When recorded, return to: RECORD IN DEED OF TRUST RECORDS TRAVIS COUNTY, TEXAS Holland & Knight LLP
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxx
NOTICE OF CONFIDENTIALITY RIGHTS; IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER’S LICENSE NUMBER
This SIXTH MODIFICATION AGREEMENT (this “Agreement”) is dated effective as of May 31, 2023 (the “Effective Date”) by and between STRATUS PROPERTIES INC., a Delaware corporation (“Stratus”), STRATUS PROPERTIES OPERATING CO., L.P., a Delaware limited partnership (“SPOC”), CIRCLE C LAND, L.P., a Texas limited partnership (“Circle C”), AUSTIN 290 PROPERTIES, INC., a Texas corporation (“Austin”), THE VILLAS AT AMARRA DRIVE, L.L.C., a Texas limited liability company (“Amarra”), and STRATUS LAKEWAY CENTER, L.L.C., a Texas limited liability company (“Lakeway”) (Stratus, SPOC, Circle C, Austin, Amarra, and Lakeway are sometimes referred to in this Agreement severally as “Borrower”), and COMERICA BANK (“Lender”);
W I T N E S S E T H:
A.The following documents were previously executed and delivered by Xxxxxxxx, Magnolia East 000, X.X.X., a Texas limited liability company (“Magnolia”) and 210 Lavaca Holdings, L.L.C., a Texas limited liability company (“Lavaca”), to Lender, inter alia, relating to a loan (the “Loan”) in the original principal sum of $60,000,000.00, each dated June 29, 2018:
i.that certain Loan Agreement (the “Loan Agreement”);
ii.that certain Revolving Promissory Note, payable to the order of Lender in the original principal sum of $60,000,000.00 (the “Original Note”);
iii.that certain Deed of Trust, Security Agreement, Fixture Filing and Assignment of Rents from Stratus to Xxxxx X. Xxxxx, Trustee, securing the payment of the
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Note, covering certain real and personal property described therein, recorded under Clerk’s File No. 2018103071 of the Official Public Records of Travis County, Texas (the “Stratus Deed of Trust”);
iv.that certain Deed of Trust, Security Agreement, Fixture Filing and Assignment of Rents from Circle C to Xxxxx X. Xxxxx, Trustee, securing the payment of the Note, covering certain real and personal property described therein, recorded under Clerk’s File No. 2018103077 of the Official Public Records of Travis County, Texas (the “Circle C Deed of Trust”);
v.that certain Deed of Trust, Security Agreement, Fixture Filing and Assignment of Rents from SPOC to Xxxxx X. Xxxxx, Trustee, securing the payment of the Note, covering certain real and personal property described therein, recorded under Clerk’s File No. 2018103072 of the Official Public Records of Travis County, Texas, as affected by that certain Partial Release of Deed of Trust Lien dated effective as of February 8, 2023, executed by Xxxxxx, recorded under Clerk's File No. 2023013188 of the Official Public Records of Travis County, Texas (the “SPOC Deed of Trust”);
vi.that certain Deed of Trust, Security Agreement, Fixture Filing and Assignment of Rents from Amarra to Xxxxx X. Xxxxx, Trustee, securing the payment of the Note, covering certain real and personal property described therein, recorded under Clerk’s File No. 2018103073 of the Official Public Records of Travis County, Texas (the “Xxxxxx Xxxx of Trust”);
vii.that certain Deed of Trust, Security Agreement, Fixture Filing and Assignment of Rents from Lakeway to Xxxxx X. Xxxxx, Trustee, securing the payment of the Note, covering certain real and personal property described therein, recorded under Clerk’s File No. 2018103076 of the Official Public Records of Travis County, Texas (the “Lakeway Deed of Trust”)
viii.that certain Deed of Trust, Security Agreement, Fixture Filing and Assignment of Rents from Austin to Xxxxx X. Xxxxx, Trustee, securing the payment of the Note, covering certain real and personal property described therein, recorded under Clerk’s File No. 2018103078 of the Official Public Records of Travis County, Texas, (the “Xxxxxx Xxxx of Trust”; and together with the Stratus Deed of Trust, the Circle C Deed of Trust, the SPOC Deed of Trust, the Amarra Deed of Trust, and the Lakeway Deed of Trust, as they may be affected by various partial releases of lien executed by Xxxxxx prior to the Effective Date, are collectively referred to as the “Deed of Trust”);
ix.that certain Subordination Agreement, recorded under Clerk’s File No. 2018106189 of the Official Public Records of Travis County, Texas, executed by SPOC in favor of Xxxxxx (the “Subordination Agreement”);
x.that certain Security Agreement, executed by Xxxxxxx in favor of Xxxxxx (the “Stratus Security Agreement”); and
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xi.that certain Assignment of Reimbursables, Credits and Other Fees executed by Xxxxxxxx, Magnolia and Xxxxxx in favor of Xxxxxx (the “Assignment of Reimbursables”).
The instruments described above, the Prior Modifications, this Agreement, the Amended and Restated Note, and all other documents evidencing, securing or otherwise executed in connection with the Loan, being herein collectively called the “Loan Documents”;
B.The Loan Documents were previously modified by that certain Modification Agreement dated April 14, 2020, executed by Xxxxxxxx, Magnolia, Lavaca and Lender (the “First Modification”), that certain Second Modification Agreement dated June 12, 2020, executed by Xxxxxxxx, Magnolia, Lavaca and Lender, recorded under Clerk's File No. 2020057667 of the Official Public Records of Montgomery County, Texas and recorded under Clerk's File No. 2020097580 of the Official Public Records of Travis County, Texas (the “Second Modification”), that certain Third Modification Agreement dated May 13, 2022, executed by Xxxxxxxx and Xxxxxx, recorded under Clerk's File No. 2022087674 of the Official Public Records of Travis County, Texas (the “Third Modification”), that certain Fourth Modification Agreement dated November 8, 2022, executed by Xxxxxxxx and Xxxxxx (the “Fourth Modification”), and that certain Fifth Modification Agreement dated March 10, 2023, executed by Xxxxxxxx and Xxxxxx (the “Fifth Modification”, and together with the First Modification, the Second Modification, the Third Modification, and the Fourth Modification, collectively, the “Prior Modifications”);
X.Xxxxxxxx executed and delivered to Lender that certain Amended and Restated Revolving Promissory Note (together with 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, the “Amended and Restated Promissory Note” or the “Note”) dated May 13, 2022, in the stated principal amount of Sixty Million and No/100 Dollars ($60,000,000.00), in substitution of the Original Note;
D.The parties desire to modify certain terms in the Loan Documents, and Xxxxxx is willing to do so on the terms and conditions set forth below; and
X.Xxxxxx is the owner and holder of the Original Note and the Amended and Restated Promissory Note and Borrower is the owner of the legal and equitable title to the Mortgaged Property.
NOW, THEREFORE, for and in consideration of the mutual covenants contained herein and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.Defined Terms. Capitalized terms used but not defined in this Agreement shall have the meaning given to such capitalized terms in the Loan Agreement.
2.Modification of Loan Agreement.
(a)Section 2 of the Loan Agreement is hereby deleted in its entirety and replaced with the following:
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Subject to the terms, conditions and procedures of this Agreement and each other Loan Document including, but not limited to, the terms, conditions and procedures set forth in the Defined Terms Addendum and Loan Terms, Conditions and Procedures Addendum, Bank agrees to make credit available to the Borrowers on such dates and in such amounts as the Borrowers shall request from time to time or as may otherwise be agreed to by Borrowers and Bank.
The Loan is a $60,000,000 revolving credit facility that is evidenced by the Note and the other Loan Documents, and which is subject to the Letter of Credit Sublimit. At no time shall the Letter of Credit Liabilities exceed $13,300,000 and Borrower shall not have the right to request Bank issue a new Letter of Credit at any time the Letter of Credit Liabilities equals or exceeds $13,300,000.
(b)The following definition in Section 1.1 of Addendum 1 to the Loan Agreement is hereby deleted in its entirety and replaced with the following:
“Letter of Credit Sublimit” shall mean a maximum of $13,300,000 of the Loan that may be allocated for Letter of Credit Liabilities, subject to the terms and conditions of this Agreement.
3.Letters of Credit. As of the date hereof, five (5) Letters of Credit in the aggregate face amount of $10,981.605.50 have been issued under and are outstanding pursuant to the Loan Agreement.
4.Representations and Warranties. Borrower hereby represents and warrants that (a) Borrower is the sole legal and beneficial owner of the Mortgaged Property (other than the Mortgaged Property which has been released by Lender from the liens of the Deed of Trust); (b) Borrower is duly organized and legally existing under the laws of the state of its organizations and is duly qualified to do business in the State of Texas; (c) the execution and delivery of, and performance under this Agreement are within Borrower’s power and authority without the joinder or consent of any other party and have been duly authorized by all requisite action and are not in contravention of law or the powers of Borrower’s articles of incorporation and bylaws; (d) this Agreement constitutes the legal, valid and binding obligations of Borrower enforceable in accordance with its terms; (e) the execution and delivery of this Agreement by Borrower do not contravene, result in a breach of or constitute a default under any deed of trust, loan agreement, indenture or other contract, agreement or undertaking to which Borrower is a party or by which Borrower or any of its properties may be bound (nor would such execution and delivery constitute such a default with the passage of time or the giving of notice or both) and do not violate or contravene any law, order, decree, rule or regulation to which Borrower is subject; and (f) to the best of Borrower’s knowledge there exists no uncured default under any of the Loan Documents. Xxxxxxxx agrees to indemnify and hold Lender harmless against any loss, claim, damage, liability or expense (including without limitation reasonable attorneys’ fees) incurred as a result of any representation or warranty made by it herein proving to be untrue in any respect.
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5.Further Assurances. Borrower, upon request from Xxxxxx, agrees to execute such other and further documents as may be reasonably necessary or appropriate to consummate the transactions contemplated herein or to perfect the liens and security interests intended to secure the payment of the loan evidenced by the Note.
6.Default; Remedies. If Borrower shall fail to keep or perform any of the covenants or agreements contained herein or if any statement, representation or warranty contained herein is false, misleading or erroneous in any material respect, subject to the applicable notice and/or cure periods provided in Section 6.1 of the Loan Agreement, Borrower shall be deemed to be in default under the Deed of Trust and Lender shall be entitled at its option to exercise any and all of the rights and remedies granted pursuant to the any of the Loan Documents or to which Lender may otherwise be entitled, whether at law or in equity.
7.Endorsement to Mortgagee Title Policy. As an accommodation to Xxxxxxxx, Xxxxxx has agreed to waive the requirement for recordation of this Agreement and issuance of an endorsement to the Title Policy at this time. At Lender’s request, Borrower shall, at its sole cost and expense, arrange for recordation of this Agreement in each county where the Mortgaged Property is located and obtain and deliver to Lender an endorsement of the Title Policy insuring the lien of the Deed of Trust, under Procedural Rule P-9b(3) of the applicable title insurance rules and regulations, in form and content acceptable to Lender, stating that the company issuing said Title Policy will not claim that policy coverage has terminated or that policy coverage has been reduced, solely by reason of the execution of this Agreement.
8.Ratification of Loan Documents. Except as provided herein, the terms and provisions of the Loan Documents shall remain unchanged and shall remain in full force and effect. Any modification herein of any of the Loan Documents shall in no way adversely affect the security of the Deed of Trust and the other Loan Documents for the payment of the Note. The Loan Documents as modified and amended hereby are hereby ratified and confirmed in all respects. All liens, security interests, mortgages and assignments granted or created by or existing under the Loan Documents remain unchanged and continue, unabated, in full force and effect, to secure Xxxxxxxx’s obligation to repay the Note.
9.Liens Valid; No Offsets or Defenses. Xxxxxxxx hereby acknowledges that the liens, security interests and assignments created and evidenced by the Loan Documents are valid and subsisting and further acknowledges and agrees that there are no offsets, claims or defenses to any of the Loan Documents.
10.Merger; No Prior Oral Agreements. This Agreement supersedes and merges all prior and contemporaneous promises, representations and agreements. No modification of this Agreement or any of the Loan Documents, or any waiver of rights under any of the foregoing, shall be effective unless made by supplemental agreement, in writing, executed by Xxxxxx and Xxxxxxxx. Lender and Xxxxxxxx further agree that this Agreement may not in any way be explained or supplemented by a prior, existing or future course of dealings between the parties or by any prior, existing, or future performance between the parties pursuant to this Agreement or otherwise.
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11.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 hereof and the consummation of the transactions specified herein, including without limitation title insurance policy endorsement charges, recording fees and fees and expenses of legal counsel to Lender.
12.Release of Lender. Borrower hereby releases, remises, acquits and forever discharges Lender, together with its employees, agents, representatives, consultants, attorneys, fiduciaries, servants, officers, directors, partners, predecessors, successors and assigns, subsidiary corporations, parent corporations, and related corporate divisions (all of the foregoing hereinafter called the “Released Parties”), from any and all actions and causes of action, judgments, executions, suits, debts, claims, demands, liabilities, obligations, damages and expenses of any and every character, known or unknown, direct and/or indirect, at law or in equity, of whatsoever kind or nature, whether heretofore or hereafter accruing, for or because of any matter or things done, omitted or suffered to be done by any of the Released Parties prior to and including the Effective Date, and in any way directly or indirectly arising out of or in any way connected to this Agreement or any of the Loan Documents or any of the transactions associated therewith, or the Mortgaged Property, including specifically but not limited to claims of usury.
13.Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all parties hereto had signed the same document. All such counterparts shall be construed together and shall constitute one instrument, but in making proof hereof it shall only be necessary to produce one such counterpart.
14.Severability. If any covenant, condition, or provision herein contained is held to be invalid by final judgment of any court of competent jurisdiction, the invalidity of such covenant, condition, or provision shall not in any way affect any other covenant, condition or provision herein contained.
15.Time of the Essence. It is expressly agreed by the parties hereto that time is of the essence with respect to this Agreement.
16.Representation by Counsel. The parties acknowledge and confirm that each of their respective attorneys have participated jointly in the review and revision of this Agreement and that it has not been written solely by counsel for one party. The parties hereto therefore stipulate and agree that the rule of construction to the effect that any ambiguities are to or may be resolved against the drafting party shall not be employed in the interpretation of this Agreement to favor either party against the other.
17.Governing Law. This Agreement and the rights and duties of the parties hereunder shall be governed for all purposes by the law of the State of Texas and the law of the United States applicable to transactions within said State.
18.Successors and Assigns. The terms and provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
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19.Notice of No Oral Agreements. Xxxxxxxx and Xxxxxx hereby take notice of and agree to the following:
A. PURSUANT TO SUBSECTION 26.02(b) OF THE TEXAS BUSINESS AND COMMERCE CODE, A LOAN AGREEMENT IN WHICH THE AMOUNT INVOLVED THEREIN EXCEEDS $50,000 IN VALUE IS NOT ENFORCEABLE UNLESS THE AGREEMENT IS IN WRITING AND SIGNED BY THE PARTY TO BE BOUND OR BY THAT PARTY’S AUTHORIZED REPRESENTATIVE.
B. PURSUANT TO SUBSECTION 26.02(c) OF THE TEXAS BUSINESS AND COMMERCE CODE, THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO THE LOAN DOCUMENTS SHALL BE DETERMINED SOLELY FROM THE LOAN DOCUMENTS, AND ANY PRIOR ORAL AGREEMENTS BETWEEN THE PARTIES ARE SUPERSEDED BY AND MERGED INTO THE LOAN DOCUMENTS.
C. THE LOAN DOCUMENTS AND THIS AGREEMENT REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES THERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES THERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, this Agreement is executed on the respective dates of acknowledgement below but is effective as of the date first above written.
BORROWER:
By:/s/ Xxxx X. Xxxxxxx Xxxx X. Xxxxxxx, Senior Vice President | AUSTIN 290 PROPERTIES, INC., a Texas corporation By: /s/ Xxxx X. Xxxxxxx Xxxx X. Xxxxxxx, 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, Sole Member By:/s/ Xxxx X. Xxxxxxx Xxxx X. Xxxxxxx, Senior Vice President | THE VILLAS AT AMARRA DRIVE, L.L.C., a Texas limited liability company By: STRS L.L.C., a Delaware limited liability company, Manager By Stratus Properties Inc., a Delaware corporation, Sole Member By: /s/ Xxxx X. Xxxxxxx Xxxx X. Xxxxxxx, Senior Vice President | ||||
CIRCLE C LAND, L.P., a Texas limited partnership By: Circle C GP, L.L.C., a Delaware limited liability company, General Partner By Stratus Properties Inc., a Delaware corporation, Sole Member By: /s/ Xxxx X. Xxxxxxx Xxxx X. Xxxxxxx, Senior Vice President | STRATUS LAKEWAY CENTER, L.L.C., a Texas limited liability company By: STRS L.L.C., a Delaware limited liability company, Manager By: Stratus Properties Inc., a Delaware corporation, Sole Member By: /s/ Xxxx X. Xxxxxxx Xxxx X. Xxxxxxx, Senior Vice President | ||||
[Signature Page – Sixth Modification Agreement]
STATE OF TEXAS §
§
COUNTY OF XXXXXX §
This instrument was acknowledged before me on the 26th day of May, 2023, by Xxxx X. Xxxxxxx, Senior Vice President of Stratus Properties Inc., a Delaware corporation, on behalf of said corporation.
[SEAL]
/s/ Xxxxxxx X. Xxxxx
Notary Public, State of Texas
My Commission Expires: February 23, 2027
Printed Name of Notary: Xxxxxxx X. Xxxxx
STATE OF TEXAS §
§
COUNTY OF XXXXXX §
This instrument was acknowledged before me on the 26th day of May, 2023, by Xxxx X. Xxxxxxx, 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 corporation, limited liability company and limited partnership.
[SEAL]
/s/ Xxxxxxx X. Xxxxx
Notary Public, State of Texas
My Commission Expires: February 23, 2027
Printed Name of Notary: Xxxxxxx X. Xxxxx
STATE OF TEXAS §
§
COUNTY OF XXXXXX §
This instrument was acknowledged before me on the 26th day of May, 2023, by Xxxx X. Xxxxxxx, 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, on behalf of said corporation, limited liability company and limited partnership.
[SEAL]
/s/ Xxxxxxx X. Xxxxx
Notary Public, State of Texas
My Commission Expires: February 23, 2027
Printed Name of Notary: Xxxxxxx X. Xxxxx
[Signature Page – Sixth Modification Agreement]
STATE OF TEXAS §
§
COUNTY OF XXXXXX §
This instrument was acknowledged before me on the 26th day of May, 2023, by Xxxx X. Xxxxxxx, Senior Vice President of Austin 290 Properties, Inc., a Texas corporation, on behalf of said corporation.
[SEAL]
/s/ Xxxxxxx X. Xxxxx
Notary Public, State of Texas
My Commission Expires: February 23, 2027
Printed Name of Notary: Xxxxxxx X. Xxxxx
STATE OF TEXAS §
§
COUNTY OF XXXXXX §
This instrument was acknowledged before me on the 26th day of May, 2023, by Xxxx X. Xxxxxxx, Senior Vice President of Stratus Properties Inc., a Delaware corporation, Sole Member of STRS L.L.C., a Delaware limited liability company, Manager of The Villas at Amarra Drive, L.L.C., a Texas limited liability company, on behalf of said corporation and limited liability companies.
[SEAL]
/s/ Xxxxxxx X. Xxxxx
Notary Public, State of Texas
My Commission Expires: February 23, 2027
Printed Name of Notary: Xxxxxxx X. Xxxxx
STATE OF TEXAS §
§
COUNTY OF XXXXXX §
This instrument was acknowledged before me on the 26th day of May, 2023, by Xxxx X. Xxxxxxx, Senior Vice President of Stratus Properties Inc., a Delaware corporation, Sole Member of STRS L.L.C., a Delaware limited liability company, Manager of Stratus Lakeway Center, L.L.C., a Texas limited liability company, on behalf of said corporation and limited liability companies.
[SEAL]
/s/ Xxxxxxx X. Xxxxx
Notary Public, State of Texas
My Commission Expires: February 23, 2027
Printed Name of Notary: Xxxxxxx X. Xxxxx
[Signature Page – Sixth Modification Agreement]
LENDER:
COMERICA BANK
By:/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Vice President
STATE OF TEXAS §
§
COUNTY OF XXXXXX §
This instrument was acknowledged before me on the 30 day of May, 2023, by Xxxxxx X. Xxxxxxx, Vice President of Comerica Bank, on behalf of said bank.
[SEAL]
/s/ Xxxxxx Xxxx
Notary Public, State of Texas
My Commission Expires: 2/20/2025
Printed Name of Notary: Xxxxxx Xxxx
[Signature Page – Sixth Modification Agreement]
