Exhibit 10.11
FIRST AMENDMENT TO JOINT VENTURE AGREEMENT
OF
OLY STRATUS ABC WEST I JOINT VENTURE
THIS FIRST AMENDMENT TO JOINT VENTURE AGREEMENT OF OLY STRATUS
ABC WEST I JOINT VENTURE (this "Amendment") is entered into this 9th day
of November, 1998 by and among Oly ABC West I, L.P., a Texas limited
partnership ("Olympus") and Stratus ABC West I, L.P., a Texas limited
partnership ("Stratus").
W I T N E S S E T H
WHEREAS, Oly Stratus ABC West I Joint Venture, a Texas joint
venture (the "Partnership") was formed on September 30, 1998, pursuant to
that certain Joint Venture Agreement of Oly Stratus ABC West I Joint
Venture (the "Joint Venture Agreement"), with Olympus as the Financial
Partner and Stratus as the Operating Partner.
WHEREAS, Olympus and Stratus desire to amend the Joint Venture
Agreement in certain respects.
NOW, THEREFORE, Olympus, FM and Stratus hereby agree as follows:
1. Definitions. The following terms hereby replace or are hereby
inserted as definitions in Section 1.1 of the Joint Venture Agreement:
"Development Loan Agreement" shall mean that certain
Development Loan Agreement dated November 9, 1998, by and between
Oly Stratus ABC West I Joint Venture and Bank One, Texas,
National Association.
"Escrow Deposit" shall have the meaning set forth in the
Development Loan Agreement.
2. Escrow Deposit. The following is hereby inserted as the new
Section 3.3 of the Joint Venture Agreement and the current
Section 3.3 and 3.4 are renumbered Section 3.4 and 3.5,
respectively:
3.3 Escrow Deposit. Pursuant to the Development Loan
Agreement, the Escrow Deposit was delivered by an affiliate of
the Operating Partner (the "Guarantor") on behalf of the
Partnership to Bank One, Texas. In consideration of the payment
of the Escrow Deposit by the Guarantor, the Partnership agrees to
pay to the Guarantor an amount equal to twelve percent (12%) per
annum, minus the interest accruing on the outstanding portion of
the Escrow Deposit compounded at the rate of return on the Escrow
Deposit held by Bank One, Texas (the "Interest Spread"), until
the Escrow Deposit has been released or applied to the loan
evidenced by the Development Loan Agreement. In the event the
Escrow Deposit is applied to the loan evidenced in part by the
Development Loan Agreement, the Financial Partner shall elect to
call a Mandatory Additional Contribution in an amount necessary
to reimburse the Guarantor for the portion of the Escrow Deposit
and the Interest Spread which has not been paid by the
Partnership to the Guarantor.
4. Distributions. Section 6.1 of the Joint Venture Agreement
is hereby deleted in its entirety and the following is inserted
in its place:
6.1 Distributions. No later than thirty (30) days after
the end of each Distribution Period during which the Partnership
has Cash Flow, such Cash Flow shall be distributed as set forth
below and in the order of priority as set forth below.
(i) First, to the payment of debt pursuant to the terms of the Development
Loan Agreement; then
(ii) Second, to the payment of the Escrow Deposit and the Interest Spread;
then
(iii) Third, to the payment of the Mezzanine Financing pursuant to the
terms of the Mezzanine Loan Agreement; then
(iv) Fourth, to the return, pari passu of the Capital Contributions to each
Partner; then
(v) Fifth, to each Partner in proportion to the Sharing Ratios.
Notwithstanding anything to the contrary contained in this Section
6.1, to the extent there is available Cash Flow, the Partners agree to
make distributions to the Financial Partner in the amount of its
federal income tax liability; provided, however, before any future
distributions of Cash Flow are made for items (iii) through (v) above,
the Operating Partner shall receive a proportionate distribution based
on the Sharing Ratio.
5. Release from Liability Under the Buy/Sell. The following is
hereby inserted to the end of Section 7.3(f) of the Joint Venture
Agreement:
Notwithstanding anything to contrary contained in this Agreement, in
the event the closing of the Buy/Sell transaction occurs, at such
closing the Escrow Deposit shall be paid in full by the Partnership.
6. Confirmation of the Joint Venture Agreement. Except as modified
by this Amendment, the Joint Venture Agreement is hereby confirmed.
7. Counterparts. This Amendment may be executed in several
counterparts, all of which, when taken together, shall constitute one
and the same agreement. An executed copy of this Amendment
transmitted by telecopy shall be sufficient as an original for all
purposes.
8. Captions. The captions preceding the various provisions of this
Amendment have been inserted solely for convenience of reference and
shall not be used in construing this Amendment.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Olympus and Stratus have executed this Amendment
the day and year first set forth above.
OLYMPUS:
OLY ABC WEST I, L.P.,
a Texas limited partnership
By: Oly Texas GP II, LLC,
a Texas limited liability company,
its sole general partner
By:/s/ Ron J. Hoyl
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Name: Ron J. Hoyl
Title: Vice President
STRATUS:
STRATUS ABC WEST I, L.P.,
a Texas limited partnership
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
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William H. Armstrong, III
President and CEO