Document

WHEN RECORDED RETURN TO:
THOMPSON & KNIGHT LLP
1722 ROUTH STREET, SUITE 1500
DALLAS, TEXAS 75201-4533
ATTENTION: MATTHEW H. SWERDLOW
MODIFICATION AGREEMENT


This MODIFICATION AGREEMENT (this “Agreement”) dated effective as of January 17, 2020 is by and among STRATUS KINGWOOD PLACE, L.P., a Texas limited partnership (“Borrower”), STRATUS PROPERTIES INC., a Delaware corporation (“Guarantor”) (Borrower and Guarantor herein sometimes called “Loan Parties” or “Loan Party”, as the context may require), and COMERICA BANK, a Texas banking association (“Lender”).
W I T N E S S E T H:


WHEREAS, the following documents have previously been executed and delivered by Borrower to Lender, relating to a loan (the “Loan”) from Lender to Borrower in the original principal amount of $32,870,000, each dated December 6, 2018:
A.Construction Loan Agreement (the “Loan Agreement”);
B.Installment Note (the “Note”) in the stated principal amount of $32,870,000 and payable to Lender;
C.Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing (the “Security Instrument”) covering certain real property and personal property described therein (the “Property”), recorded at Clerk’s File No. 2018116194, Real Property Records of Montgomery County, Texas; 
D.Assignment of Rents and Leases (the “Assignment”), recorded at Clerk’s File No. 2018116195, Real Property Records of Montgomery County, Texas; 
E.Collateral Assignment of Contracts and Plans and Other Agreements Affecting Real Estate (the “Collateral Assignment”);
the instruments described above and all other documents evidencing, securing or otherwise executed in connection with the Loan, including the Guaranty and Environmental Indemnity (each as defined below), being herein collectively called the “Loan Documents”;
WHEREAS, Guarantor has guaranteed certain obligations of Borrower pursuant to the Guaranty (the “Guaranty”) of even date with the Note in favor of Lender;






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WHEREAS, Borrower and Guarantor also executed and delivered to Lender, that certain Environmental Indemnity Agreement (the “Environmental Indemnity”) of even date with the Note in favor of Lender;
WHEREAS, Borrower has requested that Lender increase the committed amount of the Loan by $2,500,000 for a total loan amount of $35,370,000, and Lender is willing to do so on the terms and conditions hereinafter set forth;
WHEREAS, contemporaneously herewith Borrower has executed and delivered to Lender that certain Amended and Restated Installment Note (the “Amended and Restated Installment Note”) in the stated principal amount of $35,370,000, in substitution of the Original Note;
WHEREAS, Lender is the owner and holder of the Original Note and the Amended and Restated Installment Note, and Borrower is the owner of the Property as more particularly described on Exhibit A attached hereto and made a part hereof;
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 not otherwise defined herein shall have the same definition as set forth in the Loan Agreement.  This Agreement and the Amended and Restated Installment Note constitute “Loan Documents”, as such term is defined in the Loan Agreement or defined in any of the other Loan Documents.
2.Substitution of Note.  Lender acknowledges receipt of the Amended and Restated Installment Note and confirms that the Amended and Restated Installment Note is in substitution for (and not in addition to) the Original Note.  From and after the date hereof, all references in the Loan Documents to the “Note” or any similar reference shall mean the Amended and Restated Installment Note and all references to the “Loan” or similar reference contained in the Loan Documents are hereby amended to reflect the Loan in the principal amount of  $35,370,000.
3.Loan Increase.  Effective as of the date hereof, the total committed amount of the Loan is increased by $2,500,000 (the “Loan Increase”) to $35,370,000 (the “Loan”).  Borrower and Lender hereby acknowledge that the unpaid balance of the Amended and Restated Installment Note as of the date hereof is $24,536,351.44.  The amount of $10,833,648.56 remains available to be funded under the Loan in accordance with the terms of the Loan Documents.  
4.Origination Fee.  As consideration for the Loan Increase, contemporaneously with the execution and delivery of this Agreement and as a condition to its effectiveness, Borrower shall pay to Lender a loan origination fee in the amount of $25,000.00 in immediately available funds.
5.Modifications of Loan Documents. 




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(a)All references in the Loan Documents to “32,870,000” are hereby replaced with “35,370,000”.
(b)The Budget attached to the Loan Agreement as Exhibit B is hereby deleted in its entirety and the Budget attached hereto as Exhibit B is substituted therefor.  To the extent of any discrepancy in figures contained in the Loan Documents prior to the amendment by this Agreement and the figures contained in the Budget attached hereto, the Budget attached hereto shall control.
(c)The definition of “Contractor” in the Loan Agreement is hereby amended to also include “Brazos Contractors & Development, Inc., a Texas corporation”.
(d)All references to the defined term “Land” in the Loan Documents or similar reference to a legal description contained in the Loan Documents, including, without limitation, to the defined term “Land” in the Security Instrument, the Loan Agreement and the Environmental Indemnity Agreement shall hereafter mean the land more particularly described on Exhibit A attached hereto.  Borrower hereby represents that the legal description attached as Exhibit A hereto contains the same land as the defined term “Land” as it was previously defined in the Loan Documents prior to the date hereof.
6.Release of Lender.  Loan Parties hereby release, remise, acquit and forever discharge Lender, together with its respective agents, representatives, consultants, attorneys, fiduciaries, servants, officers, directors, partners, predecessors, successors and assigns, employees, subsidiary entities, parent entities, and related business divisions, past and present (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 Loan Document, or any of the transactions associated therewith, or the Property, including specifically but not limited to claims of usury, lack of consideration, fraudulent conveyance and lender liability.  THE FOREGOING RELEASE INCLUDES ACTIONS AND CAUSES OF ACTION, JUDGMENTS, EXECUTIONS, SUITS, DEBTS, CLAIMS, DEMANDS, LIABILITIES, OBLIGATIONS, DAMAGES AND EXPENSES ARISING AS A RESULT OF THE NEGLIGENCE (BUT NOT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH RELEASED PARTY) OF ONE OR MORE OF THE RELEASED PARTIES.
7.Representations of Borrower.  Borrower hereby represents and warrants that (a) Borrower owns the Property; (b)  the Loan Documents to which Borrower is a party and this Agreement constitute the legal, valid and binding obligations of Borrower enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other laws applicable to creditors’ rights or the collection of  




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debtors’ obligations generally; (c) 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, deed to secure debt, mortgage, 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; (d) to the best of Borrower’s knowledge there exists no uncured default under the Loan Documents; (e) to the best of Borrower’s knowledge, there are no offsets, claims or defenses to the Loan Documents; and (f) there has been no change in the organizational structure of Borrower since the date of the closing of the Loan and Borrower is currently duly organized and legally existing under the laws of its state of organization.  Borrower agrees to indemnify and hold Lender harmless against any loss, claim, damage, liability or expense (including without limitation reasonable attorneys' fees actually incurred) incurred as a result of any representation or warranty made by Borrower herein proving to be untrue in any material respect.  
8.Representations of Guarantor.  Guarantor hereby represents and warrants that (a)  the Loan Documents to which Guarantor is a party and this Agreement constitute the legal, valid and binding obligations of Guarantor enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other laws applicable to creditors’ rights or the collection of debtors’ obligations generally; (b) the execution and delivery of this Agreement by Guarantor do not contravene, result in a breach of or constitute a default under any deed of trust, deed to secure debt, mortgage, loan agreement, indenture or other contract, agreement or undertaking to which Guarantor is a party or by which Guarantor 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 Guarantor is subject; (c) to the best of Guarantor’s knowledge there exists no uncured default under the Loan Documents; and (d) to the best of Guarantor’s knowledge, there are no offsets, claims or defenses to the Loan Documents.  Guarantor agrees to indemnify and hold Lender harmless against any loss, claim, damage, liability or expense (including without limitation reasonable attorneys' fees actually incurred) incurred as a result of any representation or warranty made by Guarantor herein proving to be untrue in any material respect.
9.Additional Documentation.  Loan Parties, upon request from Lender, agree 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.
10.Default.  If any Loan Party shall fail to keep or perform any of the covenants or agreements contained herein or if any statement, representation or warranty contained herein proves to have been false or misleading in any material respect as of the date made, Borrower shall be deemed to be in default under the Loan Documents and Lender shall be entitled at its option to exercise any and all of the rights and remedies granted pursuant to the Loan Documents or to which Lender may otherwise be entitled, whether at law or in equity.




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11.Recordation; Title Insurance.  Contemporaneously herewith, Lender will deliver this Agreement for recording in the appropriate records of the county where the Property is located at Borrower’s expense and Borrower shall, at its sole cost and expense, obtain and deliver to Lender new Title Insurance insuring the lien of the Security Instrument as modified hereby, together with such endorsements as Lender may reasonably require, in the amount of the Amended and Restated Installment Note and otherwise in form and content acceptable to Lender.
12.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.  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 continue, unabated, in full force and effect, to secure Borrower’s obligation to repay the Note.  All references in any of the Loan Documents to a Loan Document shall hereafter refer to such Loan Document as amended hereby.
13.Integration. This Agreement supersedes and merges all prior and contemporaneous promises, representations and agreements with respect to the matters set forth herein.  No modification of this Agreement or any waiver of rights hereunder shall be effective unless made by supplemental agreement, in writing, executed by Lenders and Loan Parties.  Lenders and Loan Parties 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.
14.Costs and Expenses.  Contemporaneously with the execution and delivery of this Agreement and as a condition to its effectiveness, 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, any Title Insurance and Title Insurance endorsement charges, recording fees and fees and expenses of legal counsel to Lender.
15.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.
16.Time of the Essence.  It is expressly agreed by the parties hereto that time is of the essence with respect to this Agreement.
17.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.
18.Successors and Assigns. The terms and provisions hereof shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.






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19.CHOICE OF LAW AND VENUE.  SECTION 9.12 OF THE LOAN AGREEMENT IS HEREBY INCORPORATED BY REFERENCE INTO THIS AGREEMENT AS IF THE SAME WERE CONTAINED HEREIN.
20.Notice of Final Agreement.  Loan Parties 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.
IN WITNESS WHEREOF, Loan Parties and Lender have executed this Agreement on the respective dates of acknowledgement to be effective as of the date first above written.
REMAINDER OF PAGE INTENTIONALLY BLANK
SIGNATURE PAGES FOLLOW






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SIGNATURE PAGE OF BORROWER TO 
MODIFICATION AGREEMENT




STRATUS KINGWOOD PLACE, L.P., a Texas limited partnership


By: Stratus Northpark, L.L.C., a Texas limited liability company, General Partner


        
        By:      /s/ Erin D. Pickens   
         Erin D. Pickens, Senior Vice President


STATE OF TEXAS  § 
                      §
COUNTY OF TRAVIS §


This instrument was acknowledged before me on January 15, 2020, by Erin D. Pickens, Senior Vice President of Stratus Northpark, L.L.C., a Texas limited liability company, as General Partner of STRATUS KINGWOOD PLACE, L.P., a Texas limited partnership, on behalf of said partnership.




[SEAL]
/s/ Jenny Foster 
Notary Public, State of Texas 




Jenny Foster                                                    
(printed name)
My commission expires:
04-13-2022.




        










SIGNATURE PAGE OF GUARANTOR TO
MODIFICATION AGREEMENT


STRATUS PROPERTIES INC.,
a Delaware corporation




By: /s/ Erin D. Pickens            
     Erin D. Pickens, Senior Vice President


STATE OF TEXAS  § 
                      §
COUNTY OF TRAVIS §


This instrument was ACKNOWLEDGED before me this 15th day of January, 2020, by Erin D. Pickens, Senior Vice President of STRATUS PROPERTIES INC., a Delaware corporation, on behalf of said corporation.


[SEAL]
/s/ Jenny Foster 
Notary Public, State of Texas 




Jenny Foster                                                    
(printed name)
My commission expires:
04-13-2022.




        











 SIGNATURE PAGE OF LENDER TO
MODIFICATION AGREEMENT 


LENDER:


COMERICA BANK


By: /s/ Elaine Houston    
                                                                       Name: Elaine Houston
Title:   Vice President


STATE OF TEXAS  § 
                      §
COUNTY OF HARRIS §


This instrument was acknowledged before me on January 16, 2020, by Elaine Houston, Vice President of COMERICA BANK, a Texas banking association, on behalf of said banking association.
[SEAL]
/s/ Sarah Hanes    
Notary Public, State of Texas




        











EXHIBIT A
(Legal Description of Property) 
(Omitted pursuant to Item 601(a)(5) of Regulation S-K)











EXHIBIT B
(Substitute Budget)
(Omitted pursuant to Item 601(a)(5) of Regulation S-K)