PROMISSORY NOTE (AL Expansion)
Exhibit
10.89
(AL
Expansion)
|
$11,424,000.00
|
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 Eleven Million Four Hundred Twenty Four Thousand
and
No/100 Dollars ($11,424,000.00), 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.
“Debt
Coverage Ratio”
-
A
ratio, as reasonably determined by Xxxxxx, the first number of which
is the Net
Operating Income for the period in question and the second of which is
Debt
Service for such period.
“Debt
Service”
-
The
product of (i) the constant monthly payment amount (i.e., payment including
both
principal and interest) sufficient to fully amortize (using mortgage
amortization) the Loan at the time of determination in equal installments
over a
25 year period using an interest rate equal to the greater of (a) the
Commercial
Based Rate, (b) the Fixed Rate, (c) the Treasury Note Rate plus 2.25%,
or (d)
7.5%, multiplied by (ii) the number of months in the period in
question.
1
“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.
“Extension
Fee”
-
$28,560.
“Extension
Period”
-
The
First Extension Period or the Second Extension Period, as the case may
be.
“First
Extension Period”
-
A
period of 12 months, commencing on the first day after the Maturity
Date.
“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.
2
“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.
“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
$11,424,000 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.
3
“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.
“Monthly
Principal Installment Amount”
-
$9,670.51 during the First Extension Period and $10,369.59 during the
Second
Extension Period.
“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.
“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 3.
“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”.
4
“Second
Extension Period”
-
A
period of 12 months, commencing on the first day after the expiration
of the
First Extension Period
“Security
Instrument”
-
The
Open-End Mortgage, Security Agreement and Fixture Filing of even date
herewith
more particularly described herein.
“Spread”
-
2.75%.
“Treasury
Note Rate”
-
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 equal to 10 years. 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.
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.
(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 Request. It will not be necessary for Borrower to submit further
Fixed Rate Requests, except after electing application of the Commercial
Based
Rate.
5
(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 Xxxxxx’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.
(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.
6
(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,
Lender determines that because of a change in circumstances the Fixed
Rate is
again available to Borrower hereunder, Xxxxxx will so advise Xxxxxxxx
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.
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.
7
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. Commencing on the first day of the first month
of the
First Extension Period 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,
Borrower
shall pay the Monthly Principal Installment Amount, which Monthly Principal
Installment Amount is in addition to accrued interest due on each such
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 Lender 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:
(i) written
notice thereof is given 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.
8
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.
(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.
9
(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. Extension
of Maturity Date.
Borrower
shall have the right and option to extend the Maturity Date (a) to a
date ending
upon the expiration of the First Extension Period, and (b) upon expiration
of
the First Extension Period, to a date ending upon the expiration of the
Second
Extension Period, subject to the conditions that:
(a) Borrower
shall have notified Lender in writing of its exercise of each such extension
at
least 60 days prior to the Maturity Date;
(b) on
the
date of such written notice and on the date of commencement of the Extension
Period, there shall exist no event of default and no event shall have
occurred
which with the passage of time or the giving of notice or both would
constitute
an event of default;
(c) contemporaneously
with the commencement of each Extension Period, Lender shall have received
the
Extension Fee;
(d) at
or
before the commencement of each Extension Period, Lender shall have received
evidence satisfactory to Lender that the Property has achieved a Debt
Coverage
Ratio of at least 1.50:1 for the 3 calendar month period immediately
preceding
the commencement of the Extension Period;
(e) the
Principal Amount must not be greater than 50% of the appraised value
of the
Property as determined by Xxxxxx, for which determination Lender, at
its option,
may obtain an updated FIRREA appraisal at Borrower's expense; and
(f) upon
each
such extension, Borrower and any guarantor shall have executed such documents
as
Lender deems reasonably appropriate to evidence such extensions and shall
have
delivered to Lender an endorsement to the mortgagee policy of title insurance
insuring the lien of the Security Instrument pursuant to the applicable
title
insurance regulations, stating that the coverage of such policy has not
been
reduced or terminated by virtue of such extension.
10
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, Lender and Borrower
stipulate
and agree that none of the terms and provisions contained in this Note,
or in
any other instrument executed in 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.
11
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.
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.
13. 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.
12
14. 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.
15. Time
of the Essence.
Time
is of
the essence of each obligation of Borrower hereunder.
REMAINDER
OF PAGE INTENTIONALLY BLANK
SIGNATURE
PAGE FOLLOWS
13
SIGNATURE
PAGE OF BORROWER TO
Xxxxxxxx’s
Federal Tax I.D. No.
00-0000000
ARC
BRANDYWINE, L.P., a Delaware limited partnership
|
By:
|
ARC
Brandywine GP, LLC, a Tennessee
limited liability company, its general partner |
| By: |
|
Name:
|
| Title: |
