Exhibit 10.18
When recorded, return to:
Xxxxx Xxxxxxxxx, Esq.
Xxxxxxxx Xxxxxxxx & Xxxxxx
5400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
THIRD MODIFICATION AGREEMENT
This THIRD MODIFICATION AGREEMENT ("Agreement") is made to
be effective as of the 23rd day of August, 2001, by and between
COMERICA BANK-TEXAS, a state banking association ("Lender"),
STRATUS 7000 WEST JOINT VENTURE, a Texas joint venture
("Borrower"), and STRATUS PROPERTIES, INC., a Delaware
corporation (the "Guarantor").
W I T N E S S E T H :
WHEREAS, Lender, Borrower and Guarantor, to the extent set
forth below, have executed the following documents:
Construction Loan Agreement dated April 9, 1999, executed by
Borrower and Lender (as amended prior to the date hereof,
the "Phase I Agreement").
Promissory Note (as amended prior to the date hereof, the
"6.6 Note") dated April 9, 1999, executed by Borrower,
payable to the order of Lender, in the original stated sum
of $6,600,000.00.
Guaranty dated as of December 31, 1999, executed by
Guarantor with respect to the 6.6 Note (as amended prior to
the date hereof, the "6.6 Guaranty")
Construction Loan Agreement dated February 24, 2000,
executed by Borrower and Lender (as amended prior the date
hereof, the "Phase II Agreement").
Promissory Note (as amended prior to the date hereof, the
"7.7 Note") dated February 24, 2000, executed by Borrower,
payable to the order of Lender, in the original stated sum
of $7,700,000.00
Guaranty dated as of February 24, 2000, executed by
Guarantor with respect to the 7.7 Note (as amended prior to
the date hereof, the "7.7 Guaranty")
Second Amended and Restated Deed of Trust (the "Deed of
Trust") dated as of February 24, 2000, executed by Borrower
to Xxxx X. Xxx, Trustee, for the benefit of Lender, recorded
under Document No. 0000000000 of the Official Public Records
of Xxxxxx County, Texas, covering the real property
described in Exhibit A attached hereto and incorporated
herein for all purposes, together with all improvements,
appurtenances, other properties (whether real or personal),
rights and interests described in and encumbered by the Deed
of Trust (collectively, the "Property").
Assignment of Rents and Leases (the "Assignment") dated as
of April 9, 1999, executed by Borrower for the benefit of
Lender, recorded under Document No. 1999009454 of the
Official Public Records of Xxxxxx County, Texas, and
Assignment of Rents and Leases dated as of February 24,
2000, executed by Borrower for the benefit of Lender,
recorded under Document No. 2000048400 of the Official
Public Records of Xxxxxx County, Texas (collectively, the
"Assignments").
Modification Agreement dated as of August 16, 1999, executed
by Borrower, Lender and Guarantor, recorded under Document
No. 1999093007 of the Official Public Records of Xxxxxx
County, Texas.
Second Modification Agreement dated as of February 24, 2000,
executed by Borrower, Lender and Guarantor, recorded under
Document No. 2000048402 of the Official Public Records of
Xxxxxx County, Texas.
Terms used with initial capitalized letters and not specifically
defined in this Agreement shall have the meanings ascribed to
them in the Phase I Agreement or the Phase II Agreement, as the
context requires. All of the foregoing and all other documents
executed by Borrower or Guarantor to and for the benefit of
Lender in connection with any of the foregoing are collectively
referred to herein as the "Loan Documents").
WHEREAS, the Borrower caused to be issued by Chicago Title
Insurance Company ("Title Company") that certain Mortgagee Policy
of Title Insurance ("Policy") No.44-0394-101-563, dated March 31,
2000, in the amount of $14,300,000.00, insuring the dignity and
priority of the liens created and evidenced by the Deed of Trust.
WHEREAS, the Lender, Borrower and Guarantor now propose to
renew and extend the 6.6 Note and the 7.7 Note and make certain
other modifications thereto.
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, Borrower
and Guarantor hereby agree as follows:
1. Payment of Extension Fees. Contemporaneously with the
execution and delivery of this Agreement, Borrower shall remit to
Lender cash funds in the amounts of (i) SIXTEEN THOUSAND TWO
HUNDRED SEVENTY-TWO AND NO/100 DOLLARS ($16,272.00), representing
the extension fee for the renewal and extension of the 6.6 Note,
and (ii) SIXTEEN THOUSAND TWO HUNDRED THIRTY-ONE AND NO/100
DOLLARS ($16,231.00), representing the extension fee for the
renewal and extension of the 7.7 Note
2. Current Balances. As of August 1, 2001, the aggregate
amount of unpaid principal outstanding under the 6.6 Note was SIX
MILLION FIVE HUNDRED EIGHT THOUSAND SIX HUNDRED FIFTY-SEVEN AND
03/100 DOLLARS ($6,508,657.03). As of August 1, 2001, the
aggregate amount of unpaid principal outstanding under the 7.7
Note was SIX MILLION FOUR HUNDRED NINETY-TWO THOUSAND FOUR
HUNDRED EIGHT AND 98/100 DOLLARS ($6,492,408.98).
3. Extension of Maturity Dates. The maturity date of both
the 6.6 Note and 7.7 Note are hereby extended until August 24,
2002, when the entire unpaid principal balance of each of the 6.6
Note and 7.7 Note, together with all accrued but unpaid interest
thereon, shall be due and payable (the "Maturity Date"), unless
the Maturity Date is accelerated pursuant to Lender's right to do
so under the Loan Documents. In each instance in the 6.6 Note,
the 7.7 Note or in the Loan Documents where there is a reference
to the Maturity Date, said Maturity Date shall mean August 24,
2002 in lieu of any other Maturity Date as shown. The Borrower
hereby renews, but does not extinguish, the 6.6 Note, the 7.7
Note and the liens, security interests and assignments created
and evidenced by the Deed of Trust and other Loan Documents, and
in this regard all of the Loan Documents are hereby renewed and
modified by extending the Maturity Date thereof as set forth
above. Borrower covenants to observe, comply with and perform
each of the terms and provisions of the Loan Documents, as
modified hereby.
4. Modification of Payment Terms in the 6.6 Note. The
payment schedule set forth in Section 3.1 of the 6.6 Note shall
be deleted in its entirety, and the following new payment
schedule shall be inserted in lieu thereof:
"3.1 Payment Schedule. This Note shall be due and
payable as follows:
(a) Commencing on September 5, 2001, and
continuing thereafter on the fifth (5th) day of each
successive month until the Maturity Date, Maker shall
pay Payee all then accrued but unpaid interest hereon.
(b) Commencing on September 5, 2001, and
continuing on the fifth (5th) day of each successive
month thereafter until the Maturity Date, Maker shall
pay Payee an installment of principal in the amount of
Eight Thousand One Hundred Twenty-Three and 20/100
Dollars ($8,123.00); and
(c) The entire remaining outstanding principal
balance hereof and any and all accrued but unpaid
interest thereon shall be due and payable in full on
the Maturity Date or upon earlier maturity hereof,
whether by acceleration or otherwise."
5. Modification of Payment Terms in the 7.7 Note. The
payment schedule set forth in Section 3.1 of the 7.7 Note shall
be deleted in its entirety, and the following new payment
schedule shall be inserted in lieu thereof:
"3.1 Payment Schedule. This Note shall be due and
payable as follows:
(a) Commencing on September 5, 2001, and
continuing thereafter on the fifth (5th) day of each
successive month until the Maturity Date, Maker shall
pay Payee all then accrued but unpaid interest hereon.
(b) Commencing on September 5, 2001, and
continuing on the fifth (5th) day of each successive
month thereafter until the Maturity Date, Maker shall
pay Payee an installment of principal in the amount of
Seven Thousand Six Hundred Forty-Nine Dollars
($7,649.00); and
(c) The entire remaining outstanding principal
balance hereof and any and all accrued but unpaid
interest thereon shall be due and payable in full on
the Maturity Date or upon earlier maturity hereof,
whether by acceleration or otherwise."
6. Debt Coverage Requirement. Each of the Phase I
Agreement and the Phase II Agreement are hereby modified and
amended by inserting therein the following new Section 5.21.
"5.21 Debt Coverage Requirement.
"(a) In the event the Debt Coverage Ratio for any
applicable Calendar Period should be less than 1.20 to 1.0,
and unless Borrower otherwise elects to pledge Additional
Collateral as provided in subsection (b) below then, within
fifteen (15) days after written notice from Lender to
Borrower, Borrower shall prepay a portion of the Loan (the
"Curative Amount") such that a minimum Debt Coverage Ratio
of 1.20 to 1.0 or more is created based on (1) annualized
Net Operating Income for the immediately preceding Calendar
Period and (2) a hypothetical Debt Service Requirement for
the then current Calendar Period which would result from a
reamortization of such reduced balance of the Loan
sufficient to fully amortize such Loan on a level-payment
basis in 25 years from the first day of such current
Calendar Period based on the Amortization Rate (as defined
below). Irrespective of any hypothetical Debt Service
Requirement utilized to calculate the Curative Amount, the
actual amount of the required payments shall continue to be
as provided in the Note. Failure of Borrower to timely fund
any required Curative Amount shall be deemed an "Event of
Default" pursuant to this Agreement in addition to any other
"Events of Default" specified herein.
"(b) As an alternative to payment of the Curative
Amount, Borrower shall be entitled, in the event the Debt
Coverage Ratio for any Calendar Period should be determined
to be less than 1.20 to 1.0, to pledge additional collateral
to secure the Loan. The collateral to be so pledged to
Lender must be in the form of cash, certificates of deposit,
letters of credit, stocks, bonds or other highly liquid
investments acceptable in all respects to Lender in its sole
and absolute discretion (for purposes of this Agreement, the
term "Additional Collateral" shall mean and refer to such
additional collateral as shall be approved by Lender and
pledged pursuant to this subsection (b). The amount or
value of the Additional Collateral required to be pledged
shall be a function of the liquidation value of such
collateral, as determined by Lender in its reasonable
discretion, and shall be such amount (i.e., the liquidation
value) as would, if subtracted from the total amount of
indebtedness evidenced and represented by the Note at such
time, result in a Debt Coverage Ratio (calculated as
provided above) equal to 1.20 to 1.0. In connection with
such pledge of Additional Collateral, and not later than
fifteen (15) days after written notice from Lender to
Borrower of Borrower's obligation to either pay the Curative
Amount or to pledge the Additional Collateral, and provided
that Borrower has not instead paid the Curative Amount
required at that time pursuant to subsection (a) above,
Borrower shall execute and deliver to Lender all pledge and
security agreements, financing statements and other
instruments, certificates and agreements as Lender shall
require, and shall deliver to Lender the Additional
Collateral or such instruments, certificates,
acknowledgments, stock powers, authorizations, powers of
attorney, consents and any and all other documentation, as
executed by all appropriate parties as may be necessary to
effectuate the collateral pledge and assignment of such
collateral to Lender, as Lender and its counsel shall deem
necessary or appropriate. If, after the Borrower's
provision of Additional Collateral, the Debt Coverage Ratio
should improve so as to be 1.20 to 1.0 or more for any
Calendar Period (without taking into account the Additional
Collateral), then Borrower shall be entitled to a release of
the Additional Collateral. Borrower shall thereafter be
required to either pay to Lender the Curative Amount or
repledge Additional Collateral to the extent the required
Debt Coverage Ratio should fail to be met during any
subsequent Calendar Period and shall likewise be entitled to
a re-release of any such subsequently pledged Additional
Collateral consistent with the immediately preceding
sentence.
"(c) The Debt Coverage Ratio calculation shall be
undertaken for the applicable Calendar Period. Borrower
shall provide written evidence and documents to Lender
indicating the calculations and backup information for the
Debt Coverage Ratio for each applicable Calendar Period.
Lender shall be entitled to request and require such backup
documentation, including financial information, as may be
required by Lender in order to satisfy itself as to the
correct calculation of the Debt Coverage Ratio for any
Calendar Period
"(d) As used in this Agreement, the following terms
have the following meanings:
(1) Calendar Period: The three (3) calendar
month period (or portion thereof for the first period)
ending on each March 31, June 30, September 30 and
December 31.
(2) Debt Coverage Ratio: Net Operating Income
for a Calendar Period divided by Debt Service
Requirements for the same Calendar Period.
(3) Debt Service Requirements: The greater of
(A) any and all principal or interest payments
scheduled with respect to the Loan to the extent such
are to be due and owing during such Calendar Period
(and irrespective of whether or not such payments were
timely made) or (B) all principal and interest payments
which would be owing during such Calendar Period based
upon a hypothetical level-payment, mortgage loan-type
amortization schedule of 25 years calculated using the
Loan Amount, and an interest rate on the Loan Amount
during the Calendar Period equal to the greater of (i)
the then actual Applicable Base Rate (as defined in the
Note), or (ii) eight percent (8%), or (iii) the sum of
(x) the yield of the United States Treasury obligations
which shall have the closest maturity date (month and
year) to the date that is ten (10) years from the date
of such calculation plus (y) two percent (2.0%) (the
greater of clauses (i), (ii) or (iii) immediately
preceding being sometimes referred to herein as the
"Amortization Rate").
(4) Gross Income: For each applicable Calendar
Period actual rentals, revenues and other cash forms of
consideration, received by, or paid to or for the
account of or for the benefit of, Borrower resulting
from or attributable to the operation, leasing and
occupancy of the Mortgaged Property, determined on a
cash basis (except as specified herein), including the
following: (i) rents by any lessees or tenants of the
Mortgaged Property; (ii) rents and receipts received by
or for the benefit of Borrower with respect to the full
or partial reimbursement of Operating Expenses from any
lessee or tenant of the Mortgaged Property;
(iii) proceeds received by or for the benefit of
Borrower in connection with any rental loss or business
interruption insurance with respect to the Mortgaged
Property; (iv) any other fees or rents collected by,
for or on behalf of Borrower with respect to the
leasing and operation of the Mortgaged Property;
(v) any refunds of deposits for obtaining, using or
maintaining utility services for all or any portion of
the Mortgaged Property; (vi) interest, if any, earned
by Borrower on security and other type deposits of and
advance rentals paid by, any lessees or tenants of the
Mortgaged Property; and (vii) the amount of any
security and other type deposits and advance rentals
relating to the Mortgaged Property which have been
forfeited. Notwithstanding anything included within
this definition of Gross Income, there shall be
excluded from Gross Income the following: (i) any
security or other deposits of lessees and tenants,
unless and until the same actually are either applied
to actual rentals owed or other charges or fees or
forfeited; (ii) the proceeds of any financing or
refinancing with respect to all or any part of the
Mortgaged Property; (iii) the proceeds of any sale or
other capital transaction (excluding leases for
occupancy purposes only) of all or any portion of the
Mortgaged Property; (iv) any insurance or condemnation
proceeds paid with respect to the Mortgaged Property,
except for rental loss or business interruption
insurance; and (v) any insurance and condemnation
proceeds applied in reduction of the principal of the
Note in accordance with the terms of the Deed of Trust
or the other Loan Documents; provided, however, nothing
set forth herein shall in any manner imply Lender's
consent to a sale, refinancing or other capital
transaction.
(5) Net Operating Income: For each applicable
Calendar Period, Gross Income less Operating Expenses,
determined on a cash basis of accounting except as
otherwise provided in this Agreement.
(6) Operating Expenses: For the applicable
Calendar Period, those amounts actually incurred and
paid with respect to the ownership, operation,
management, leasing and occupancy of the Mortgaged
Property, determined on a cash basis, except as
otherwise specified herein, including any and all of
the following (but without duplication of any item):
(i) ad valorem taxes calculated on an accrual basis
(and not on the cash basis) of accounting for the
Calendar Period; such accrual accounting for ad valorem
taxes shall be based upon taxes actually assessed for
the current calendar year, or if such assessment for
the current calendar year has not been made, then until
such assessment has been made (and with any retroactive
adjustments for prior calendar months as may ultimately
be needed when the actual assessments has been made) ad
valorem taxes for the Calendar Period shall be
estimated based on the last such assessment for the
Mortgaged Property; (ii) foreign, U.S., state and local
sales, use or other taxes, except for taxes measured by
net income; (iii) special assessments or similar
charges against the Mortgaged Property; (iv) costs of
utilities, air conditioning and heating for the
Mortgaged Property to the extent not directly paid by
lessees or tenants; (v) maintenance and repair costs
for the Mortgaged Property; (vi) management fees;
(vii) all salaries, wages and other benefits to
"on-site" employees of the Borrower or Borrower's
property manager (excluding all salaries, wages and
other benefits of officers and supervisory personnel,
and other general overhead expenses of Borrower and
Borrower's property manager) employed in connection
with the leasing, maintenance and management of the
Mortgaged Property; (viii) insurance premiums
calculated on an accrual basis (and not on the cash
basis) of accounting for the Calendar Period; such
accrual accounting for insurance premiums shall be
based upon the insurance premiums for the Mortgaged
Property which was last billed to the Borrower,
adjusted to an annualized premium if necessary;
(ix) costs, including leasing commissions, advertising
and promotion costs, to obtain new leases or to extend
or renew existing leases, and the costs of work
performed and materials provided to ready tenant space
in the Mortgaged Property for new or renewal occupancy
under leases; (x) outside accounting and audit fees and
costs and administrative expenses in connection with
the direct operation and management of the Mortgaged
Property; and (xi) any payments, and any related
interest thereon, to lessees or tenants of the
Mortgaged Property with respect to security deposits or
other deposits required to be paid to tenants but only
to the extent any such security deposits and related
interest thereon have been previously included in Gross
Income. Notwithstanding anything to the contrary as
being included in the definition of Operating Expenses,
there shall be excluded from Operating Expenses the
following: (i) depreciation and any other non-cash
deduction allowed to Borrower for income tax purposes;
and (ii) any and all principal, interest or other costs
paid under or with respect to the Note or Loan.
Notwithstanding any of the foregoing, in all events
Operating Expenses shall not be less than $9.15 per
square foot of the Improvements."
7. Extension Options. If, but only if, all of the
following conditions precedent shall have been first satisfied,
then Borrower shall be entitled, for one time only, to extend the
Maturity Date of the 6.6 Note, or the 7.7 Note, or both, as the
case may be, by an additional twelve (12) months, to August 24,
2003. The conditions precedent to extension of the either or
both of the 6.6 Note and 7.7 Note for such additional twelve (12)
month period are as follows:
(a) Borrower shall notify Lender in writing on or
before July 15, 2003, of Borrower's election to exercise its
rights under this Section 7 and specify the note or notes to
which such election applies.
(b) Borrower shall pay to Lender in cash an extension
fee equal to twenty-five one-hundredths percent (0.25%) of
the outstanding principal balance, as of August 23, 2002, of
the 6.6 Note, the 7.7 Note, or both, as the case may be.
(c) Lender shall have received tenant estoppel
certificates dated not earlier than July 15, 2002, from all
tenants under the Leases in effect at that time, which
certificates shall reasonably be satisfactory to Lender in
form and substance.
(d) No Default or Event of Default shall exist on any
of the Loan Documents.
(e) No event, claim, liability or circumstance shall
exist which, in Lender's determination, could be expected to
have or have had a Material Adverse Effect.
(f) Borrower and Guarantor shall execute and deliver
to Lender such modification, renewal and extension
agreements and other instruments as Lender may reasonably
request to evidence the extension of the Maturity Date.
(g) Lender is in receipt of written evidence
satisfactory to Lender indicating that the Debt Coverage
Ratio is being satisfied.
(h) Lender is in receipt of written evidence
reasonably satisfactory to Lender that the outstanding
principal amount of the 6.6 Note, the 7.7 Note, or both, as
the case may be, is not more than seventy percent (70%) of
the fair market value of the Property that will continue to
secure the 6.6 Note, the 7.7 Note, or both, as the case may
be, as established in the appraisals received and accepted
by Lender as of the date of this Agreement, such evidence to
include new appraisals of the Property obtained at
Borrower's sole expense if Lender requires the same.
8. Title Insurance. Contemporaneously with the execution
and delivery hereof, the Borrower shall cause the Title Company
to issue such endorsements to the Title Policy as Lender may
reasonably require.
9. 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 6.6 Note and the 7.7 Note, as
modified hereby; (ii) the liens, security interests and
assignments created and evidenced by the Loan Documents are,
respectively, valid and subsisting liens, security interests and
assignments of the respective dignity and priority recited in the
Loan Documents; (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 Property, the Loan Documents or Lender's
performance under the Loan Documents or with respect to the
Property; (v) the representations and warranties contained in the
Loan Documents are true and correct representations and
warranties in all material respects of Borrower and to the
knowledge of Borrower, of any third parties, 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.
To the extent Borrower now has any claims, offsets, defenses or
counterclaims against Lender or the repayment of all or a portion
of the Loan, whether known or unknown, fixed or contingent, same
are hereby forever irrevocably waived and released in their
entirety.
10. 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 Note or the other Loan Documents.
11. Joinder of Guarantor. By its execution hereof ,
Guarantor hereby (i) acknowledges and consents to the terms and
provisions hereof; (ii) ratifies and confirms each of the 6.6
Guaranty and the 7.7 Guaranty, including all interest and costs
of collection, to or for the benefit of Lender; (iii) agrees that
each of the 6.6 Guaranty and the 7.7 Guaranty is and shall remain
in full force and effect and that the terms and provisions of
each of the 6.6 Guaranty and the 7.7 Guaranty cover and pertain
to the Loan Documents as modified hereby; (iv) acknowledges that
there are no claims or offsets against, or defenses or
counterclaims to, the terms and provisions of either of the 6.6
Guaranty or the 7.7 Guaranty or the other obligations created and
evidenced by each of the 6.6 Guaranty and the 7.7 Guaranty;
(v) certifies that the representations and warranties contained
in each of the 6.6 Guaranty and the 7.7 Guaranty remain true and
correct representations and warranties of Guarantor as of the
date hereof; and (vi) acknowledges that Lender has satisfied and
performed its covenants and obligations under each of the 6.6
Guaranty and the 7.7 Guaranty and the other Loan Documents, and
that no action or failure to act by or on behalf of, Lender has
or will give rise to any cause of action or other claim against
Lender for breach of either of the 6.6 Guaranty or the 7.7
Guaranty or other Loan Documents or otherwise.
12. 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 or
other charges of the Title Company, and reasonable fees and
expenses of legal counsel to Lender.
13. 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 Loan 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.
14. Effectiveness of the Loan Documents. Except as
expressly modified by the terms and provisions hereof, each of
the terms and provisions of the 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
Loan, the amount constituting the Loan, any defined terms, or to
any of the other Loan Documents shall be deemed, from and after
the date hereof, to refer to the Loan, the amount constituting
the Loan, defined terms and to such other Loan Documents, as
modified hereby.
15. 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.
16. Time. Time is of the essence in the performance of the
covenants contained herein and in the Loan Documents.
17. Binding Agreement. This Agreement shall be binding
upon the 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 Property or any of Borrower's rights, titles
or interests in and to the 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.
18. 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.
19. Construction. Whenever the context hereof so requires,
reference to the singular shall include the plural and likewise,
the plural shall include the singular; words denoting gender
shall be construed to mean the masculine, feminine or neuter, as
appropriate; and specific enumeration shall not exclude the
general, but shall be construed as cumulative of the general
recitation.
20. 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.
21. 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.
22. THIS MODIFICATION 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 MODIFICATION AND THE
OTHER LOAN DOCUMENTS MAY BE AMENDED OR WAIVED ONLY BY AN
INSTRUMENT IN WRITING SIGNED BY THE RESPECTIVE PARTIES TO SUCH
DOCUMENTS.
LENDER:
COMERICA BANK-TEXAS,
a state banking association
By:
Name:
________________________________________
Title:
________________________________________
BORROWER:
STRATUS 7000 WEST JOINT VENTURE,
a Texas joint venture
By: Stratus 7000 West, Ltd.,
a Texas limited partnership,
Its Operating Partner
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/ Xxxxxxx X. Xxxxxxxxx,III
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx, III
Title: Chairman of the Board,
President and Chief
Executive Officer
By: Oly Lantana, L.P.,
a Texas limited partnership,
Its Financial Partner
By: Oly Lantana GP, L.L.C.,
a Texas limited liability
company,
Its Sole General Partner
By:
Name:
Title:
GUARANTOR:
STRATUS PROPERTIES INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx, III
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx, III
Title: Chairman of the Board,
President and Chief
Executive Officer
STATE OF TEXAS &
COUNTY OF DALLAS &
This instrument was ACKNOWLEDGED before me, on the _____ day of
September, 2001, by___________, a Senior Vice President of
COMERICA BANK-TEXAS, a state banking association, on behalf
of said banking association.
[ S E A L ]
Notary Public, State of Texas
My Commission Expires:
_____________________ Printed Name of Notary Public
THE STATE OF TEXAS &
&
COUNTY OF XXXXXX &
This instrument was acknowledged before me on day of September,
2001, by Xxxxxxx X. Xxxxxxxxx, III, Chairman of the Board,
President and Chief Executive Officer of STRATUS PROPERTIES
INC., a Delaware corporation, the Sole Member of STRS L.L.C.,
a Delaware limited liability company, the General Partner of
STRATUS 7000 WEST, LTD., a Texas limited partnership, the
Operating Partner of STRATUS 7000 WEST JOINT VENTURE, a Texas
joint venture, on behalf of each said entity.
[SEAL]
Notary Public, State of Texas
My Commission Expires:
______________________
Printed Name of Notary Public:
STATE OF TEXAS &
&
COUNTY OF DALLAS &
This instrument was acknowledged before me on day of
September, 2001, by ____________________________, the
__________________________ of OLY LANTANA GP, L.L.C., a Texas
limited liability company, the Sole General Partner of OLY
LANTANA, L.P., a Texas limited partnership, the Financial Partner
of STRATUS 7000 WEST JOINT VENTURE, a Texas joint venture, on
behalf of each said entity.
[ S E A L ]
Notary Public, State of Texas
My Commission Expires:
_____________________ Printed Name of Notary Public
STATE OF TEXAS &
&
COUNTY OF XXXXXX &
This instrument was acknowledged before me on day
of August, 2001, by Xxxxxxx X. Xxxxxxxxx, III, Chairman of the
Board, President and Chief Executive Officer of STRATUS
PROPERTIES INC., a Delaware corporation, on behalf of said
corporation.
[ S E A L ]
Notary Public, State of Texas
My Commission Expires:
_____________________ Printed Name of Notary Public
Exhibit List
EXHIBIT "A"
Property Description
Xxx 0, Xxxxx X, XXXXXXX XXX 0, XXXXX X, a subdivision in Xxxxxx
County, Texas, according to the map or plat thereof, recorded in
Volume 100, Page(s) 1-2 of the Plat Records of Xxxxxx County,
Texas, as corrected by instrument recorded in Volume 13064, Page
278 of the Real Property Records of Xxxxxx County, Texas.
