Exhibit 10.102


 


DEED OF TRUST NOTE


 


	
  $8,889,000.00

  	
  Dallas, Texas

  	
  As of March 8, 2007

  



 


FOR VALUE
RECEIVED, the undersigned, FRISCO SQUARE F1-1, LTD., a Texas limited
partnership (“Maker”),
hereby promises to pay to the order of COMPASS BANK (“Lender”), at its principal office in
Dallas, Dallas County, Texas, or at such other place as the holder of this Note
may from time to time designate in writing, the principal sum of Eight Million
Eight Hundred Eighty-Nine Thousand and No/100 Dollars ($8,889,000.00), or so
much thereof as shall be advanced, 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.


 


The unpaid
Principal Amount of this Note (or portions thereof) from time to time
outstanding shall bear interest prior to maturity at the Commercial Based Rate
and/or one or more applicable LIBO Based Rates (as elected in the manner specified
in this Note), provided that in no event shall the Applicable Rate (a) be lass
than the Floor Rate, or (b) exceed the Maximum Rate. Notwithstanding the
foregoing, Lender may in its sole and absolute discretion, waive the Floor Rate
pertaining to the Applicable Rate. 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 Commercial Based Rate
or the LIBO Based 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.


 


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 Commercial Based
Rate as to that portion of Principal Amount bearing interest at the Commercial
Based Rate and the LIBO Based Rate as to each Euro-Dollar Amount.


 


“Commercial Based Rate” — The Compass
Bank Index, with the Compass Bask Index being, as of a particular day, the
Prime Rate as published in The Wall Street
Journal’s “Money Rates” table for that day. If multiple Prime Rates
are quoted in such table, then the highest Prime Rate quoted therein shall be
the Compass Bank Index. In the event that a Prime Rate is not published in The Wall Street Journal’s “Money Rates”
table, then Lender (or its successors) will choose a substitute index rate for
calculating the Compass Bank Index, which is based on comparable information.
The Compass Bank Index may not be the lowest rate of Interest that Lender
charges. The Commercial Based Rate shall fluctuate with such Compass Bank Index
changing as of the day of any


 


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change in the Compass
Bank Index; provided, however, the Commercial Based Rate shall never exceed the
Maximum Rate.


 


“Deed of Trust” — The Deed of Trust,
Security Agreement, Fixture Filing and Assignment of Leases and Rents dated of
even date herewith in favor of the Trustee named therein, evidencing a lien on
certain real property in Collin County, Texas, described therein, and
evidencing a security interest in certain personal property described therein.


 


“Default Rate” — The rate per annum
which is five percent (5%) above the Commercial Based Rate.


 


“Euro-Dollar Amount” — Each portion of
the Principal Amount bearing interest at an applicable LIBO Based Rate pursuant
to a Euro-Dollar Rate Request.


 


“Euro-Dollar Business Day” — Any day 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.


 


“Euro-Dollar Rate Request” — Maker’s
telephonic notice (to be promptly confirmed in writing which must be received
by Lender before such Euro-Dollar Rate Request will be put into effect by
Lender), to be received by Lender by 12 o’clock Noon (Dallas, Texas time) three
(3) Euro-Dollar Business Days prior to the Euro-Dollar Business Day specified
in the Euro-Dollar Rate Request for the commencement of the Interest Period, of
(a) its intention to have (1) all or any portion of the Principal Amount which
is not then the subject of an Interest Period (other than an Interest Period
which is terminating on such Euro-Dollar Business Day), and/or (2) all or any
portion of any advance of Loan proceeds which is to be made on such Euro-Dollar
Business Day, bear interest at the LIBO Based Rate and (b) the Interest Period
desired by Maker in respect of the amount specified.


 


“Euro-Dollar Rate Request Amount” — The
amount, to be specified by Maker in each Euro-Dollar Rate Request, which Maker
desires to bear interest at the LIBO Based Rate and which shall in no event be
less than $250,000 and which, at Lender’s option, shall be an integral multiple
of $100,000.


 


“Euro-Dollar Reference Source” — The
display for Euro-Dollar rates provided on Telerate Information Service (or such
other page as may replace page 3750 on the service for the purpose of
displaying Euro-Dollar rates); or, at the option of Lender, the display for
Euro-Dollar rates on such other service selected from time to time by Lender
and determined by Lender to be comparable to Telerate Information Service,
which other service may include Reuters Monitor Money Rates Service.


 


“Floor Rate” — means a rate equal to
five and one-half of one percent (5.5%) per annum.


 


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“Interest Period” — The period during
which interest at the LIBO Based Rate, determined as provided in this Note,
shall be applicable to the Euro-Dollar Rate Request Amount in question,
provided, however, that each such period shall be either one (1) month, two (2)
months, three (3) months or six (6) months, which shall be measured from the
date specified by Maker in each Euro-Dollar Rate Request for the commencement
of the computation of interest at the LIBO Based 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
Maker for such commencement is the last Euro-Dollar Business Day of a calendar
month, then the last Euro-Dollar Business Day of the calendar month in which
such period terminates, or if the numerically corresponding day is not a
Euro-Dollar Business Day then the next succeeding Euro-Dollar Business Day,
unless such next succeeding Euro-Dollar Business Day enters a new calendar
month, in which case such period shall end on the next preceding Euro-Dollar
Business Day) and in no event shall any such period be elected which extends
beyond the Maturity Date.


 


“LIBO Based Rate” — With respect to any
Euro-Dollar Amount, the rate per annum (expressed as a percentage) determined
by Lender to be equal to the sum of (a) the quotient of the LIBO Rate for the
Euro-Dollar Amount and Interest Period in question divided by (1 minus the
Reserve Requirement), rounded up to the nearest 1/100 of 1%, and (b) two percent
(2.0%).


 


“LIBO Rate” — The rate determined by
Lender (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 Euro-Dollar Rate Request Amount for the same period of time
as the Interest Period selected by Maker in the Euro-Dollar Rate Request, as
set forth on the Euro-Dollar Reference Source at approximately 10:00 a.m.
(Dallas, Texas time) on the first day of the applicable Interest Period.


 


“Loan” — The $8,889,000.00 construction
loan to be made to Maker by Lender pursuant to the Loan Agreement and evidenced
hereby.


 


“Loan Agreement” — The Construction Loan
Agreement of even date herewith between Lender and Maker pursuant to which the
Loan is being made.


 


“Loan Documents” — The Loan Agreement,
this Note, the Deed of Trust, the Assignment of Leases and Rents and other
documents evidencing, securing and relating to the Loan.


 


“Maturity Date” — March 8, 2009, being
the date this Note becomes due and payable in its entirety, unless extended
pursuant to the terms and conditions of the Loan Agreement.


 


“Maximum Rate” — The maximum interest
rate permitted under applicable law, it being understood that, if applicable
law provides for a ceiling under Chapter 303.002-.003 of the Texas Finance
Code, such ceiling shall be the weekly ceiling.


 


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“Mortgaged Property” — The real
property, improvements, fixtures and other property and interest described in
the Deed of Trust.


 


“Principal Amount” — That portion of the
Loan evidenced hereby as is from time to time outstanding.


 


“Regulation D” — Regulation D of the
Board of Governors of the Federal Reserve System, as from time to time amended
or supplemented.


 


“Regulation” — With respect to the
charging and collecting of interest at the LIBO Based Rate, any United States
federal, state or foreign laws, treaties, rules or regulations whether now in
effect or hereinafter 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.


 


“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 other 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 LIBO 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 “LIBO Rate”
set forth above.


 


“Treasury Rate” means the Treasury
Constant Maturity Series yields reported, for the latest day for which such
yields shall have been so reported as of the applicable 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 ten (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.


 


Maker shall have
the option, subject to the terms and conditions hereinafter set forth, of
paying interest on the Principal Amount or portions thereof at the Commercial
Based Rate or the LIBO Based Rate as herein provided. The Principal Amount
(less each Euro-Dollar Amount from time to time outstanding) shall bear
interest at the Commercial Based Rate. If Maker desires the application of the
LIBO Based Rate, it shall submit a Euro-Dollar Rate Request to Lender. Such Euro-Dollar
Rate Request shall specify the Interest Period and the Euro-Dollar Amount and
shall be irrevocable, subject to Maker’s right to convert the rate of interest
payable hereunder with respect to any Euro-Dollar Amount from the LIBO Based
Rate to the Commercial Based Rate as hereinafter provided. In the event that
Maker fails to submit a Euro-Dollar Rate Request with respect to an existing
Euro-Dollar Amount not later than 12:00


 


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noon (New York, New York
time) three (3) Euro-Dollar Business Days prior to the last day of the relevant
Interest Period, the Euro-Dollar Amount in question shall bear interest,
commencing at the end of such Interest Period, at the Commercial Based Rate.


 


Lender, at its
option, may honor a Euro-Dollar Rate Request which is submitted less than three
(3) Euro-Dollar Business Days prior to the Euro-Dollar Business Day specified
in the Euro-Dollar Rate Request for the commencement of the Interest Period;
provided, however, Lender is not and shall not thereafter be bound to honor
such a request.


 


Maker shall not
have the right to have more than three (3) Interest Periods in respect of
Euro-Dollar Amounts in effect at any one time whether or not any portion of the
Principal Amount is then bearing interest at the Commercial Based Rate.


 


Maker 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 Lender’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 Euro-dollar market any other condition affecting the Loan or this
Note, or any of such extensions of credit or liabilities. Lender will notify
Maker of any event which would entitle Lender to compensation pursuant to this
paragraph as promptly as practicable after Lender obtains knowledge thereof and
determines to request such compensation. For purposes of this paragraph, of the
definition of “Additional Costs”
set forth above and of the next succeeding four paragraphs, the term “Lender” shall, at Lender’s option, be
deemed to include Lender’s present and future participants in the Loan.


 


Without limiting
the effect of the immediately preceding paragraph, 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 LIBO 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 “LIBO
Rate” set forth above, (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 LIBO Based Rate, then Lender’s
obligation to make or maintain the Loan (or portions thereof) at the LIBO Based
Rate (and Maker’s right to request the same) shall be suspended and Lender
shall give notice thereof to Maker and, upon the giving of such notice,
interest payable hereunder at the LIBO Based 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 LIBO Based 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 Maker and
Maker 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 the LIBO


 


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Based Rate by submitting
a Euro-Dollar Rate Request in respect thereof and otherwise complying with the
provisions of this Note with respect thereto.


 


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 LIBO Based 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,
provided that such determinations are made on a reasonable basis (absent
manifest error).


 


Anything herein to
the contrary notwithstanding, if, at the time of or prior to the determination
of the LIBO Based Rate in respect of any Euro-Dollar Rate Request Amount as
herein provided, Lender determines (which determination shall be conclusive
[provided that such determination is made on a reasonable basis] absent
manifest error) that (i) by reason of circumstances affecting the interbank
Euro-dollar market generally, adequate and fair means do not or will not exist
for determining the LIBO Based Rate applicable to an Interest Period or (ii)
the LIBO 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 LIBO
Based Rate, then Lender shall give Maker prompt notice thereof, and the
Euro-Dollar Rate Request 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 LIBO Based Rate is again available to Maker
hereunder, Lender shall so advise Maker and Maker may convert the rate of
interest payable hereunder from the Commercial Based Rate to the LIBO Based
Rate by submitting a Euro-Dollar Rate Request to Lender and otherwise complying
with the provisions of this Note with respect thereto.


 


Maker shall pay to
Lender, immediately upon request and notwithstanding contrary provisions
contained in the Deed of Trust or other 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) any payment or
prepayment, under any circumstances whatsoever, of any portion of the Principal
Amount bearing interest at the LIBO Based Rate on a date other than the last
day of an applicable Interest Period, (ii) the conversion, for any reason
whatsoever, of the rate of interest payable hereunder from the LIBO Based Rate
to the Commercial Based Rate with respect to any portion of the Principal
Amount then bearing interest at the LIBO Based Rate on a date other than the
last day of an applicable Interest Period, or (iii) the failure of Maker to
borrow in accordance with a Euro-Dollar Rate Request submitted by it to Lender,
which amounts shall include, without limitation, lost profits.


 


Maker shall have
the right to convert, from time to time, the rate of interest payable hereunder
with respect to any portion of the Principal Amount to the LIBO Based Rate or
the Commercial Based Rate, subject to the terms of this Note and provided that,
in the case of a conversion from the LIBO Based Rate, the entire amount of the
particular Euro-Dollar Amount is the subject of the conversion.


 


Maker shall have
the right to prepay this Note, in whole or in part, without premium or penalty
(subject, however, to the provisions of this Note) upon written notice thereof
given to Lender by prepaid registered or certified mail at least fifteen (15)
days prior to the date to be fixed therein for prepayment, and upon the payment
of all accrued interest on the amount prepaid


 


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(and any interest which
has accrued at the Default Rate and other sums that may be payable hereunder)
to the date so fixed and any Additional Costs attributable to any Euro-Dollar
Amount prepaid.


 


Any portion of the
Principal Amount to which the LIBO Based Rate is not or cannot pursuant to the
terms hereof be applicable shall bear interest at the Commercial Based Rate.


 


The principal and
interest of this Note shall be due and payable as follows:


 


Interest
on the Principal Amount (whether computed at the Commercial Based Rate or the
LIBO Based Rate) shall be payable monthly on the ten (10th) day of
the first (1st) month following the date of this Note and the same
day of each month thereafter until this Note is repaid in full or until the
Maturity Date, as the case may be. The Principal Amount and all accrued but
unpaid interest on the Principal Amount (whether computed at the Commercial
Based Rate or the LIBO Based Rate) shall be due and payable in full on the
Maturity Date. In the event that Maker exercises its right to extend the
Maturity Date pursuant to and in accordance with the terms and conditions set
forth in Article 9 of the Loan Agreement and the Maturity Date is so
extended, then Maker shall commencing making payments of principal each month
as provided in Article 9 of the Loan Agreement, which installments shall be due
on the same dates as, and in addition to, payments of accrued but unpaid
interest due hereunder. Upon the Maturity Date (as extended), the entire unpaid
principal balance of this Note and all accrued and unpaid interest on the
unpaid principal balance of this Note shall be finally due and payable without
notice or demand.


 


All payments of
principal shall be credited first against principal amounts bearing interest at
the Commercial Based Rate and then toward the payment of Euro-Dollar Amounts.
Payments of Euro-Dollar Amounts shall be applied in such manner as Maker shall
select; provided, however, that Maker shall select Euro-Dollar Amounts to be
repaid in a manner designed to minimize any losses incurred by virtue of such
payment. If Maker shall fail to select the Euro-Dollar Amounts to which such
payments are to be applied, or if an event of default has occurred and is
continuing at the time of payment, then Lender shall be entitled to apply the
payment to such Euro-Dollar Amounts in the manner it deems appropriate. Maker
shall compensate Lender for any losses incurred by virtue of any payment of
those portions of the Loan accruing interest at the LIBO Based Rate prior to
the last day of the relevant Interest Period, which compensation shall be
determined in accordance with the provisions set forth in this Note, and any
payment received pursuant to this paragraph shall be applied first to losses
incurred by Lender by reason of such payment.


 


If a default shall
occur under the Deed of Trust, interest on the Principal Amount shall, at the
option of Lender, immediately and without notice to Maker, be converted to the
Commercial Based Rate. 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 Deed of Trust or any other instrument evidencing or securing the
Loan, nor shall it be construed to limit in any way the application of the
Default Rate.


 


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If any payment
required under this Note (other than principal due on the Maturity Date) is not
paid within ten (10) days after such payment is due, then, at the option of
Lender, Maker shall pay a late charge not to exceed five cents ($.05) for each
one dollar ($1.00) of such payment of interest and/or principal, to cover the
extra expense involving in handling delinquent accounts, provided that, should
such late charge constitute interest under any applicable law, such late charge
shall not, together with other interest to be paid, charged, contracted for,
received or reserved against or taken on the indebtedness evidenced by this
Note and the other Loan Documents, exceed the maximum interest permitted under
applicable law. This late charge may be assessed without notice, shall be
immediately due and payable and shall be in addition to all other rights and
remedies available to Lender.


 


Maker hereby
agrees that it shall be bound by any agreement extending the time or modifying
the above terms of payment, made by Lender and the owner or owners of the
Mortgaged Property, whether with or without notice to Maker, and Maker shall
continue to be liable to pay the amount due hereunder, but with interest at a
rate no greater than the LIBO Based Rate or the Commercial Based Rate, as the
case may be, according to the terms of any such agreement of extension or
modification.


 


Notwithstanding
anything to the contrary contained in this Note, at the option of the holder of
this Note and upon notice to the undersigned at any time after the occurrence
of a default as defined in the Deed of Trust, from and after such notice and
during the continuance of such 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,
provided that in no event shall such interest rate be more than the Maximum
Rate.


 


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. The undersigned shall make
each payment which it owes hereunder not later than twelve o’clock, noon,
Dallas, Texas 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 the Lender after such time will be deemed to have been made
on the next following business day. As used herein, the term “business day” shall mean a day on which
commercial banks are open for business with the public in Dallas, Texas.


 


This Note is
secured, inter alia, by the Deed of Trust, to which Deed of Trust
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 the holder
of this Note in respect of such security. Upon the occurrence of a default
specified in the Deed of Trust or in any other Loan Document which remains
uncured beyond any applicable notice, cure or grace period provided therein,
Lender shall have the option of declaring the Principal Amount hereof and the
interest accrued hereon to be immediately due and payable.


 


This Note has been
executed and delivered in connection with the Loan Agreement, and is subject to
the terms and conditions of the Loan Agreement. Reference is hereby made to the
Loan Agreement for provisions affecting this Note regarding amounts of allowed
draws, payment, prepayments, acceleration of maturity, exercise of rights,
payment of attorneys’ fees,


 


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court costs, and other
costs of collection, certain waivers by Maker and others, now or hereafter
obligated for payment of any sums due hereunder, and security for the payment
hereof.


 


It is the intent
of Lender and Maker in the execution of this Note and all Loan Documents to
contract in strict compliance with applicable usury law. In furtherance
thereof, Lender and Maker stipulate and agree that none of the terms and
provisions contained in this Note or in any other Loan Document 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 Maker 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 paragraph 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, including each holder of this Note, 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, the Lender or other holder of this
Note shall, at its option, either refund to Maker 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 or any other
holder of this Note 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 the Lender or other holder of
this Note, be either immediately returned to Maker 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 Maker acknowledges that it believes the Loan evidenced
by this Note to be non-usurious and agrees that if, at any time, Maker should
have reason to believe that the Loan is in fact usurious, it will give the
Lender or other holder of this Note notice of such condition and Maker agrees
that the Lender or other holder shall have ninety (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.


 


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 default, Maker and all endorsers, guarantors and sureties of this Note
jointly and severally agree to pay to the Lender or other holder of this Note
in addition to the principal and interest due and payable hereon reasonable
attorneys’ and collection fees.


 


Maker 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


 


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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.


 


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) AND THE LAWS OF THE UNITED
STATES APPLICABLE TO TRANSACTIONS IN SUCH STATE. MAKER HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY TEXAS OR FEDERAL COURT SITTING
IN DALLAS, TEXAS (OR ANY COUNTY IN TEXAS WHERE ANY PORTION OF THE MORTGAGED
PROPERTY IS LOCATED) OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS NOTE OR ANY OF THE LOAN DOCUMENTS.


 


MAKER
ACKNOWLEDGES THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT
IT MAY BE WAIVED. MAKER, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO
CONSULT) WITH COUNSEL OF ITS CHOICE, KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT
TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR
ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS NOTE, ANY OF THE LOAN DOCUMENTS
OR THE INDEBTEDNESS EVIDENCED THEREBY.


 


THIS
WRITTEN AGREEMENT 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.


 


 


	
   

  	
   

  	
   

  	
  FRISCO
  SQUARE Fl-1, LTD.,

  	 

	
   

  	
   

  	
   

  	
  a Texas limited
  partnership

  	 

	
   

  	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
   

  	
  By:

  	
  Fairways FS F1-1, LLC,
  a Texas limited

  
	
   

  	
   

  	
   

  	
   

  	
  liability company, its
  General Partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Cathy Sweeney

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Cathy
  Sweeney

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Manager

  	
   

  
										



 


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