Exhibit 10.17
GUARANTY
THIS GUARANTY ("Guaranty") is made as of the 30th day of September,
1998, by Guarantor (as hereinafter defined) for the benefit of Bank (as
hereinafter defined).
1. Definitions. As used in this Guaranty, the following terms shall
have the meanings indicated below:
(a) The term "Bank" shall mean BANK ONE, TEXAS, NATIONAL
ASSOCIATION, whose address for notice purposes is the following:
Bank One, Texas, National Association
1700 Pacific Avenue, Suite 2100
Dallas, Dallas County, Texas 75201
Attn: Dale Renner, Commercial Real Estate
(b) The term "Borrower" (whether one or more) shall mean the
following: OLY WALDEN GENERAL PARTNERSHIP, a Texas general
partnership.
(c) The term "Guaranteed Indebtedness" shall mean (i) all
indebtedness, obligations and liabilities of Borrower to Bank of any
kind or character, now existing or hereafter arising, under or in
connection with the loan made by Bank to Borrower pursuant to that
Development Loan Agreement dated as of September 30, 1998 between
Borrower and Bank (the "Loan Agreement"), evidencing a loan in the
original principal amount of $8,160,000 (the "Loan"), (ii) all accrued
but unpaid interest on any of the indebtedness described in (i) above,
(iii) all obligations of Borrower to Bank under any documents
evidencing, securing, governing and/or pertaining to all or any part
of the indebtedness described in (i) and (ii) above (collectively, the
"Loan Documents"), (iv) all costs and expenses incurred by Bank in
connection with the collection and administration of all or any part
of the indebtedness and obligations described in (i), (ii) and (iii)
above or the protection or preservation of, or realization upon, the
collateral securing all or any part of such indebtedness and
obligations, including without limitation all reasonable attorneys'
fees, and (v) all renewals, extensions, modifications and
rearrangements of the indebtedness and obligations described in (i),
(ii), (iii) and (iv) above.
(d) The term "Guarantor" shall mean STRS GUARANTY COMPANY,
L.L.C., a Delaware limited liability company, whose address for notice
purposes is the following:
STRS Guaranty Company, L.L.C.
98 San Jacinto Blvd., Suite 220
Austin, Texas 78701
2. Obligations. As an inducement to Bank to extend or continue to
extend credit and other financial accommodations to Borrower, Guarantor,
for value received, does hereby unconditionally and absolutely guarantee
the prompt and full payment and performance of the Guaranteed Indebtedness
when due or declared to be due and at all times thereafter.
Notwithstanding the foregoing or anything to the contrary contained in this
Guaranty or the Pledge Agreement of even date herewith executed by
Guarantor in favor of Bank (the "Pledge Agreement"), (i) Guarantor's
liability for the Guaranteed Indebtedness shall not exceed the sum of (A)
the Required Deposit (as defined in the Loan Agreement) which Guarantor is
required to have pledged to Bank, plus (B) all reasonable attorneys' fees
and expenses incurred by Bank in connection with the enforcement of this
Guaranty and the Pledge Agreement against Guarantor and (ii) Bank's
recourse against Guarantor for Guarantor's obligations under this Guaranty
and the Pledge Agreement shall be limited to the Required Deposit (provided
Guarantor has delivered the Required Deposit to Bank in accordance with the
terms and provisions of the Loan Agreement).
3. Character of Obligations. This is an absolute, continuing and
unconditional guaranty of payment and not of collection and if at any time
or from time to time there is no outstanding Guaranteed Indebtedness, the
obligations of Guarantor with respect to any and all Guaranteed
Indebtedness incurred thereafter shall not be affected. All Guaranteed
Indebtedness heretofore, concurrently herewith or hereafter made by Bank to
Borrower shall be conclusively presumed to have been made or acquired in
acceptance hereof. Guarantor shall be liable, jointly and severally, with
Borrower and any other guarantor of all or any part of the Guaranteed
Indebtedness.
4. Right of Revocation. Guarantor understands and agrees that
Guarantor may revoke its future obligations under this Guaranty at any time
by giving Bank written notice that Guarantor will not be liable hereunder
for any indebtedness or obligations of Borrower incurred on or after the
effective date of such revocation. Such revocation shall be deemed to be
effective on the day following the day Bank receives such notice delivered
either by: (a) personal delivery to the address and designated department
of Bank identified in subparagraph 1(a) above, or (b) United States mail,
registered or certified, return receipt requested, postage prepaid,
addressed to Bank at the address shown in subparagraph 1(a) above.
Notwithstanding such revocation, Guarantor shall remain liable on its
obligations hereunder until payment in full to Bank of (x) all of the
Guaranteed Indebtedness that is outstanding on the effective date of such
revocation, and any renewals and extensions thereof, and (y) all loans,
advances and other extensions of credit made to or for the account of
Borrower on or after the effective date of such revocation pursuant to the
obligation of Bank under a commitment or agreement made to or with Borrower
prior to the effective date of such revocation. The terms and conditions
of this Guaranty, including without limitation the consents and waivers set
forth in paragraph 7 hereof, shall remain in effect with respect to the
Guaranteed Indebtedness described in the preceding sentence in the same
manner as if such revocation had not been made by Guarantor.
5. Representations and Warranties. Guarantor hereby represents and
warrants the following to Bank:
(a) This Guaranty may reasonably be expected to benefit,
directly or indirectly, Guarantor, and the members of Guarantor have
determined that this Guaranty may reasonably be expected to benefit,
directly or indirectly, Guarantor; and
(b) Guarantor is familiar with, and has independently reviewed
the books and records regarding, the financial condition of Borrower
and is familiar with the value of any and all collateral intended to
be security for the payment of all or any part of the Guaranteed
Indebtedness; provided, however, Guarantor is not relying on such
financial condition or collateral as an inducement to enter into this
Guaranty; and
(c) Guarantor has adequate means to obtain from Borrower on a
continuing basis information concerning the financial condition of
Borrower and Guarantor is not relying on Bank to provide such
information to Guarantor either now or in the future; and
(d) Guarantor has the power and authority to execute, deliver
and perform this Guaranty and any other agreements executed by
Guarantor contemporaneously herewith, and the execution, delivery and
performance of this Guaranty and any other agreements executed by
Guarantor contemporaneously herewith do not and will not violate
(i) any agreement or instrument to which Guarantor is a party,
(ii) any law, rule, regulation or order of any governmental authority
to which Guarantor is subject, or (iii) its articles or certificate of
incorporation or bylaws, if Guarantor is a corporation, or its
partnership agreement, if Guarantor is a partnership; and
(e) Neither Bank nor any other party has made any
representation, warranty or statement to Guarantor in order to induce
Guarantor to execute this Guaranty; and
(f) The financial statements and other financial information
regarding Guarantor heretofore and hereafter delivered to Bank, if
any, are and shall be true and correct in all material respects and
fairly present the financial position of Guarantor as of the dates
thereof, and no material adverse change has occurred in the financial
condition of Guarantor reflected in the financial statements and other
financial information regarding Guarantor heretofore delivered to Bank
since the date of the last statement thereof; and
(g) As of the date hereof, and after giving effect to this
Guaranty and the obligations evidenced hereby, (i) Guarantor is and
will be solvent, (ii) Guarantor is and will continue to be able to pay
its debts as they mature, and (iii) if Guarantor is not an individual,
Guarantor has and will continue to have sufficient capital to carry on
its business and all businesses in which it is about to engage.
6. Covenants. Guarantor hereby covenants and agrees with Bank as
follows:
(a) Guarantor shall not, so long as its obligations under this
Guaranty continue, transfer or pledge any material portion of its
assets for less than full and adequate consideration; and
(b) Guarantor shall comply with all terms and provisions of the
Loan Documents that apply to Guarantor; and
(c) Guarantor shall promptly inform Bank of (i) any litigation
or governmental investigation against Guarantor or affecting any
security for all or any part of the Guaranteed Indebtedness or this
Guaranty which, if determined adversely, might have a material adverse
effect upon the financial condition of Guarantor or upon such security
or might cause a default under any of the Loan Documents, (ii) any
claim or controversy which might become the subject of such litigation
or governmental investigation, and (iii) any material adverse change
in the financial condition of Guarantor.
7. Consent and Waiver.
(a) Guarantor waives (i) promptness, diligence and notice of
acceptance of this Guaranty and notice of the incurring of any
obligation, indebtedness or liability to which this Guaranty applies
or may apply and waives presentment for payment, notice of nonpayment,
protest, demand, notice of protest, notice of intent to accelerate,
notice of acceleration, notice of dishonor, diligence in enforcement
and indulgences of every kind, and (ii) the taking of any other action
by Bank, including without limitation, giving any notice of default or
any other notice to, or making any demand on, Borrower, any other
guarantor of all or any part of the Guaranteed Indebtedness or any
other party.
(b) Guarantor waives any rights Guarantor has under, or any
requirements imposed by, Chapter 34 of the Texas Business and Commerce
Code, as in effect on the date of this Guaranty or as it may be
amended from time to time.
(c) Bank may at any time, without the consent of or notice to
Guarantor, without incurring responsibility to Guarantor and without
impairing, releasing, reducing or affecting the obligations of
Guarantor hereunder: (i) change the manner, place or terms of payment
of all or any part of the Guaranteed Indebtedness, or renew, extend,
modify, rearrange or alter all or any part of the Guaranteed
Indebtedness; (ii) change the interest rate accruing on any of the
Guaranteed Indebtedness (including, without limitation, any periodic
change in such interest rate that occurs because such Guaranteed
Indebtedness accrues interest at a variable rate which may fluctuate
from time to time); (iii) sell, exchange, release, surrender,
subordinate, realize upon or otherwise deal with in any manner and in
any order any collateral for all or any part of the Guaranteed
Indebtedness or this Guaranty or setoff against all or any part of the
Guaranteed Indebtedness, except that Bank will not exercise any
remedies with respect to the collateral pledged by Guarantor under the
Pledge Agreement except upon the occurrence of a default by Borrower
under any of the Loan Documents evidencing, securing and/or relating
to the Loan, except that Bank may present a Letter of Credit (as
defined in the Loan Agreement) as provided in the Loan Agreement in
the event Guarantor fails to deliver to Bank a renewal or replacement
Letter of Credit with respect to an existing Letter of Credit on or
before the date which is 30 days prior to the expiration date thereof;
(iv) neglect, delay, omit, fail or refuse to take or prosecute any
action for the collection of all or any part of the Guaranteed
Indebtedness or this Guaranty or to take or prosecute any action in
connection with any of the Loan Documents; (v) exercise or refrain
from exercising any rights against Borrower or others, or otherwise
act or refrain from acting; (vi) settle or compromise all or any part
of the Guaranteed Indebtedness and subordinate the payment of all or
any part of the Guaranteed Indebtedness to the payment of any
obligations, indebtedness or liabilities which may be due or become
due to Bank or others; (vii) apply any deposit balance, fund, payment,
collections through process of law or otherwise or other collateral of
Borrower to the satisfaction and liquidation of the indebtedness or
obligations of Borrower to Bank, if any, not guaranteed under this
Guaranty pursuant to the terms hereof; and (viii) apply any sums paid
to Bank by Guarantor, Borrower or others to the Guaranteed
Indebtedness in such order and manner as Bank, in its sole discretion,
may determine.
(d) Should Bank seek to enforce the obligations of Guarantor
hereunder by action in any court or otherwise, Guarantor waives any
requirement, substantive or procedural, that (i) Bank first enforce
any rights or remedies against Borrower or any other person or entity
liable to Bank for all or any part of the Guaranteed Indebtedness,
including without limitation that a judgment first be rendered against
Borrower or any other person or entity, or that Borrower or any other
person or entity should be joined in such cause, or (ii) Bank shall
first enforce rights against any collateral which shall ever have been
given to secure all or any part of the Guaranteed Indebtedness or this
Guaranty. Such waiver shall be without prejudice to Bank's right, at
its option, to proceed against Borrower or any other person or entity,
whether by separate action or by joinder.
(e) In addition to any other waivers, agreements and covenants
of Guarantor set forth herein, Guarantor hereby further waives and
releases all claims, causes of action, defenses and offsets for any
act or omission of Bank, its directors, officers, employees,
representatives or agents in connection with Bank's administration of
the Guaranteed Indebtedness, REGARDLESS OF THE NEGLIGENCE OF BANK OR
ANY STRICT LIABILITY, except for Bank's willful misconduct and gross
negligence.
8. Obligations Not Impaired.
(a) Guarantor agrees that its obligations hereunder shall not be
released, diminished, impaired, reduced or affected by the occurrence
of any one or more of the following events: (i) the death, disability
or lack of corporate power of Borrower, Guarantor or any other
guarantor of all or any part of the Guaranteed Indebtedness, (ii) any
receivership, insolvency, bankruptcy or other proceedings affecting
Borrower, Guarantor or any other guarantor of all or any part of the
Guaranteed Indebtedness, or any of their respective property;
(iii) the partial or total release or discharge of Borrower or any
other guarantor of all or any part of the Guaranteed Indebtedness, or
any other person or entity from the performance of any obligation
contained in any instrument or agreement evidencing, governing or
securing all or any part of the Guaranteed Indebtedness, whether
occurring by reason of law or otherwise; (iv) the taking or accepting
of any collateral for all or any part of the Guaranteed Indebtedness
or this Guaranty; (v) the taking or accepting of any other guaranty
for all or any part of the Guaranteed Indebtedness; (vi) any failure
by Bank to acquire, perfect or continue any lien or security interest
on collateral securing all or any part of the Guaranteed Indebtedness
or this Guaranty; (vii) the impairment of any collateral securing all
or any part of the Guaranteed Indebtedness or this Guaranty;
(viii) any failure by Bank to sell any collateral securing all or any
part of the Guaranteed Indebtedness or this Guaranty in a commercially
reasonable manner or as otherwise required by law; (ix) any invalidity
or unenforceability of or defect or deficiency in any of the Loan
Documents; or (x) any other circumstance which might otherwise
constitute a defense available to, or discharge of, Borrower or any
other guarantor of all or any part of the Guaranteed Indebtedness.
(b) This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of all or
any part of the Guaranteed Indebtedness is rescinded or must otherwise
be returned by Bank upon the insolvency, bankruptcy or reorganization
of Borrower, Guarantor, any other guarantor of all or any part of the
Guaranteed Indebtedness, or otherwise, all as though such payment had
not been made.
(c) In the event Borrower is a corporation, joint stock
association or partnership, or is hereafter incorporated, none of the
following shall affect Guarantor's liability hereunder: (i) the
unenforceability of all or any part of the Guaranteed Indebtedness
against Borrower by reason of the fact that the Guaranteed
Indebtedness exceeds the amount permitted by law; (ii) the act of
creating all or any part of the Guaranteed Indebtedness is ultra
vires; or (iii) the officers or partners creating all or any part of
the Guaranteed Indebtedness acted in excess of their authority.
Guarantor hereby acknowledges that withdrawal from, or termination of,
any ownership interest in Borrower now or hereafter owned or held by
Guarantor shall not alter, affect or in any way limit the obligations
of Guarantor hereunder.
9. Actions against Guarantor. In the event of a default in the
payment or performance of all or any part of the Guaranteed Indebtedness
when such Guaranteed Indebtedness becomes due, whether by its terms, by
acceleration or otherwise, (i) Guarantor shall, without notice or demand,
promptly pay the amount due thereon to Bank, in lawful money of the United
States, at Bank's address set forth in subparagraph 1(a) above, (ii) Bank
may exercise any of its rights and remedies set forth in the Pledge
Agreement or any other rights or remedies permitted at law or in equity
and/or (iii) Bank shall be entitled to offset the deposit account of
Guarantor held by Bank (and which has been pledged by Bank pursuant to the
Pledge Agreement) against the Guaranteed Indebtedness. One or more
successive or concurrent actions may be brought against Guarantor, either
in the same action in which Borrower is sued or in separate actions, as
often as Bank deems advisable. The exercise by Bank of any right or remedy
under this Guaranty or under any other agreement or instrument, at law, in
equity or otherwise, shall not preclude concurrent or subsequent exercise
of any other right or remedy. The books and records of Bank shall be
admissible in evidence in any action or proceeding involving this Guaranty
and shall be prima facie evidence of the payments made on, and the
outstanding balance of, the Guaranteed Indebtedness. In addition to the
foregoing, all property of Guarantor now or hereafter in the possession or
custody of or in transit to Bank for any purpose, including safekeeping,
collection or pledge, for the account of Guarantor, or as to which
Guarantor may have any right or power (including without limitation, the
deposit account described in the Pledge Agreement), shall be held by Bank
subject to a lien and security interest in favor of Bank to secure payment
and performance of all obligations and liabilities of Guarantor to Bank
hereunder. The balance of every account of Guarantor with, and each claim
of Guarantor against, Bank existing from time to time shall be subject to a
lien and subject to set-off against any and all liabilities of Guarantor to
Bank, and Bank may, at any time and from time to time at its option and
without notice, appropriate and apply toward the payment of any of such
liabilities the balance of each such account or claim of Guarantor against
Bank.
10. Payment by Guarantor. Whenever Guarantor pays any sum which is
or may become due under this Guaranty, written notice must be delivered to
Bank contemporaneously with such payment. Such notice shall be effective
for purposes of this paragraph when contemporaneously with such payment
Bank receives such notice either by: (a) personal delivery to the address
and designated department of Bank identified in subparagraph 1(a) above, or
(b) United States mail, certified or registered, return receipt requested,
postage prepaid, addressed to Bank at the address shown in subparagraph
1(a) above. In the absence of such notice to Bank by Guarantor in
compliance with the provisions hereof, any sum received by Bank on account
of the Guaranteed Indebtedness shall be conclusively deemed paid by
Borrower.
11. Notice of Sale. In the event that Guarantor is entitled to
receive any notice under the Uniform Commercial Code, as it exists in the
state governing any such notice, of the sale or other disposition of any
collateral securing all or any part of the Guaranteed Indebtedness or this
Guaranty, reasonable notice shall be deemed given when such notice is
deposited in the United States mail, postage prepaid, at the address for
Guarantor set forth in subparagraph 1(d) above, five (5) days prior to the
date any public sale, or after which any private sale, of any such
collateral is to be held; provided, however, that notice given in any other
reasonable manner or at any other reasonable time shall be sufficient.
12. Waiver by Bank. No delay on the part of Bank in exercising any
right hereunder or failure to exercise the same shall operate as a waiver
of such right. In no event shall any waiver of the provisions of this
Guaranty be effective unless the same be in writing and signed by an
officer of Bank, and then only in the specific instance and for the purpose
given.
13. Successors and Assigns. This Guaranty is for the benefit of
Bank, its successors and assigns. This Guaranty is binding upon Guarantor
and Guarantor's heirs, executors, administrators, personal representatives
and successors, including without limitation any person or entity obligated
by operation of law upon the reorganization, merger, consolidation or other
change in the organizational structure of Guarantor.
14. Costs and Expenses. Guarantor shall pay on demand by Bank all
costs and expenses, including without limitation, all reasonable attorneys'
fees incurred by Bank in connection with the preparation, administration,
enforcement and/or collection of this Guaranty. This covenant shall
survive the payment of the Guaranteed Indebtedness.
15. Severability. If any provision of this Guaranty is held by a
court of competent jurisdiction to be illegal, invalid or unenforceable
under present or future laws, such provision shall be fully severable,
shall not impair or invalidate the remainder of this Guaranty and the
effect thereof shall be confined to the provision held to be illegal,
invalid or unenforceable.
16. No Obligation. Nothing contained herein shall be construed as an
obligation on the part of Bank to extend or continue to extend credit to
Borrower.
17. Amendment. No modification or amendment of any provision of this
Guaranty, nor consent to any departure by Guarantor therefrom, shall be
effective unless the same shall be in writing and signed by an officer of
Bank, and then shall be effective only in the specific instance and for the
purpose for which given.
18. Cumulative Rights. All rights and remedies of Bank hereunder are
cumulative of each other and of every other right or remedy which Bank may
otherwise have at law or in equity or under any instrument or agreement,
and the exercise of one or more of such rights or remedies shall not
prejudice or impair the concurrent or subsequent exercise of any other
rights or remedies.
19. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND APPLICABLE FEDERAL
LAWS.
20. Venue. This Guaranty has been entered into in the county in
Texas where Bank's address for notice purposes is located, and it shall be
performable for all purposes in such county. Courts within the State of
Texas shall have jurisdiction over any and all disputes arising under or
pertaining to this Guaranty and venue for any such disputes shall be in the
county or judicial district where the Bank's address for notice purposes is
located.
21. Compliance with Applicable Usury Laws. Notwithstanding any other
provision of this Guaranty or of any instrument or agreement evidencing,
governing or securing all or any part of the Guaranteed Indebtedness,
Guarantor and Bank by its acceptance hereof agree that Guarantor shall
never be required or obligated to pay interest in excess of the maximum
nonusurious interest rate as may be authorized by applicable law for the
written contracts which constitute the Guaranteed Indebtedness. It is the
intention of Guarantor and Bank to conform strictly to the applicable laws
which limit interest rates, and any of the aforesaid contracts for
interest, if and to the extent payable by Guarantor, shall be held to be
subject to reduction to the maximum nonusurious interest rate allowed under
said law.
22. Descriptive Headings. The headings in this Guaranty are for
convenience only and shall not define or limit the provisions hereof.
23. Gender. Within this Guaranty, words of any gender shall be held
and construed to include the other gender.
24. Entire Agreement. This Guaranty contains the entire agreement
between Guarantor and Bank regarding the subject matter hereof and
supersedes all prior written and oral agreements and understandings, if
any, regarding same; provided, however, this Guaranty is in addition to and
does not replace, cancel, modify or affect any other guaranty of Guarantor
now or hereafter held by Bank that relates to Borrower or any other person
or entity.
25. JURY WAIVER. THE GUARANTOR AND BANK HEREBY VOLUNTARILY,
KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ALL RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR
OTHERWISE) BETWEEN OR AMONG THE PARTIES HERETO ARISING OUT OF OR IN ANY WAY
RELATED TO THIS GUARANTY OR ANY OF THE LOAN DOCUMENTS OR ANY RELATIONSHIP
BETWEEN GUARANTOR AND BANK. THIS PROVISION IS A MATERIAL INDUCEMENT TO
BANK TO PROVIDE THE LOAN TO BORROWER DESCRIBED IN THE LOAN AGREEMENT.
26. Arbitration. Bank and Guarantor agree that upon the written
demand of either party. whether made before or after the institution of any
legal proceedings, but prior to the rendering of any judgment in that
proceeding, all disputes, claims, and controversies between them, whether
individual, joint, or class in nature, arising from this Guaranty any other
Loan Document, or otherwise, including, without limitation, contract
disputes and tort claims, shall be resolved by binding arbitration pursuant
to the Commercial Rules of the American Arbitration Association (the
"AAA"). Any arbitration proceeding held pursuant to this arbitration
provision shall be conducted in the city nearest the Guarantor's address
having an AAA regional office, or at any other place selected by mutual
agreement of the parties. No act to take or dispose of any collateral,
whether real or personal, covered by the Deed of Trust or any other Loan
Document ("Collateral") shall constitute a waiver of this arbitration
provision or be prohibited by this arbitration provision. This arbitration
provision shall not limit the right of either party during any dispute,
claim, or controversy to seek, use, and employ ancillary or preliminary
rights and/or remedies, judicial or otherwise, for the purposes of
realizing upon, preserving, protecting, foreclosing upon, or proceeding
under forcible entry and detainer for possession of, any real or personal
property (including the Collateral) and any such action shall not be deemed
an election of remedies. Such remedies include, without limitation,
obtaining injunctive relief or a temporary restraining order, invoking a
power of sale under the Deed of Trust, the Pledge Agreement or any other
deed of trust or mortgage, obtaining a writ of attachment or imposition of
a receivership, or exercising any rights relating to personal property,
including exercising the right of set-off, or taking or disposing of such
property with or without judicial process pursuant to Article 9 of the
Uniform Commercial Code. Any disputes, claims or controversies concerning
the lawfulness or reasonableness of an act, or exercise of any right or
remedy concerning the lawfulness or reasonableness of an act, or exercise
of any right or remedy concerning any Collateral, including any claim to
rescind, reform, or otherwise modify any agreement relating to such
Collateral, including any claim to rescind, reform, or otherwise modify any
agreement relating to such Collateral, shall also be arbitrated; provided,
however, that no arbitrator shall have the right or the power to enjoin or
restrain any act of either party. Judgment upon any award rendered by an
arbitrator may be entered in any court having jurisdiction. The statute of
limitations, estoppel, waiver, laches, and similar doctrines which would
otherwise be applicable in an action brought by a party shall be applicable
in any arbitration proceeding, and the commencement of an arbitration
proceeding shall be deemed the commencement of any action for these
purposes. The Federal Arbitration Act (Title 9 of the United States Code)
shall apply to the construction, interpretation, and enforcement of this
arbitration provision.
EXECUTED as of the date first above written.
GUARANTOR:
STRS GUARANTY COMPANY, L.L.C., a Delaware
limited liability company
By: Stratus Properties Inc., a Delaware limited company, its sole
member
By:/s/ William H. Armstrong III
Name:William H. Armstrong III
Title:President and Chief Executive Officer