Exhibit 10.16
SECOND AMENDMENT TO CONSTRUCTION LOAN AGREEMENT
THIS SECOND AMENDMENT TO CONSTRUCTION LOAN AGREEMENT
("Amendment") is executed effective as of, although not
necessarily on, the 31st day of December, 1999, by STRATUS 7000
WEST JOINT VENTURE, a Texas joint venture ("Borrower"), whose
address is 98 San Jacinto Boulevard, Suite 220, Austin, Texas
78791, STRATUS PROPERTIES OPERATING CO., L.P., a Delaware limited
partnership (formerly Stratus Properties Operating Co., a
Delaware general partnership), STRATUS PROPERTIES, INC., a
Delaware corporation ("Guarantor"), and COMERICA BANK - TEXAS, a
state banking association ("Lender"), as follows:
W I T N E S S E T H:
WHEREAS, as of the 9th day of April, 1999, Borrower and
COMERICA BANK-TEXAS, a state banking association ("Lender"),
whose address is 1601 Elm Street, 2nd Floor, Dallas, Texas 75201,
Attn: National Real Estate Services, entered into that certain
Construction Loan Agreement (the "Agreement"), which Agreement
set forth the terms and conditions of a construction loan from
Lender to Borrower in the amount of SIX MILLION SIX HUNDRED
THOUSAND AND NO/100 DOLLARS ($6,600,000.00) ("Loan") for the
construction of an office building to be constructed in the City
of Austin, County of Travis, Texas, upon the land more fully
described in Exhibit A attached hereto; and
WHEREAS, among other things, as security for the Loan,
Stratus Properties Operating Co., L.P. ("Operating Company")
executed and delivered to Lender that certain Assignment of
Accounts Receivable ("Assignment") dated of even date with the
Agreement which assigned to Lender the Proceeds (herein so
called) due to Operating Company from the City of Austin pursuant
to the Agreement Regarding the Construction of Improvements to
the City of Austin's Water System in the Lantana Area ("Austin
Water Agreement"), all as more fully described in the Agreement
and in the Assignment; and
WHEREAS, Guarantor executed and delivered that certain
limited guaranty ("Guaranty") to Lender in connection with the
Loan, all as more fully set forth in the Guaranty from Guarantor
dated of even date with the Agreement; and
WHEREAS, Borrower, Lender and Guarantor entered into that
certain Modification Agreement as of the 16th day of August, 1999
(the "Modification Agreement"); and
WHEREAS, Borrower and Guarantor have now requested that the
Proceeds to be paid under the Austin Water Agreement be released
from the terms and conditions of the Loan, and the Proceeds due
under the Austin Water Agreement be reassigned to Lender in
connection with a Related Loan (herein so called) from Lender in
the original principal amounts of TWENTY MILLION AND NO/100
DOLLARS ($20,000,000.00) and TEN MILLION AND NO/100 DOLLARS
($10,000,000.00) dated December 16, 1999, wherein STRATUS
PROPERTIES INC., a Delaware corporation, STRATUS PROPERTIES
OPERATING CO., L.P., a Delaware limited partnership, CIRCLE C
LAND CORP., a Texas corporation, and AUSTIN 290 PROPERTIES, INC.,
a Texas corporation, as co-borrower, pledged multiple real
properties and other assets of the co-borrowers to Lender; and
WHEREAS, Guarantor, in consideration for Lender releasing
the Proceeds under the Assignment, has agreed to execute and
deliver to Lender, in substitution and replacement of the limited
Guaranty previously delivered at the time of entering into the
Agreement, an unconditional and unlimited guaranty;
NOW, THEREFORE, for and in consideration of the mutual
covenants and agreements set forth herein and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and confessed, Borrower and Lender do hereby
amend the Agreement as follows:
1. Release of Proceeds. In consideration for the
unconditional and unlimited guaranty executed and delivered
simultaneously herewith by STRATUS PROPERTIES INC., Lender hereby
terminates the Assignment dated as of the 9th day of April, 1999,
from Operating Company and releases its lien on the Proceeds as
to this Loan. The parties hereto agree and acknowledge that two
(2) installments, each in the amount of NINE HUNDRED NINETY
THOUSAND SIX HUNDRED FORTY-EIGHT DOLLARS AND 46/100 DOLLARS
($990,648.46), are due from the City of Austin under the Austin
Water Agreement, the first installment being due and payable as
of the date hereof and the remaining installment in a like sum
shall be due and payable on or before December 31, 2000, together
with any and all additional revenue, income, proceeds, profits
and other types of deposits or benefits paid or payable by the
City of Austin under the Austin Water Agreement. Operating
Company agrees and acknowledges that it shall simultaneously
herewith execute an assignment of accounts receivable acceptable
to Lender whereby all of its rights and remedies under the Austin
Water Agreement shall be re-assigned to Lender under the Related
Loan, and that the two (2) installments due under the Austin
Water Agreement shall be applied upon receipt by Lender to the
Related Loan.
2. Substitution of Guaranty. Simultaneously herewith
Guarantor shall execute and deliver its guaranty in form and
content acceptable to Lender whereby Guarantor unconditionally
guarantees the payment and performance of the Loan, and the
limited Guaranty now held by Lender shall be returned to
Guarantor.
3. Full Force and Effect. Except as otherwise modified
herein or under the terms of the Modification Agreement, the
Agreement shall remain in full force and effect.
4. Definitions. All terms not otherwise defined herein
shall have those definitions as contained in the Agreement.
EXECUTED as of, although not necessarily on, the day and
year first above written.
COMERICA BANK-TEXAS,
a state banking association
By:
Name:
Title:
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/ William H. Armstrong, III
-------------------------------
Name: William H. Armstrong, 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:
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/ William H. Armstrong, III
-------------------------------
Name: William H. Armstrong, III
Title: Chairman of the Board, President
and Chief Executive Officer
STRATUS PROPERTIES INC.,
a Delaware corporation,
By: /s/ William H. Armstrong, III
-------------------------------
Name: William H. Armstrong, III
Title: Chairman of the Board, President
and Chief Executive Officer
STATE OF TEXAS &
&
COUNTY OF __________ &
The foregoing instrument was ACKNOWLEDGED before me this _____ day
of February, 2000, by ____________________________________, the
____________________ of COMERICA BANK-TEXAS, a state banking
association, on behalf of said association.
[S E A L]
Notary Public - State of Texas
My Commission Expires:
_____________________ Printed Name of Notary Public
STATE OF TEXAS &
&
COUNTY OF __________ &
The foregoing instrument was ACKNOWLEDGED before me this
_____ day of February, 2000, by William H. Armstrong, III,
Chairman of the Board, President and Chief Executive Officer of
STRATUS PROPERTIES INC., a Delaware corporation and the Sole
Member of STRS L.L.C., a Delaware limited liability company and
the General Partner of STRATUS 7000 WEST, LTD., a Texas limited
partnership and the Operating Partner of STRATUS 7000 WEST JOINT
VENTURE, a Texas joint venture, on behalf of said joint venture.
[S E A L]
Notary Public - State of Texas
My Commission Expires:
_____________________ Printed Name of Notary Public
STATE OF TEXAS &
&
COUNTY OF __________ &
The foregoing instrument was ACKNOWLEDGED before me this
_____ day of February, 2000, by
____________________________________, the ____________________ of
OLY LANTANA GP, L.L.C., a Texas limited liability company and the
Sole General Partner of OLY LANTANA, L.P., a Texas limited
partnership and the Financial Partner of STRATUS 7000 WEST JOINT
VENTURE, a Texas joint venture, on behalf of joint venture.
[S E A L]
Notary Public - State of Texas
My Commission Expires:
_____________________ Printed Name of Notary Public
STATE OF TEXAS &
&
COUNTY OF __________ &
The foregoing instrument was ACKNOWLEDGED before me this
_____ day of February, 2000, by William H. Armstrong, III,
Chairman of the Board, President and Chief Executive Officer of
STRATUS PROPERTIES INC., a Delaware corporation and the Sole
Member of STRS L.L.C., a Delaware limited liability company, the
General Partner of STRATUS PROPERTIES OPERATING CO., L.P., a
Delaware limited partnership, on behalf of said limited
partnership.
[S E A L]
Notary Public - State of Texas
My Commission Expires:
_____________________ Printed Name of Notary Public
STATE OF TEXAS &
&
COUNTY OF __________ &
The foregoing instrument was ACKNOWLEDGED before me this
_____ day of February, 2000, by William H. Armstrong, 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
126240.1
145:3134-689