Exhibit 10.19
GUARANTY
This GUARANTY ("Guaranty") is executed as of February 24,
2000, 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 Stratus 7000 West
Joint Venture, a Texas joint venture ("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 $7,700,000.00 (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
66,475 square feet of leasable space and related amenities and
improvements (the "Phase II Improvements") upon certain real
property (the "Land") located in Xxxxxx County, Texas, which Loan
is secured by the liens and security interests of a Second Amended
and Restated Deed of Trust ("Deed of Trust") upon the Land (as more
fully defined in the Loan Agreement) executed by Borrower for the
benefit of Lender of even date herewith, which amends and restates
that prior Amended and Restated Deed of Trust dated effective as of
April 9, 1999, recorded under Document No. 0000000000 of the
Official Records of Xxxxxx County, Texas, as modified by the
Modification Agreement dated August 16, 1999 and recorded under
Document No. 1999093007 of the Official Records of Xxxxxx County,
Texas, covering both the Phase I and Phase II Improvements (as more
fully defined in the Loan Agreement) (the Phase I and Phase II
Improvements are hereinafter sometimes collectively referred to as
the "Project"), of even date herewith, and 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 Phase II Improvements; 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 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:
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(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, and
all indebtedness, obligations and liabilities of Borrower to
Lender arising under the Note, or under any renewals,
modifications, increases and extensions of the Note, the Loan
Agreement, or under any of 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,
credit or 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, 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
(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
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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.
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 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 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 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 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 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.
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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.
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 xxxxx,
(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.
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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 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.
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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 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 Guarantor to 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
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
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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 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.
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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: National Real Estate Services
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
Attn: 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 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
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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 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/ Xxxxxxx X. Xxxxxxxxx, III
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx, III
Title:Chairman of the Board,
President and Chief Executive Officer
STATE OF TEXAS &
&
COUNTY OF ______&
This instrument was ACKNOWLEDGED before me this 24 day of
February, 2000, by Xxxxxxx X. Xxxxxxxxx, 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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