Common use of Development Activity Clause in Contracts

Development Activity. Without the consent of the Majority Banks, neither the Borrower nor any Subsidiary shall engage, directly or indirectly, in the development, construction or substantial renovation or rehabilitation of commercial real estate (provided that the foregoing shall not be deemed to be breached by the residential real estate development activities by the Residential Corporations nor the restoration or rehabilitation of commercial real estate following damage by casualty or condemnation). The Borrower acknowledges that the decision of the Majority Banks to grant or withhold such consent shall be based on such factors as the Majority Banks deem relevant in their sole discretion, including without limitation, evidence of sufficient funds both from borrowings (other than from the Loans) and equity to complete such development and evidence that the Borrower or its Subsidiary has the resources and expertise necessary to complete such project. Notwithstanding the foregoing, the Borrower is currently developing for its own account an office building not exceeding 110,000 square feet on Phase II of the land owned by Borrower in Austin, Texas known as "The Avallon" and may develop an office building not exceeding 80,000 square feet on Phase III of the land owned by Borrower in Austin, Texas known as "The Avallon", provided that with respect to each such building (a) BMC Software or an affiliate thereof shall have executed and delivered to Borrower a lease to occupy not less than sixty-five percent (65%) of such building within one (1) year of completion of the same, and (b) the actual cost of developing improvements thereon with respect to each such building shall not exceed $15,000,000.00. Notwithstanding the foregoing, Borrower can engage in, and proceeds of the Loans may be used for, the construction of tenant improvements within space to be occupied by tenants of buildings owned by the Borrower or its Subsidiaries, and for the renovation or demolition and reconstruction of the Surtran Garage at Continental Plaza, provided that the cost of such renovation or demolition and reconstruction shall not exceed $20,000,000.00, and for the construction of the Frost Bank Garage in Austin, Texas. Nothing herein shall prohibit the Borrower or any Subsidiary from acquiring Real Estate which has been developed and initially leased by another Person.

Development Activity. Without the consent of the Majority Banks, neither the Borrower nor any Subsidiary or Investment Partnership shall engage, directly or indirectly, in the development, construction or substantial renovation or rehabilitation of commercial real estate (provided that the foregoing shall not be deemed to be breached by the residential real estate development activities by the Residential Corporations nor the development activities permitted by the partnership agreements for the Woodlands and Americold URS nor the restoration or rehabilitation of commercial real estate following damage by casualty or condemnation). The Borrower acknowledges that the decision of the Majority Banks to grant or withhold such consent shall be based on such factors as the Majority Banks deem relevant in their sole discretion, including without limitation, evidence of sufficient funds both from borrowings (other than from the Loans) and equity to complete such development and evidence that the Borrower or its Subsidiary or Investment Partnership has the resources and expertise necessary to complete such project. Notwithstanding the foregoing, the Borrower is currently developing for its own account an office building not exceeding 110,000 square feet on Phase II of the land owned by Borrower in Austin, Texas known as "The Avallon" and may develop an office building not exceeding 80,000 square feet on Phase III of the land owned by Borrower in Austin, Texas known as "The Avallon", provided that with respect to each such building (a) BMC Software or an affiliate thereof shall have executed and delivered to Borrower a lease to occupy not less than sixty-five percent (65%) of such building within one (1) year of completion of the same, and (b) the actual cost of developing improvements thereon with respect to each such building shall not exceed $15,000,000.00. Notwithstanding the foregoing, Borrower can engage in, and proceeds of the Loans may be used for, (i) the construction of tenant improvements within space to be occupied by tenants of buildings owned by the Borrower or its Subsidiaries, and for (ii) the renovation or demolition and reconstruction of the Surtran Garage at Continental Plaza, provided that the cost of such renovation or demolition and reconstruction shall not exceed $20,000,000.00, and for (iii) the construction of the Frost Bank Garage in Austin, Texas, (iv) the construction for its own account of an approximately 1,000 room hotel and related amenities on land owned by the Borrower at Houston Center, and (v) the construction for its own account of an office building not exceeding 1,000,000 square feet on land owned by the Borrower near The Crescent. Nothing herein shall prohibit the Borrower or any Subsidiary or Investment Partnership from acquiring Real Estate which has been developed and initially leased by another Person.

Development Activity. Without Neither the consent of Borrower, the Majority Banks, neither the Borrower Guarantor nor any Subsidiary of their respective Subsidiaries shall engage, directly or indirectly, in any development except as expressly provided in this Section 8.9. The Borrower, the developmentGuarantor or any of their respective Subsidiaries may engage, either directly or, in the case of the Borrower, through any Affiliate of the Borrower, an Investment in which is permitted under Section 8.3(k), in the development of property to be used principally for retail shopping centers which at any time has a total cost (including acquisition, construction and other costs), whether such total costs are incurred directly by the Borrower, the Guarantor or such Subsidiary or through an Investment in an Affiliate permitted under Section 8.3(k), individually for each development project that is not in excess of ten percent (10%) of the Consolidated Total Adjusted Asset Value of the Borrower, and in the aggregate for all development projects that is not in excess of fifteen percent (15%) of the Consolidated Total Adjusted Asset Value of the Borrower, without the prior written consent of the Majority Banks. For the purposes of calculating the cost of developments by Subsidiaries or Affiliates, the cost of such developments shall be based upon the Borrower's interest in such Subsidiaries or Affiliates. For purposes of this Section 8.9, the term "development" shall include the new construction of a shopping center complex or the substantial renovation of improvements to real property which materially change the character or rehabilitation size thereof, but shall not include the addition of commercial real estate (amenities or other related facilities to existing Real Estate which is already used principally for shopping centers; provided, however, that the term "development" shall not include the addition of an anchor store to an existing shopping center project provided that the foregoing shall not be deemed to be breached construction of such improvements is performed by the residential real estate development activities tenant, and the Borrower (or any Affiliate thereof), the Guarantor or its respective Subsidiary, as applicable, is only obligated to reimburse such tenant for a fixed amount with respect to the cost of such construction upon completion of such construction by the Residential Corporations nor the restoration or rehabilitation of commercial real estate following damage by casualty or condemnation)such tenant. The Borrower and the Guarantor each acknowledges that the decision of the Majority Banks to grant or withhold such consent shall be based on such factors as the Majority Banks deem relevant in their sole discretion, including without limitation, evidence of sufficient funds both from borrowings (other than from the Loans) and equity to complete such development and evidence that the Borrower (or any Affiliate thereof), the Guarantor or either of its Subsidiary Subsidiaries has the resources and expertise necessary to complete such project. Notwithstanding the foregoing, the Borrower is currently developing for its own account an office building not exceeding 110,000 square feet on Phase II of the land owned by Borrower in Austin, Texas known as "The Avallon" and may develop an office building not exceeding 80,000 square feet on Phase III of the land owned by Borrower in Austin, Texas known as "The Avallon", provided that with respect to each such building (a) BMC Software or an affiliate thereof shall have executed and delivered to Borrower a lease to occupy not less than sixty-five percent (65%) of such building within one (1) year of completion of the same, and (b) the actual cost of developing improvements thereon with respect to each such building shall not exceed $15,000,000.00. Notwithstanding the foregoing, Borrower can engage in, and proceeds of the Loans may be used for, the construction of tenant improvements within space to be occupied by tenants of buildings owned by the Borrower or its Subsidiaries, and for the renovation or demolition and reconstruction of the Surtran Garage at Continental Plaza, provided that the cost of such renovation or demolition and reconstruction shall not exceed $20,000,000.00, and for the construction of the Frost Bank Garage in Austin, Texas. Nothing herein shall prohibit the Borrower Borrower, the Guarantor or any Subsidiary of their respective Subsidiaries thereof from acquiring entering into an agreement to acquire Real Estate which has been developed and initially leased by another Person. Neither the Borrower (or any Affiliate thereof), the Guarantor nor any Subsidiary shall acquire or hold any number of undeveloped parcels of Real Estate which in the aggregate exceed five percent (5%) of the Consolidated Total Adjusted Asset Value of the Borrower and the Guarantor without the prior written consent of the Majority Banks, provided that the acquisition or holding of any outlots or property adjacent to any Real Estate owned by the Borrower (or any Affiliate thereof), the Guarantor or any Subsidiary shall not be deemed to be an undeveloped parcel of Real Estate for this purpose and options to acquire any property shall not be deemed an acquisition or holding of such property. Further, any new development project permitted under the terms of this Section 8.9 engaged in by the Borrower (or any Affiliate thereof), the Guarantor or any Subsidiary shall be either (a) at least seventy percent (70%) pre-leased (based on the gross leasable area of the improvements to the development, or the phase of the development project being developed if the Borrower submits and the Agent agrees that the development consists of more than one (1) phase, excluding outlots), including all anchors, or under a purchase agreement and all construction bids shall be in place and any such development shall continue to be deemed an undeveloped parcel until such time as construction commences, or (b) sufficiently pre-leased such that based on such leases the gross income from such leases upon completion of such project shall equal or exceed projected operating expenses (including reserves for expenses not paid on a monthly basis). For purposes of this Section 8.9, property shall be deemed to be in development at all times that it is Under Development.

Development Activity. Without Neither the consent of Borrower, the Majority Banks, neither the Borrower Guarantor nor any Subsidiary of their respective Subsidiaries shall engage, directly or indirectly, in any development except as expressly provided in this Section 8.9. The Borrower, the developmentGuarantor or any of their respective Subsidiaries may engage, either directly or, in the case of the Borrower, through any Affiliate of the Borrower, an Investment in which is permitted under Section 8.3(k), in the development of property to be used principally for retail shopping centers which at any time has a total cost (including acquisition, construction and other costs), whether such total costs are incurred directly by the Borrower, the Guarantor or such Subsidiary or through an Investment in an Affiliate permitted under Section 8.3(k), individually for each development project that is not in excess of ten percent (10%) of the Consolidated Total Adjusted Asset Value of the Borrower, and in the aggregate for all development projects that is not in excess of fifteen percent (15%) of the Consolidated Total Adjusted Asset Value of the Borrower, without the prior written consent of the Majority Banks. For the purposes of calculating the cost of developments by Subsidiaries or Affiliates, the cost of such developments shall be based upon the Borrower's interest in such Subsidiaries or Affiliates. For purposes of this Section 8.9, the term "development" shall include the new construction of a shopping center complex or the substantial renovation of improvements to real property which materially change the character or rehabilitation size thereof, but shall not include the addition of commercial real estate (amenities or other related facilities to existing Real Estate which is already used principally for shopping centers; provided, however, that the term "development" shall not include the addition of an anchor store to an existing shopping center project provided that the foregoing shall not be deemed to be breached construction of such improvements is performed by the residential real estate development activities tenant, and the Borrower (or any Affiliate thereof), the Guarantor or its respective Subsidiary, as applicable, is only obligated to reimburse such tenant for a fixed amount with respect to the cost of such construction upon completion of such construction by the Residential Corporations nor the restoration or rehabilitation of commercial real estate following damage by casualty or condemnation)such tenant. The Borrower and the Guarantor each acknowledges that the decision of the Majority Banks to grant or withhold such consent shall be based on such factors as the Majority Banks deem relevant in their sole discretion, including without limitation, evidence of sufficient funds both from borrowings (other than from the Loans) and equity to complete such development and evidence that the Borrower (or any Affiliate thereof), the Guarantor or either of its Subsidiary Subsidiaries has the resources and expertise necessary to complete such project. Notwithstanding the foregoing, the Borrower is currently developing for its own account an office building not exceeding 110,000 square feet on Phase II of the land owned by Borrower in Austin, Texas known as "The Avallon" and may develop an office building not exceeding 80,000 square feet on Phase III of the land owned by Borrower in Austin, Texas known as "The Avallon", provided that with respect to each such building (a) BMC Software or an affiliate thereof shall have executed and delivered to Borrower a lease to occupy not less than sixty-five percent (65%) of such building within one (1) year of completion of the same, and (b) the actual cost of developing improvements thereon with respect to each such building shall not exceed $15,000,000.00. Notwithstanding the foregoing, Borrower can engage in, and proceeds of the Loans may be used for, the construction of tenant improvements within space to be occupied by tenants of buildings owned by the Borrower or its Subsidiaries, and for the renovation or demolition and reconstruction of the Surtran Garage at Continental Plaza, provided that the cost of such renovation or demolition and reconstruction shall not exceed $20,000,000.00, and for the construction of the Frost Bank Garage in Austin, Texas. Nothing herein shall prohibit the Borrower Borrower, the Guarantor or any Subsidiary of their respective Subsidiaries thereof from acquiring entering into an agreement to acquire Real Estate which has been developed and initially leased by another Person. Neither the Borrower (or any Affiliate thereof), the Guarantor nor any Subsidiary shall acquire or hold any number of undeveloped parcels of Real Estate which in the aggregate exceed five percent (5%) of the Consolidated Total Adjusted Asset Value of the Borrower and the Guarantor without the prior written consent of the Majority Banks, provided that the acquisition or holding of any outlots or property adjacent to any Real Estate owned by the Borrower (or any Affiliate thereof), the Guarantor or any Subsidiary shall not be deemed to be an undeveloped parcel of Real Estate for this purpose and options to acquire any property shall not be deemed an acquisition or holding of such property. Further, any new development project permitted under the terms of this Section 8.9 engaged in by the Borrower (or any Affiliate thereof), the Guarantor or any Subsidiary shall be either (a) at least seventy percent (70%) pre-leased (based on the gross leasable area of the improvements of the development excluding outlots), including all anchors, or under a purchase agreement and all construction bids shall be in place and any such development shall continue to be deemed an undeveloped parcel until such time as construction commences, or (b) sufficiently pre-leased such that based on such leases the gross income from such leases upon completion of such project shall equal or exceed projected operating expenses (including reserves for expenses not paid on a monthly basis). For the purposes of this Section 8.9, property shall be deemed to be in development at all times that it is Under Development.

Development Activity. Without Neither the consent of Borrower, the Majority Banks, neither the Borrower Guarantor nor any Subsidiary of their respective Subsidiaries shall engage, directly or indirectly, in any development except as expressly provided in this Section 8.9. The Borrower, the developmentGuarantor or any of their respective Subsidiaries may engage, either directly or, in the case of the Borrower, through any Affiliate of the Borrower, an Investment in which is permitted under Section 8.3(k), in the development of property to be used principally for retail shopping centers which at any time has a total cost (including acquisition, construction and other costs), whether such total costs are incurred directly by the Borrower, the Guarantor or such Subsidiary or through an Investment in an Affiliate permitted under Section 8.3(k), individually for each development project that is not in excess of ten percent (10%) of the Consolidated Total Adjusted Asset Value of the Borrower, and in the aggregate for all development projects that is not in excess of fifteen percent (15%) of the Consolidated Total Adjusted Asset Value of the Borrower, without the prior written consent of the Majority Banks. For the purposes of calculating the cost of developments by Subsidiaries or Affiliates, the cost of such developments shall be based upon the Borrower's interest in such Subsidiaries or Affiliates. For purposes of this Section 8.9, the term "development" shall include the new construction of a shopping center complex or the substantial renovation of improvements to real property which materially change the character or rehabilitation size thereof, but shall not include the addition of commercial real estate (amenities or other related facilities to existing Real Estate which is already used principally for shopping centers; provided, however, that the term "development" shall not include the addition of an anchor store to an existing shopping center project provided that the foregoing shall not be deemed to be breached construction of such improvements is performed by the residential real estate development activities tenant, and the Borrower (or any Affiliate thereof), the Guarantor or its respective Subsidiary, as applicable, is only obligated to reimburse such tenant for a fixed amount with respect to the cost of such construction upon completion of such construction by the Residential Corporations nor the restoration or rehabilitation of commercial real estate following damage by casualty or condemnation)such tenant. The Borrower and the Guarantor each acknowledges that the decision of the Majority Banks to grant or withhold such consent shall be based on such factors as the Majority Banks deem relevant in their sole discretion, including without limitation, evidence of sufficient funds both from borrowings (other than from the Loans) and equity to complete such development and evidence that the Borrower (or any Affiliate thereof), the Guarantor or either of its Subsidiary Subsidiaries has the resources and expertise necessary to complete such project. Notwithstanding the foregoing, the Borrower is currently developing for its own account an office building not exceeding 110,000 square feet on Phase II of the land owned by Borrower in Austin, Texas known as "The Avallon" and may develop an office building not exceeding 80,000 square feet on Phase III of the land owned by Borrower in Austin, Texas known as "The Avallon", provided that with respect to each such building (a) BMC Software or an affiliate thereof shall have executed and delivered to Borrower a lease to occupy not less than sixty-five percent (65%) of such building within one (1) year of completion of the same, and (b) the actual cost of developing improvements thereon with respect to each such building shall not exceed $15,000,000.00. Notwithstanding the foregoing, Borrower can engage in, and proceeds of the Loans may be used for, the construction of tenant improvements within space to be occupied by tenants of buildings owned by the Borrower or its Subsidiaries, and for the renovation or demolition and reconstruction of the Surtran Garage at Continental Plaza, provided that the cost of such renovation or demolition and reconstruction shall not exceed $20,000,000.00, and for the construction of the Frost Bank Garage in Austin, Texas. Nothing herein shall prohibit the Borrower Borrower, the Guarantor or any Subsidiary of their respective Subsidiaries thereof from acquiring entering into an agreement to acquire Real Estate which has been developed and initially leased by another Person. Neither the Borrower (or any Affiliate thereof), the Guarantor nor any Subsidiary shall acquire or hold any number of undeveloped parcels of Real Estate which in the aggregate exceed five percent (5%) of the Consolidated Total Adjusted Asset Value of the Borrower and the Guarantor without the prior written consent of the Majority Banks, provided that the acquisition or holding of any outlots or property adjacent to any Real Estate owned by the Borrower (or any Affiliate thereof), the Guarantor or any Subsidiary shall not be deemed to be an undeveloped parcel of Real Estate for this purpose and options to acquire any property shall not be deemed an acquisition or holding of such property. Further, any new development project permitted under the terms of this Section 8.9 engaged in by the Borrower (or any Affiliate thereof), the Guarantor or any Subsidiary shall be either (a) at least seventy percent (70%) pre-leased (based on the gross leasable area of the improvements to the development excluding outlots), including all anchors, or under a purchase agreement and all construction bids shall be in place and any such development shall continue to be deemed an undeveloped parcel until such time as construction commences, or (b) sufficiently pre-leased such that based on such leases the gross income from such leases upon completion of such project shall equal or exceed projected operating expenses (including reserves for expenses not paid on a monthly basis). For purposes of this Section 8.9, property shall be deemed to be in development at all times that it is Under Development.