Unassociated Document


    
      Exhibit
        10.91

       

      PROMISSORY
        NOTE

      (Healthcare
        Center)

       

      
        	
                $5,000,000.00

              	
                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 Five Million and No/100 Dollars ($5,000,000.00),
        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, 8333 Douglas Avenue, Dallas, Texas 75225,
        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 Lender 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 Lender, 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 

       

      
        
          
          

        

        
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      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.

       

      “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”
—
        $10,000. 

       

      “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 Lender 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.

       

      
        
          
          

        

        
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      “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 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 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
        $5,000,000 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.

       

      “Make-Whole
        Breakage Amount”
—
As
        defined in Section 5.

       

      
        
          
          

        

        
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      “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”
—
        $4,232.54 during the First Extension Period and $4,538.51 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 1. 

       

      “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


       

      
        
          
          

        

        
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      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”.


       

      “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”
—
        2.5%.

       

      “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 Lender’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.

       

      
        
          
          

        

        
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      (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
        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 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 Lender obtains knowledge thereof and determines
        to request such compensation. For purposes of this Section 2 and the definition
        of “Additional Costs”, the term “Lender” shall, at Lender’s option, be deemed to
        include Lender’s present and future participants in the Loan.

       

      (d)       
        Without
        limiting the effect of the immediately preceding subsection, in the event
        that,
        by reason of any Regulation, (i) Lender incurs Additional Costs based on
        or
        measured by the amount of (1) a category of deposits or other liabilities
        of
        Lender which includes deposits by reference to which the Fixed Rate is
        determined as provided in this Note and/or (2) a category of extensions of
        credit or other assets of Lender which includes loans the interest on which
        is
        determined on the basis of rates referred to in the definition of “LIBOR Rate”,
        (ii) Lender becomes subject to restrictions on the amount of such a
        category of liabilities or assets which it may hold, or (iii) it shall be
        unlawful or impractical for Lender to make or maintain the Loan (or any portion
        thereof) at the Fixed Rate, then Lender’s obligation to make or maintain the
        Loan (or portions thereof) at the Fixed Rate (and Borrower’s right to request
        the same) shall be suspended and Lender shall give notice thereof to Borrower
        and, upon the giving of such notice, interest payable hereunder at the Fixed
        Rate shall be converted to the Commercial Based Rate, unless Lender may lawfully
        continue to maintain the Loan (or any portion thereof) then bearing interest
        at
        the Fixed Rate to the end of the current Interest Period(s), at which time
        the
        interest rate shall convert to the Commercial Based Rate. If subsequently
        Lender
        determines that such Regulation has ceased to be in effect, Lender will so
        advise Borrower and Borrower may convert the rate of interest payable hereunder
        with respect to those portions of the Principal Amount bearing interest at
        the
        Commercial Based Rate to a Fixed Rate by submitting a Fixed Rate Request
        in
        respect thereof and otherwise complying with the provisions of this Note
        with
        respect thereto.

       

      (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.

       

      
        
          
          

        

        
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      (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, Lender will so advise Borrower and
        Borrower may convert the rate of interest payable hereunder from the Commercial
        Based Rate to a Fixed Rate by submitting a Fixed Rate Request to Lender and
        otherwise complying with the provisions of this Note with respect
        thereto.

       

      (g)       
        Borrower
        shall pay to Lender, immediately upon request and notwithstanding contrary
        provisions contained in the Loan Documents, such amounts as shall, in the
        conclusive judgment of Lender reasonably exercised, compensate Lender for
        any
        loss, cost or expense incurred by it as a result of (i) the conversion, for
        any reason whatsoever, of the rate of interest payable hereunder from the
        Fixed
        Rate to the Commercial Based Rate with respect to any portion of the Principal
        Amount then bearing interest at the Fixed Rate on a date other than the last
        day
        of an applicable Interest Period, (ii) the failure of all or a portion of
        an advance which was to have borne interest at the Fixed Rate pursuant to
        a
        Fixed Rate Request to be made under this Note, or (iii) the failure of
        Borrower to borrow in accordance with a Fixed Rate Request submitted by it
        to
        Lender, which amounts shall include, without limitation, lost
        profits.

       

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

       

      3.            
        Default
        Rate.

       

      (a)       
        Notwithstanding
        anything to the contrary contained in this Note, at the option of Lender,
        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 

       

      
        
          
          

        

        
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      remedies
        available to it under the Loan Documents, nor shall it be construed to limit
        in
        any way the application of the Default Rate. 

       

      4.            
        Payment
        of Principal and Interest.

       

      (a)       
        Interest
        on the Principal Amount shall be payable monthly in arrears as it accrues
        on the
        first day of the first month following the Funding Date and on the first
        day of
        each month thereafter until the earlier of the date this Note is repaid in
        full
        or the Maturity Date. 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.

       

      
        
          
          

        

        
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      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. Borrower 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
        Lender, 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 Lender'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 

       

      
        
          
          

        

        
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      to
        be
        repaid shall be calculated based upon the present value of the remaining
        scheduled debt service (i.e., scheduled principal and/or interest payments
        allocable to the Fixed Rate Amount to be repaid) discounted at the Make Whole
        Calculation Rate (assuming monthly compounding) for the Interest Period in
        question minus the Fixed Rate Amount being repaid.

       

      (f)       
        As
        used
        herein, the term “Make
        Whole Calculation Rate”
means
        the latest Treasury Constant Maturity Series yields reported, for the latest
        day
        for which such yields shall have been so reported as of the applicable Fixed
        Rate Business Day, in Federal Reserve Statistical Release H.15 (519) (or
        any
        comparable successor publication) for actively traded U.S. Treasury securities
        having a constant maturity which most closely matches the period from prepayment
        to the maturity of the applicable Interest Period of the principal being
        repaid.
        Such implied yield shall be determined, if necessary, by (i) converting U.S.
        Treasury bill quotations to bond-equivalent yields in accordance with accepted
        financial practice, and (ii) interpolating linearly between reported
        yields.

       

      6.            
        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 Lender, 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 

       

      
        
          
          

        

        
          10

          
            

          

        

        
          
          

        

      

       

      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.

       

      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 Lender 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 Borrower acknowledges that
        it
        believes the Loan to be non-usurious and agrees that if, at any time, Borrower
        should have reason to believe that the Loan is in fact usurious, it will
        give
        Lender 

       

      
        
          
          

        

        
          11

          
            

          

        

        
          
          

        

      

       

      notice
        of
        such condition and Borrower agrees that Lender shall have 90 days in which
        to
        make appropriate refund or other adjustment in order to correct such condition
        if in fact such exists. The term “applicable
        law”
as
        used
        in this Note shall mean the laws of the State of Texas or the laws of the
        United
        States, whichever laws allow the greater rate of interest, as such laws now
        exist or may be changed or amended or come into effect in the
        future.

       

      9.            
        Collection
        Fees.
        Should the indebtedness represented by this Note or any part thereof be
        collected at law or in equity or through any bankruptcy, receivership, probate
        or other court proceedings or if this Note is placed in the hands of attorneys
        for collection after an Event of Default, Borrower and all endorsers, guarantors
        and sureties of this Note jointly and severally agree to pay to Lender in
        addition to the principal and interest due and payable hereon reasonable
        attorneys’ and collection fees.

       

      10.            Waiver
        of Certain Notices.
        Borrower and all endorsers, guarantors and sureties of this Note and all
        other
        persons liable or to become liable on this Note severally waive presentment
        for
        payment, demand, notice of demand and of dishonor and nonpayment of this
        Note,
        notice of intention to accelerate the maturity of this Note, protest and
        notice
        of protest, diligence in collecting, and the bringing of suit against any
        other
        party, and agree to all renewals, extensions, modifications, partial payments,
        releases or substitutions of security, in whole or in part, with or without
        notice, before or after maturity.

       

      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 LENDER, 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
        

       

      
        
          
          

        

        
          12

          
            

          

        

        
          
          

        

      

       

      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.

       

      14.            WAIVER
        OF TRIAL BY JURY AND CERTAIN OTHER RIGHTS.
        BORROWER
        AND LENDER HEREBY 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

      PROMISSORY
        NOTE

       

       

      Borrower’s
        Federal Tax I.D. No.

       

      38-3659381

      
        

      

      
        	 	 	 
	 	ARC
                BRANDYWINE,
                L.P., a Delaware limited partnership
	 
 	 
 	 
 
	 	By:  	
                ARC
                  Brandywine GP, LLC, a Tennessee limited liability company, its
                  general
                  partner

              
	 	 	 


      

       

      
        
          	 	
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                  Name:

                	 
	 	 	
                  Title: