MODIFICATION AND EXTENSION AGREEMENT
This
MODIFICATION AND EXTENSION AGREEMENT (this “Agreement”)
dated
as of May 30, 2006 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”),
and
AUSTIN
290 PROPERTIES, INC.,
a Texas
corporation (“Austin”)
(Stratus, SPOC, Circle C and Austin are sometimes referred to in this Agreement
severally as “Borrower”),
CALERA
COURT, L.P.,
a Texas
limited partnership ("Calera
Court"),
OLY STRATUS BARTON CREEK I JOINT VENTURE,
a Texas
joint venture ("Xxxxxxx
XX")
and
COMERICA
BANK
("Lender");
W
I T N E
S S E T H:
WHEREAS,
Borrower has executed and delivered to Lender, inter alia,
(i)
that certain Revolving Promissory Note dated as of September 30, 2005, payable
to the order of Lender in the original principal sum of $45,000,000.00, with
interest and principal payable as therein provided (the “Note”);
(ii)
that certain Loan Agreement dated of even date with the Note between Borrower,
Calera Court and Lender (the "Loan
Agreement");
(iii)
that certain Deed of Trust, Security Agreement and Assignment of Rents dated
of
even date with the Note from Stratus to Xxxxxxx Xxxxxxx, Trustee, securing
the
payment of the Note, covering certain real and personal property described
therein, recorded under Clerk’s File No. 2005183345 of the Real Property Records
of Xxxxxx County, Texas (the “Stratus
Deed of Trust”);
(iv)
that certain Deed of Trust, Security Agreement and Assignment of Rents dated
of
even date with the Note from Circle C to Xxxxxxx Xxxxxxx, Trustee, securing
the
payment of the Note, covering certain real and personal property described
therein, recorded under Clerk’s File No. 2005183344 of the Real Property Records
of Xxxxxx County, Texas (the “Circle
C Deed of Trust”);
(v)
that certain Deed of Trust, Security Agreement and Assignment of Rents dated
of
even date with the Note from SPOC to Xxxxxxx Xxxxxxx, Trustee, securing the
payment of the Note, covering certain real and personal property described
therein, recorded under Clerk’s File No. 2005183343 of the Real Property Records
of Xxxxxx County, Texas (the “SPOC
Deed of Trust”);
(vi)
that certain Deed of Trust, Security Agreement and Assignment of Rents dated
of
even date with the Note from Austin to Xxxxxxx Xxxxxxx, Trustee, securing the
payment of the Note, covering certain real and personal property described
therein, recorded under Clerk’s File No.2005183347 of the Real Property Records
of Xxxxxx County, Texas (the “Austin
Deed of Trust”);
(vii)
that certain Deed of Trust, Security Agreement and Assignment of Rents dated
of
even date with the Note from Calera Court to Xxxxxxx Xxxxxxx, Trustee, securing
the payment of the Note, covering certain real and personal property described
therein, recorded under Clerk’s File No. 2005183346 of the Real Property Records
of Xxxxxx County, Texas (the “Calera
Court Deed of Trust”);
(viii) that certain Deed of Trust, Security Agreement and Assignment of Rents
dated of even date with the Note from Xxxxxxx XX to Xxxxxxx Xxxxxxx, Trustee,
securing the payment of the Note, covering certain real and personal property
described therein, recorded under Clerk’s File No. 2005183348 of the Real
Property Records of Xxxxxx County, Texas (the “Xxxxxxx
XX Deed of Trust”)
(the
Stratus Deed of Trust, Circle C Deed of Trust, SPOC Deed of Trust, Austin Deed
of Trust, Calera Court and Xxxxxxx XX Deed of Trust are herein collectively
called the "Deed
of Trust",
and
all of the property covered by the Deed of Trust is herein collectively called
the “Mortgaged
Property”)
(the
Note, Loan Agreement, Deed of Trust and all other documents executed by Borrower
and/or any other party or parties evidencing or securing or otherwise in
connection with the loans evidenced by the Note being herein collectively called
the "Loan
Documents");
WHEREAS,
the Note is due and payable on May 30, 2007, and Borrower has requested that
Lender extend the term of the Note to March 30, 2008 and make certain other
modifications to the Loan Documents, and Lender is willing to do so on the
terms
and conditions set forth below; and
WHEREAS,
Lender is the owner and holder of the 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. Extension
of Maturity Date.
The
maturity date of the Note is hereby extended to May 30, 2008, and the liens,
security interests, assignments and other rights evidenced by the Loan Documents
are hereby renewed and extended to secure payment of the Note as extended
hereby.
3. Modification
of Interest Rate.
(a) The
definition of Applicable Base Rate in the Note is hereby amended in its entirety
to read as follows:
“'Applicable
Base Rate'
shall
mean the lesser of (a) the Base Rate from time to time in effect minus
eight-tenths of one percent (.8%) per annum, or (b) the Maximum Lawful Rate,
but
in no event shall the Applicable Base Rate ever be less than the Floor Rate.
Fluctuations in the Applicable Base Rate shall become effective immediately,
without necessity for any notice whatsoever."
(b) The
definition of Applicable LIBOR Rate in the Note is hereby amended in its
entirety 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
one and
ninety-five one hundredths percent (1.95%) or (b) the Maximum Lawful Rate,
but
in no event shall the Applicable LIBOR Rate ever be less than the Floor
Rate."
4. Representations
and Warranties.
Borrower hereby represents and warrants that (a) Borrower is the sole legal
and beneficial owner of the Mortgaged Property; (b) Borrower is duly organized
and legally existing under the laws of 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.
Borrower 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.
5. Further
Assurances.
Borrower, upon request from Lender, 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, 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.
Contemporaneously with the execution and delivery hereof, Borrower shall, at
its
sole cost and expense, obtain and deliver to Lender an Endorsement of the
Mortgagee 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
Mortgagee 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 Borrower's obligation
to
repay the Note.
9. Liens
Valid; No Offsets or Defenses.
Borrower 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.
12. 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 Lender
and Borrower. Lender and Borrower 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.
13. Notices.
Any
notice or communication required or permitted hereunder or under any of the
Loan
Documents shall be given in writing and sent in the manner required under the
Loan Agreement.
14. 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.
15. 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 date hereof, 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.
16. 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.
17. 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.
18. Time
of the Essence.
It is
expressly agreed by the parties hereto that time is of the essence with respect
to this Agreement.
19. 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.
20. 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.
21. 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.
22. Notice
of No Oral Agreements.
Borrower and Lender 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
PAGE FOLLOWS]
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:
a
Delaware corporation
By: /s/
Xxxx X. Xxxxx
Xxxx
X.
Xxxxx, 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. Xxxxx
Xxxx
X.
Xxxxx,
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. Xxxxx
Xxxx
X.
Xxxxx,
Senior
Vice President
AUSTIN
290 PROPERTIES, INC.,
a
Texas
corporation
By: /s/
Xxxx X. Xxxxx
Xxxx
X.
Xxxxx, Senior Vice President
LENDER:
COMERICA
BANK
By: /s/
Xxxxx Xxxxx
Xxxxx
Xxxxx, Vice President
STATE
OF
TEXAS
§
§
COUNTY
OF XXXXXX
§
This
instrument was acknowledged before me on the 14th day of June, 2006, by
Xxxx X. Xxxxx, Senior Vice President of Stratus Properties Inc., a Delaware
corporation, on behalf of said corporation.
/s/ Xxxxx
Xxxx Xxxxxx
Notary
Public, State of Texas
My
Commission Expires: 02-02-2008
Printed
Name of Notary: Xxxxx Xxxx Xxxxxx
STATE
OF
TEXAS
§
§
COUNTY
OF XXXXXX §
This
instrument was acknowledged before me on the 14th day of June, 2006, by
Xxxx X. Xxxxx, 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.
/s/ Xxxxx
Xxxx Xxxxxx
Notary
Public, State of Texas
My
Commission Expires: 02-02-2008
Printed
Name of Notary: Xxxxx Xxxx Xxxxxx
STATE
OF TEXAS §
§
COUNTY
OF XXXXXX §
This
instrument was acknowledged before me on the 14th day of June, 2006, by
Xxxx X. Xxxxx, 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
Delaware limited partnership, on behalf of said corporation, limited liability
company and limited partnership.
/s/
Xxxxx
Xxxx Xxxxxx
Notary
Public, State of Texas
My
Commission Expires: 02-02-2008
Printed
Name of Notary: Xxxxx Xxxx Xxxxxx
STATE
OF TEXAS §
§
COUNTY
OF XXXXXX §
This
instrument was acknowledged before me on the 14th day of June, 2006, by
Xxxx X. Xxxxx, Senior Vice President of Austin 290 Properties Inc., a Delaware
corporation, on behalf of said corporation.
/s/ Xxxxx
Xxxx Xxxxxx
Notary
Public, State of Texas
My
Commission Expires: 02-02-2008
Printed
Name of Notary: Xxxxx Xxxx Xxxxxx
STATE
OF TEXAS
§
§
COUNTY
OF DALLAS §
This
instrument was acknowledged before me on the 19th day of July, 2006, by
Xxxxx Xxxxx, Vice President of Comerica Bank, on behalf of said
bank.
/s/ Xxxxxx
Xxxxxxx
Notary
Public, State of Texas
My
Commission Expires: 11-14-07
Printed
Name of Notary: Xxxxx Xxxxxxx
CONSENT
OF CALERA COURT
The
undersigned, Calera Court, L.P., hereby executes the Agreement to evidence
its
agreement to be bound by the extension of the Maturity Date, and confirms and
agrees that all of its obligations under the Loan Documents applicable to it
remain in full force and effect.
Executed
on the date of acknowledgement below but effective as of May 30,
2006.
CALERA
COURT, L.P. a
Texas
limited partnership
|
By:
|
Calera
Court Management, L.L.C., a Texas limited
liability
company, its general partner
|
|
By:
|
Stratus
Properties Operating Co., L.P., a
Delaware
limited partnership, its Manager
|
|
By:
|
STRS
L.L.C., a Delaware limited
liability
company, its general partner
|
|
By:
|
Delaware
corporation, its
Sole
Member
|
By:
_/s/ Xxxx X. Xxxxx
Xxxx
X.
Xxxxx,
Senior
Vice President
STATE
OF
TEXAS
§
§
COUNTY
OF
XXXXXX §
This
instrument was acknowledged before me on the 14th day of June, 2006, by
Xxxx X. Xxxxx, 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, Manager of Calera Court Management, L.L.C., a Texas limited
liability company, General Partner of Calera Court, L.P., a Texas limited
partnership, on behalf of each said entity and said limited partnership.
/s/ Xxxxx Xxxx Xxxxxx
Notary
Public in and for the State of Texas
Xxxxx
Xxxx Xxxxxx
Printed/Typed
Name of Notary
My
Commission Expires:
2-02-2008.
CONSENT
OF XXXXXXX XX
The
undersigned, Stratus Barton Creek I Joint Venture, hereby executes the Agreement
to evidence its agreement to be bound by the extension of the Maturity Date,
and
confirms and agrees that all of its obligations under the Loan Documents
applicable to it remain in full force and effect.
Executed
on the date of acknowledgement below but effective as of May 30,
2006.
OLY
STRATUS BARTON CREEK I JOINT VENTURE,
a
Texas
joint venture
|
By:
|
STRS
L.L.C., a Delaware limited liability company,
its
General Partner
|
|
By:
|
Stratus
Properties Inc., a Delaware
corporation,
its Sole Member
|
By:
_/s/ Xxxx X. Xxxxx
Xxxx
X.
Xxxxx, 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:
|
Stratus
Properties Inc., a Delaware
corporation,
its sole member
|
By:
/s/ Xxxx X. Xxxxx
Xxxx
X.
Xxxxx,
Senior
Vice President
STATE
OF
TEXAS
§
§
COUNTY
OF
XXXXXX §
The
foregoing instrument was acknowledged before me on the 14th day of June,
2006, by Xxxx X. Xxxxx, 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, a Texas joint
venture, on behalf of each such entities.
[
S E A L
]
/s/
Xxxxx Xxxx Xxxxxx
Notary
Public, State of Texas
My
Commission
Expires: Xxxxx Xxxx
Xxxxxx
(Printed
Name of Notary Public)
2-02-2008.
STATE
OF
TEXAS §
§
COUNTY
OF
XXXXXX §
The
foregoing instrument was acknowledged before me on the 14th day of June,
2006, by Xxxx X. Xxxxx, 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, a Texas
joint
venture, on behalf of each such entities.
[
S E A L
]
/s/
Xxxxx Xxxx Xxxxxx
Notary
Public, State of Texas
My
Commission
Expires: Xxxxx Xxxx
Xxxxxx
(Printed
Name of Notary Public)
2-02-2008.
