claim which is proximately caused by its own
individual gross negligence or willful misconduct, as determined
in a final judgment.
(2) Extension of Letter of Credit Maturity. If the maturity of
any Letter of Credit is extended by its terms or by Law or
governmental action, if any extension of the maturity or time for
presentation of drafts or any other modification of the terms of
any Letter of Credit is made at the request of Borrower, or if
the amount of any Letter of Credit is increased at the request of
Borrower, this Amendment shall be binding upon Borrower with
respect to such Letter of Credit as so extended, increased or
otherwise modified, with respect to drafts and property covered
thereby, and with respect to any action taken by Lender, or
Lender's correspondents in accordance with such extension,
increase or other modification.
(3) Transferees of Letters of Credit. If any Letter of Credit
provides that it is transferable, Lender shall have no duty to
determine the proper identity of anyone appearing as transferee
of such Letter of Credit, nor shall Lender be charged with
responsibility of any nature or character for the validity or
correctness of any transfer or successive transfers, and payment
by Lender to any purported transferee or transferees as
determined by Lender is hereby authorized and approved, and
Borrower further agrees to hold Lender harmless and indemnified
against any liability or claim in connection with or arising out
of the foregoing, WHICH INDEMNITY SHALL APPLY WHETHER OR NOT ANY
SUCH LIABILITY OR CLAIM IS IN ANY WAY OR TO ANY EXTENT OWED, IN
WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY,
OR ARE CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR
OMISSION OF ANY KIND BY LENDER, provided only that Lender shall
not be entitled to indemnification for that portion, if any, of
any liability or claim which is proximately caused by its own
individual gross negligence or willful misconduct, as determined
in a final judgment.
F. LC Collateral.
(1) Acceleration of LC Obligations. On the maturity date of the
Notes, or if the Loans or either of them becomes immediately due
and payable pursuant to the Loan Documents, then, unless Lender
otherwise specifically elects to the contrary, all LC Obligations
shall become immediately due and payable without regard to
whether or not actual drawings or payments on the Letters of
Credit have occurred, and Borrower shall be obligated to pay to
Lender immediately an amount equal to the aggregate LC
Obligations which are then outstanding. All amounts so paid
shall first be applied to Matured LC Obligations and the
remainder will be held by Lender as security for the remaining LC
Obligations (all such amounts held as security for LC Obligations
being herein collectively called "LC Collateral") until such LC
Obligations become Matured LC Obligations, at which time such LC
Collateral shall be applied to such Matured LC Obligations.
(2) Investment of LC Collateral. Pending application thereof,
all LC Collateral shall be invested by Lender in such investments
as Lender may elect. All interest on such investments shall be
reinvested or applied to Matured LC Obligations. When all
indebtedness evidenced by the Notes and all LC Obligations have
been satisfied in full, all Letters of Credit have expired or
been terminated, and all of Borrower's reimbursement obligations
in connection therewith have been satisfied in full, Lender shall
release any remaining LC Collateral. Borrower hereby assigns and
grants to Lender a continuing security interest in all LC
Collateral, all investments purchased with such LC Collateral,
and all proceeds thereof to secure its Matured LC Obligations and
its obligations under this Amendment, the Loan Agreement, the
Notes and the other Loan Documents. Borrower further agrees that
Lender shall have all of the rights and remedies of a secured
party under the Uniform Commercial Code as adopted in the State
of Texas with respect to such security interest and that an Event
of Default under the Loan Agreement (as modified hereby) shall
constitute a default for purposes of such security interest.
(3) Payment of LC Collateral. When Borrower is required to
provide LC Collateral for any reason and fails to do so on the
day when required, Lender may without notice to Borrower provide
such LC Collateral (whether by transfers from other accounts
maintained with Lender or otherwise) using any available funds of
Borrower.
4. Payment of Fees.
(a) Contemporaneously with the execution and delivery of this
Amendment, Borrower shall remit to Lender cash funds in the
amount of $37,500.00, which sum shall be in payment of and as
additional consideration for the modification and extension of
the Revolving Specific Advance Loan. An additional $37,500.00
will be paid by Borrower to Lender at the time of the funding of
the Specific Advance (if such advance is made hereunder), which
sum shall be in payment of and further consideration for the
funding of the Specific Advance.
(b) Contemporaneously with the execution and delivery of this
Amendment, Borrower shall remit to Lender (i) cash funds in the
amount of $75,000.00, which sum shall be in payment of and as
additional consideration for the modification of the Revolving
Credit Loan, and (ii) an additional amount of $50,000.00 in
payment of and as additional consideration for the extension of
the maturity date of the Revolving Credit Loan as set forth
herein.
(c) Lender's obligation to make the Specific Advance or any
further Advances under the Revolving Credit Note are and shall be
subject to and further conditioned upon payment of the foregoing
fees.
5. ▇▇▇▇▇▇▇▇ Loan. Notwithstanding the limitations and
restrictions contained in Section 5.4 of the Loan Agreement to
the contrary, Lender hereby consents to an unsecured loan from
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., a Texas limited partnership
("▇▇▇▇▇▇▇▇") to Stratus Properties, Inc. ("Stratus") in a
principal amount not to exceed $10,000,000 (the "▇▇▇▇▇▇▇▇ Loan"),
provided that the following terms, covenants and restrictions
shall be satisfied and complied with at all times throughout the
term of the ▇▇▇▇▇▇▇▇ Loan until the Loans have been repaid in
full and all other obligations of Borrower under the Loan
Documents have been fully satisfied: (i) neither the stated
principal amount of the ▇▇▇▇▇▇▇▇ Loan, nor the outstanding
principal balance of the ▇▇▇▇▇▇▇▇ Loan, shall at any time exceed
$10,000,000; (ii) the proceeds of the ▇▇▇▇▇▇▇▇ Loan shall be used
only for general corporate purposes of Stratus, including the use
of such proceeds for the purpose of repurchasing the common stock
of Stratus; (iii) the ▇▇▇▇▇▇▇▇ Loan is not and shall at no time
be secured by any of the real property or other collateral
securing the Loans or otherwise be secured by any Liens in
contravention of any terms or provisions in the Loan Agreement
(including, without limitation, Section 5.5 thereof), as modified
hereby, or any of the other Loan Documents; (iv) Lender's rights
to receive, use and apply any and all proceeds and other amounts
as set forth in Sections 2.19 and 2.20 of Addendum 2 and
elsewhere in the Loan Agreement (as modified hereby) shall
continue in full force and effect and shall not be affected in
any manner by the ▇▇▇▇▇▇▇▇ Loan, and ▇▇▇▇▇▇▇▇ (and any subsequent
holder of the ▇▇▇▇▇▇▇▇ Loan) shall have no rights to the receipt
of any such proceeds, and Borrower shall not utilize any of such
proceeds for repayment of or application to any of the
indebtedness evidenced by the ▇▇▇▇▇▇▇▇ Loan except to the extent
permitted by Section 2.20 of Addendum 2 of the Loan Agreement (as
modified hereby); (v) without the prior written approval of
Lender, no proceeds of the Loans shall be used by Borrower to
repay any principal or other amounts then outstanding under the
▇▇▇▇▇▇▇▇ Loan, except that proceeds of the Revolving Credit Loan
may be used by Borrower for the repayment of ordinary interest
then due and payable under the ▇▇▇▇▇▇▇▇ Loan so long as no Event
of Default exists and is continuing under the Loan Agreement (as
modified hereby) or the other Loan Documents; (vi) without
Lender's written consent, Stratus and Borrower shall not prepay
any principal portion of the indebtedness under the ▇▇▇▇▇▇▇▇ Loan
during the first eighteen (18) months of the term of the ▇▇▇▇▇▇▇▇
Loan; and (vii) the promissory note, loan agreement and other
loan documents (if any) executed in connection with the ▇▇▇▇▇▇▇▇
Loan shall be on terms consistent with the foregoing and
otherwise on terms reasonably acceptable to Lender, and shall
not, without Lender's written consent, be amended or modified in
any manner that (a) conflicts with any of the foregoing terms,
covenants and restrictions, (b) increases the principal amount of
the ▇▇▇▇▇▇▇▇ Loan to more than $10,000,000, or (c) would cause a
default or an event of default under the Loan Agreement (as
modified hereby) or any of the other Loan Documents. Lender
hereby consents that ▇▇▇▇▇▇▇▇ may assign its interest in the
▇▇▇▇▇▇▇▇ Loan to American Select Portfolio Inc., a Minnesota
corporation, so long as the foregoing terms are complied with.
Borrower shall promptly provide Lender with a copy of any notice
of default received by Stratus or Borrower from ▇▇▇▇▇▇▇▇ (or the
then holder of the ▇▇▇▇▇▇▇▇ Loan) or delivered by Stratus or
Borrower to ▇▇▇▇▇▇▇▇ (or the then holder of the ▇▇▇▇▇▇▇▇ Loan),
in connection with the ▇▇▇▇▇▇▇▇ Loan. Any failure of Borrower or
the ▇▇▇▇▇▇▇▇ Loan to comply with any of the foregoing conditions,
covenants and restrictions set forth in items (i) through (vii)
above shall be an Event of Default under the Loan Agreement (as
modified hereby) and the other Loan Documents. Any default or
event of default under the ▇▇▇▇▇▇▇▇ Loan which continues beyond
any applicable grace or cure period thereunder shall also
constitute an Event of Default under the Loan Agreement (as
amended hereby) and the other Loan Documents.
6. Title Insurance. Contemporaneously with the execution and
delivery hereof, the Borrower shall cause the Title Company to
issue with respect to the mortgagee title policy previously
issued to Lender in connection with the Loans (the "Title
Policy"), the standard Texas Form T-38 Endorsement pursuant to
Rule P-9B(3) of the Basic Manual of Rules, Rates and Forms for
the Writing of Title Insurance in the State of Texas (the "Title
Manual"), and the Standard Texas Form T-33 Endorsement pursuant
to Rule P-9B(6) of the Title Manual, all acceptable to Lender,
confirming that the Title Policy has not been reduced or
terminated by virtue of the terms and provisions of this
Amendment and the other Loan Modification Documents (as defined
below).
7. Acknowledgment by Borrower. Except as otherwise specified
herein, the terms and provisions hereof shall in no manner
impair, limit, restrict or otherwise affect the obligations of
Borrower or any third party to Lender, as evidenced by the Loan
Documents. Borrower hereby acknowledges, agrees and represents
that (i) Borrower is indebted to Lender pursuant to the terms of
the Notes as modified; (ii) the liens, security interests and
assignments created and evidenced by the Security Instruments
are, respectively, valid and subsisting liens, security interests
and assignments of the respective dignity and priority recited in
the Security Instruments; (iii) there are no claims or offsets
against, or defenses or counterclaims to, the terms or provisions
of the Security Instruments or the other Loan Documents, and the
other obligations created or evidenced by the Security
Instruments or the other Loan Documents; (iv) Borrower has no
claims, offsets, defenses or counterclaims arising from any of
Lender's acts or omissions with respect to the Mortgaged
Property, the Security Instruments or the other Loan Documents or
Lender's performance under the Security Instruments or the other
Loan Documents or with respect to the Mortgaged Property; (v) the
representations and warranties of Borrower contained in the Loan
Agreement, the Security Instruments and the other Loan Documents
are and remain true and correct as of the date hereof; and (vi)
Lender is not in default and no event has occurred which, with
the passage of time, giving of notice, or both, would constitute
a default by Lender of Lender's obligations under the terms and
provisions of the Loan Documents.
8. No Waiver of Remedies. Except as may be expressly set forth
herein, nothing contained in this Amendment shall prejudice, act
as, or be deemed to be a waiver of any right or remedy available
to Lender by reason of the occurrence or existence of any fact,
circumstance or event constituting a default under the Notes or
the other Loan Documents.
9. Effectiveness of the Security Instruments. Except as
expressly modified by the terms and provisions of this Amendment,
the Amendment to Promissory Note referenced above, the Amendment
to Revolving Credit Note referenced above, and the Modification
Agreement referenced above (collectively, the "Loan Modification
Documents"), each of the terms and provisions of the Loan
Agreement, the Notes, the Security Instruments and the other Loan
Documents are hereby ratified and shall remain in full force and
effect; provided, however, that any reference in any of the
Security Instruments to the Loans, the amounts constituting the
Loans, any defined terms, or to any of the other Security
Instruments shall be deemed, from and after the date hereof, to
refer to the Loans, the amounts constituting the Loans, defined
terms and to the Notes, the Loan Agreement, the Lien Instruments
and such other Loan Documents, as modified by the Loan
Modification Documents.
10. Costs and Expenses. Contemporaneously with the execution
and delivery hereof, Borrower shall pay, or cause to be paid, all
costs and expenses incident to the preparation, execution and
recordation of the Loan Modification Documents and the
consummation of the transaction contemplated hereby, including,
but not limited to, recording fees, title insurance policy or
endorsement premiums or other charges of the Title Company, and
reasonable fees and expenses of legal counsel to Lender.
11. Additional Documentation. From time to time, Borrower shall
execute or procure and deliver to Lender such other and further
documents and instruments evidencing, securing or pertaining to
the Loans or the Loan Documents as shall be reasonably requested
by Lender so as to evidence or effect the terms and provisions
hereof. Upon Lender's request, Borrower shall cause to be
delivered to Lender an opinion of counsel, satisfactory to Lender
as to form, substance and rendering attorney, opining to (i) the
validity and enforceability of this Amendment and the other Loan
Modification Documents and the terms and provisions hereof and
thereof, and any other agreement executed in connection with the
transaction contemplated hereby; (ii) the authority of Borrower,
and any constituents of Borrower, to execute, deliver and perform
its or their respective obligations under the Loan Documents, as
modified by the Loan Modification Documents; and (iii) such other
matters as reasonably requested by Lender.
12. Severability. If any clause or provision of this Amendment
is or should ever be held to be illegal, invalid or unenforceable
under any present or future law applicable to the terms hereof,
then and in that event, it is the intention of the parties hereto
that the remainder of this Amendment shall not be affected
thereby, and that in lieu of each such clause or provision of
this Amendment that is illegal, invalid or unenforceable, such
clause or provision shall be judicially construed and interpreted
to be as similar in substance and content to such illegal,
invalid or unenforceable clause or provision, as the context
thereof would reasonably suggest, so as to thereafter be legal,
valid and enforceable
13. Borrower's Reaffirmation. Borrower hereby reaffirms all of
its obligations under the Notes (as amended), the Loan Agreement
(as amended hereby), the Lien Instruments (as amended) and the
other Loan Documents, and acknowledges that it has no claims,
offsets or defenses with respect to the payment of sums due under
the Notes (as amended), the Loan Agreement (as amended hereby),
the Lien Instruments (as amended) or the other Loan Documents.
14. Continuing Effect; Ratification. Except as expressly
amended and modified by this Amendment, the Loan Agreement shall
remain unchanged and in full force and effect. The Loan
Agreement, as modified by this Amendment, and all documents,
assignments, transfers, liens and security rights pertaining to
it, are hereby ratified, reaffirmed and confirmed in all respects
as valid, subsisting and continuing in full force and effect.
The Loan Agreement and this Amendment shall together comprise the
Loan Agreement with respect to the Loans.
15. No Waiver. The execution and delivery of this Amendment
shall in no way be deemed to be a waiver by Lender of any default
or potential default by Borrower under the Loan Agreement or the
other Loan Documents or of any rights, powers or remedies of
Lender under the Loan Agreement or the other Loan Documents, and
shall in no way limit, impair or prejudice Lender from exercising
any past, present or future right, power or remedy available to
it under the Loan Agreement and the other Loan Documents.
16. No Novation. It is the intent of the parties that this
Amendment shall not constitute a novation and shall in no way
limit, diminish, impair or adversely affect the lien priority of
the Lien Instruments. All of the liens and security interests
securing the Loans, including, without limitation, the liens and
security interests created by the Lien Instruments, are hereby
ratified, reinstated, renewed, confirmed and extended to secure
the Loans and the Notes as modified.
17. Binding Effect. This Amendment shall be binding upon and
shall inure to the benefit of Borrower and Lender, and their
respective successors and assigns.
18. Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of Texas.
19. Counterpart Execution. This Amendment may be executed in
any number of counterparts, each of which shall be deemed an
original, but together shall constitute one and the same
instrument.
20. Notice of Final Agreement. This Amendment is the entire
agreement between the parties with respect to modifications of
documents provided for herein and supersedes all prior
conflicting or inconsistent agreements, consents and
understandings relating to such subject matter.
THE NOTES, THE LOAN AGREEMENT, THIS AMENDMENT, THE LIEN
INSTRUMENTS AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN PARTIES.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, Borrower and Lender have executed this
Amendment to be effective as of the Amendment Date.
BORROWER:
STRATUS PROPERTIES INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
Title: Chairman of the Board, President
and Chief Executive Officer
STRATUS PROPERTIES OPERATING CO.,
L.P.,
a Delaware limited partnership
By: STRS L.L.C.,
a Delaware limited liability company,
General Partner
By: Stratus Properties Inc.,
a Delaware corporation,
Sole Member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ III
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
Title: Chairman of the Board, President
and Chief Executive Officer
CIRCLE C LAND CORP.,
a Texas corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ III
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
Title: President
AUSTIN 290 PROPERTIES, INC.,
a Texas corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ III
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
Title: President
LENDER:
COMERICA BANK-TEXAS,
a state banking association
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
AMENDMENT TO REVOLVING CREDIT NOTE
AMENDMENT TO REVOLVING CREDIT NOTE
This AMENDMENT TO REVOLVING CREDIT NOTE (this "Amendment")
is made and entered into to be effective as of December 27, 2000
(the "Amendment Date"), by and among STRATUS PROPERTIES INC., a
Delaware corporation, STRATUS PROPERTIES OPERATING CO., L.P., a
Delaware limited partnership, CIRCLE C LAND CORP., a Texas
corporation, and AUSTIN 290 PROPERTIES, INC., a Texas corporation
(herein individually and collectively referred to as the
"Borrower"), and COMERICA BANK-TEXAS, a state banking association
(herein referred to as the "Lender").
W I T N E S S E T H:
WHEREAS, Borrower, as Maker, executed that certain Revolving
Credit Note (the "Note") dated December 16, 1999, in the original
principal amount of $10,000,000 U.S., in favor of and payable to
the order of Lender, as Payee, which Note evidences a loan
("Loan") made by Lender to Borrower in connection with and
pursuant to that certain Loan Agreement dated December 16, 1999,
executed by and among Borrower and Lender, as amended by that
certain Amendment to Loan Agreement of even date herewith by and
among Borrower and Lender (together, as amended, the "Loan
Agreement"); and
WHEREAS, the Note is secured by, among other things and
without limitation, the deeds of trust, assignments and other
items referenced in Section 5.1 of the Note (collectively, the
"Lien Instruments"); and
WHEREAS, the current unpaid principal balance of the Note as
of the date hereof is approximately $4,434,167.00; and
WHEREAS, Borrower hereby acknowledges that (i) Borrower is
obligated to Lender under the Note, the Lien Instruments and the
other Loan Documents (as such term is defined in Section 5.1 of
the Note), (ii) Borrower has no defense, offset or counterclaim
with respect to the sums owed to Lender under the Note, the Lien
Instruments and the other Loan Documents, or with respect to any
covenant in the Note, this Amendment, the Lien Instruments or any
of the other Loan Documents, and (iii) Lender, on and as of the
date hereof, has fully performed all obligations to Borrower
which Lender may have had or has on and as of the date hereof;
and
WHEREAS, Borrower and Lender desire to enter into this
Amendment in order to modify and amend certain of the terms and
provisions of the Note as set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises
and the mutual covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower and Lender
hereby agree as follows:
1. Recitals. The recitals set forth above are true, accurate
and correct, and are incorporated herein by this reference.
2. Capitalized Terms. Any capitalized terms not defined herein
shall have the meaning ascribed to them in the Note.
3. Modification of Note. Borrower and Lender hereby agree to
modify the Note as follows:
3.1 Modification of Principal Amount of the Note. Borrower and
Lender hereby acknowledge that the current outstanding principal
balance of the Note as of the date hereof is approximately
$4,434,167.00, and Borrower and Lender hereby agree to modify and
increase the face principal amount of the Note from
$10,000,000.00 U.S. to $20,000,000.00 U.S. Accordingly, (i) the
face principal amount of the Note of "$10,000,000.00 U.S." as
indicated in the top left-hand corner on the first page of the
Note is hereby amended to be increased to the sum of
"$20,000,000.00 U.S.", and (ii) the principal sum of the Note of
"TEN MILLION AND NO/100 DOLLARS ($10,000,000.00)" in Section 1.1
of the Note is hereby amended to read "TWENTY MILLION AND NO/100
DOLLARS ($20,000,000.00)".
3.2 Revolving Nature of the Note. The Note shall continue as a
revolving promissory note, such that, prior to the Maturity Date,
a portion of the principal balance of the Note which has been
repaid may be reborrowed; provided, however, that the following
conditions are satisfied: (i) no default or event of default
exists and is continuing under the Note or any of the other Loan
Documents; (ii) the outstanding principal balance of the Note
does not at any time (and shall at no time) exceed the sum of
$20,000,000; and (iii) all additional terms and conditions set
forth in the Note and the Loan Agreement with respect to Advances
under the Note shall have been satisfied.
3.3 Extension of Maturity Date and Cancellation of Extension
Option. The maturity of the Note is hereby extended to December
16, 2002, and the Extension Option is hereby deemed to be
canceled and of no further force or effect. Accordingly, (i) the
definition of "Extension Option" contained in Section 2.3 of the
Note is hereby deleted in its entirety, and (ii) the definition
of "Maturity Date" contained in Section 2.3 of the Note is hereby
amended and replaced in its entirety with the following:
"'Maturity Date' shall mean December 16,
2002; subject, however, to the right of
acceleration as herein provided and as
provided elsewhere in the Loan Documents
(hereinafter defined)."
3.4 Modification of Applicable Base Rate. The definition of
"Applicable Base Rate" as set forth in Section 2.3 of the Note is
hereby amended to read as follows:
"'Applicable Base Rate' shall mean the lesser
of (a) the Base Rate from time to time in
effect plus one percent (1.0%) per annum, or
(b) the Maximum Lawful Rate; provided,
however, that upon repayment of the Current
Outstanding Principal Balance of the
Revolving Specific Advance Note (as such
Current Outstanding Principal Balance is
defined in the Revolving Specific Advance
Note, as amended) such that the Current
Outstanding Principal Balance of the
Revolving Specific Advance Note has been
reduced to $10,000.00 or less, then the
Applicable Base Rate for purposes of this
Note shall mean the lesser of (a) the Base
Rate from time to time in effect plus
one-half of one percent (.50%), or (b) the
Maximum Lawful Rate. Fluctuations in the
Applicable Base Rate shall become effective
immediately, without necessity for any notice
whatsoever."
3.5 Modification of Applicable LIBOR Rate. The definition of
"Applicable LIBOR Rate" as set forth in Section 2.3 of the Note
is hereby amended to read as follows:
"'Applicable LIBOR Rate' shall mean the
lesser of (a) the rate of interest equal to
the Adjusted LIBOR Rate in effect for the
subject Interest Period plus three percent
(3.0%) or (b) the Maximum Lawful Rate;
provided, however, that upon repayment of the
Current Outstanding Principal Balance of the
Revolving Specific Advance Note (as such
Current Outstanding Principal Balance is
defined in the Revolving Specific Advance
Note, as amended) such that the Current
Outstanding Principal Balance of the
Revolving Specific Advance Note has been
reduced to $10,000.00 or less, then the
Applicable LIBOR Rate for purposes of this
Note shall mean the lesser of (a) the rate of
interest equal to the Adjusted LIBOR Rate in
effect for the subject Interest Period plus
two and one-half of one percent (2.50%) or
(b) the Maximum Lawful Rate."
3.6 Definition of Loan Agreement. The definition of "Loan
Agreement" as set forth in Section 2.3 of the Note is hereby
amended to add the following clause at the end of such
definition:
", as amended by that certain Amendment to
Loan Agreement dated as of December 27, 2000,
by and between Maker, as borrower, and Payee,
as lender."
3.7 Definition of $20,000,000.00 Term Note. The definition of
"$20,000,000.00 Term Note" as set forth in Section 2.3 of the
Note is hereby deleted and amended to read as follows:
"'Revolving Specific Advance Note' shall mean
the Promissory Note dated December 16, 1999,
executed by Maker in favor of Payee, as
amended by that certain Amendment to
Promissory Note dated as of December 27,
2000, executed by and between Maker and
Payee, which Revolving Specific Advance Note
(as amended) is cross-defaulted and
cross-collateralized with this Note."
3.8 Modification of Payment Schedule. Section 3.1(b) of the
Note is hereby deleted in its entirety.
3.9 Modification of Prepayment Provisions. Section 3.6 of the
Note is hereby amended and replaced with the following:
"3.6 Prepayment. Maker shall have the right to prepay
without premium or penalty, subject to the other terms
and conditions in this Note, any principal then
outstanding under this Note but must also pay the
amount of then accrued but unpaid interest on the
amount of principal being so repaid. Any partial
prepayments of principal shall be applied in inverse
order of maturity to the last maturing installment(s)
of principal. Notwithstanding anything to the contrary
set forth in this Section 3.6, to the extent Maker
should attempt to effectuate a prepayment of all or any
portion of a LIBOR Rate Tranche, then any such
prepayment may be effectuated only on the last day of
the then current Interest Period applicable to such
LIBOR Rate Tranche, provided, however Maker may prepay
a LIBOR Rate Tranche provided the compensation called
for in Section 3.8 below is also paid simultaneously
with the LIBOR Rate Tranche prepayment."
4. Borrower's Reaffirmation. Borrower hereby reaffirms all of
its obligations under the Note (as amended hereby), the Lien
Instruments and the other Loan Documents, and acknowledges that
it has no claims, offsets or defenses with respect to the payment
of sums due under the Note (as amended hereby), the Lien
Instruments or the other Loan Documents.
5. Continuing Effect; Ratification. Except as expressly
amended and modified by this Amendment, the Note shall remain
unchanged and in full force and effect. The Note, as modified by
this Amendment, and all documents, assignments, transfers, liens
and security rights pertaining to it, are hereby ratified,
reaffirmed and confirmed in all respects as valid, subsisting and
continuing in full force and effect. The Note and this Amendment
shall together comprise the Note evidencing the Loan.
6. No Waiver. The execution and delivery of this Amendment
shall in no way be deemed to be a waiver by Lender of any default
or potential default by Borrower under the Note or the other Loan
Documents or of any rights, powers or remedies of Lender under
the Note or the other Loan Documents, and shall in no way limit,
impair or prejudice Lender from exercising any past, present or
future right, power or remedy available to it under the Note and
the other Loan Documents.
7. No Novation. It is the intent of the parties that this
Amendment shall not constitute a novation and shall in no way
limit, diminish, impair or adversely affect the lien priority of
the Lien Instruments. All of the liens and security interests
securing the Loan, including, without limitation, the liens and
security interests created by the Lien Instruments, are hereby
ratified, reinstated, renewed, confirmed and extended to secure
the Loan and the Note as modified hereby.
8. Binding Effect. This Amendment shall be binding upon and
shall inure to the benefit of Borrower, Lender and any subsequent
holder of the Note, and their respective successors and assigns.
9. Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of Texas.
10. Counterpart Execution. This Amendment may be executed in
any number of counterparts, each of which shall be deemed an
original, but together shall constitute one and the same
instrument.
11. Notice of Final Agreement. This Agreement is the entire
agreement between the parties with respect to modifications of
documents provided for herein and supersedes all prior
conflicting or inconsistent agreements, consents and
understandings relating to such subject matter.
THE NOTE, THIS AMENDMENT, THE LOAN AGREEMENT, THE LIEN
INSTRUMENTS AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN PARTIES.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, Borrower and Lender have executed this
Amendment to be effective as of the Amendment Date.
BORROWER:
STRATUS PROPERTIES INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ III
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
Title: Chairman of the Board, President
and Chief Executive Officer
STRATUS PROPERTIES OPERATING CO.,
L.P.,
a Delaware limited partnership
By: STRS L.L.C.,
a Delaware limited liability company,
General Partner
By: Stratus Properties Inc.,
a Delaware corporation,
Sole Member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ III
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇.▇▇▇▇▇▇▇▇▇, III
Title: Chairman of the Board,President
and Chief Executive Officer
CIRCLE C LAND CORP.,
a Texas corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ III
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
Title: President
AUSTIN 290 PROPERTIES, INC.,
a Texas corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ III
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
Title: President
LENDER:
COMERICA BANK-TEXAS,
a state banking association
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President