FOURTH MODIFICATION AND EXTENSION AGREEMENT
Exhibit
10.11
When
recorded, return to:
▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇
This
FOURTH MODIFICATION AND EXTENSION AGREEMENT (“Agreement”)
is
made to be effective as of the 30th day of May, 2005 (the “Effective
Date”),
by
and between COMERICA
BANK,
a
Michigan banking corporation, successor by merger to Comerica Bank-Texas
(“Lender”),
and
STRATUS
PROPERTIES INC.,
a Delaware corporation, STRATUS
PROPERTIES OPERATING CO., L.P.,
a
Delaware limited partnership, CIRCLE
C LAND, L.P.,
a Texas
limited partnership, f/k/a Circle C Land Corp., and AUSTIN
290 PROPERTIES, INC.,
a Texas
corporation (herein individually and collectively referred to as “Borrower”),
and
OLY
STRATUS BARTON CREEK I JOINT VENTURE,
a
Texas
joint venture ("▇▇▇▇▇▇
Creek JV").
W
I T N E
S S T H :
WHEREAS,
Borrower, as Maker, executed that certain Promissory Note dated December 16,
1999, in the original principal amount of $20,000,000.00 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 $5,000,000.00 U.S. and the addition of a limited
revolving feature) pursuant to (i) that certain Amendment to Promissory Note
dated as of December 27, 2000 (the “First
$5,000,000.00 Revolving Note Amendment”)
executed by and between Borrower and Lender, (ii) that certain Second Amendment
to Promissory Note (the “Second
$5,000,000.00 Revolving Note Amendment”)
dated
as of December 18, 2001 executed by and between Borrower and Lender, (iii)
that
certain Third Modification and Extension Agreement dated as of June 30, 2003
executed by and between Borrower and Lender (the "Third
Extension"),
and
(iv) that certain Third Amendment to Promissory Note dated as of June 23, 2004
(the “Third
$5,000,000.00 Revolving Note Amendment”)
executed by and between Borrower and Lender (said note, as amended by the First
$5,000,000.00 Revolving Note Amendment, the Second $5,000,000.00 Revolving
Note
Amendment, the Third Extension and the Third $5,000,000.00 Revolving Note
Amendment, is herein called the “$5,000,000.00
Revolving Note”),
and
which evidences an indebtedness (the “$5,000,000.00
Revolving Loan”)
from
Lender to Borrower in connection with and pursuant to that certain Loan
Agreement dated December 16, 1999, executed by and between Borrower and Lender,
which loan agreement was amended by (w) that certain Amendment to Loan Agreement
dated December 27, 2000 (the "First
Loan Modification")
executed by and between Borrower and Lender, (y) the Second Amendment to Loan
Agreement dated December 18, 2001 (the "Second
Loan Modification")
executed by and between Borrower and Lender, (y) the Third Extension, and (z)
that certain Third Amendment to Loan Agreement dated as of June 23, 2004 (the
"Third
Loan Modification")
executed by and between Borrower and Lender (said loan agreement, as amended
by
the First Loan Modification, the Second Loan Modification, the Third Extension
and the Third Loan Modification, is herein called the “Loan
Agreement”);
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 was
amended (whereby the stated principal amount of such Revolving Credit Note
was
increased to $25,000,000.00 U.S.) pursuant to (i) that certain Amendment to
Revolving Credit Note dated as of December 27, 2000 (the “First
Revolving Credit Note Amendment”)
executed by and between Borrower and Lender, (ii) that certain Second Amendment
to the Revolving Credit Note dated as of December 18, 2001 (the “Second
Revolving Credit Note Amendment”)
executed by and between Borrower and Lender, (iii) the Third Extension, and
(iv)
that certain Third Amendment to the Revolving Credit Note dated as of June
23,
2004 (the “Third
Revolving Credit Note Amendment”)
executed by Borrower and Lender (said note, as amended by the First Revolving
Credit Note Amendment, the Second Revolving Credit Note Amendment, the Third
Extension and the Third Revolving Credit Note Amendment, is herein called 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
(the
Revolving Credit Note and the $5,000,000.00 Revolving Note, each as amended,
are
hereinafter collectively referred to as the “Notes”,
and
the Revolving Credit Loan and the $5,000,000.00 Revolving Loan are hereinafter
collectively referred to as the “Loans”);
and
WHEREAS,
the $5,000,000.00 Revolving Note and the Revolving Credit Note are
cross-defaulted and cross-collateralized as evidenced by a Cross-Default and
Cross-Collateralization Agreement recorded in multiple counties where the
Mortgaged Property is located, and are secured by, among other things and
without limitation, multiple Deeds of Trust and Second Lien Deeds of Trust,
as
modified by (i) the First Deed of Trust Modification (as hereinafter defined),
(ii) the Second Deed of Trust Modification (as hereinafter defined), (iii)
the
Third Extension and (iv) the Third Modification Agreement dated as of June
23,
2004 executed by and between Borrower, ▇▇▇▇▇▇ Creek JV and Lender, recorded
as
Document No. 2004127628 of the Real Property Records of ▇▇▇▇▇▇ County, Texas
and
as Document No. 04019600 of the Real Property Records of ▇▇▇▇ County, Texas
(said Deeds of Trust and Second Lien Deeds of Trust as modified, being herein
collectively referred to as the “Deeds
of Trust”
or the
“Lien
Instruments”)
dated
December 16, 1999, executed by Borrower and originally delivered to ▇▇▇▇
▇. ▇▇▇,
as
trustee, which trustee has been changed to ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, (“Trustee”),
for
the benefit of Lender, which Deeds of Trust are described as
follows:
|
(1)
|
Deed
of Trust dated December 16, 1999, executed by Stratus Properties
Operating
Co., L.P. and delivered to Trustee for the benefit of Lender, recorded
under Document Number 1999158707 of the Official Public Records of
▇▇▇▇▇▇
County, Texas, covering real property located in ▇▇▇▇▇▇ County, Texas,
as
more particularly described
therein;
|
|
(2)
|
Deed
of Trust dated December 16, 1999, executed by Circle C Land Corp.
and
delivered to Trustee for the benefit of Lender, recorded under Document
Number 1999158708 of the Official Public Records of ▇▇▇▇▇▇ County,
Texas,
covering real property located in, ▇▇▇▇▇▇ County, Texas, as more
particularly described therein;
|
|
(3)
|
Second
Lien Deed of Trust dated December 16, 1999, executed by Circle C
Land
Corp. and delivered to Trustee for the benefit of Lender, recorded
under
Document Number 1999158709 of the Official Public Records of ▇▇▇▇▇▇
County, Texas, and under Document Number 9929849 of the Deed Records
of
▇▇▇▇ County, Texas, covering real property located in ▇▇▇▇▇▇ and
▇▇▇▇
Counties, Texas, as more particularly described
therein;
|
|
(4)
|
Deed
of Trust dated December 16, 1999, executed by Stratus Properties
Operating
Co., L.P. and delivered to Trustee for the benefit of Lender, recorded
under Document Number 1999158710 of the Official Public Records of
▇▇▇▇▇▇
County Texas, covering real property located in ▇▇▇▇▇▇ County, Texas,
as
more particularly described
therein;
|
|
(5)
|
Deed
of Trust dated December 16, 1999, executed by Austin 290 Properties,
Inc.
and delivered to Trustee for the benefit of Lender, recorded under
Document Number 1999158711 of the Official Public Records of ▇▇▇▇▇▇
County, Texas, covering real property located in ▇▇▇▇▇▇ County, Texas,
as
more particularly described
therein;
|
|
(6)
|
Deed
of Trust dated December 16, 1999, executed by Stratus Properties
Operating
Co., L.P. and delivered to Trustee for the benefit of Lender, recorded
under Document Number 1999158712 of the Official Public Records of
▇▇▇▇▇▇
County, Texas, covering real property located in ▇▇▇▇▇▇ County, Texas,
as
more particularly described
therein;
|
|
(7)
|
Deed
of Trust dated December 16, 1999, executed by Stratus Properties
Operating
Co., L.P. and delivered to Trustee for the benefit of Lender, recorded
under Clerk’s File Number U138051 of the Official Public Records of Real
Property of ▇▇▇▇▇▇ County, Texas, covering real property located
in ▇▇▇▇▇▇
County, Texas, as more particularly described therein;
and
|
|
(8)
|
Deed
of Trust dated December 16, 1999, executed by Stratus Properties
Operating
Co., L.P. and delivered to Trustee for the benefit of Lender, recorded
in
Volume 8247, at Page 0791 of the Deed Records of Bexar County, Texas,
covering real property located in Bexar County, Texas, as more
particularly described therein.
|
WHEREAS,
the Notes are further secured by that certain additional Deed of Trust dated
as
of February 27, 2002 and recorded under Document No. 2002038536 of the Official
Public Records of ▇▇▇▇▇▇ County, Texas, covering that certain property commonly
known as the Escala Lots in the ▇▇▇▇▇▇ Creek Subdivision and being more fully
described therein, and said Deed of Trust is included in the definition "Deeds
of Trust" set forth in this Agreement for all purposes; and
WHEREAS,
the Mortgaged Property encumbered by that certain Deed of Trust dated December
16, 1999, executed by Stratus Properties Operating Co., L.P. and delivered
to
Trustee for the benefit of Lender, recorded under Clerk’s File Number 99
R0127438 of the Official Public Records of ▇▇▇▇▇▇ County, Texas has been
released and no longer secures the Loans; and
WHEREAS,
Lender and Borrower entered into that certain Modification Agreement made to
be
effective as of the 27th day of December, 2000 (the “First
Deed of Trust Modification”),
and
on the same date, (i) amended the Loan Agreement pursuant to the First Loan
Modification, (ii) amended the $5,000,000.00 Revolving Note pursuant to the
First $5,000,000.00 Revolving Note Amendment, and (iii) amended the Revolving
Credit Note pursuant to the First Revolving Credit Note Amendment;
and
WHEREAS,
the First Deed of Trust Modification was recorded in each of the counties where
the Mortgaged Property is located, such recording information being more fully
described as follows:
|
(1)
|
Recorded
under Document No. 2000204551 of the Official Public Records of ▇▇▇▇▇▇
County, Texas;
|
|
(2)
|
Recorded
under Document No. 00030106 of the Official Public Records of ▇▇▇▇
County,
Texas;
|
|
(3)
|
Recorded
in Volume 8689, Page 1807 of the Deed Records of Bexar County, Texas,
and
|
|
(4)
|
Recorded
under Clerk’s File No. U801037 of the Official Public Records of Real
Property of ▇▇▇▇▇▇ County, Texas.
|
WHEREAS,
Lender and Borrower entered into that certain Second Modification Agreement
made
to be effective as of the 18th day of December, 2001 (the “Second
Deed of Trust Modification”),
and
on the same date, (i) amended the Loan Agreement pursuant to the Second Loan
Modification, (ii) amended the $5,000,000.00 Revolving Note pursuant to the
Second $5,000,000.00 Revolving Note Amendment, and (iii) amended the Revolving
Credit Note pursuant to the Second Revolving Credit Note Amendment;
and
WHEREAS,
the Second Deed of Trust Modification was recorded in each of the counties
where
the Mortgaged Property is located, such recording information being more fully
described as follows:
|
(1)
|
Recorded
under Document No. 2001215158 of the Official Public Records of ▇▇▇▇▇▇
County, Texas;
|
|
(2)
|
Recorded
under Document No. 01031701 of the Official Public Records of ▇▇▇▇
County,
Texas;
|
|
(3)
|
Recorded
in Volume 9183, Page 1818 of the Deed Records of Bexar County, Texas,
and
|
|
(4)
|
Recorded
under Clerk’s File No. V490950 of the Official Public Records of Real
Property of ▇▇▇▇▇▇ County, Texas.
|
WHEREAS,
Lender and Borrower entered into that certain Third Modification Agreement
made
to be effective as of the 23rd day of June, 2004 (the “Third
Deed of Trust Modification”),
and
on the same date, (i) amended the Loan Agreement pursuant to the Third Loan
Modification, (ii) amended the $5,000,000.00 Revolving Note pursuant to the
Third $5,000,000.00 Revolving Note Amendment, and (iii) amended the Revolving
Credit Note pursuant to the Third Revolving Credit Note Amendment;
and
WHEREAS,
the Third Deed of Trust Modification was recorded in each of the counties where
the Mortgaged Property is located, such recording information being more fully
described as follows:
|
(1)
|
Recorded
under Document No. 2004127628 of the Official Public Records of ▇▇▇▇▇▇
County, Texas;
|
|
(2)
|
Recorded
under Document No. 04019600 of the Official Public Records of ▇▇▇▇
County,
Texas;
|
WHEREAS,
all of the real property covered by the foregoing Deeds of Trust which has
not
otherwise been released by the recordation of partial releases of lien executed
by Lender, together with all improvements, appurtenances, other properties
(whether real or personal), rights and interests described in and encumbered
by
such Deeds of Trust, are hereinafter collectively referred to as the
“Mortgaged
Property”.
The
$5,000,000.00 Revolving Note, the Revolving Credit Note, the Loan Agreement,
the
Deeds of Trust, and all other related documents executed by Borrower pertaining
to, evidencing or securing the Loans are hereinafter collectively referred
to as
the “Loan
Documents”;
and
WHEREAS,
the $5,000,000 Revolving Loan Maturity Date (as defined in the Third Loan
Modification) is now May 30, 2006, and the Revolving Credit Loan Maturity Date
(as defined in the Third Loan Modification) is now May 30, 2006, and Lender,
Borrower and Guarantor have agreed to an extension of the $5,000,000 Revolving
Loan Maturity Date and the Revolving Credit Loan Maturity Date to May 30, 2007,
upon the terms and provisions set forth herein.
NOW,
THEREFORE, for and in consideration of the 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, Lender and Borrower
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 Deeds of Trust or Loan Agreement, as the case may be, as previously modified
and as further modified herein.
3. Extension
of the $5,000,000 Revolving Loan Maturity Date.
Lender
and Borrower hereby agree, and the Loan Agreement is hereby amended to provide,
that the $5,000,000 Revolving Loan Maturity Date is May 30, 2007 for all
purposes. The $5,000,000 Revolving Note is hereby amended to provide that the
"Maturity Date" thereunder is May 30, 2007, at which time the unpaid principal
balance of the $5,000,000 Revolving Note, together with all accrued but uhpaid
interest thereon, shall be due and payable. The Borrower hereby renews, but
does
not extinguish, the $5,000,000 Revolving Note and the liens, security interests
and assignments created and evidenced by the Loan Documents, and in this regard,
all of the Loan Documents are hereby renewed and modified by extending the
$5,000,000 Revolving Loan Maturity Date as set forth herein. Borrower covenants
to observe, comply with and perform each of the terms and provisions of the
Loan
Documents, as modified hereby.
4. Extension
of the Revolving Credit Loan Maturity Date.
Lender
and Borrower hereby agree, and the Loan Agreement is hereby amended to provide,
that the Revolving Credit Loan Maturity Date is May 30, 2007 for all purposes.
The Revolving Credit Note is hereby amended to provide that the "Maturity Date"
thereunder is May 30, 2007, at which time the unpaid principal balance of the
Revolving Credit Note, together with all accrued but uhpaid interest thereon,
shall be due and payable. The Borrower hereby renews, but does not extinguish,
the Revolving Credit Note and the liens, security interests and assignments
created and evidenced by the Loan Documents, and in this regard, all of the
Loan
Documents are hereby renewed and modified by extending the Revolving Credit
Loan
Maturity Date as set forth herein. Borrower covenants to observe, comply with
and perform each of the terms and provisions of the Loan Documents, as modified
hereby.
5. Third
Modification of Deeds of Trust.
Borrower and Lender hereby agree to modify each and all of the Deeds of Trust
as
follows:
a. Definition
of Note.
The
definition of “Note” as contained in each of the Deeds of Trust is hereby
amended and replaced with the following definition:
"'Note':
Collectively, (1) that certain Promissory Note originally dated
December 16, 1999, incorporated herein by this reference, executed by
the
Borrower (as defined in the Loan Agreement) and payable to the order of
Beneficiary in the original principal amount of $20,000,000.00, as amended
by
(i) that certain Amendment to Promissory Note dated December 27, 2000, executed
by Borrower and Beneficiary, whereby such note was reduced to $10,000,000.00
and
the addition of a limited revolving feature was added, (ii) that certain Second
Amendment to Promissory Note dated as of December 18, 2001, executed by Borrower
and Beneficiary, whereby such note was further reduced to $5,000,000.00, (iii)
that certain Third Modification and Extension Agreement dated as of June 30,
2003 executed by and between Borrower and Beneficiary (the "Third
Extension"),
(iv)
that certain Third Amendment to Promissory Note dated as of June 23, 2004
executed by Borrower and Beneficiary, and (v) that certain Fourth Modification
and Extension Agreement dated as of May 30, 2005 executed by and between
Borrower and Beneficiary (the "Fourth
Extension"),
and
any and all renewals, modifications, rearrangements, reinstatements,
enlargements, or extensions of such promissory note or of any promissory note
or
notes given in renewal, substitution or replacement therefor; and (2) that
certain Revolving Credit Note originally dated December 16, 1999, incorporated
herein by this reference, executed by Borrower and payable to the order of
Beneficiary in the original principal amount of $10,000,000.00, as amended
by
(i) that certain Amendment to Revolving Credit Note dated December 27, 2000,
executed by Borrower and Beneficiary whereby the stated principal amount of
such
Revolving Credit Note was increased to $20,000,000.00, (ii) that certain Second
Amendment to Revolving Credit Note dated December 18, 2001, executed by Borrower
and Beneficiary, whereby such note was increased to $25,000,000.00, (iii) the
Third Extension, (iv) that certain Third Amendment to Revolving Credit Note
dated as of June 23, 2004, executed by Borrower and Beneficiary and (v) the
Fourth Extension.”
b. Loan
Agreement.
The
definition of “Loan Agreement” as contained in each of the Deeds of Trust is
hereby further amended and replaced with the following definitions:
“'Loan
Agreement':
That
certain Loan Agreement dated December 16, 1999, by and between the Borrower
and
Beneficiary, as Lender, as previously amended by (i) that certain Amendment
to
Loan Agreement dated December 27, 2000, executed by and between the Borrower
and
Lender, (ii) that certain Second Amendment to Loan Agreement dated December
18,
2001 executed by and between the Borrower and Beneficiary, (iii) Third
Modification and Extension Agreement dated as of June 30, 2003 executed by
and
between Borrower and Beneficiary, (iv) that certain Third Amendment to Loan
Agreement dated June 23, 2004 executed by and between the Borrower and
Beneficiary and (v) the Fourth Modification and Extension Agreement dated as
of
May 30, 2005 executed by and between Borrower and Beneficiary.”
6. 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 Loan Documents as modified by the Loan
Modification Documents; (ii) the liens, security interests and assignments
created and evidenced by the Deeds of Trust and the other Loan Documents are,
respectively, valid and subsisting liens, security interests and assignments
of
the respective dignity and priority recited therein; (iii) there are no claims
or offsets against, or defenses or counterclaims to, the terms or provisions
of
the Loan Documents, and the other obligations created or evidenced by the 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 Loan Documents or Lender’s performance under the Loan Documents or
with respect to the Mortgaged Property; (v) the representations and warranties
of Borrower contained in the 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.
7. No
Waiver of Remedies.
Except
as may be expressly set forth herein, nothing contained in this Agreement 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.
8. 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 hereof and the consummation of the transaction contemplated
hereby, including, but not limited to, recording fees, title insurance policy
or
endorsement premiums, and reasonable fees and expenses of legal counsel to
Lender.
9. 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 Agreement and the terms and
provisions hereof, 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 hereby modified; and (iii)
such other matters as reasonably requested by Lender.
10. Effectiveness
of the Loan Documents.
Except
as expressly modified by the terms and provisions of this Agreement and the
other Loan Modification Documents, each of the terms and provisions of the
Deeds
of Trust 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
Loan
Documents to the Loans, the amounts constituting the Loans, any defined terms,
or to any of the other Loan Documents shall be deemed, from and after the date
hereof, to refer to the Loans, the amounts constituting the Loans, defined
terms
and to such other Loan Documents, as modified by this Agreement and the other
Loan Modification Documents.
11. Governing
Law.
THE TERMS AND PROVISIONS HEREOF SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
HEREIN.
12. Time.
Time is
of the essence in the performance of the covenants contained herein and in
the
Loan Documents.
13. Binding
Agreement.
This
Agreement shall be binding upon the heirs, executors, administrators, personal
representatives, successors and assigns of the parties hereto; provided,
however, the foregoing shall not be deemed or construed to (i) permit, sanction,
authorize or condone the assignment of all or any part of the Mortgaged Property
or any of Borrower’s rights, titles or interests in and to the Mortgaged
Property or any rights, titles or interests in and to Borrower, except as
expressly authorized in the Loan Documents, or (ii) confer any right, title,
benefit, cause of action or remedy upon any person or entity not a party hereto,
which such party would not or did not otherwise possess.
14. Continuing
Effect; Ratification.
Except
as expressly amended and modified by the First Deed of Trust Modification,
the
Second Deed of Trust Modification, the Third Extension, the Third Deed of Trust
Modification and this Agreement, the Deeds of Trust shall remain unchanged
and
in full force and effect. The Deeds of Trust, as further modified by this
Agreement, and all documents, assignments, transfers, liens and security rights
pertaining to them, are hereby ratified, reaffirmed and confirmed in all
respects as valid, subsisting and continuing in full force and effect. The
Deeds
of Trust and this Agreement shall together comprise the Deeds of Trust securing
the Loans.
15. No
Novation.
It is
the intent of the parties that this Agreement shall not constitute a novation
and shall in no way limit, diminish, impair or adversely affect the lien
priority of the Deeds of Trust. All of the liens and security interests securing
the Loans, including, without limitation, the liens and security interests
created by the Deeds of Trust, are hereby ratified, reinstated, renewed,
confirmed and extended to secure the Loans and the Notes, as modified by the
Loan Modification Documents.
16. Headings.
The
section headings hereof are inserted for convenience of reference only and
shall
in no way alter, amend, define or be used in the construction or interpretation
of the text of such section.
17. Severability.
If any
clause or provision of this Agreement 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 Agreement shall not be affected thereby, and that in
lieu
of each such clause or provision of this Agreement 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.
18. Counterparts.
To
facilitate execution, this Agreement may be executed in as many counterparts
as
may be convenient or required. It shall not be necessary that the signature
and
acknowledgment of, or on behalf of, each party, or that the signature and
acknowledgment of all persons required to bind any party, appear on each
counterpart. All counterparts shall collectively constitute a single instrument.
It shall not be necessary in making proof of this Agreement to produce or
account for more than a single counterpart containing the respective signatures
and acknowledgment of, or on behalf of, each of the parties hereto. Any
signature and acknowledgment page to any counterpart may be detached from such
counterpart without impairing the legal effect of the signatures and
acknowledgments thereon and thereafter attached to another counterpart identical
thereto except having attached to it additional signature and acknowledgment
pages.
19. THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT AMONG
THE PARTIES HERETO AND THERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED
OR
VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS
OR
DISCUSSIONS OF THE PARTIES HERETO OR THERETO. THERE ARE NO ORAL AGREEMENTS
AMONG
THE PARTIES HERETO OR THERETO. THE PROVISIONS OF THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS MAY BE AMENDED OR WAIVED ONLY BY AN INSTRUMENT IN WRITING SIGNED
BY THE RESPECTIVE PARTIES TO SUCH DOCUMENTS.
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF, Borrower and Lender have executed this Agreement to be
effective as of the Effective Date.
LENDER:
COMERICA
BANK,
a
Michigan banking corporation, successor by merger to Comerica
Bank-Texas
By: /s/
▇▇▇▇▇ ▇.
▇▇▇▇▇
Name: ▇▇▇▇▇
▇.
▇▇▇▇▇
Title: Senior
Vice
President
BORROWER:
STRATUS
PROPERTIES INC.,
a
Delaware corporation
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇
▇▇▇▇
▇.
▇▇▇▇▇, Senior Vice President
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,
its Sole Member
|
By: /s/
▇▇▇▇ ▇.
▇▇▇▇▇
▇▇▇▇
▇.
▇▇▇▇▇, Senior Vice President
CIRCLE
C LAND, L.P.,
a Texas
limited partnership,
f/k/a
Circle C Land Corp.
|
By:
|
Circle
C GP, L.L.C., a Delaware limited liability
company,
its general partner
|
|
By:
|
Stratus
Properties, Inc., a Delaware
corporation,
its Sole Member
|
By: /s/
▇▇▇▇ ▇.
▇▇▇▇▇
▇▇▇▇
▇.
▇▇▇▇▇, Senior Vice President
AUSTIN
290 PROPERTIES, INC.,
a Texas
corporation
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇
▇▇▇▇
▇.
▇▇▇▇▇, Senior Vice President
▇▇▇▇▇▇
CREEK JV:
OLY
STRATUS BARTON CREEK I JOINT
VENTURE,
a
Texas
joint venture
By: STRS
L.L.C., a Delaware limited liability company,
Venturer
By: STRATUS
PROPERTIES INC., a Delaware
corporation, its sole member
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇
▇▇▇▇
▇.
▇▇▇▇▇, Senior Vice President
|
By:
|
STRATUS
ABC WEST I, L.P., a Texas limited
partnership,
Venturer
|
|
By:
|
STRS
L.L.C., a Delaware limited liability
company,
General Partner
|
\
|
By:
|
Delaware
corporation, its sole
member
|
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇
▇▇▇▇
▇.
▇▇▇▇▇,
Senior
Vice President
STATE
OF
TEXAS §
§
COUNTY
OF
DALLAS §
This
instrument was ACKNOWLEDGED before me, on the 24th day of May, 2005,
by
▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President of COMERICA
BANK,
a
Michigan banking corporation, successor by merger to Comerica Bank-Texas, on
behalf of said banking corporation.
[SEAL]
/s/
▇▇▇▇▇
▇▇▇▇▇▇
Notary
Public, State of Texas
▇▇▇▇▇
▇▇▇▇▇▇
Printed
Name of Notary Public
My
Commission Expires:
2/2/2008.
STATE
OF
TEXAS §
§
COUNTY
OF
▇▇▇▇▇▇
§
This
instrument was ACKNOWLEDGED before me on the 24th of May, 2005, by ▇▇▇▇
▇.
▇▇▇▇▇, Senior Vice President of STRATUS
PROPERTIES INC.,
a
Delaware corporation, on behalf of said corporation.
[SEAL]
/s/ ▇▇▇▇▇
▇▇▇▇▇▇
Notary
Public, State of Texas
▇▇▇▇▇ ▇▇▇▇▇▇
Printed
Name of Notary Public
My
Commission Expires:
2-2-2008.
STATE
OF
TEXAS §
§
COUNTY
OF
▇▇▇▇▇▇
§
This
instrument was ACKNOWLEDGED before me, on the 24th day of May, 2005,
by
▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President of STRATUS
PROPERTIES INC.,
a
Delaware corporation, sole member of STRS,
L.L.C.,
a
Delaware limited liability company, general partner of STRATUS
PROPERTIES OPERATING CO., L.P.,
a
Delaware limited partnership, on behalf of said limited
partnership.
[SEAL]
/s/ ▇▇▇▇▇
▇▇▇▇▇▇
Notary
Public, State of Texas
▇▇▇▇▇
▇▇▇▇▇▇
Printed
Name of Notary Public
My
Commission Expires:
2-2-2008.
STATE
OF
TEXAS §
§
COUNTY
OF
▇▇▇▇▇▇
§
This
instrument was ACKNOWLEDGED before me, on the 24th day of May, 2005,
by
▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President of STRATUS
PROPERTIES INC.,
a
Delaware corporation, sole member of Circle C GP, L.L.C., a Delaware limited
liability company, general partner of CIRCLE
C LAND, L.P.,
a Texas
limited partnership, f/k/a Circle C Land Corp., on behalf of said limited
partnership.
[SEAL]
/s/
▇▇▇▇▇
▇▇▇▇▇▇
Notary
Public, State of Texas
▇▇▇▇▇
▇▇▇▇▇▇
Printed
Name of Notary Public
My
Commission Expires:
2-2-2008.
STATE
OF
TEXAS §
§
COUNTY
OF
▇▇▇▇▇▇
§
This
instrument was ACKNOWLEDGED before me, on the 24th day of May, 2005,
by
▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President of AUSTIN
290 PROPERTIES, INC.,
a Texas corporation, on behalf of said corporation.
[SEAL]
/s/ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
Notary
Public, State of Texas
▇▇▇▇▇ ▇▇▇▇▇▇
Printed
Name of Notary
Public
My
Commission Expires:
2-2-2008.
STATE
OF
TEXAS §
§
COUNTY
OF
▇▇▇▇▇▇
§
This
instrument was ACKNOWLEDGED before me, on the 24th day of May, 2005,
by
▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President of STRATUS
PROPERTIES INC.,
a
Delaware corporation, sole member of STRS,
L.L.C.,
a
Delaware limited liability company, venturer of OLY
STRATUS BARTON CREEK I JOINT VENTURE
STRATUS,
a Texas
joint venture, on behalf of said joint venture.
[SEAL]
/s/ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
Notary
Public, State of Texas
▇▇▇▇▇ ▇▇▇▇▇▇
Printed
Name of Notary Public
My
Commission Expires:
2-2-2008.
STATE
OF
TEXAS §
§
COUNTY
OF
▇▇▇▇▇▇
§
This
instrument was ACKNOWLEDGED before me, on the 24th day of May, 2005,
by
▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President of STRATUS
PROPERTIES INC.,
a
Delaware corporation, sole member of STRS,
L.L.C.,
a
Delaware limited liability company, general partner of STRATUS
ABC WEST I, L.P.,
a Texas
limited partnership, venturer of OLY
STRATUS BARTON CREEK I JOINT VENTURE
STRATUS,
a Texas
joint venture, on behalf of said joint venture.
[SEAL]
/s/
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
Notary
Public, State of Texas
▇▇▇▇▇ ▇▇▇▇▇▇
Printed
Name of Notary
Public
My
Commission Expires:
2-2-2008.