Exhibit 10.18
GUARANTY
This GUARANTY ("Guaranty") is executed as of, although not necessarily on, the
31st day of December, 1999, by STRATUS PROPERTIES INC., a Delaware corporation
("Guarantor"),for the benefit of COMERICA BANK-TEXAS, a state banking
association ("Lender").
W I T N E S S E T H :
WHEREAS, Lender entered into a Construction Loan Agreement ("Loan Agreement")
dated April 9, 1999, with STRATUS 7000 WEST JOINT VENTURE, a Texas joint
venture("Borrower"), pursuant to which Borrower executed that certain Promissory
Note dated of even date therewith payable to the order of the Lender in the
original principal amount of $6,600,000.00 (together with all renewals,
modifications, increases and extensions thereof, the "Note") under which
Borrower became indebted, and may from time to time be further indebted, to
Lender with respect to a loan ("Loan") which is secured by the liens and
security interests of a deed of trust and a security agreement, each of even
date therewith, and further evidenced, secured or governed by other instruments
and documents executed in connection with the Loan (collectively the
"Loan Documents"); and
WHEREAS, Borrower, Lender and Guarantor entered into that certain Modification
Agreement as of the 16th day of August, 1999 (the "Modification Agreement")
wherein, among other things, the restructure of the Borrower was requested by
Borrower and consented to by Lender; and
WHEREAS, of even date herewith, Borrower, Lender and STRATUS OPERATING CO.,
L.P., a Delaware limited partnership (formerly Stratus Properties Operating
Co., a Delaware general partnership) (the "Operating Company"), have entered
into that certain Second Amendment to Construction Loan Agreement (the "Second
Amendment"), which provides, among other things, that certain proceeds to be
paid to Lender pursuant to the terms of that certain Assignment of Accounts
Receivable dated of even date with the Loan Agreement and executed by the
Operating Company for the benefit of Lender be released and, in lieu thereof,
Guarantor has agreed to execute and deliver to Lender, in substitution and
replacement of the limited guaranty delivered to Lender in connection with
the Loan Agreement, its unconditional and unlimited guaranty, as more fully
set forth below; and
WHEREAS, Lender would not be willing to enter into the Second Amendment unless
Guarantor unconditionally guarantees payment to Lender of the Guaranteed Debt
(as herein defined); and
WHEREAS, Guarantor is the owner of a direct and indirect interest in Borrower,
Guarantor has benefitted from Lender's making the Loan to Borrower and will
continue to benefit therefrom, and Guarantor will benefit from Lender's
entering into the Second Amendment; and
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WHEREAS, Lender is not willing to make the Loan, or otherwise extend credit,
to Borrower unless Guarantor unconditionally guarantees payment to Lender of
the Guaranteed Debt (as herein defined); and
NOW, THEREFORE, as an inducement to Lender to enter into the Second Amendment
and to extend such additional credit under the Loan as Lender may from time
to time agree to extend, and for other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, the parties
do hereby agree as follows:
ARTICLE I
NATURE AND SCOPE OF GUARANTY
I.1 Guaranty of Obligation. Guarantor hereby irrevocably and unconditionally
guarantees to Lender and its successors and assigns the payment and performance
of the "Guaranteed Debt" (as herein defined) as and when the same shall be due
and payable, whether by lapse of time, by acceleration of maturity or otherwise.
Guarantor hereby irrevocably and unconditionally covenants and agrees that it
is liable for the Guaranteed Debt as a primary obligor.
I.2 Definition of Guaranteed Debt. As used herein, the term "Guaranteed Debt"
means all of the following:
(a) all principal, interest, attorneys' fees, commitment fees, liabilities for
costs and expenses and other indebtedness, obligations and liabilities of
Borrower to Lender at any time created or arising in connection with the Loan,
or any amendment thereto or substitution therefor, including but not limited to
the terms of the Modification Agreement and the Second Amendment and to all
indebtedness, obligations and liabilities of Borrower to Lender arising under
the Note, or under any renewals, modifications, increases and extensions of the
Note, or under the Loan Documents;
(b) all liabilities of Borrower for future advances, extensions of credit,
sales on account or other value at any time given or made by Lender to Borrower
arising under the Loan Documents, as amended, whether or not the advances,
creditor value are given pursuant to commitment;
(c) any and all other indebtedness, liabilities, obligations and duties of
every kind and character of Borrower to Lender arising under the Loan Documents,
as amended, whether now or hereafter existing or arising, regardless of whether
such present or future indebtedness, liabilities, obligations or duties be
direct or indirect, related or unrelated, liquidated or unliquidated,
primary or secondary, joint, several, or joint and several, or fixed
or contingent;
(d) any and all post-petition interest and expenses (including attorney's
fees) whether or not allowed under any bankruptcy, insolvency, or other similar
law; and
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(e) all costs, expenses and fees, including but not limited to court costs and
attorneys' fees, arising in connection with the collection of any or all
amounts, indebtedness, obligations and liabilities of Borrower to Lender
described in items (a) through (d) of this Section.
I.3 Nature of Guaranty. This Guaranty is an irrevocable, absolute, continuing
guaranty of payment and performance and not a guaranty of collection. This
Guaranty may not be revoked by Guarantor and shall continue to be effective with
respect to any Guaranteed Debt arising or created after any attempted revocation
by Guarantor and after (if Guarantor is a natural person) Guarantor's death (in
which event this Guaranty shall be binding upon Guarantor's estate and
Guarantor's legal representatives and heirs). The fact that at any time or from
time to time the Guaranteed Debt may be increased, reduced or paid in full shall
not release, discharge or reduce the obligation of Guarantor to Lender with
respect to indebtedness or obligations of Borrower thereafter incurred (or other
Guaranteed Debt thereafter arising) under the Note or otherwise. This Guaranty
may be enforced by Lender and any subsequent holder of the Guaranteed Debt and
shall not be discharged by the assignment or negotiation of all or part of the
Guaranteed Debt.
I.4 Guaranteed Debt Not Reduced by Offset. The Guaranteed Debt and the
liabilities and obligations of Guarantor to Lender hereunder, shall not be
reduced, discharged or released because or by reason of any existing or future
offset, claim or defense of Borrower, or any other party, against Lender or
against payment of the Guaranteed Debt, whether such offset, claim or defense
arises in connection with the Guaranteed Debt (or the transactions creating the
Guaranteed Debt) or otherwise. Without limiting the foregoing or the
Guarantor's liability hereunder, to the extent that Lender advances funds or
extends credit to Borrower, and does not receive payments or benefits thereon in
the amounts and at the times required or provided by applicable agreements or
laws, Guarantor is absolutely liable to make such payments to (and confer such
benefits on) Lender, on a timely basis.
I.5 Payment by Guarantor. If all or any part of the Guaranteed Debt shall not
be punctually paid when due, whether at maturity or earlier by acceleration or
otherwise, Guarantor shall, immediately upon demand by Lender, and without
presentment, protest, notice of protest, notice of non-payment, notice of
intention to accelerate the maturity, notice of acceleration of the maturity, or
any other notice whatsoever, pay in lawful money of the United States of
America, the amount due on the Guaranteed Debt to Lender at Lender's address as
set forth herein. Such demand(s) may be made at any time coincident with or
after the time for payment of all or part of the Guaranteed Debt, and may be
made from time to time with respect to the same or different items of
Guaranteed Debt. Such demand shall be deemed made, given and received in
accordance with the notice provisions hereof.
I.6 No Duty to Pursue Others. It shall not be necessary for Lender (and
Guarantor hereby waives any rights which Guarantor may have to require Lender),
in order to enforce such payment by Guarantor, first to (i) institute suit or
exhaust its remedies against Borrower or others liable on the Guaranteed Debt or
any other person, (ii) enforce Lender's rights against any collateral which
shall ever have been given to secure the Guaranteed Debt, (iii) enforce Lender's
rights against any other guarantors of the Guaranteed Debt, (iv) join Borrower
or any others liable on the Guaranteed Debt in any action seeking to enforce
this Guaranty, (v) exhaust any remedies available to Lender against any
collateral which shall ever have been given to secure the Guaranteed Debt, or
(vi) resort to any other means of obtaining payment of the Guaranteed Debt.
Lender shall not be required to mitigate damages or take any other action to
reduce, collect or enforce the Guaranteed Debt.
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I.7 Waivers. Guarantor agrees to the provisions of the Loan Documents, as
amended, and hereby waives notice of (i) any loans or advances made by Lender
to Borrower, (ii) acceptance of this Guaranty, (iii) any amendment or extension
of the Note or of any other Loan Documents, (iv) the execution and delivery by
Borrower and Lender of any other loan or credit agreement or of Borrower's
execution and delivery of any promissory notes or other documents arising under
the Loan Documents or in connection with the Mortgaged Property (as defined in
the Loan Documents), (v) the occurrence of any breach by Borrower or Event of
Default (as defined in the Loan Documents), (vi) Lender's transfer or
disposition of the Guaranteed Debt, or any part thereof, (vii) sale or
foreclosure (or posting or advertising for sale or foreclosure) of any
collateral for the Guaranteed Debt, (viii) protest, proof of non-payment or
default by Borrower, or (ix) any other action at any time taken or omitted by
Lender, and, generally, all demands and notices of every kind in connection
with this Guaranty, the Loan Documents, any documents or agreements
evidencing, securing or relating to any of the Guaranteed Debt and the
obligations hereby guaranteed. The parties intend that Guarantor shall not be
considered a "debtor" as defined in Tex. Bus. & Com. Code Ann. & 9.105, as
amended (and any successor statute thereto).
I.8 Payment of Expenses. In the event that Guarantor should breach or fail
to timely perform any provisions of this Guaranty, Guarantor shall, immediately
upon demand by Lender, pay Lender all costs and expenses (including court
costs and attorneys' fees) incurred by Lender in the enforcement hereof or the
preservation of Lender's rights hereunder. The covenant contained in this
Section shall survive the payment of the Guaranteed Debt.
I.9 Effect of Bankruptcy. In the event that, pursuant to any insolvency,
bankruptcy, reorganization, receivership or other debtor relief law, or any
judgment, order or decision thereunder, Lender must rescind or restore any
payment, or any part thereof, received by Lender in satisfaction of the
Guaranteed Debt, as set forth herein, any prior release or discharge from the
terms of this Guaranty given to Guarantor by Lender shall be without effect,
and this Guaranty shall remain in full force and effect. It is the intention
of Borrower and Guarantor that Guarantor's obligations hereunder shall not be
discharged except by Guarantor's performance of such obligations and then only
to the extent of such performance.
1.10 Waiver of Subrogation, Reimbursement and Contribution. Notwithstanding
anything to the contrary contained in this Guaranty, Guarantor hereby
unconditionally and irrevocably waives, releases and abrogates any and all
rights it may now or hereafter have under any agreement, at law or in equity
(including, without limitation, any law subrogating the Guarantor to the rights
of Lender) to assert any claim against or seek contribution, indemnification or
any other form of reimbursement from Borrower or any other party liable for
payment of any or all of the Guaranteed Debt for any payment made by Guarantor
under or in connection with this Guaranty or otherwise until the Guaranteed
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Debt is paid in full.
I.10 "Borrower". The term "Borrower" as used herein shall include any new
or successor corporation, association, partnership (general or limited), joint
venture, trust or other individual or organization formed as a result of any
merger, reorganization, sale, transfer, devise, gift or bequest of Borrower
or any interest in Borrower.
I.11 Multiple Guarantors. If (i) this Guaranty is executed by more than one
party constituting the Guarantor, it is specifically agreed that Lender may
enforce the provisions hereof with respect to one or more of such parties
constituting the Guarantor without seeking to enforce the same as to all or
any such parties; or (ii) one or more additional guaranty agreements
("Other Guaranties") are executed by one or more additional guarantors
("Other Guarantors"), which guaranty, in whole or in part, any of the
indebtedness or obligations evidenced by the Loan Documents, it is
specifically agreed that Lender may enforce the provisions of this Guaranty
or of the Other Guaranties with respect to one or more of the parties
constituting the Guarantor and/or one or more of the Other Guarantors
under the Other Guaranties without seeking to enforce the provisions of this
Guaranty or the Other Guaranties as to all or any of the parties constituting
the Guarantor or the Other Guarantors. Each of the parties constituting the
Guarantor hereby waives any requirement of joinder of all or any other of
the parties constituting the Guarantor or all or any of the Other Guarantors
in any suit or proceeding to enforce the provisions of this Guaranty or of the
Other Guaranties. The liability hereunder of all parties constituting the
Guarantor shall be joint and several.
ARTICLE II
EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR'S OBLIGATIONS
Guarantor hereby consents and agrees to each of the following, and agrees
that Guarantor's obligations under this Guaranty shall not be released,
diminished, impaired, reduced or adversely affected by any of the following,
and waives any common law, equitable, statutory or other rights (including
without limitation rights to notice) which Guarantor might otherwise have as
a result of or in connection with any of the following:
II.1 Modifications. Any renewal, extension, increase, modification,
alteration or rearrangement of all or any part of the Guaranteed Debt, Note,
Loan Documents, or other document, instrument, contract or understanding
between Borrower and Lender,or any other parties, pertaining to the
Guaranteed Debt or any failure of Lender to notify Guarantor of any such
action.
II.2 Adjustment. Any adjustment, indulgence, forbearance or compromise that
might be granted or given by Lender to Borrower or any Guarantor.
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II.3 Condition of Borrower or Guarantor. The insolvency, bankruptcy,
arrangement, adjustment, composition, liquidation, disability, dissolution or
lack of power of Borrower, Guarantor or any other party at any time liable for
the payment of all or part of the Guaranteed Debt; or any dissolution of
Borrower or Guarantor, or any sale, lease or transfer of any or all of the
assets of Borrower or Guarantor, or any changes in the shareholders, partners
or members of Borrower or Guarantor; or any reorganization of Borrower or
Guarantor.
II.4 Invalidity of Guaranteed Debt. The invalidity, illegality or
unenforceability of all or any part of the Guaranteed Debt, or any document or
agreement executed in connection with the Guaranteed Debt, for any reason
whatsoever, including without limitation the fact that (i) the Guaranteed Debt,
or any part thereof, exceeds the amount permitted by law, (ii) the act of
creating the Guaranteed Debt or any part thereof is ultra vires, (iii) the
officers or representatives executing the Note or the other Loan Documents or
otherwise creating the Guaranteed Debt acted in excess of their authority,
(iv) the Guaranteed Debt violates applicable usury laws, (v) the Borrower has
valid defenses, claims or offsets (whether at law, in equity or by agreement)
which render the Guaranteed Debt wholly or partially uncollectible from
Borrower, (vi) the creation, performance or repayment of the Guaranteed Debt
(or the execution, delivery and performance of any document or instrument
representing part of the Guaranteed Debt or executed in connection with the
Guaranteed Debt, or given to secure the repayment of the Guaranteed Debt) is
illegal, uncollectible or unenforceable, or (vii) the Note or any of the other
Loan Documents have been forged or otherwise are irregular or not genuine or
authentic, it being agreed that Guarantor shall remain liable hereon
regardless of whether Borrower or any other person be found not liable on the
Guaranteed Debt or any part thereof for any reason.
II.5 Release of Obligors. Any full or partial release of the liability of
Borrower on the Guaranteed Debt, or any part thereof, or of any co-guarantors,
or any other person or entity now or hereafter liable, whether directly or
indirectly, jointly, severally, or jointly and severally, to pay, perform,
guarantee or assure the payment of the Guaranteed Debt, or any part thereof,
it being recognized, acknowledged and agreed by Guarantor that Guarantor may be
required to pay the Guaranteed Debt in full without assistance or support of any
other party, and Guarantor has not been induced to enter into this Guaranty on
the basis of a contemplation, belief, understanding or agreement that other
parties will be liable to pay or perform the Guaranteed Debt, or that Lender
will look to other parties to pay or perform the Guaranteed Debt.
II.6 Other Collateral. The taking or accepting of any other security,
collateral or guaranty, or other assurance of payment, for all or any part of
the Guaranteed Debt.
II.7 Release of Collateral. Any release, surrender, exchange, subordination,
deterioration, waste, loss or impairment (including without limitation
negligent, willful, unreasonable or unjustifiable impairment) of any collateral,
property or security, at any time existing in connection with, or assuring or
securing payment of, all or any part of the Guaranteed Debt.
II.8 Care and Diligence. The failure of Lender or any other party to exercise
diligence or reasonable care in the preservation, protection, enforcement, sale
or other handling or treatment
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of all or any part of such collateral, property
or security, including but not limited to any neglect, delay, omission, failure
or refusal of Lender (i) to take or prosecute any action for the collection of
any of the Guaranteed Debt or (ii) to foreclose, or initiate any action to
foreclose, or, once commenced, prosecute to completion any action to foreclose
upon any security therefor, or (iii) to take or prosecute any action in
connection with any instrument or agreement evidencing or securing all or any
part of the Guaranteed Debt.
II.9 Unenforceability. The fact that any collateral, security, security
interest or lien contemplated or intended to be given, created or granted as
security for the repayment of the Guaranteed Debt, or any part thereof,
shall not be properly perfected or created, or shall prove to be unenforceable
or subordinate to any other security interest or lien, it being recognized and
agreed by Guarantor that Guarantor is not entering into this Guaranty in
reliance on, or in contemplation of the benefits of, the validity,
enforceability, collectibility or value of any of the collateral for the
Guaranteed Debt.
II.10 Offset. The Note, the Guaranteed Debt and the liabilities and obligations
of Guarantor to Lender hereunder, shall not be reduced, discharged or released
because of or by reason of any existing or future right of offset, claim or
defense of Borrower against Lender, or any other party, or against payment of
the Guaranteed Debt, whether such right of offset, claim or defense arises in
connection with the Guaranteed Debt (or the transactions creating the Guaranteed
Debt) or otherwise.
II.11 Merger. The reorganization, merger or consolidation of Borrower into or
with any other corporation or entity.
II.12 Preference. Any payment by Borrower to Lender is held to constitute a
preference under bankruptcy laws, or for any reason Lender is required to refund
such payment or pay such amount to Borrower or someone else.
II.13 Other Actions Taken or Omitted. Any other action taken or omitted to
be taken with respect to the Loan Documents, as amended, the Guaranteed Debt,
or the security and collateral therefor, whether or not such action or omission
prejudices Guarantor or increases the likelihood that Guarantor will be required
to pay the Guaranteed Debt pursuant to the terms hereof, it is the unambiguous
and unequivocal intention of Guarantor that Guarantor shall be obligated to pay
the Guaranteed Debt when due, notwithstanding any occurrence, circumstance,
event, action, or omission whatsoever, whether contemplated or uncontemplated,
and whether or not otherwise or particularly described herein, which obligation
shall be deemed satisfied only upon the full and final payment and satisfaction
of the Guaranteed Debt.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
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To induce Lender to enter into the Loan Documents and extend credit to Borrower,
Guarantor represents and warrants to Lender as follows:
III.1 Benefit. Guarantor is an affiliate of Borrower, is the owner of a direct
or indirect interest in Borrower, and has received, or will receive, direct or
indirect benefit from the making of this Guaranty with respect to the
Guaranteed Debt.
III.2 Familiarity and Reliance. Guarantor is familiar with, and has
independently reviewed books and records regarding, the financial condition of
the Borrower and is familiar with the value of any and all collateral intended
to be created as security for the payment of the Note or Guaranteed Debt;
however, Guarantor is not relying on such financial condition or the collateral
as an inducement to enter into this Guaranty.
III.3 No Representation by Lender. Neither Lender nor any other party has made
any representation, warranty or statement to Guarantor in order to induce the
Guarantor to execute this Guaranty.
III.4 Guarantor's Financial Condition. As of the date hereof, and after giving
effect to this Guaranty and the contingent obligation evidenced hereby,
Guarantor is, and will be, solvent, and has and will have assets which, fairly
valued, exceed its obligations, liabilities (including contingent liabilities)
and debts, and has and will have property and assets sufficient to satisfy and
repay its obligations and liabilities.
III.5 Legality. The execution, delivery and performance by Guarantor of this
Guaranty and the consummation of the transactions contemplated hereunder do not,
and will not, contravene or conflict with any law, statute or regulation
whatsoever to which Guarantor is subject or constitute a default (or an event
which with notice or lapse of time or both would constitute a default) under,
or result in the breach of, any indenture, mortgage, deed of trust, charge,
lien, or any contract, agreement or other instrument to which Guarantor is a
party or which may be applicable to Guarantor. This Guaranty is a legal and
binding obligation of Guarantor and is enforceable in accordance with its terms,
except as limited by bankruptcy, insolvency or other laws of general application
relating to the enforcement of creditors' rights.
III.6 Financial Information. All of the financial information provided by
Guarantorto Lender is true and correct in all respects. Guarantor shall furnish
to Lender financial statements of Guarantor prepared in accordance the terms of
the Loan Agreement.
III.7 Survival. All representations and warranties made by Guarantor herein
shall survive the execution hereof.
ARTICLE IV
SUBORDINATION OF CERTAIN INDEBTEDNESS
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IV.1 Subordination of All Guarantor Claims. As used herein, the term
"Guarantor Claims" shall mean all debts and liabilities of Borrower to
Guarantor, whether such debts and liabilities now exist or are hereafter
incurred or arise, or whether the obligations of Borrower thereon be direct,
contingent, primary, secondary, several, joint and several, or otherwise,
and irrespective of whether such debts or liabilities be evidenced by note,
contract, open account, or otherwise, and irrespective of the person or persons
in whose favor such debts or liabilities may, at their inception, have been,
or may hereafter be created, or the manner in which they have been or may
hereafter be acquired by Guarantor. The Guarantor Claims shall include without
limitation all rights and claims of Guarantor against Borrower (arising as
a result of subrogation or otherwise) as a result of Guarantor's payment of
all or a portion of the Guaranteed Debt. Upon the occurrence of an Event of
Default (as defined in the Loan Documents) or the occurrence of an event which
would, with the giving of notice or the passage of time, or both, constitute
an Event of Default, Guarantor shall not receive or collect, directly or
indirectly, from Borrower or any other party any amount upon the Guarantor
Claims.
IV.2 Claims in Bankruptcy. In the event of receivership, bankruptcy,
reorganization, arrangement, debtor's relief, or other insolvency proceedings
involving Guarantor as debtor, Lender shall have the right to prove its claim
in any such proceeding so as to establish its rights hereunder and receive
directly from the receiver, trustee or other court custodian dividends and
payments which would otherwise be payable upon Guarantor Claims. Guarantor
hereby assigns such dividends and payments to Lender. Should Lender receive,
for application upon the Guaranteed Debt, any such dividend or payment which
is otherwise payable to Guarantor, and which, as between Borrower and Guarantor,
shall constitute a credit upon the Guarantor Claims, then upon payment to Lender
in full of the Guaranteed Debt, Guarantor shall become subrogated to the rights
of Lender to the extent that such payments to Lender on the Guarantor Claims
have contributed toward the liquidation of the Guaranteed Debt, and such
subrogation shall be with respect to that proportion of the Guaranteed Debt
which would have been unpaid if Lender had not received dividends or payments
upon the Guarantor Claims.
IV.3 Payments Held in Trust. In the event that, notwithstanding anything to
the contrary in this Guaranty, Guarantor should receive any funds, payment,
claim or distribution which is prohibited by this Guaranty, Guarantor agrees to
hold in trust for Lender an amount equal to the amount of all funds, payments,
claims or distributions so received, and agrees that it shall have absolutely
no dominion over the amount of such funds, payments, claims or distributions so
received except to pay them promptly to Lender, and Guarantor covenants promptly
to pay the same to Lender.
IV.4 Liens Subordinate. Guarantor agrees that any liens, security interests,
judgment liens, charges or other encumbrances upon Borrower's assets securing
payment of the Guarantor Claims shall be and remain inferior and subordinate to
any liens, security interests, judgment liens, charges or other encumbrances
upon Borrower's assets securing payment of the Guaranteed Debt, regardless of
whether such encumbrances in favor of Guarantor or Lender presently exist or
are hereafter created or attach. Without the prior written consent of Lender,
Guarantor shall not (i) exercise or enforce any creditor's right it may have
against Borrower, or(ii) foreclose, repossess, sequester or otherwise take steps
or institute any action or proceedings (judicial or otherwise, including without
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limitation the commencement of, or joinder in, any liquidation, bankruptcy,
rearrangement, debtor's relief or insolvency proceeding) to enforce any liens,
mortgages, deeds of trust, security interest, collateral rights, judgments or
other encumbrances on assets of Borrower held by Guarantor.
ARTICLE V
MISCELLANEOUS
V.1 Waiver. No failure to exercise, and no delay in exercising, on the part
of Lender, any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right. The rights of Lender hereunder
shall be in addition to all other rights provided by law. No modification or
waiver of any provision of this Guaranty, nor consent to departure therefrom,
shall be effective unless in writing and no such consent or waiver shall extend
beyond the particular case and purpose involved. No notice or demand given in
any case shall constitute a waiver of the right to take other action in the
same, similar or other instances without such notice or demand.
V.2 Notices. All notices or other communications required or permitted to
be given pursuant hereto shall be in writing and shall be deemed properly given
if (i) mailed by first class United States mail, postage prepaid, registered or
certified with return receipt requested; (ii) by delivering same in person to
the intended addressee; or (iii) by delivery to an independent third party
commercial delivery service for same day or next day delivery and providing
for evidence of receipt at the office of the intended addressee. Notice so
mailed shall be effective upon its deposit with the United States Postal
Service or any successor thereto; notice sent by a commercial delivery service
shall be effective upon delivery to such commercial delivery service; notice
given by personal delivery shall be effective only if and when received by the
addressee; and notice given by other means shall be effective only if and when
received at the designated address of the intended addressee. Either party
shall have the right to change its address for notice hereunder to any other
location within the continental United States by the giving of thirty (30)
days notice to the other party in the manner set forth herein. For purposes
of such notices, the addresses of the parties shall be as follows:
Lender:Comerica Bank-Texas
1601 Elm Street, 2nd Floor
Dallas, Texas 75201
Attn: National Real Estate Services
Guarantor:Stratus Properties Inc.
98 San Jacinto Boulevard, Suite 220
Austin, Texas 78791
Attn: William H. Armstrong, III
With a copy to:Armbrust Brown & Davis, L.L.P.
100 Congress Avenue
Suite 1300
Austin, Texas 78701
Attn: Kenneth Jones, Esq.
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V.3 GOVERNING LAW. THIS GUARANTY IS EXECUTED AND DELIVERED
AS AN INCIDENT TO A LENDING TRANSACTION NEGOTIATED, CONSUMMATED,
AND PERFORMABLE IN DALLAS COUNTY, TEXAS, AND SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
ANY ACTION OR PROCEEDING AGAINST GUARANTOR UNDER OR IN
CONNECTION WITH THIS GUARANTY MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT IN DALLAS COUNTY, TEXAS. GUARANTOR HEREBY
IRREVOCABLY (i) SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF SUCH
COURTS, AND (ii) WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE
AS TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN SUCH
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. GUARANTOR
AGREES THAT SERVICE OF PROCESS UPON IT MAY BE MADE BY CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS SPECIFIED
HEREIN. NOTHING HEREIN SHALL AFFECT THE RIGHT OF LENDER TO SERVE
PROCESS IN ANY OTHER MATTER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF LENDER TO BRING ANY ACTION OR PROCEEDING AGAINST
GUARANTOR OR WITH RESPECT TO ANY OF GUARANTOR'S PROPERTY IN
COURTS IN OTHER JURISDICTIONS. ANY ACTION OR PROCEEDING BY
GUARANTOR AGAINST LENDER SHALL BE BROUGHT ONLY IN A COURT
LOCATED IN DALLAS COUNTY, TEXAS.
V.4 Invalid Provisions. If any provision of this Guaranty is held to be
illegal,invalid, or unenforceable under present or future laws effective
during the term of this Guaranty, such provision shall be fully severable and
this Guaranty shall be construed and enforced as if such illegal, invalid
or unenforceable provision had never comprised a part of this Guaranty, and
the remaining provisions of this Guaranty shall remain in full force and effect
and shall not be affected by the illegal, invalid or unenforceable provision or
by its severance from this Guaranty, unless such continued effectiveness of this
Guaranty, as modified, would be contrary to the basic understandings and
intentions of the parties as expressed herein.
V.5 Amendments. This Guaranty may be amended only by an instrument in
writing executed by the party or an authorized representative of the party
against whom such amendment is sought to be enforced.
V.6 Parties Bound; Assignment. This Guaranty shall be binding upon and inure
to the benefit of the parties hereto and their respective successors, assigns
and legal representatives; provided, however, that Guarantor may not, without
the prior written consent of Lender, assign any of its rights, powers, duties
or obligations hereunder.
V.7 Headings. Section headings are for convenience of reference only and
shall in no way affect the interpretation of this Guaranty.
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V.8 Recitals. The recital and introductory paragraphs hereof are a part
hereof, form a basis for this Guaranty and shall be considered prima facie
evidence of the facts and documents referred to therein.
V.9 Counterparts. To facilitate execution, this Guaranty may be executed in
as many counterparts as may be convenient or required. It shall not be
necessary that the signature or acknowledgment of, or on behalf of, each party,
or that the signature of all persons required to bind any party, or the
acknowledgment of such party, appear on each counterpart. All counterparts
shall collectively constitutea single instrument. It shall not be necessary in
making proof of this Guaranty to produce or account for more than a single
counterpart containing the respective signatures of, or on behalf of, and the
respective acknowledgments of, each of the parties hereto. Any signature or
acknowledgment page to any counterpart may be detached from such counterpart
without impairing the legal effect of the signatures or acknowledgments thereon
and thereafter attached to another counterpart identical thereto except having
attached to it additional signature or acknowledgment pages.
V.10 Rights and Remedies. If Guarantor becomes liable for any indebtedness
owing by Borrower to Lender, by endorsement or otherwise, other than under this
Guaranty, such liability shall not be in any manner impaired or affected hereby
and the rights of Lender hereunder shall be cumulative of any and all other
rights that Lender may ever have against Guarantor. The exercise by Lender of
any right or remedy hereunder or under any other instrument, or at law or in
equity, shall not preclude the concurrent or subsequent exercise of any other
right or remedy.
V.11 ENTIRETY. THIS GUARANTY EMBODIES THE FINAL, ENTIRE
AGREEMENT OF GUARANTOR AND LENDER WITH RESPECT TO GUARANTOR'S
GUARANTY OF THE GUARANTEED DEBT AND SUPERSEDES ANY AND ALL PRIOR
COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS,
WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF. THIS
GUARANTY IS INTENDED BY GUARANTOR AND LENDER AS A FINAL AND COMPLETE
EXPRESSION OF THE TERMS OF THE GUARANTY, AND NO COURSE OF DEALING
BETWEEN GUARANTOR AND LENDER, NO COURSE OF PERFORMANCE, NO TRADE
PRACTICES, AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY
NATURE SHALL BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY
TERM OF THIS GUARANTY AGREEMENT. THERE ARE NO ORAL AGREEMENTS
BETWEEN GUARANTOR AND LENDER.
V.12 Release of Guaranty. Upon full and final payment of the indebtedness
evidenced by the Note, performance of all obligations under the Loan Documents
and satisfaction of the Guaranteed Debt, this Guaranty will be released and of
no further force and effect.
V.13 Capitalized Terms. Capitalized terms used herein shall have the same
meaning as provided in the Loan Agreement, except as otherwise specified herein.
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EXECUTED as of the day and year first above written.
GUARANTOR:
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 ___________ &
This instrument was ACKNOWLEDGED before me this _____ day of _______________,
2000, by William H. Armstrong, III, the 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
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