ex10-2.htm


    


    AMENDED AND RESTATED
PROMISSORY NOTE

     

    
       

      
        	 $120,000,000.00
      	 October 21,
      2009


      

       

    

    FOR VALUE RECEIVED, CJUF II STRATUS BLOCK 21
LLC, a
Delaware limited liability company ("Maker"), does hereby promise to pay
to the order of BEAL BANK NEVADA ("Payee"), at 6000 Legacy Drive, Plano, Texas
75024, or at such other place as the holder hereof may from time to time
designate in writing, in lawful money of the United States, the principal sum of
ONE HUNDRED TWENTY MILLION AND NO/100 DOLLARS ($120,000,000.00), or as much
thereof as is advanced on the loan evidenced hereby, with interest thereon as
provided in this Note.

    


    1.           Certain
Definitions.  For the purposes
hereof, the terms set forth below shall have the following
meanings:

    


    (a)           "Applicable Law" shall
mean (i) the laws of the United States of America applicable to contracts
made or performed in the State of Texas, now or at any time hereafter
prescribing maximum rates of interest or eliminating maximum rates of interest
on loans and extensions of credit, (ii) the laws of the State of Texas
including, without limitation, Chapter 303 of the Texas Finance Code, as the
same may be amended from time to time ("Chapter 303"), now or at any time
hereafter prescribing or eliminating maximum rates of interest on loans and
extensions of credit, and (iii) any other laws at any time applicable to
contracts made or performed in the State of Texas which permit a higher interest
rate ceiling hereunder.  Notwithstanding the
foregoing, in no event shall Chapter 346 of the Texas Finance Code (which
regulates certain revolving loan accounts and revolving tri-party accounts)
apply to this Note.

    


    (b)           "Base Rate" shall mean
the per annum rate equal to The Wall Street Journal Prime Rate, as it changes
from time to time, plus six and one-quarter percent (61⁄4%).

    


    (c)           "Deed of Trust" shall
mean that certain Amended and Restated Construction Deed of Trust, Assignment of
Rents, Security Agreement and Fixture Filing, dated of even date herewith,
executed by Maker for the benefit of Payee, covering the Property as security
for this Note and certain other indebtedness of Maker to Payee.

    


    (d)           "Final Maturity Date"
shall mean October 21, 2014.

    


    (e)           "Highest Lawful Rate"
shall mean at the particular time in question the maximum rate of interest
which, under Applicable Law, Payee is then permitted to charge Maker on this
Note.  If the maximum rate of interest which, under Applicable Law,
Payee is permitted to charge Maker on this Note shall change after the date
hereof, the Highest Lawful Rate shall be automatically increased or decreased,
as the case may be, from time to time as of the effective date of each change in
the Highest Lawful Rate without notice to Maker.  For purposes of
determining the Highest Lawful Rate under the Applicable Law of the State of
Texas, the applicable rate ceiling shall be the weekly 

     

    
      
        
        

      

      
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    ceiling
described in and computed in accordance with the provisions of Chapter 303;
provided, however, that in determining the Highest Lawful Rate, all fees and
other charges contracted for, charged or received by Payee in connection with
the loan evidenced by this Note which are either deemed interest under
Applicable Law or required under Applicable Law to be deducted from the
principal balance hereof to determine the rate of interest charged on this Note
shall be taken into account.  To the extent permitted by Applicable
Law, Payee may from time to time substitute for the "weekly ceiling" referred to
above any ceiling under Chapter 303 or any other statute and revise the rate,
index, formula or provision of law used to compute the rate hereunder as
provided therein.

    


    (f)           "Loan Agreement" shall
mean that certain Amended and Restated Construction Loan Agreement of even date
herewith by and between Maker and Payee.

    


    (g)           "Loan Documents" has
the meaning set forth in the Loan Agreement.

    


    (h)           "Project" has the
meaning set forth in the Loan Agreement.

    


    (i)           "Property" shall mean
the real property, improvements and fixtures located in Travis County, Texas,
and personal property which are more particularly described in the Deed of
Trust.

    


    (j)           "Wall Street Journal Prime
Rate" shall mean the prime rate of interest for commercial borrowings
published from time to time by The Wall Street Journal in the Money Rates
Section, provided that if at any time The Wall Street Journal ceases to be
published or ceases to publish such prime rate, Payee shall select a nationally
recognized substitute publication comparable to The Wall Street Journal for use
in determining such prime rate, and Payee shall provide written notice to Maker
of any such substitution.

    


    2.           Calculation and Payment of
Principal and Interest.

    


    (a)           Subject
to the provisions of Section 7 hereafter, interest on the unpaid principal
balance hereof from time to time outstanding shall be computed at a rate equal
to the lesser of (i) the Base Rate in effect from time to time and
(ii) the Highest Lawful Rate.  The Base Rate shall change and be
adjusted as and when The Wall Street Journal Prime Rate changes.

    


    (b)           Accrued
and unpaid interest, computed as set forth in (a) above, or, if applicable, as
set forth in Section 7 below, shall be due and payable monthly on the first
(1st) day
of each month hereafter commencing November 1, 2009 and continuing throughout
the term of this Note.

    


    (c)           In
accordance with the terms of Section 4.5 of the Loan Agreement, (i) as and when
Residential Units (as defined in the Loan Agreement) are sold, as permitted by
the Loan Documents, all Net Sales Proceeds (as defined in the Loan Agreement)
from the sale of the Residential Unit sold, and (ii) all Net Operating Income
(as defined in the Loan Agreement) must be offered to Payee as a principal
prepayment of this Note.

     

    
      
        
        

      

      
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    (d)           The
unpaid principal balance of and all accrued and unpaid interest upon this Note,
including interest computed at the Base Rate, the Highest Lawful Rate and/or the
Default Rate, as hereinafter defined, whichever is applicable from time to time,
are due and payable on the maturity date hereof (the "Maturity Date") whether
such Maturity Date is the Final Maturity Date or an accelerated Maturity Date,
and Maker hereby agrees to pay all such amounts to Payee on such Maturity
Date.

    


    (e)           Interest
on this Note shall be computed on the basis of three hundred sixty-five (365)
day or three hundred sixty-six (366) day years, as the case may be.

    


    (f)           If
the date for any payment or prepayment hereunder falls on a day which is a
Saturday, Sunday or holiday in the State of Texas on which banks are required or
permitted by law to be closed, then for all purposes of this Note, the same
shall be deemed to have fallen on the next following day, and such extension of
time shall in such case be included in the calculation of interest.

    


    
      	 	
              (g)

            	
              All
      payments on this Note shall be applied first to the payment of any Late
      Charge, as hereinafter defined, due hereunder, then to the payment of any
      costs and expenses of Payee which are to be reimbursed by Maker as
      provided herein or in any of the other Loan Documents, then to the payment
      of  accrued and unpaid interest and then to the payment of the
      principal balance hereof; provided, however, if an Event of Default, as
      hereinafter defined, is then in existence, payments on this Note shall be
      applied as Payee shall elect, in Payee’s sole
  discretion.

            


    

    


    3.           Prepayment.  This Note may not
be prepaid, in whole or in part, except as permitted by the
express  terms of the Loan Agreement.

    


    4.           Waiver.  Except to the
extent otherwise expressly set forth in Paragraph 5 below, Maker and all
sureties, endorsers, accommodation parties, guarantors and other parties now or
hereafter liable for the payment of this Note, in whole or in part, hereby
severally (i) waive demand, notice of demand, presentment for payment,
notice of nonpayment, notice of default, protest, notice of protest, notice of
intent to accelerate the Maturity Date, notice of acceleration of the Maturity
Date, notice of dishonor and all other notices, and further waive diligence in
collecting this Note, in taking action to collect this Note, in bringing suit to
collect this Note, or in enforcing this Note or any of the security for this
Note; (ii) agree to any substitution, subordination, exchange or release of
any security for this Note or the release of any party primarily or secondarily
liable for the payment of this Note; (iii) agree that Payee shall not be
required to first institute suit or exhaust its remedies hereon against Maker or
others liable or to become liable for the payment of this Note or to enforce its
rights against any security for the payment of this Note; and (iv) consent
to any extension of time for the payment of this Note, or any installment
hereof, made by agreement by Payee with any person now or hereafter liable for
the payment of this Note, even if Maker is not a party to such
agreement.

    


    5.           Events of
Default

     

    
      
        
        

      

      
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    (a)           Upon
the happening of any of the following events (each an "Event of Default"),
Payee, at its option, and without limitation of other rights Payee has under the
Loan Documents, at law or in equity, may declare immediately due and payable the
entire unpaid principal balance of this Note together with all interest accrued
and owing hereon, plus any other sums payable at the time of such declaration
pursuant to this Note or any other Loan Document, including, without limitation,
the Loan Agreement and the Deed of Trust.  Events of Default include
the following:

    


    (i)           If
Maker shall fail to pay any installment of principal and/or interest and/or
other sums due under this Note as and when same becomes due and payable in
accordance with the terms hereof and/or any other Loan Document, or if Maker
shall default in any other obligation under this Note, the Loan Agreement, the
Deed of Trust and/or any other Loan Document which can be cured by the payment
of money and if any such failure or default remains uncured upon the expiration
of five (5) days following the date written notice thereof is given by or on
behalf of Payee to Maker; provided, however, (x) Payee will not be obligated to
give such written notice more than twice during any twelve (12) month period,
and following the second such notice during a twelve (12) month period, any
subsequent default or failure during the then current twelve (12) month period
shall constitute an Event of Default without any notice given by or on behalf of
Payee and (y) such written notice of default and five (5) day cure period
provisions shall not apply to Maker's obligation to pay the balance due on this
Note on the Maturity Date hereof (whether such Maturity Date is the Final
Maturity Date or any accelerated Maturity Date effected pursuant to any of the
Loan Documents);

    


    (ii)           The
occurrence of any Event of Default, as defined in the Loan Agreement, or the
occurrence of a default under any other Loan Document which remains uncured upon
the expiration of any cure period applicable thereto as set forth in the Loan
Document under which such default occurred.

    


    (b)           The
failure to exercise the foregoing option to accelerate the Maturity Date of this
Note upon the happening of one or more Events of Default shall not constitute a
waiver of the right to exercise the same or any other option at any subsequent
time during the continuance of an Event of Default, and no such failure shall
nullify any prior exercise of any such option without the express written
consent of Payee.

    


    6.           Collateral.  This Note is
secured, among other things, by the Deed of Trust, which contains provisions for
the acceleration of the maturity hereof upon the happening of certain
events.

    


    7.           Default
Interest; Late Charge.  If (a) any
installment of principal and/or interest due hereon is not paid on or before the
due date thereof, and until such payment is received by Payee, or (b) if the
entire unpaid principal balance of and/or accrued but unpaid interest on this
Note are not paid on or before the earlier to occur of the Final Maturity Date
or any accelerated date of maturity designated pursuant hereto, or (c) if any
Event of Default shall occur and so long as any such Event of Default continues,
all unpaid amounts of this Note, including principal and 

     

    
      
        
        

      

      
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    interest
(to the extent permitted by Applicable Law), shall thereafter bear interest at a
per annum rate of interest (the “Default Rate") equal to the lesser of
(i) the Base Rate plus five percent (5%) or (ii) the Highest Lawful
Rate; provided, however, that the obligation to pay such interest is subject to
the limitation contained in the following paragraph.  Without
limitation of the rights of Payee if a payment is not paid on the due date
thereof (other than on the Maturity Date) and without limitation of the
obligation of Maker to pay such payments on the due dates thereof, at the option
of Payee, Maker will pay a late charge (the “Late Charge") as designated by
Payee but not exceeding five percent (5%) of any installment of principal and/or
interest that is not paid on or before the tenth (10th) day
following the day such payment is due (other than the Maturity Date) to cover
the extra expenses involved in handling delinquent payments, subject to the
limitation contained in the following paragraph.

    


    8.           Compliance
with Law.  All agreements
between Maker and Payee, whether now existing or hereafter arising and whether
written or oral, are hereby limited so that in no contingency, whether by reason
of demand or acceleration of the Final Maturity Date or otherwise, shall the
interest contracted for, charged, received, paid or agreed to be paid to Payee
exceed the maximum amount permissible under Applicable Law.  If, from
any circumstance whatsoever, interest in regard to the loan evidenced by this
Note would otherwise be payable to Payee in excess of the maximum amount
permissible under Applicable Law, the interest payable to Payee shall be reduced
to the maximum amount permissible under Applicable Law; and if from any
circumstance Payee shall ever receive anything of value deemed interest in
regard to the loan evidenced by this Note by Applicable Law in excess of the
maximum amount permissible under Applicable Law, an amount equal to the
excessive interest shall be applied to the reduction of the principal balance
hereof and not to the payment of interest, or if such excessive amount of
interest exceeds the unpaid balance of principal hereof, such excess shall be
refunded to Maker.  All interest paid or agreed to be paid to Payee,
to the extent permitted by Applicable Law, shall be amortized, prorated,
allocated and spread throughout the full period (including any renewal or
extension) until payment in full of the principal so that the interest hereon
for such full period shall not exceed the maximum amount permissible under
Applicable Law.  Payee expressly disavows any intent to contract for,
charge or receive interest in regard to the loan evidenced by this Note in an
amount which exceeds the maximum amount permissible under Applicable
Law.  This paragraph shall control all agreements between Maker and
Payee.

    


    9.           Attorneys' Fees and Costs.  If an Event of
Default shall occur, and in the event that thereafter this Note is placed in the
hands of an attorney for collection, or in the event this Note is collected in
whole or in part through legal proceedings of any nature, then and in any such
case Maker promises to pay on demand by Payee all reasonable costs of
collection, including, but not limited to, reasonable attorneys' fees incurred
by the holder hereof, on account of such collection, whether or not suit is
filed.

    


    10.           Cumulative Rights.  No delay on the
part of the holder of this Note in the exercise of any power or right under this
Note or under any other instrument executed pursuant hereto shall operate as a
waiver thereof, nor shall a single or partial exercise of any power or right
preclude other or further exercise thereof or the exercise of any other power or
right.  Enforcement by the holder of this Note of any security for the
payment hereof shall not constitute any election by it of remedies so as to
preclude the exercise of any other remedy available to it.

     

    
      
        
        

      

      
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    11.           Headings.  The paragraph
headings used in this Note are for convenience of reference only, and shall not
affect the meaning or interpretation of this Note.

    


    12.           Notices and Demands.  Any notice or
demand to be given or to be served upon Maker in connection with this Note must
be in writing and shall be given by certified or registered mail, return receipt
requested, properly addressed, with postage prepaid, addressed to Maker as
follows:

    


    
      	
               
      

            	
              Maker:

            	
              CJUF
      II Stratus Block 21 LLC

            


    

    c/o
Stratus Properties, Inc.

    98 San
Jacinto, Suite 220

    Austin,
Texas  78701

    Attention:                      W.H.
Armstrong III

    Telephone:                      
512-478-6396

    Facsimile:                      
512-478-5788

     

    
      	
               
      

            	
              With
      a copy to:

            	
              Armbrust
      & Brown, L.L.P.

            


    

    100
Congress Avenue, Suite 1300

    Austin,
Texas  78701

    Attention:                      Kenneth
N. Jones, Esq.

    Telephone:                      512-435-2312

    Facsimile:                      512-435-2360

     

    
      	
               
      

            	
              And
      a copy to:

            	
              Canyon-Johnson
      Urban Fund II, L.P.

            


    

    2000
Avenue of the Americas

    Los
Angeles, California  90067

    Attention:                      K.
Robert Turner

    Telephone:                      310-272-1500

    Facsimile:                      310-272-1523

    


    
      	
               
      

            	
              And
      a copy to:

            	
              DLA
      Piper US LLP

            


    

    550 South
Hope Street, Suite 2300

    Los
Angeles, California  90071

    Attention:                      Steven
A. Fein, Esq.

    Telephone:                      213-330-7772

    Facsimile:                      213-330-7572

    


    or at
such other address within the continental United States as Maker may designate
from time to time by written notice given to the holder hereof.  Any
notice or demand will be given and deemed received as provided in the Loan
Agreement.

    


    13.           Governing Law;
Jurisdiction and Venue.  This Note shall
be governed by and construed in accordance with the laws of the State of Texas
and the laws of the United States applicable to transactions in the State of
Texas.  Courts within the State of Texas shall have jurisdiction over
any and all disputes between Maker and Payee, whether at law or in equity, and


     

    
      
        
        

      

      
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    the
proper venue for any such dispute shall be either the state courts located in
Collin County, Texas or the federal courts located in the Northern District of
Texas, Dallas Division.

    


    14.           Successors
and Assigns.  The term "Payee"
shall include all of Payee's successors and assigns to whom the benefits of this
Note shall inure.

    


    15.           WAIVER OF
JURY TRIAL.  MAKER AND PAYEE, BY ITS ACCEPTANCE OF
THIS NOTE, HEREBY EXPRESSLY, VOLUNTARILY, KNOWINGLY AND IRREVOCABLY WAIVE ANY
CONSTITUTIONAL OR OTHER RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN THE
EVENT OF LITIGATION CONCERNING ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A)
ARISING UNDER THIS NOTE, THE PARTIES' PERFORMANCE HEREUNDER OR ANY OTHER LOAN
DOCUMENT, OR (B) IN ANY WAY CONNECTED WITH, OR RELATED OR INCIDENTIAL TO, THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT
RELATED IN ANYWAY WHATSOEVER TO THE SUBJECT MATTER OF THIS NOTE; AND IN ANY
CASE, WHETHER NOW OR HEREAFTER ARISING AND WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE.  ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO
TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

    


    16.           Amends
and Restates.  This Note
modifies, amends, extends and restates that certain Promissory Note in the
original principal amount of $165,000,000.00 dated May 6, 2008, executed by
Maker and made payable to the order of Corus Bank, N.A. ("Corus") which
Promissory Note was subsequently endorsed by Corus to Stratus Partnership
Investments, L.P. ("SPI"), an affiliate of Maker, pursuant to an Allonge dated
June 26, 2009, and thereafter endorsed by SPI to Maker pursuant to an Allonge of
even date herewith (the “Prior Note”).  This Note is entitled to all
of the liens, benefits and priorities of the Prior Note.  This Note
shall not be deemed to create a new obligation of Maker in satisfaction of the
indebtedness evidenced by the Prior Note.  This Note constitutes a
restatement and modification of, but not a novation of, the debt of the Prior
Note.  As of the date hereof, the outstanding principal balance of the
Prior Note is $25,000.00 and no accrued and unpaid interest is due as of the
date hereof.  Accordingly, the $25,000.00 principal balance of the
Prior Note is deemed outstanding hereunder.

    


    [REMAINDER
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    IN
WITNESS WHEREOF, this Note has been executed and delivered under seal on the
date first set froth above.

    


    MAKER:

    


    CJUF II
STRATUS BLOCK 21 LLC,

    a
Delaware limited liability company

    


    
      	
               
      

            	
              By:

            	
              Stratus
      Block 21 Investments, L.P.,

            


    

    
      	
               
      

            	
              a
      Texas limited partnership, Manager

            


    

    


    
      	
               
      

            	 	
              By:

            	
              Stratus
      Block 21 Investments GP, L.L.C.,

            


    

    
      	
               
      

            	
              its
      General Partner

            


    

    


    


                      
     By:   /s/ Erin D. Pickens  
                            

    Name:           Erin
D. Pickens

    Title:           Senior
Vice President

    


    
      	
               
      

            	
              By:

            	
              CJUF
      II Block 21 Member, LLC,

            


    

    
      	
               
      

            	
              a
      Delaware limited liability company,
Member

            


    

    


    
      	
               
      

            	 	
              By:

            	
              Canyon-Johnson
      Urban Fund II, L.P.,

            


    

    
      	
               
      

            	
              a
      Delaware limited partnership,
Member

            


    

    


    
      	
               
      

            	
              By:

            	
              Canyon-Johnson
      Realty Advisors II LLC, a Delaware limited liability company, General
      Partner

            


    

    


    


    
      	
               
      

            	 	
              By:

            	 /s/
      K. Robert
      Turner                        
      	 


    

    
      	
               
      

            	 	
              Name:
      K. Robert Turner

            


    

    
      	
               
      

            	 	
              Title:  Managing
      Partner

            


    


    
      
         


      

      
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