Unassociated Document


    
      
        Exhibit
          10.76

        
 

        TERM
          NOTE

         

        
          	
                  $85,000,000.00

                	
                  Chicago,
                    Illinois

                  November
                    2, 2005

                


        

         

        FOR
          VALUE
          RECEIVED, the undersigned, ARC SUN CITY WEST, LLC, ARC ROSWELL, LLC, ARC
          VEGAS,
          LLC, ARC TUCSON, LLC, ARC OVERLAND PARK, LLC, ARC MINNETONKA, LLC, ARC
          DENVER
          MONACO, LLC, each a Delaware limited liability company, and ARC TANGLEWOOD,
          L.P., a Delaware limited partnership (herein referred to collectively in
          the
          singular as "Borrower"), hereby unconditionally promise to pay
          to the order of MERRILL LYNCH CAPITAL, a Division of Merrill Lynch Business
          Financial Services Inc., a Delaware corporation, and its successors and
          assigns
          (in its capacity as a lender, referred to herein as "Lender"),
          and in its capacity as Administrative Agent, referred to herein as
          "Agent") at the office of Agent at 222 North LaSalle
          Street, 16th Floor, Chicago, Illinois 60601, or at such other place as
          Agent may
          from time to time designate in writing, in lawful money of the United States
          of
          America and in immediately available funds, the principal sum of Eighty
          Five
          Million and No/100 Dollars ($85,000,000.00). This Term Note (this
          "Note") is issued in accordance with the provisions of
          that certain Credit and Security Agreement of even date herewith among
          Borrower,
          various financial institutions as are, or may from time
          to time become, parties thereto as lenders (including without limitation
          Lender) and Agent (as amended, supplemented or otherwise modified from time
          to time, the "Credit Agreement") and is entitled to the
          benefits and security of the Credit Agreement and the other Financing Documents,
          and reference is hereby made to the Credit Agreement for a statement of
          the
          terms and conditions under which the portion of the Term Loan evidenced
          hereby
          was made and is required to be repaid. All capitalized terms used herein
          (which
          are not otherwise specifically defined herein) shall be used in this Note
          as defined in the Credit Agreement.

         

        1.  The
          outstanding principal balance of the portion of the Term Loan evidenced
          by this
          Note shall be due and payable as provided for in the Credit
          Agreement.

         

        2.  Borrower
          promises to pay interest from the date hereof until payment in full hereof
          on
          the unpaid principal balance of the portion of the Term Loan evidenced
          hereby at
          the per annum rate or rates set forth in the Credit Agreement. Interest
          on the
          unpaid principal balance of the portion of the Term Loan evidenced hereby
          shall
          be payable on the dates and in the manner set forth in the Credit Agreement.
          Interest as aforesaid shall be charged for the actual number of days elapsed
          over a year consisting of three hundred sixty (360) days on the actual
          daily outstanding balance hereof to the extent permitted by applicable
          law, if
          any; provided, however, that interest calculations shall include the date
          of
          funding of any such Term Loan but shall exclude the date of payment of
          any such
          Term Loan. In no event shall the rate of interest payable in respect of
          the
          indebtedness evidenced hereby exceed the maximum rate of interest from
          time to
          time allowed to be charged by applicable law, if any. Prepayment of the
          principal amount hereof may be made as provided in the Credit
          Agreement.

         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

         

         

        3.  Upon
          and
          after the occurrence of an Event of Default, and as provided in the Credit
          Agreement, the portion of the Term Loan evidenced by this Note may be declared,
          and immediately shall become, due and payable without demand, notice or
          legal
          process of any kind; provided,
          however,
          that upon
          the occurrence of an Event of Default pursuant to the provisions of Section
          11.1(f) or Section 11.1(g) of the Credit Agreement, the portion of the
          Term Loan evidenced by this Note shall automatically be due and payable,
          without
          demand, notice or acceleration of any kind whatsoever.

         

        4.  Payments
          received in respect of the Term Loan shall be applied as provided in the
          Credit
          Agreement.

         

        5.  Presentment,
          demand, protest and notice of presentment, demand, nonpayment and protest
          are
          each hereby waived by Borrower.

         

        6.  No
          waiver
          by Lender of any one or more defaults by the undersigned in the performance
          of
          any of its obligations under this Note shall operate or be construed as
          a waiver
          of any future default or defaults, whether of a like or different nature,
          or as
          a waiver of any obligation of Borrower to any other lender under the Credit
          Agreement. 

         

        7.  No
          provision of this Note may be amended, waived or otherwise modified unless
          such
          amendment, waiver or other modification is in writing and is signed or
          otherwise
          approved by Borrowers, the Required Lenders and any other lender under
          the
          Credit Agreement to the extent required under the Credit Agreement.

         

        8.  THIS
          NOTE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
          WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS OF
          LAW
          PRINCIPLES. 

         

        9.  Whenever
          possible each provision of this Note shall be interpreted in such manner
          as to
          be effective and valid under applicable law, but in case any provision
          of or
          obligation under this Note shall be invalid, illegal or unenforceable in
          any
          jurisdiction, the validity, legality and enforceability of the remaining
          provisions or obligations, or of such provision or obligation in any other
          jurisdiction, shall not in any way be affected or impaired thereby.


         

        10.  Whenever
          in this Note reference is made to Agent, Lender or Borrower, such reference
          shall be deemed to include, as applicable, a reference to their respective
          successors and assigns. The provisions of this Note shall be binding upon
          Borrower and its successors and assigns, and shall inure to the benefit
          of
          Lender and its successors and assigns.

         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

         

         

        11.  In
          addition to and without limitation of any of the foregoing, this Note shall
          be
          deemed to be a Financing Document and shall otherwise be subject to all
          of
          general terms and conditions contained in Article 14 ("Miscellaneous") of
          the Credit Agreement, mutatis
          mutandi.

         

        12.  Time
          is of
          the essence as to all dates set forth herein.

         

        13.  Borrower
          promises and agrees to pay, in addition to the principal, interest and
          other
          sums due and payable hereon, all costs of collecting or attempting to collect
          this Note, including all attorneys' fees and disbursements, as described
          in
          Article 12 of the Credit Agreement.

         

        14.  Notices
          shall be given under this Note in conformity with the terms and conditions
          of
          the Credit Agreement.

         

         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

        
          
 

        

        IN
          WITNESS WHEREOF, intending
          to be legally bound, and intending that this instrument constitute an instrument
          executed under seal, the undersigned have executed and delivered this Note
          as of
          the day and year first hereinabove set forth.

         

        
 

        
          	
                  ARC
                    SUN CITY WEST, LLC, ARC ROSWELL, LLC, ARC VEGAS, LLC, ARC TUCSON,
                    LLC, ARC
                    OVERLAND PARK, LLC, ARC MINNETONKA, LLC, ARC DENVER MONACO,
                    LLC,
                    each a Delaware limited liability company

                   

                
	By:	 
	Name:	 
	
                  Its:

                	 


        

         

         

         

        


        
          	
                  ARC
                    TANGLEWOOD, L.P., a
                    Delaware limited partnership

                   

                
	
                  By:

                   

                	
                  ARC
                    Tanglewood GP, LLC, a Delaware limited liability company, its
                    general
                    partner

                   

                
	 	By:	 
	 	Name:	 
	 	
                  Its: