PROMISSORY NOTE (Terrace Homes)
Exhibit
10.93
(Terrace
Homes)
|
$9,419,164.00
|
Dallas,
Texas
|
December
____, 2005
|
FOR
VALUE
RECEIVED, the undersigned, ARC BRANDYWINE, L.P., a Delaware limited partnership
(“Borrower”),
hereby
promises to pay to the order of GUARANTY BANK, a federal savings bank
(“Lender”
which
shall also include each successor or assign who becomes the holder of this
Note), the principal sum of Nine Million Four Hundred Nineteen Thousand One
Hundred Sixty-Four and No/100 Dollars ($9,419,164.00), with interest on the
unpaid balance thereof from date of advancement until maturity at the rate
or
rates hereinafter provided, both principal and interest payable as hereinafter
provided in lawful money of the United States of America at the offices of
Guaranty Bank, 0000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxx 00000, or at such other
place
within Dallas County, Texas as from time to time may be designated by
Lender.
1.
Defined
Terms:
As
used in
this Note, the following terms shall have the meanings indicated opposite
them:
“Additional
Costs”
-
Any
costs, losses or expenses incurred by Lender which it determines are
attributable to its making or maintaining the Loan, or its obligation to
make
any Loan advances, or any reduction in any amount receivable by Lender under
the
Loan or this Note.
“Applicable
Rate”
—
The
Fixed Rate or the Commercial Based Rate, as the case may be.
“Bloomberg”
—
The
Bloomberg Professional Service (a date service), or if such service is not
available, such other comparable publicly available service as may be selected
from time to time by Xxxxxx and determined to be comparable to the
Bloomberg.
“Business
Day”
—
A
day,
other than a Saturday or Sunday, on which commercial banks are open for business
with the public in Dallas, Texas.
“Commercial
Based Rate”
-
The
base rate announced or published from time to time by Lender, which rate
may not
be the lowest rate charged by Lender, plus 1.0%; it being understood and
agreed
that the Commercial Based Rate shall increase or decrease, as the case may
be,
from time to time as of the effective date of each change in the base
rate.
“Default
Rate”
—
The
rate per annum which is 5% above the Commercial Based Rate, but in no event
greater than the Maximum Rate.
“Event
of Default”
—
As
defined in the Security Instrument.
1
“Fixed
Rate”
—
The
rate per annum (expressed as a percentage) determined by Xxxxxx to be equal
to
the sum of (a) the quotient of the LIBOR Rate for the Fixed Rate Amount and
Interest Period in question divided by (1 minus the Reserve Requirement),
rounded up to the nearest 1/100 of 1%, and (b) the Spread.
“Fixed
Rate Amount”
—
Each
portion of the Principal Amount bearing interest at an applicable Fixed Rate
pursuant to a Fixed Rate Request. Notwithstanding any provision contained
herein
to the contrary, no Fixed Rate Request may request less than the entire
Principal Amount bear interest at the same Fixed Rate.
“Fixed
Rate Business Day”
—
A
day,
other than a Saturday or Sunday, on which commercial banks are open for domestic
and international business (including dealings in U.S. Dollar deposits) in
New
York, New York and Dallas, Texas.
“Fixed
Rate Request”
—
Borrower’s telephonic notice (to be promptly confirmed in writing which must be
received by Lender before such Fixed Rate Request will be put into effect
by
Lender), to be received by Lender by 12 o’clock Noon (Central Standard
Time) 3 Fixed Rate Business Days prior to the Fixed Rate Business Day specified
in the Fixed Rate Request for the commencement of the Interest Period, of
the
Fixed Rate and Interest Period desired by Borrower in respect to a Fixed
Rate
Request Amount.
“Fixed
Rate Request Amount”
—
The
amount, to be specified by Borrower in each Fixed Rate Request, which Borrower
desires to bear interest at the Fixed Rate and which shall in no event be
less
than $500,000 and which, at Lender’s option, shall be an integral multiple of
$100,000.
“Funding
Date”
—
The
date of funding of the Loan.
“Interest
Period”
—
A
period computed as follows:
(a)
The
period
during which interest at the Fixed Rate shall be applicable to the Fixed
Rate
Amount in question, provided, however, that each such period shall be a one
(1)
month period commencing on the first day of each calendar month.
(b) An
Interest Period shall be measured from the date specified by Borrower in
each
Fixed Rate Request for the commencement of the computation of interest at
the
Fixed Rate, to the numerically corresponding day in the calendar month in
which
such period terminates (or, if there be no numerical correspondent in such
month, or if the date selected by Borrower for such commencement is the last
Fixed Rate Business Day of a calendar month, then the last Fixed Rate Business
Day of the calendar month in which such period terminates, or if the numerically
corresponding day is not a Fixed Rate Business Day then the next succeeding
Fixed Rate Business Day, unless such next succeeding Fixed Rate Business
Day
enters a new calendar month, in which case such period shall end on the next
preceding Fixed Rate Business Day) and in no event shall any such period
be
elected which extends beyond the Maturity Date.
2
“LIBOR
Rate”
—
The
rate determined by Xxxxxx (rounded upward, if necessary, to the nearest
1/100th
of 1%)
equal to the offered rate (and not the bid rate) for deposits in U.S.
Dollars
of
amounts comparable to the Fixed Rate Request Amount for the same period of
time
as the Interest Period selected by Borrower in the Fixed Rate Request, as
set
forth on the LIBOR Reference Source at approximately 10:00 a.m. (Central
Standard Time) on the first day of the applicable Interest Period.
“LIBOR
Reference Source”
—
The
display for London inter-bank offered rates appearing on the Bloomberg, as
the
British Bankers Association London inter-bank offered rates for deposits
in U.S.
Dollars.
“Loan”
—
The
$9,419,164 loan to be made to Borrower by Lender evidenced by this
Note.
“Loan
Agreement”
—
The
Loan Agreement of even date herewith between Borrower and Lender relating
to the
Loan.
“Loan
Documents”
—
This
Note, the Security Instrument, the Loan Agreement, the Assignment of Leases
and
Rents and all other documents evidencing, securing, or relating to the
Loan.
“Make-Whole
Breakage Amount”
—
As
defined in Section 5.
“Make-Whole
Calculation Rate”
—
As
defined in Section 5.
“Maturity
Date”
— December
____, 2008, being the date this Note becomes due and payable in its entirety,
unless extended as provided herein.
“Maximum
Rate”
—
The
maximum interest rate permitted under applicable law.
“Net
Operating Income”
—
The
gross income received by Borrower from the operation of the Property for
the
period in question, less expenses incurred and/or paid by Borrower in connection
with the operation and maintenance of the Property that are allocable to
such
period, computed on an accrual basis without regard to depreciation or debt
service on the Loan, but otherwise in accordance with generally accepted
accounting principles consistently applied. Included
within the expenses shall be a management fee equal to the greater of (i)
the
actual management fee or (ii) an assumed management fee of 5%, and annual
capital expenditures equal to $300 per unit. Documentation
of Net Operating Income shall be certified by an officer of Borrower with
detail
satisfactory to Lender and shall be subject to the approval of
Lender.
3
“Principal
Amount”
—
That
portion of the Loan evidenced hereby as is from time to time
outstanding.
“Property”
—
The
real property, together with all improvements, fixtures and other property
thereon and interest therein described on Exhibit A of the Security Instrument
as Tract 4.
“Regulation”
—
With
respect to the charging and collecting of interest at the Fixed Rate, any
United
States federal, state or foreign laws, treaties, rules or regulations whether
now in effect or hereafter enacted or promulgated (including Regulation D)
or
any interpretations, directives or requests applying to a class of depository
institutions including Lender under any United States federal, state or foreign
laws or regulations (whether or not having the force of law) by any court
or
governmental or monetary authority charged with the interpretation or
administration thereof.
“Regulation
D”
—
Regulation D of the Board of Governors of the Federal Reserve System, as
from
time to time amended or supplemented.
“Reserve
Requirement”
—
The
average maximum rate at which reserves (including any marginal, supplemental
or
emergency reserves) are required to be maintained under Regulation D by member
banks of the Federal Reserve System in New York City with deposits exceeding
one
billion U.S. Dollars against “Eurocurrency
Liabilities”,
as such
quoted term is used in Regulation D. Without
limiting the effect of the foregoing, the Reserve Requirement shall reflect
any
reserves required to be maintained by such member banks by reason of any
Regulation against (a) any category of liabilities which includes deposits
by
reference to which the Fixed Rate is to be determined as provided in this
Note,
or (b) any category of extensions of credit or other assets which includes
loans
the interest rate on which is determined on the basis of rates referred to
in
the definition of “LIBOR Rate”.
“Security
Instrument”
—
The
Open-End Mortgage, Security Agreement and Fixture Filing of even date herewith
more particularly described herein.
“Spread”
—
2.75%.
2. Interest
(a) Borrower
shall have the option of paying interest on the Principal Amount at the
Commercial Based Rate or the Fixed Rate (as elected in the manner specified
in
this Note).Notwithstanding
the foregoing, if at any time the Applicable Rate exceeds the Maximum Rate,
the
rate of interest payable under this Note shall be limited to the Maximum
Rate,
but any subsequent reductions in the Applicable Rate, as the case may be,
shall
not reduce the Applicable Rate below the Maximum Rate until the total amount
of
interest accrued on this Note equals the total amount of interest which would
have accrued at the Applicable Rate if the Applicable Rate had at all times
been
in effect.
4
(b) The
Principal Amount shall bear interest from the date hereof through the first
day
of the first month hereafter at the Commercial Based Rate.Thereafter,
the Principal Amount shall bear interest at the Fixed Rate (subject to Xxxxxx’s
right to convert the rate of interest payable hereunder from the Fixed Rate
to
the Commercial Based Rate as provided herein) until such time as Borrower
notifies Lender that it desires application of the Commercial Based Rate
upon
expiration of the then current Interest Period.This
subsection constitutes a Fixed Rate Xxxxxxx.Xx
will
not be necessary for Borrower to submit further Fixed Rate Requests, except
after electing application of the Commercial Based Rate.
(c) Borrower
shall pay to Lender, promptly upon demand, such amounts as are necessary
to
compensate Lender for Additional Costs resulting from any Regulation which
(i)
subjects Lender to any tax, duty or other charge with respect to the Loan
or
this Note, or changes the basis of taxation of any amounts payable to Lender
under the Loan or this Note (other than taxes imposed on the overall net
income
of Lender or of its applicable lending office by the jurisdiction in which
Xxxxxx’s principal office or such applicable lending office is located), (ii)
imposes, modifies or deems applicable any reserve, special deposit or similar
requirements relating to any extensions of credit or other assets of, or
any
deposits with or other liabilities of, Lender, or (iii) imposes on Lender
or on
the interbank LIBOR market any other condition affecting the Loan or this
Note,
or any of such extensions of credit or liabilities.Lender
will notify Borrower of any event which would entitle Lender to compensation
pursuant to this Section as promptly as practicable after Xxxxxx obtains
knowledge thereof and determines to request such compensation.For
purposes of this Section 2 and the definition of “Additional Costs”, the term
“Lender” shall, at Lender’s option, be deemed to include Lender’s present and
future participants in the Loan.
(d) Without
limiting the effect of the immediately preceding subsection, in the event
that,
by reason of any Regulation, (i) Lender incurs Additional Costs based on
or
measured by the amount of (1) a category of deposits or other liabilities
of
Lender which includes deposits by reference to which the Fixed Rate is
determined as provided in this Note and/or (2) a category of extensions of
credit or other assets of Lender which includes loans the interest on which
is
determined on the basis of rates referred to in the definition of “LIBOR Rate”,
(ii) Lender becomes subject to restrictions on the amount of such a
category of liabilities or assets which it may hold, or (iii) it shall be
unlawful or impractical for Lender to make or maintain the Loan (or any portion
thereof) at the Fixed Rate, then Lender’s obligation to make or maintain the
Loan (or portions thereof) at the Fixed Rate (and Borrower’s right to request
the same) shall be suspended and Lender shall give notice thereof to Borrower
and, upon the giving of such notice, interest payable hereunder at the Fixed
Rate shall be converted to the Commercial Based Rate, unless Lender may lawfully
continue to maintain the Loan (or any portion thereof) then bearing interest
at
the Fixed Rate to the end of the current Interest Period(s), at which time
the
interest rate shall convert to the Commercial Based Rate.If
subsequently Lender determines that such Regulation has ceased to be in effect,
Lender will so advise Borrower and Borrower may convert the rate of interest
payable hereunder with respect to those portions of the Principal Amount
bearing
interest at the Commercial Based Rate to a Fixed Rate by submitting a Fixed
Rate
Request in respect thereof and otherwise complying with the provisions of
this
Note with respect thereto.
5
(e) Determinations
by Lender of the existence or effect of any Regulation on its costs of making
or
maintaining the Loan, or portions thereof, at the Fixed Rate, or on amounts
receivable by it in respect thereof, and of the additional amounts required
to
compensate Lender in respect of Additional Costs, shall be conclusive, absent
manifest error, provided that such determinations are made on a reasonable
basis.
(f) Anything
herein to the contrary notwithstanding, if, at the time of or prior to the
determination of the Fixed Rate in respect of any Fixed Rate Request as herein
provided, Lender determines (which determination shall be conclusive, absent
manifest error, provided that such determination is made on a reasonable
basis)
that (i) by reason of circumstances affecting the interbank LIBOR market
generally, adequate and fair means do not or will not exist for determining
the
Fixed Rate applicable to an Interest Period, or (ii) the Fixed Rate, as
determined by Lender, will not accurately reflect the cost to Lender of making
or maintaining the Loan (or any portion thereof) at the Fixed Rate, then
Lender
shall give Borrower prompt notice thereof, and the Fixed Rate Amount in question
shall bear interest, or continue to bear interest, as the case may be, at
the
Commercial Based Rate.If
at any
time subsequent to the giving of such notice, Xxxxxx determines that because
of
a change in circumstances the Fixed Rate is again available to Borrower
hereunder, Xxxxxx will so advise Borrower and Borrower may convert the rate
of
interest payable hereunder from the Commercial Based Rate to a Fixed Rate
by
submitting a Fixed Rate Request to Lender and otherwise complying with the
provisions of this Note with respect thereto.
(g) Borrower
shall pay to Lender, immediately upon request and notwithstanding contrary
provisions contained in the Loan Documents, such amounts as shall, in the
conclusive judgment of Lender reasonably exercised, compensate Lender for
any
loss, cost or expense incurred by it as a result of (i) the conversion, for
any reason whatsoever, of the rate of interest payable hereunder from the
Fixed
Rate to the Commercial Based Rate with respect to any portion of the Principal
Amount then bearing interest at the Fixed Rate on a date other than the last
day
of an applicable Interest Period, (ii) the failure of all or a portion of
an advance which was to have borne interest at the Fixed Rate pursuant to
a
Fixed Rate Request to be made under this Note, or (iii) the failure of
Borrower to borrow in accordance with a Fixed Rate Request submitted by it
to
Lender, which amounts shall include, without limitation, lost
profits.
(h) Any
portion of the Principal Amount to which the Fixed Rate is not or cannot
pursuant to the terms hereof be applicable shall bear interest at the Commercial
Based Rate.
6
3. Default
Rate
(a) Notwithstanding
anything to the contrary contained in this Note, at the option of Xxxxxx,
at any
time after the occurrence and during the continuance of an Event of Default,
the
unpaid principal of this Note from time to time outstanding and all past
due
installments of interest shall, to the extent permitted by applicable law,
bear
interest at the Default Rate.
(b) If
an
Event of Default shall occur, interest on the Principal Amount shall, at
the
option of Lender, immediately and without notice to Borrower, be converted
to
the Commercial Based Rate during the continuance of the Event of
Default.The
foregoing provision shall not be construed as a waiver by Lender of its right
to
pursue any other remedies available to it under the Loan Documents, nor shall
it
be construed to limit in any way the application of the Default Rate.
4. Payment
of Principal and Interest.
(a) Interest
on the Principal Amount shall be payable monthly in arrears as it accrues
on the
first day of the first month following the Funding Date and on the first
day of
each month thereafter until the earlier of the date this Note is repaid in
full
or the Maturity Date.The
Principal Amount and all unpaid interest accrued thereon shall be due and
payable on the Maturity Date.
(b) Until
such
time as an Event of Default has occurred and after such time as such Event
of
Default has been cured, all payments received under this Note shall be applied
in the following order: (i) to any unpaid costs of collection; (ii) to
any Make-Whole Breakage Amount due; (iii) to accrued but unpaid interest on
the Principal Amount; and (iv) the Principal Amount.After
the
occurrence and during the continuance of an Event of Default, all payments
shall
be applied in any order determined by Xxxxxx in its sole
discretion.
(c) All
interest accruing under this Note shall be calculated on the basis of a 360-day
year applied to the actual number of days in each month.Borrower
shall make each payment which it owes hereunder not later than twelve o’clock,
noon (Central Standard Time), on the date such payment becomes due and payable
(or the date any voluntary prepayment is made), in immediately available
funds.Any
payment received by Lender after such time will be deemed to have been made
on
the next following Business Day.
5. Prepayment.
(a) Borrower
shall have the right to prepay the Loan, in whole or in part (except as
otherwise specifically provided herein) provided:
7
(i) written
notice thereof isgiven
to
Lender by prepaid registered or certified mail at least 30 but not more than
60
days prior to the date to be fixed therein for prepayment, which notice once
given shall be irrevocable; and
(ii) such
prepayment is accompanied by the Make-Whole Breakage Amount (if the principal
being repaid is a Fixed Rate Amount and is repaid prior to the expiration
of the
related Interest Period), all accrued interest on the amount prepaid, including
interest which has accrued at the Default Rate, and other sums that may be
payable hereunder to the date so fixed.
In
the
event that
any
Make-Whole Breakage Amount is due, Lender shall deliver to Borrower a statement
setting forth the amount and determination of the Make-Whole Breakage Amount,
and, provided that Lender shall have in good faith applied the formula described
herein, Borrower shall not have the right to challenge the calculation or
the
method of calculation set forth in any such statement in the absence of manifest
error. Xxxxxxxx agrees that (i) Lender shall not be obligated to actually
reinvest the amount prepaid, and (ii) the Make-Whole Breakage Amount is directly
related to the damages that Lender will suffer as a result of the
prepayment.
In
addition to the Make-Whole Breakage Amount and without waiving any prepayment
condition, if, upon any such prepayment, the aforesaid prior written notice
has
not been timely received by Xxxxxx, and the prepayment is accepted by Lender,
the Make-Whole Breakage Amount shall be increased by an amount equal to the
lesser of (i) 30 days' unearned interest computed at the Commercial Based
Rate
on the amount prepaid, or (ii) unearned interest computed on the amount prepaid
for the period from, and including, the date of prepayment through the
applicable Interest Period.
(b) No
principal amount repaid may be readvanced.
(c) In
the
event the Make-Whole Breakage Amount is construed to be interest under the
laws
of the State of Texas in any circumstance, the payment thereof shall not
be
required to the extent that the amount thereof, together with other interest
payable under the Loan Documents, exceeds the Maximum Rate, and if such payment
has been made at the time it is determined that such excess exists, Lender
shall, at its option, either return such excess to Borrower or credit such
excess against the principal balance of the Note then outstanding, in which
event any and all penalties of any kind under applicable law as a result
such
excess interest shall be inapplicable.
(d) The
Make-Whole Breakage Amount shall be due, to the extent permitted by applicable
law, under any and all circumstances where all or any portion of the Loan
is
paid prior to the expiration of an Interest Period, whether such prepayment
is
voluntary or involuntary, even if such prepayment results from Xxxxxx's exercise
of its rights upon Borrower's default and acceleration of the Maturity Date
(irrespective of whether foreclosure proceedings have been commenced), and
shall
be in addition to any other sums due under the Loan Documents.
8
(e) As
used
herein, the term “Make-Whole
Breakage Amount”
shall
mean an amount calculated as follows:
(i) If
the
Make Whole Calculation Rate is equal to or greater than the Fixed Rate then
in
effect with respect to the Fixed Rate Amount and related Interest Period
in
question, the Make-Whole Breakage Amount shall be zero with respect to such
Fixed Rate Amount.
(ii) If
the
Make Whole Calculation Rate is less than the Fixed Rate then in effect
concerning the Fixed Rate Amount and related Interest Period in question,
the
Make-Whole Breakage Amount concerning the Fixed Rate Amount to be repaid
shall
be calculated based upon the present value of the remaining scheduled debt
service (i.e., scheduled principal and/or interest payments allocable to
the
Fixed Rate Amount to be repaid) discounted at the Make Whole Calculation
Rate
(assuming monthly compounding) for the Interest Period in question minus
the
Fixed Rate Amount being repaid.
(f) As
used
herein, the term “Make
Whole Calculation Rate”
means
the latest Treasury Constant Maturity Series yields reported, for the latest
day
for which such yields shall have been so reported as of the applicable Fixed
Rate Business Day, in Federal Reserve Statistical Release H.15 (519) (or
any
comparable successor publication) for actively traded U.S. Treasury securities
having a constant maturity which most closely matches the period from prepayment
to the maturity of the applicable Interest Period of the principal being
repaid.Such
implied yield shall be determined, if necessary, by (i) converting U.S. Treasury
bill quotations to bond-equivalent yields in accordance with accepted financial
practice, and (ii) interpolating linearly between reported yields.
6. Intentionally
Omitted.
7. Security. This
Note
is secured, inter alia, by the Security Instrument evidencing a lien on certain
real property more particularly described therein, and evidencing a security
interest in certain personal property described therein, to which Security
Instrument reference is here made for a description of the property covered
thereby and the nature and extent of the security and the rights and powers
of
Lender in respect of such security. In
addition, Borrower has made an Assignment of Leases and Rents (herein so
called)
covering certain leases and rents described therein to provide a source of
future payment of this Note, reference to which Assignment of Leases and
Rents
is here made for a description of the leases and rents covered thereby and
the
rights and powers of Lender with respect thereto. Upon
the
occurrence of an Event of Default, Lender shall have the option of declaring
the
Principal Amount hereof and the interest accrued hereon to be immediately
due
and payable.
8. Usury
Savings. It
is the
intent of Xxxxxx and Borrower in the execution of this Note and all other
instruments now or hereafter securing this Note to contract in strict compliance
with applicable usury law. In
furtherance thereof, Xxxxxx and Xxxxxxxx stipulate and agree that none of
the
terms and provisions contained in this Note, or in any other instrument executed
in
9
connection
herewith, shall ever be construed to create a contract to pay for the use,
forbearance or detention of money, interest at a rate in excess of the Maximum
Rate; neither Borrower nor any guarantors, endorsers or other parties now
or
hereafter becoming liable for payment of this Note shall ever be obligated
or
required to pay interest on this Note at a rate in excess of the Maximum
Rate
that may be lawfully charged under applicable law, and the provisions of
this
Section shall control over all other provisions of this Note and any other
instruments now or hereafter executed in connection herewith which may be
in
apparent conflict herewith. Lender
expressly disavows any intention to charge or collect excessive unearned
interest or finance charges in the event the maturity of this Note is
accelerated. If
the
maturity of this Note shall be accelerated for any reason or if the principal
of
this Note is paid prior to the end of the term of this Note, and as a result
thereof the interest received for the actual period of existence of the Loan
exceeds the amount of interest that would have accrued at the Maximum Rate,
Lender shall, at its option, either refund to Borrower the amount of such
excess
or credit the amount of such excess against the Principal Amount and thereby
shall render inapplicable any and all penalties of any kind provided by
applicable law as a result of such excess interest. In
the
event that Lender shall contract for, charge or receive any amounts and/or
any
other thing of value which are determined to constitute interest which would
increase the effective interest rate on this Note to a rate in excess of
that
permitted to be charged by applicable law, all such sums determined to
constitute interest in excess of the amount of interest at the lawful rate
shall, upon such determination, at the option of Lender, be either immediately
returned to Borrower or credited against the Principal Amount, in which event
any and all penalties of any kind under applicable law as a result of such
excess interest shall be inapplicable. By
execution of this Note Xxxxxxxx acknowledges that it believes the Loan to
be
non-usurious and agrees that if, at any time, Xxxxxxxx should have reason
to
believe that the Loan is in fact usurious, it will give Lender notice of
such
condition and Borrower agrees that Lender shall have 90 days in which to
make
appropriate refund or other adjustment in order to correct such condition
if in
fact such exists. The
term
“applicable
law”
as
used
in this Note shall mean the laws of the State of Texas or the laws of the
United
States, whichever laws allow the greater rate of interest, as such laws now
exist or may be changed or amended or come into effect in the
future.
9. Collection
Fees. Should
the
indebtedness represented by this Note or any part thereof be collected at
law or
in equity or through any bankruptcy, receivership, probate or other court
proceedings or if this Note is placed in the hands of attorneys for collection
after an Event of Default, Borrower and all endorsers, guarantors and sureties
of this Note jointly and severally agree to pay to Lender in addition to
the
principal and interest due and payable hereon reasonable attorneys’ and
collection fees.
10. Waiver
of Certain Notices. Borrower
and all endorsers, guarantors and sureties of this Note and all other persons
liable or to become liable on this Note severally waive presentment for payment,
demand, notice of demand and of dishonor and nonpayment of this Note, notice
of
intention to accelerate the maturity of this Note, protest and notice of
protest, diligence in collecting, and the bringing of suit against any other
party, and agree to all renewals, extensions, modifications, partial payments,
releases or substitutions of security, in whole or in part, with or without
notice, before or after maturity.
10
11. CHOICE
OF LAW.
THIS
NOTE AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED
AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING
EFFECT TO TEXAS' PRINCIPLES OF CONFLICTS OF LAW), EXCEPT TO THE EXTENT (A)
OF
PROCEDURAL AND SUBSTANTIVE MATTERS RELATING ONLY TO THE CREATION, PERFECTION,
FORECLOSURE AND ENFORCEMENT OF RIGHTS AND REMEDIES AGAINST THE PROPERTY,
WHICH
MATTERS SHALL BE GOVERNED BY THE LAWS OF THE STATE WHERE THE PROPERTY IS
LOCATED, AND (B) THE LAWS OF THE UNITED STATES OF AMERICA AND ANY RULES,
REGULATIONS OR ORDERS ISSUED OR PROMULGATED THEREUNDER, APPLICABLE TO THE
AFFAIRS AND TRANSACTIONS ENTERED INTO BY XXXXXX, OTHERWISE PREEMPT THE LAWS
OF
THE STATE WHERE THE PROPERTY IS LOCATED OR TEXAS LAW; IN WHICH EVENT FEDERAL
LAW
SHALL CONTROL.
12. FORUM
SELECTION.
BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF
ANY
STATE OR FEDERAL COURT SITTING IN DALLAS, TEXAS (OR ANY COURT OF COMPETENT
JURISDICTION WHERE ANY PORTION OF THE PROPERTY IS LOCATED) OVER ANY SUIT,
ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE OR ANY OF THE LOAN
DOCUMENTS, AND BORROWER HEREBY AGREES AND CONSENTS THAT, IN ADDITION TO ANY
METHODS OF SERVICE OF PROCESS PROVIDED FOR UNDER APPLICABLE LAW, ALL SERVICE
OF
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY STATE OR FEDERAL COURT
SITTING IN DALLAS, TEXAS (OR ANY COURT OF COMPETENT JURISDICTION WHERE ANY
PORTION OF THE PROPERTY IS LOCATED) MAY BE MADE BY CERTIFIED OR REGISTERED
MAIL,
RETURN RECEIPT REQUESTED, DIRECTED TO BORROWER AT THE ADDRESS OF BORROWER
FOR
THE GIVING OF NOTICES UNDER THE SECURITY INSTRUMENT, AND SERVICE SO MADE
SHALL
BE COMPLETE 5 DAYS AFTER THE SAME SHALL HAVE BEEN SO
MAILED.
13. WAIVER
OF TRIAL BY JURY AND CERTAIN OTHER RIGHTS. XXXXXXXX
AND XXXXXX XXXXXX KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON
THE
ADVICE OF COMPETENT COUNSEL, EXPRESSLY AND UNCONDITIONALLY WAIVE, IN CONNECTION
WITH ANY SUIT, ACTION OR PROCEEDING IN CONNECTION WITH ANY OF THE LOAN
DOCUMENTS, ANY AND EVERY RIGHT THEY MAY HAVE TO A TRIAL BY
JURY. MAKER
ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND
VOLUNTARY.
11
14. Time
of the Essence.
Time
is of
the essence of each obligation of Borrower hereunder.
REMAINDER
OF PAGE INTENTIONALLY BLANK
SIGNATURE
PAGE FOLLOWS
12
SIGNATURE
PAGE OF BORROWER TO
Xxxxxxxx’s
Federal Tax I.D. No.
00-0000000
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ARC
BRANDYWINE, L.P., a Delaware limited partnership
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By:
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ARC
Brandywine GP, LLC, a Tennessee limited liability company, its
general
partner
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By:
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| Name: | |||
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Title: | ||
