Exhibit 10.97


 


 


	
  [GRAPHIC]

  	
   

  	
  AMENDED AND RESTATED  

  EURODOLLAR RATE-SINGLE PAYMENT NOTE (TERM NOTE)

  



 


	
  AMOUNT

  $26,684,000

  	
   

  	
  NOTE DATE

  March 10, 2006

  	
   

  	
  MATURITY DATE

  April 15, 2008

  	
   

  	
  TAX
  IDENTIFICATION NUMBER

  86 1135011

  



 


On
the Maturity Date, as stated above, for value received, the
undersigned promises to pay to the order of Comerica Bank (“Bank”), at any office of Bank in the State
of Texas, Twenty Six Million Six Hundred Sixty Four Thousand and No/100 Dollars

(U.S. $26,664,000.00), or so much
thereof as is outstanding on the Maturity Date, with interest from the date of
this Note at a per annum rate equal to the lesser of (a) the Maximum Rate, as
later defined, or (b) the Stated Rate, as later defined, until maturity,
whether by acceleration or otherwise, or until the occurrence of an “Event of Default” (as defined in the
hereinafter defined Loan Agreement), and after that at a default rate equal to
the rate of interest otherwise prevailing under this Note plus 5% per annum
(but in no event in excess of the Maximum Rate). If on any day the Stated Rate
shall exceed the Maximum Rate for that day, the rate of interest applicable to
this Note shall be fixed at the Maximum Rate on that day and on each day
thereafter until the total amount of interest accrued on the unpaid principal
balance of this Note equals the total amount of interest which would have
accrued if there had been no Maximum Rate. Interest rate changes will be
effective for interest computation purposes as and when the Maximum Rate or the
Stated Rate, as applicable, changes. Subject to the limitations hereinbelow set
forth, interest shall be calculated for the actual number of days the principal
is outstanding on the basis of a 360 day year.


 


Accrued interest on this
Note, whether on the Prime Rate Balance or the Eurodollar Balance (as such
terms are hereinafter defined), shall be payable on the 10th day of each
calendar month, commencing with the 10th day of the calendar month following
the date of this Note, until the Maturity Date (as set forth above) when all
amounts outstanding under this Note shall be due and payable in full. If the
frequency of interest payments is not otherwise specified, accrued interest on
this Note shall be payable monthly on the 10th day of each month.
Payments of principal shall be made in accordance with the terms and provisions
set forth in the Loan Agreement. If any payment of principal or interest under
this Note shall be payable on a day other than a day on which Bank is open for
business, this payment shall be extended to the next succeeding business day
and interest shall be payable at the rate specified in this Note during this
extension. A late payment charge equal to a reasonable amount not to exceed 5%  of each late payment may be charged on
any payment not received by Bank within 10 calendar days after the payment due
date, but acceptance of payment of this charge shall not waive any Event of
Default. The Maturity Date of this Note may be extended in accordance with the
terms and provisions set forth in the Loan Agreement.


 


Subject to the provisions
hereof, the undersigned shall have the option (an “Interest Option”) exercisable from time to time to designate a
portion of the unpaid principal balance of this Note to bear interest at a rate
determined with respect to the Prime Rate (such portion being herein referred
to as the “Prime Rate Balance”)
and to designate one or more portions of the unpaid principal balance of this
Note to bear interest at a rate determined with respect to a Eurodollar Rate
(each such portion being herein referred to as a “Eurodollar Balance”).


 


The term “Maximum Rate,” as used herein, shall mean
at the particular time in question the maximum nonusurious rate of interest
which, under applicable law, may then be charged on this Note. If such maximum
rate of interest changes after the date hereof, the Maximum Rate shall be
automatically increased or decreased,


 

















 


as the case may be,
without notice to the undersigned from time to time as of the effective date of
each change in such maximum rate. For purposes of determining the Maximum Rate
under the law of the State of Texas, the applicable interest rate ceiling shall
be the “weekly ceiling” from time
to time in effect under Chapter 303 of the Texas Finance Code, as amended.


 


The term “Stated Rate,” as used in this Note, shall
mean (a) with respect to the Prime Rate Balance outstanding from time to time,
a fluctuating per annum rate of interest equal to the Prime Rate plus the
Applicable Margin and (b) with respect to each Eurodollar Balance, a per annum
rate of interest equal to the Eurodollar Rate for the Eurodollar Interest
Period then in effect with respect to such Eurodollar Balance plus the
Applicable Margin. The Stated Rate may be decreased from time to time upon and
subject to the provisions of that certain Loan Agreement dated April 15, 2005,
between the undersigned and Bank, as amended by that certain Amended and
Restated Loan Agreement dated effective as of March 10, 2006 between the
undersigned and Bank (as the same may be from time to time further
supplemented, amended or restated, the “Loan
Agreement”). Any such decrease in the Stated Rate shall take effect
five Business Days after the undersigned has submitted an Interest Notice that
includes a written request for such decrease, unless Lender determines and
notifies Borrower within such five Business Day period that the conditions for
such reduction set forth in the Loan Agreement have not been satisfied.


 


The term “Prime Rate,” as used herein, shall mean
that annual rate of interest which is equal to the greater of the annual rate
of interest designated by Bank as its prime rate which is charged by Bank from
time to time or a variable per annum rate of interest determined from day to
day which equals the sum of 1% plus the average per annum rate of interest on
overnight Federal funds transactions with members of Federal Reserve System
arranged by Federal funds brokers (“Overnight
Transactions”) transacted on the immediately preceding Business Day,
as published by the Federal Reserve Bank of New York, or, if such interest rate
is not so published for any Business Day, the average of the per annum interest
rate quotations for Overnight Transactions received by Bank for such Business
Day from 3 Federal funds brokers of recognized standing selected by Bank. Bank’s
Prime Rate is a reference rate and does not necessarily represent the lowest or
best rate actually charged by Bank to any of its customers. Bank may make
commercial loans at rates of interest at, above or below its Prime Rate.


 


The term “Eurodollar Rate”, as used herein shall
mean, with respect to the applicable Eurodollar Interest Period and applicable
Eurodollar Balance (as defined above), the quotient of the following (rounded
upwards, if necessary, to the nearest 1/16 of 1%): (a) the interest rate
determined by Bank (which determination shall be conclusive) to be the per
annum interest rate at which deposits in immediately available funds in U.S.
dollars are offered to Bank at such time as Bank elects on the first day of
such Eurodollar Interest Period, to prime banks in the interbank eurodollar
market selected by Bank for delivery on the first day of such Eurodollar
Interest Period in an amount equal to the principal amount of the corresponding
Eurodollar Balance for a period equal to the length of such Eurodollar Interest
Period; divided by (b) a percentage (expressed as a decimal) equal to 1.00
minus the maximum rate during such interest period at which Bank is required to
maintain reserves on “Eurocurrency
Liabilities” as defined in and pursuant to Regulation D of the Board
of Governors of the Federal Reserve System or, if such regulation or
designation is modified, and as long as Bank is required to maintain reserves
against a category of liabilities which includes eurodollar deposits or
includes a category of assets which includes eurodollar loans, the rate at
which such reserves are required to be maintained on such category.


 


The term “Eurodollar Interest Period”, as used
herein, shall mean, with respect to the applicable Eurodollar Balance, a period
commencing on the date (which must be a Eurodollar Business Day) upon which,
pursuant to an Interest Notice, as later defined, the principal amount of such
Eurodollar Balance begins to accrue


 


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interest at the
applicable Eurodollar Rate (or, in the case of a rollover to a successive
Eurodollar Interest Period, the last day of the immediately preceding
Eurodollar Interest Period) and ending 30, 60, 90, 120 or 180 days after the
commencement date (as designated in the Interest Notice); provided, that: (i)
any Eurodollar Interest Period which would otherwise end on a day which is not
a Eurodollar Business Day shall be extended to the next succeeding Eurodollar
Business Day (unless such Eurodollar Business Day falls in another calendar
month, in which case, such Eurodollar Interest Period shall end on the next
preceding Eurodollar Business Day); and (ii) any Eurodollar Interest Period
which begins on a day for which there is no numerically corresponding day in
the calendar month at the end of such Eurodollar Interest Period shall end on
the last Eurodollar Business Day of such last calendar month; and (iii) no
Eurodollar Interest Period shall extend beyond the Maturity Date.


 


The term “Eurodollar Business Day,” as used herein,
shall mean a Business Day on which dealings in U.S. dollars are carried out in
the interbank eurodollar market selected by Bank.


 


The term “Applicable Margin,” as used herein, shall
mean 0.25% for the Prime Rate Balance and 3.00% for each Eurodollar Balance.


 


The term “Business Day” as used herein, shall mean
any day other than a Saturday, Sunday or holiday, on which Bank is open to
carry on all or substantially all of their normal commercial lending business
in Dallas, Texas.


 


The Interest Option shall
be exercisable by the undersigned subject to the other limitations in this Note
on the undersigned’s option to designate a portion of the unpaid principal
balance hereof as a Eurodollar Balance and only in the manner provided below:


 


(i)         Before
12:00 noon at least three (3) Business Days prior to the date hereof, the
undersigned shall have given Bank written notice (any such notice, an “Interest Notice”) in form and content
satisfactory to Bank specifying the initial Interest Option(s) and the
respective initial amounts of the Prime Rate Balance and each Eurodollar
Balance designated by the undersigned. If the required Interest Notice shall
not have been timely received by Bank or fails to designate all or any portion
of the unpaid principal amount hereof as either a Prime Rate Balance or a
Eurodollar Balance in accordance with the terms and provisions of this Note,
the undersigned shall be deemed conclusively to have designated each such
amount to be a Prime Rate Balance and to have given Bank notice of such
designation.


 


(ii)        At least
three Eurodollar Business Days prior to the termination of any Eurodollar
Interest Period for a Eurodollar Balance, the undersigned shall give Bank an
Interest Notice specifying the Interest Option which is to be applicable to
such Eurodollar Balance upon the expiration of such Eurodollar Interest Period.
If the required Interest Notice shall not have been timely received by Bank the
undersigned shall be deemed conclusively to have designated such amount as a
Prime Rate Balance immediately upon the expiration of such Eurodollar Interest
Period and to have given Bank notice of such designation.


 


(iii)       The
undersigned shall have the right, exercisable on any Business Day subject to
the terms of this Note, to convert an eligible portion of the Prime Rate
Balance to a Eurodollar Balance by giving Bank an Interest Notice of such
designation at least three Eurodollar Business Days prior to the effective date
of such exercise. Additionally, upon termination of any Eurodollar Interest
Period, the undersigned shall have the right subject to the terms of this Note,
on any Business Day, to convert all or a portion of such principal amount from
the Eurodollar Balance to a Prime Rate Balance by giving Bank an Interest
Notice of such selection at least three (3) Eurodollar Business Days prior to
effective date of such exercise.


 


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(iv)      There may be
no more than three (3) Eurodollar Balances in effect at any time.


 


(v)       Each
Eurodollar Balance must be, as of the first day of the applicable Eurodollar
Interest Period, at least Two Hundred Fifty Thousand Dollars ($250,000.00).


 


(vi)      No Event of
Default, or condition or event which, with the giving of notice or the lapse of
time, or both, would constitute a Event of Default, shall have occurred and be
continuing or exist.


 


(vii)     Each
exercise of an Interest Option to designate a Eurodollar Balance to bear
interest at a Stated Rate which is based on the Eurodollar Rate shall not be
revocable.


 


Changes in the
Stated Rate applicable to a Prime Rate Balance or a Eurodollar Balance shall
become effective without prior notice to the undersigned automatically as of
the opening of business on the date of each change in the Prime Rate or the
Eurodollar Rate, as the case may be.


 


If Bank determines that
deposits in U.S. dollars (in the applicable amounts) are not being offered to
prime banks in the interbank eurodollar market selected by Bank for the
applicable Eurodollar Interest Period, or that the rate at which such dollar
deposits are being offered will not adequately and fairly reflect the cost to
Bank of making or maintaining a Eurodollar Balance for the applicable
Eurodollar Interest Period, Bank shall forthwith give notice thereof to the
undersigned, whereupon, until Bank notifies the undersigned that such
circumstances no longer exist, the right of the undersigned to select an
Interest Option based upon a Eurodollar Rate shall be suspended, and the
undersigned may only select Interest Options based on the Prime Rate.


 


If the adoption of any
applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by Bank with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency shall make it unlawful or impractical for Bank to make or maintain a
Eurodollar Balance, Bank shall so notify the undersigned and any then-existing
Eurodollar Balance shall automatically convert to a Prime Rate Balance either
(i) on the last day of the then-current Eurodollar Interest Period applicable
to such Eurodollar Balance, if Bank may lawfully continue to maintain and fund
such Eurodollar Balance to such day, or (ii) immediately, if Bank may not
lawfully continue to maintain such Eurodollar Balance to such day. Further,
until Bank notices the undersigned that such conditions or circumstances no
longer exist, the right of the undersigned to select an Interest Option based
on a Eurodollar Rate shall be suspended, and the undersigned may only select
Interest Options based on the Prime Rate.


 


If either (i) the
adoption of any applicable law, rule or regulation, or any change therein, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by Bank with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall subject Bank to any tax (including without limitation
any United States interest equalization or similar tax, however named), duty or
other charge with respect to any Eurodollar Balance, this Note or Bank’s
obligation to compute interest on the principal balance of this Note at a rate
based upon a Eurodollar Rate, or shall change the basis of taxation of payments
to Bank of the principal of or interest on any Eurodollar Balance or any other
amounts due under this Note in respect of any Eurodollar Balance or Bank’s
obligation to compute the interest on the balance of this Note at a rate based
upon a Eurodollar Rate, or (ii) any governmental authority, central bank or
other comparable authority shall at any time impose, modify or deem applicable
any reserve (including, without limitation, any imposed by the Board of
Governors of the Federal Reserve System), special


 


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deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, Bank, or shall impose on Bank or any relevant interbank eurodollar
market or exchange any other condition affecting any Eurodollar Balance, this
Note or Bank’s obligation to compute the interest on the balance of this Note
at a rate based upon the Eurodollar Rate; and the result of any of the
foregoing is to increase the cost to Bank of maintaining any Eurodollar
Balance, or to reduce the amount of any sum received or receivable by Bank
under or with respect to this Note by an amount deemed by Bank to be material,
then upon demand by Bank, the undersigned shall pay to Bank such additional
amount or amounts as will compensate Bank for such increased cost or reduction.
Bank will promptly notify the undersigned of any event of which it has
knowledge, occurring after the date hereof, which will entitle Bank to
compensation pursuant to this paragraph. A certificate of Bank claiming
compensation under this paragraph and setting forth the additional amount or
amounts to be paid to Bank hereunder shall be conclusive in the absence of
manifest error.


 


If any applicable law,
treaty, rule, or regulation (whether domestic or foreign) now or hereafter in
effect and whether presently applicable to Bank or any change therein or any
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof or compliance by Bank therewith or with any guidance, request or
directive of any such governmental authority, central bank or comparable agency
(whether or not having the force of law), including any risk-based capital
guidelines, affects or would affect the amount of capital required or expected
to be maintained by Bank (or any corporation controlling Bank), and Bank
determines that the amount of such capital is increased by or based upon the
existence of any obligations of Bank hereunder or the maintaining of any
Eurodollar Balance hereunder, and such increase has the effect of reducing the
rate of return on Bank’s (or its controlling corporation’s) capital as a
consequence of such obligations or the maintaining of Eurodollar Balances
hereunder to a level below that which Bank (or such controlling corporation)
could have achieved but for such circumstances (taking into consideration its
policies with respect to capital adequacy), then the undersigned shall pay to
Bank, within 60 days of receipt by the undersigned of written notice from Bank
demanding such compensation, such additional amounts as are sufficient to
compensate Bank (or its controlling corporation) for any increase in the amount
of capital and reduced rate of return which Bank determines to be allocable to
the existence of any obligations of Bank hereunder or maintenance of any
Eurodollar Balances hereunder. A certificate of Bank as to the amount of such
compensation, prepared in good faith and in reasonable detail by Bank, which is
submitted by Bank to the undersigned shall be conclusive and binding for all
purposes absent manifest error.


 


The undersigned may not
repay any Eurodollar Balance or convert all or any portion of a Eurodollar
Balance to a Prime Rate Balance prior to the expiration of the applicable
Eurodollar Interest Period, unless (i) such repayment or conversion is
specifically required by the terms of this Note or the Loan Agreement, (ii)
Bank demands that such repayment or conversion be made, or (iii) Bank, in its
sole discretion, consents to such repayment or conversion. If for any reason,
whether or not consent shall have been given or demand shall have been made by
Bank, any Eurodollar Balance is repaid or converted prior to the expiration of
the corresponding Eurodollar Interest Period, or any Interest Option which
designates a Eurodollar Balance is revoked for any reason whatsoever prior to
the commencement of the applicable Eurodollar Interest Period or the
undersigned fails for any reason to borrow the full amount of any Eurodollar
Balance for which the undersigned has exercised an Interest Option, or if for
any other reason whatsoever, the basis for determining the Stated Rate shall be
changed from a Eurodollar Rate to the Prime Rate prior to the expiration of the
applicable Eurodollar Interest Period, or the undersigned shall fail to make
any payment of principal or interest upon this Note at any time that the Stated
Rate is based on a Eurodollar Rate, then the undersigned shall pay to Bank on
demand any amounts required to compensate Bank for any losses, costs or
expenses which it may incur as a result thereof, including, without limitation,
any loss, cost or expense incurred in obtaining, liquidating, employing or


 


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redeploying deposits from
third parties. Amounts payable by the undersigned to Bank pursuant to this
paragraph may include, without limitation, amounts equal to the excess, if any
of (a) the amounts of interest which would have accrued on any amounts so
prepaid, refunded, converted or not so borrowed, from the respective dates of
prepayment, refund, conversion or failure to borrow through the last day of the
relevant Eurodollar Interest Periods at the applicable rates of interest for
the applicable Eurodollar Balances, as provided under this Note, over (b) the
amounts of interest determined by Bank which would have accrued to Bank on such
respective amounts by placing such amounts on deposit for comparable periods
with leading banks in the interbank eurodollar market selected by Bank. The
calculation of any such amounts under this paragraph shall be made as if Bank
actually funded or committed to fund the relevant Eurodollar Balances hereunder
through the purchase of underlying deposits in amounts equal to the respective
amounts of the applicable Eurodollar Balances and having terms comparable to
the applicable Eurodollar Interest Periods; provided, however, that Bank may
fund Eurodollar Balances hereunder in any manner it may elect in its sole
discretion, and the foregoing assumptions shall be utilized only for the
purpose of calculating amounts payable under this paragraph. Upon written
request by the undersigned, Bank shall deliver to the undersigned a certificate
setting for the basis for determining such losses, costs and expenses which
certificate shall be conclusive in the absence of manifest error.


 


For any Eurodollar
Balance, if Bank shall designate a eurodollar lending office which maintains
books separate from those of Bank, Bank shall have the option of maintaining
and carrying such Eurodollar Balance on the Books of such eurodollar lending
office.


 


This Note and any other indebtedness
and liabilities of any kind of the undersigned (or any of them) to Bank, and
any and all modifications, renewals or extensions of it, whether joint or
several, contingent or absolute, now existing or later arising, and however
evidenced and whether incurred voluntarily or involuntarily, known or unknown,
or originally payable to Bank or to a third party and subsequently acquired by
Bank including, without limitation, any late charges; loan fees or charges;
overdraft indebtedness; costs incurred by Bank in establishing, determining,
continuing or defending the validity or priority of any security interest,
pledge or other lien or in pursuing any of its rights or remedies under any
loan document (or otherwise) or in connection with any proceeding involving
Bank as a result of any financial accommodation to the undersigned (or any of
them); and reasonable costs and expenses of attorneys and paralegals, whether
inside or outside counsel is used, and whether any suit or other action is
instituted, and to court costs if suit or action is instituted, and whether any
such fees, costs or expenses are incurred at the trial court level or on
appeal, in bankruptcy, in administrative proceedings, in probate proceedings or
otherwise (collectively “Indebtedness”)
are secured by and Bank is granted a security interest in and lien upon all
items deposited in any account of any of the undersigned with Bank and by all
proceeds of these items (cash or otherwise), all account balances of any of the
undersigned from time to time with Bank, by all property of any of the
undersigned from time to time in the possession of Bank and by any other
collateral, rights and properties described in each and every deed of trust,
mortgage, security agreement, pledge, assignment and other security or
collateral agreement which has been, or will at any time(s) later be, executed by
any (or all) of the undersigned to or for the benefit of Bank (collectively “Collateral”). Notwithstanding the above,
(i) to the extent that any portion of the Indebtedness is a consumer loan, that
portion shall not be secured by any deed of trust or mortgage on or other
security interest in any of the undersigned’s principal dwelling or in any of
the undersigned’s real property which is not a purchase money security interest
as to that portion, unless expressly provided to the contrary in another place,
or (ii) if the undersigned (or any of them) has (have) given or give(s) Bank a
deed of trust or mortgage covering California real property, that deed of trust
or mortgage shall not secure this Note or any other indebtedness of the
undersigned (or any of them), unless expressly provided to the contrary in
another place, or (iii) if the undersigned (or any of them) has (have) given or
give(s) Bank a deed of trust or mortgage covering


 


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real property which, under
Texas law, constitutes the homestead of such person, that deed of trust or
mortgage shall not secure this Note or any other indebtedness of the
undersigned (or any of them) unless expressly provided to the contrary in
another place.


 


Upon the occurrence of an
Event of Default, then Bank may at its option and without prior notice to the
undersigned (or any of them), declare any or all of the Indebtedness to be
immediately due and payable (notwithstanding any provisions contained in the
evidence of it to the contrary), sell or liquidate all or any portion of the
Collateral, set off against the Indebtedness any amounts owing by Bank to the
undersigned (or any of them), charge interest at the default rate provided in
this Note and exercise any one or more of the rights and remedies granted to
Bank by any agreement with the undersigned (or any of them) or given to it
under applicable law. All payments under this Note shall be in immediately
available United States funds, without setoff or counterclaim.


 


If this Note is signed by
two or more parties (whether by all as makers or by one or more as an
accommodation party or otherwise), the obligations and undertakings under this
Note shall be that of all and any two or more jointly and also of each
severally. This Note shall bind the undersigned, and the undersigned’s
respective heirs, personal representatives, successors and assigns.


 


The undersigned waives
presentment, demand, protest, notice of dishonor, notice of demand or intent to
demand, notice of acceleration or intent to accelerate, and all other notices,
and agrees that no extension or indulgence to the undersigned (or any of them)
or release, substitution or nonenforcement of any security, or release or
substitution of any of the undersigned, any guarantor or any other party,
whether with or without notice, shall affect the obligations of any of the
undersigned. The undersigned waives all defenses or right to discharge
available under Section 3.605 of the Texas Uniform Commercial Code and waives
all other suretyship defenses or right to discharge. The undersigned agrees
that Bank has the right to sell, assign, or grant participations or any
interest in, any or all of the Indebtedness, and that, in connection with this
right, but without limiting its ability to make other disclosures to the full
extent allowable, Bank may disclose all documents and information which Bank
now or later has relating to the undersigned or the Indebtedness. The
undersigned agrees that Bank may provide information relating to this Note or
the Indebtedness or relating to the undersigned to Bank’s parent, affiliates,
subsidiaries and service providers.


 


The undersigned agrees to
reimburse the holder or owner of this Note upon for any and all costs and  expenses (including without limit, court
costs, legal expenses and reasonable attorneys’ fees, and whether or not suit
is instituted and, if suit is instituted, whether at the trial court level,
appellate level, in a bankruptcy, probate or administrative proceeding or
otherwise) incurred in collecting or attempting to collect this Note or
incurred in any other matter or proceeding relating to this Note.


 


The undersigned
acknowledges and agrees that there are no contrary agreements, oral or written,
establishing a term of this Note and agrees that the terms and conditions of
this Note may not be amended, waived or modified except in a writing signed by
an officer of Bank expressly stating that the writing constitutes an amendment,
waiver or modification of the terms of this Note. As used in this Note, the
word “undersigned”  means, individually and collectively, each
maker, accommodation party, indorses and other party signing this Note in a
similar capacity. If any provision of this Note is unenforceable in whole or
part for any reason, the remaining provisions shall continue to be effective. THIS NOTE IS MADE IN THE STATE OF TEXAS AND SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
TEXAS, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.


 


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This Note and the Loan
Agreement and all other documents, instruments and agreements evidencing,
governing, securing, guaranteeing or otherwise relating to or executed pursuant
to or in connection with this Note or the Indebtedness evidenced hereby
(whether executed and delivered prior to, concurrently with or subsequent to
this Note), as such documents may have been or may hereafter be amended from
time to time (collectively, the “Loan
Documents”) are intended to be performed in accordance with, and
only to the extent permitted by, all applicable usury laws. If any provision
hereof or of any of the other Loan Documents or the application thereof to any
person or circumstance shall, for any reason and to any extent, be invalid or
unenforceable, neither the application of such provision to any other person or
circumstance nor the remainder of the instrument in which such provision is
contained shall be affected thereby and shall be enforced to the greatest
extent permitted by law. It is expressly stipulated and agreed to be the intent
of the holder hereof to at all times comply with the usury and other applicable
laws now or hereafter governing the interest payable on the indebtedness
evidenced by this Note. If the applicable law is ever revised, repealed or
judicially interpreted so as to render usurious any amount called for under
this Note or under any of the other Loan Documents, or contracted for, charged,
taken, reserved or received with respect to the indebtedness evidenced by this
Note, or if Bank’s exercise of the option to accelerate the maturity of this
Note, or if any prepayment by the undersigned or prepayment agreement results
(or would, if complied with, result) in the undersigned having paid, contracted
for or being charged for any interest in excess of that permitted by law, then
it is the express intent of the undersigned and Bank that this Note and the
other Loan Documents shall be limited to the extent necessary to prevent such
result and all excess amounts theretofore collected by Bank shall be credited
on the principal balance of this Note or, if fully paid, upon such other
Indebtedness as shall then remaining outstanding (or, if this Note and all
other Indebtedness have been paid in full, refunded to the undersigned), and
the provisions of this Note and the other Loan Documents shall immediately be
deemed reformed and the amounts thereafter collectable hereunder and thereunder
reduced, without the necessity of the execution of any new document, so as to
comply with the then applicable law, but so as to permit the recovery of the
fullest amount otherwise called for hereunder or thereunder. All sums paid, or
agreed to be paid, by the undersigned for the use, forbearance, detention,
taking, charging, receiving or reserving of the indebtedness of the undersigned
to Bank under this Note or arising under or pursuant to the other Loan
Documents shall, to the maximum extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full term of such
indebtedness until payment in full so that the rate or amount of interest on
account of such indebtedness does not exceed the usury ceiling from time to
time in effect and applicable to such indebtedness for so long as such
indebtedness is outstanding. To the extent federal law permits Bank to contract
for, charge or receive a greater amount of interest, Bank will rely on federal
law instead of the Texas Finance Code, as supplemented by Texas Credit Title,
for the purpose of determining the Maximum Rate. Additionally, to the maximum
extent permitted by applicable law now or hereafter in effect, Bank may, at its
option and from time to time, implement any other method of computing the
Maximum Rate under the Texas Finance Code, as supplemented by Texas Credit
Title, or under other applicable law, by giving notice, if required, to the
undersigned as provided by applicable law now or hereafter in effect.
Notwithstanding anything to the contrary contained herein or in any of the
other Loan Documents, it is not the intention of Bank to accelerate the
maturity of any interest that has not accrued at the time of such acceleration
or to collect unearned interest at the time of such acceleration.


 


THE
UNDERSIGNED AND BANK, BY ACCEPTANCE OF THIS NOTE, ACKNOWLEDGE THAT THE RIGHT TO
TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY,
AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF
THEIR CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT, WAIVES
ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF


 


8

















 


LITIGATION
REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS
NOTE OR THE INDEBTEDNESS.


 


THIS
WRITTEN LOAN AGREEMENT (AS DEFINED BY SECTION 26.02 OF THE TEXAS BUSINESS AND
COMMERCE CODE) REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.


 


This Note is intended to
and does completely amend and restate in its entirety that certain promissory
note from the undersigned payable to the order of Bank in the original
principal amount of $27,664,000.00 dated April 15, 2005 (the “Original Note”) and is intended as and is a
replacement of, and is in substitution for the Original Note, but is not
intended as a novation of the Original Note or any of the obligations evidenced
by the Original Note. The indebtedness evidenced by this Note is in renewal,
extension and modification, but not in extinguishment or novation, of the
indebtedness evidenced by the Original Note. The Original Note is being
retained by Bank with a notation placed on the face thereof indicating that
such Original Note has been amended and restated by this Note.


 


 


	
  

  	
  FRISCO SQUARE LAND,
  LTD.

  a Texas limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Fairways FS Land, LLC,

  a Texas limited liability company

  its General Partner

  
	
   

  
	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ James C. Leslie

  
	
   

  	
   

  	
   

  	
  James C. Leslie,
  Manager

  
					



 


 


	
  16250 DALLAS PARKWAY, SUITE 102

  	
   

  	
  DALLAS

  	
   

  	
  TEXAS

  	
   

  	
  75248

  
	
  STREET ADDRESS

  	
   

  	
  CITY

  	
   

  	
  STATE

  	
   

  	
  ZIP CODE

  



 


 


	
  For Bank Use Only

  	
   

  	
  CCAR #

  
	
  LOAN OFFICER INITIALS

  	
   

  	
  LOAN GROUP NAME

  	
   

  	
  OBLIGOR NAME

  	
   

  	
   

  	
   

  	
   

  
	
  LOAN OFFICER ID. NO.

  	
   

  	
  LOAN GROUP NO.

  	
   

  	
  OBLIGOR NO.

  	
   

  	
  NOTE N

  	
   

  	
  AMOUNT

  



 


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