THIRD
MODIFICATION AND EXTENSION AGREEMENT
This
THIRD MODIFICATION AND EXTENSION AGREEMENT (this “
Agreement
”) dated as of May 30, 2008 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
("
Stratus JV ") 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, which note was amended
by that certain (i) Modification and Extension Agreement (the
" First
Modification ") dated as of May 30, 2006, executed by
and among Borrower, Calera Court, Stratus JV and Lender, and
recorded under Clerk’s File No. 2006140557 of the Real
Property Records of Travis County, Texas and (ii) Second
Modification and Extension Agreement (the " Second
Modification ") dated as of May 30, 2007, executed by
and among Borrower, Calera Court, Stratus JV and Lender, and
recorded under Clerk’s File No. 2007139303 of the Real
Property Records of Travis County, Texas (said note, as
amended by the First Modification and Second Modification, is
herein called the “ Note
”); (ii) that certain Loan Agreement dated of even date
with the Note between Borrower, Calera Court and Lender, which
loan agreement was amended by the First Modification and
Second Modification (said loan agreement, as amended by the
First Modification and Second Modification, is herein called
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 Melinda Chausse, 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 Travis County, Texas, which deed of trust was amended by
the First Modification and Second Modification (said deed of
trust, as amended by the First Modification and Second
Modification, is herein called 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 Melinda Chausse,
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 Travis County, Texas, which deed of trust was amended by
the First Modification and Second Modification (said deed of
trust, as amended by the First Modification and Second
Modification, is herein called 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 Melinda Chausse, 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 Travis County, Texas, which deed of trust was amended by
the First Modification and Second Modification (said deed of
trust, as amended by the First Modification and Second
Modification, is herein called 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 Melinda Chausse, 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 Travis County, Texas, which deed of
trust was amended by the First Modification and Second Modification
(said deed of trust, as amended by the First Modification and
Second Modification, is herein called 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 Melinda Chausse, 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 Travis County, Texas,
which deed of trust was amended by the First Modification and
Second Modification (said deed of trust, as amended by the First
Modification and Second Modification, is herein called 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 Stratus JV to Melinda Chausse, 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 Travis County,
Texas, which deed of trust was amended by the First Modification
and Second Modification (said deed of trust, as amended by the
First Modification and Second Modification, is herein called the
“ Stratus
JV Deed of Trust ”) (the Stratus Deed of Trust, Circle
C Deed of Trust, SPOC Deed of Trust, Austin Deed of Trust, Calera
Court and Stratus JV 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,
First Modification, Second Modification 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, 2009, and Borrower has
requested that Lender extend the term of the Note to May 30,
2010 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, 2010, 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
forty-five one-hundredths percent (.45%) 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
two percent (2.0%) 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 ap
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