Exhibit 10.27
GUARANTY
This GUARANTY ("Guaranty") is executed as of June 11, 2001,
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 has entered into a Construction Loan
Agreement ("Loan Agreement") of even date herewith, with 0000
Xxxxxx Xxxxxxxxx, L.P., a Texas limited partnership ("Borrower"),
pursuant to which Borrower has executed that certain Promissory
Note dated of even date herewith payable to the order of the
Lender in the original principal amount of $18,350,000.00
(together with all renewals, modifications, increases and
extensions thereof, the "Note") under which Borrower has become
indebted, and may from time to time be further indebted, to
Lender with respect to a loan ("Loan") made or to be made by
Lender to Borrower, up to the principal amount of the Note, to
finance the cost of development and construction of an office
building consisting of approximately 77,500 square feet of
leasable space and related amenities and improvements
specifically including, but not limited to, a parking garage with
approximately one hundred (100) parking spaces (the "Phase I
Improvements") upon certain real property (the "Land") located in
Xxxxxx County, Texas, which Loan is secured by the liens and
security interests of an Amended and Restated Deed of Trust
(herein so called) upon the Land (as more fully defined in the
Loan Agreement). Provided certain leasing criteria is met for
the Phase I Improvements, said Loan will also finance the cost of
development and construction of a second office building to be
constructed on the Land also consisting of approximately 77,500
square feet of leasable space and related amenities and
improvements (the "Phase II Improvements"), said Phase I
Improvements and Phase II Improvements being more fully described
in the Loan Agreement and collectively referred to herein as the
"Project". Said Note is further evidenced, secured or governed
by other instruments and documents executed in connection with
the Loan of even date herewith (collectively the "Loan
Documents"); and
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
Obligations (as herein defined) and unless Guarantor is willing
to guarantee the completion of the Project; and
WHEREAS, Guarantor is the owner of a direct or indirect
interest in Borrower, and Guarantor will directly benefit from
Lender's making the Loan to Borrower.
WHEREAS, any capitalized terms not otherwise defined herein
shall have the meaning ascribed to said term in the Loan
Agreement.
NOW, THEREFORE, as an inducement to Lender to enter into the Loan
Agreement and to make the Loan to Borrower as described therein, and to
extend such additional credit 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 Obligations" (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
Obligations as a primary obligor. As used herein, the term "Guaranteed
Obligations" means the following Payment Obligations and Performance
Obligations, together with Guarantor's indemnification of and agreement to
hold Lender harmless from any and all losses, costs, liabilities or
expenses incurred in connection with the construction of the Project,
including but not limited to any losses, costs, liabilities or expenses of
delay:
A. Payment Obligations:
(1) 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 all indebtedness, obligations
and liabilities of Borrower to Lender arising under the Note or under
the Loan Documents;
(2) 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 whether or not
the advances, credit or value are given pursuant to commitment;
(3) any and all other indebtedness, liabilities, obligations and
duties of every kind and character of Borrower to Lender arising under
the Loan Documents, 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;
(4) 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
(5) 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 (1) through (4)
of this Section.
B. Performance Obligations. If for any reason whatsoever, Borrower
(i) fails or neglects to complete the Project within the time specified
therefor in the Loan Agreement, including, but not limited to paying for
all permits, certificates, tap fees, and other costs of compliance with
Governmental Requirements (as defined in the Loan Agreement) and in
compliance with all governmental or quasi-governmental agencies and the
costs of all bonding, insurance, and other expenses related to such
construction, (ii) fails to prosecute with diligence and continuity the
construction of the Project in accordance with the Loan Agreement, which
Project shall specifically include, but not be limited to, all tenant
finish-out which is required to be completed by Borrower under the terms of
any Tenant Leases (as defined in the Loan Agreement) during the term of the
Loan and obtaining and paying for certificates of occupancy for the Project
issued by the City of Austin, (iii) fails to pay all bills and obtain all
lien waivers and releases in connection with such construction as required
by the Loan Agreement, (iv) fails or neglects to take such action as may be
required to enforce the rights of Stratus Properties Operating Co. under
the Austin Water Agreement (as defined in the Loan Agreement) or fails to
comply with the requirements under the Loan Agreement as to the Borrower's
Deposit (as defined in the Loan Agreement), (v) commits or permits to exist
an event of default under any one or more of the Loan Documents, or (vi) is
unable to satisfy any condition precedent to obtaining an advance of the
Loan proceeds under the Loan Agreement, then Lender, in addition to
Lender's other rights, remedies and recourses whether existing hereunder,
under the Loan Documents, or otherwise, may proceed under this paragraph.
In any such event, within five (5) days from the date Lender notifies
Guarantor of Borrower's failure to satisfy any condition enumerated in the
first sentence of this paragraph, Guarantor agrees, at Guarantor's sole
cost and expense, to diligently pursue the completion of construction of
the Project within the time and in the manner specified in the Loan
Agreement and shall include, but not be limited to, the obligation to
(i) pay for all permits, certificates, tap fees and other costs of
compliance with Governmental Requirements (as defined in the Loan
Agreement) and in compliance with all governmental or quasi-governmental
agencies and the costs of all bonding, insurance, and other expenses
related to such construction, which construction shall specifically
include, but not be limited to, all tenant finish-out which is required to
be completed by Borrower under the terms of any Tenant Leases and to obtain
and pay for certificates of occupancy for the Project issued by the City of
Austin; (ii) pay all bills and obtain all lien waivers and releases in
connection with such construction as is required by the Loan Agreement; and
(iii) take such action as is necessary to enforce Stratus Properties
Operating Co.'s right under the Austin Water Agreement and to deposit such
sums with Lender as may be required for Borrower's Deposit. PROVIDED,
HOWEVER, in the event the Phase II Conditions (as defined in the Loan
Agreement) are not met and Lender elects not to fund the Phase II
Improvements, then, for purposes of this Guaranty, the Performance
Obligations of Guarantor shall mean the Phase I Improvements only, and the
definition of "Project" shall mean the Phase I Improvements only.
I.2 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 Obligations 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 Obligations 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 Obligations thereafter arising) under the Note or
otherwise. This Guaranty may be enforced by Lender and any subsequent
holder of the Guaranteed Obligations and shall not be discharged by the
assignment or negotiation of all or part of the Guaranteed Obligations.
I.3 Lender's Additional Rights and Remedies. If Guarantor shall fail
to perform Guarantor's Obligations, Lender shall have the following rights
and remedies in addition to any other rights and remedies hereunder or
under the Loan Documents:
(i) If such failure of Guarantor occurs after any trustee's sale
or foreclosure and/or sale of the property or collateral covered by
the Loan Documents, Lender shall have an immediate right to obtain
from Guarantor damages in an amount which is equal to the sum
necessary to complete construction of the Project as such sum may be
established by construction contracts, appraisals, or other competent
evidence and including any additional costs incurred due to any delay
in construction caused by Borrower or Guarantor or any need to correct
work improperly or incompletely performed, without any necessity of
completing or beginning actual construction of the Project, less the
sum equal to the undisbursed balance of the Loan less interest
accruing with respect to the Loan and any expenses incurred by Lender
in connection with any trustee's sale or foreclosure and/or sale of
all or any of the property or collateral covered by the Loan
Documents, and Lender shall have an immediate right to obtain judgment
against Guarantor in such amount and Lender may also exercise all
remedies available under the laws of the State of Texas for action on
a matured contractual indebtedness.
(ii) Regardless of whether such failure of Guarantor occurs
before or after any trustee's sale or foreclosure and/or sale of the
property or collateral covered by the Loan Documents, Lender, at
Lender's sole option, shall have the right, but shall have no
obligation, to complete construction of the Project in the manner
specified in the Loan Agreement by or through any agent, contractor or
subcontractor of its selection and to recover from Guarantor as
damages the amount of any and all expenditures made by Lender in
connection with such completion and including any additional costs
incurred due to any delay in construction caused by Borrower or
Guarantor or any need to correct work improperly or incompletely
performed.
I.4 Guaranteed Obligations Not Reduced by Offset. The Guaranteed
Obligations 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
Obligations, whether such offset, claim or defense arises in connection
with the Guaranteed Obligations (or the transactions creating the
Guaranteed Obligations) 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 of the Guaranteed Obligations to (and confer such benefits on)
Lender, on a timely basis.
I.5 Payment by Guarantor. If all or any part of the Guaranteed
Obligations 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 Obligations 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 Obligations, and may be made
from time to time with respect to the same or different items of Guaranteed
Obligations. 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 Obligations or any other person, (ii) enforce
Lender's rights against any collateral which shall ever have been given to
secure the Guaranteed Obligations, (iii) enforce Lender's rights against
any other guarantors of the Guaranteed Obligations, (iv) join Borrower or
any others liable on the Guaranteed Obligations 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
Obligations, or (vi) resort to any other means of obtaining payment of the
Guaranteed Obligations. Lender shall not be required to mitigate damages
or take any other action to reduce, collect or enforce the Guaranteed
Obligations.
I.7 Waivers. Guarantor agrees to the provisions of the Loan
Documents, 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
Project, (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 Obligations, or any part thereof, (vii) sale or
foreclosure (or posting or advertising for sale or foreclosure) of any
collateral for the Guaranteed Obligations, (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 Obligations and the obligations hereby guaranteed. The parties
intend that Guarantor shall not be considered a "debtor" as defined in Tex.
Bus. & Com. Code Xxx. & 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 Obligations.
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 Obligations, 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 Obligations for any payment made by Guarantor under
or in connection with this Guaranty or otherwise until the Loan 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.
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
Obligations, Note, Loan Documents, or other document, instrument, contract
or understanding between Borrower and Lender, or any other parties,
pertaining to the Guaranteed Obligations 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.
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 Obligations; 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 Obligations. The invalidity, illegality
or unenforceability of all or any part of the Guaranteed Obligations, or
any document or agreement executed in connection with the Guaranteed
Obligations, for any reason whatsoever, including without limitation the
fact that (i) the Guaranteed Obligations, or any part thereof, exceeds the
amount permitted by law, (ii) the act of creating the Guaranteed
Obligations or any part thereof is ultra xxxxx, (iii) the officers or
representatives executing the Note or the other Loan Documents or otherwise
creating the Guaranteed Obligations acted in excess of their authority,
(iv) the Guaranteed Obligations 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 Obligations wholly or
partially uncollectible from Borrower, (vi) the creation, performance or
repayment of the Guaranteed Obligations (or the execution, delivery and
performance of any document or instrument representing part of the
Guaranteed Obligations or executed in connection with the Guaranteed
Obligations, or given to secure the repayment of the Guaranteed
Obligations) 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 Obligations 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 Obligations, 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 Obligations, or any part thereof, it being recognized,
acknowledged and agreed by Guarantor that Guarantor may be required to pay
the Guaranteed Obligations 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 Obligations,
or that Lender will look to other parties to pay or perform the Guaranteed
Obligations.
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 Obligations.
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
Obligations.
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 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 Obligations 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
Obligations.
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 Obligations, 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 Obligations.
II.10 Offset. The Note, the Guaranteed Obligations 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 Obligations, whether such
right of offset, claim or defense arises in connection with the Guaranteed
Obligations (or the transactions creating the Guaranteed Obligations) 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, the Guaranteed
Obligations, 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 Obligations pursuant to
the terms hereof, it is the unambiguous and unequivocal intention of
Guarantor that Guarantor shall be obligated to pay the Guaranteed
Obligations 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 Obligations.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
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 Obligations.
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 Obligations; 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 Guarantor to Lender is true and correct in all respects.
Guarantor shall furnish to Lender quarterly and annual certified financial
statements of Guarantor, including cash flow and contingent liability
information, prepared in accordance with generally accepted accounting
principles consistently applied by, and (i) as to the annual financial
statements, said annual statements shall be certified to be true and
correct by an independent certified public accountant; and (ii) as to the
quarterly financial statements, said quarterly statements shall be
certified as true and correct by the Guarantor's chief financial officer.
Each such annual financial statement shall be delivered to Lender within
ninety-five (95) days after the end of such calendar year.
III.7 Survival. All representations and warranties made by
Guarantor herein shall survive the execution hereof.
ARTICLE IV
SUBORDINATION OF CERTAIN INDEBTEDNESS
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 Obligations. 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
Obligations, 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 Obligations, 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
Obligations, and such subrogation shall be with respect to that proportion
of the Guaranteed Obligations 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 Obligations, 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 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
0000 Xxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Real Estate Department
Guarantor: Stratus Properties, Inc.
00 Xxx Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn.: Xxxxxxx X. Xxxxxxxxx, III
With a copy to: Armbrust Xxxxx & Xxxxx, L.L.P.
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxx, Esq.
V.3 GOVERNING LAW. THIS GUARANTY IS EXECUTED AND DELIVERED AS AN
INCIDENT TO A LENDING TRANSACTION NEGOTIATED, CONSUMMATED, AND PERFORMABLE
IN XXXXXX 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 XXXXXX 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 XXXXXX 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.
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 constitute a 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
OBLIGATIONS 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 Agreement and satisfaction of all the Guaranteed Obligations
described in this Guaranty, this Guaranty shall be released and of no
further force and effect.
EXECUTED as of the day and year first above written.
GUARANTOR:
STRATUS PROPERTIES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx,III
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx, III
Title: President and Chief
Executive Officer
STATE OF TEXAS &
&
COUNTY OF ___________ &
This instrument was ACKNOWLEDGED before me this _____ day of June,
2001, by ___________________________________, the _________________ 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
