Unassociated Document


    
      Exhibit
        10.93

      
 

      PROMISSORY
        NOTE

      (Terrace
        Homes)

       

      
        	
                $9,419,164.00

              	
                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 Nine Million Four Hundred Nineteen Thousand One
        Hundred Sixty-Four and No/100 Dollars ($9,419,164.00), 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.

       

      “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.

       

       

      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

       

      


      “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.

       

      “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.

       

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

         

         

      

      “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
        $9,419,164 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.

       

      “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.

       

      “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.

       

       

      
        
          
          

        

        
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      “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 4.

       

      “Regulation”
—
With
        respect to the charging and collecting of interest at the Fixed Rate, any
        United
        States federal, state or foreign laws, treaties, rules or regulations whether
        now in effect or hereafter enacted or promulgated (including Regulation D)
        or
        any interpretations, directives or requests applying to a class of depository
        institutions including Lender under any United States federal, state or foreign
        laws or regulations (whether or not having the force of law) by any court
        or
        governmental or monetary authority charged with the interpretation or
        administration thereof.

       

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

       

      “Reserve
        Requirement”
—
The
        average maximum rate at which reserves (including any marginal, supplemental
        or
        emergency reserves) are required to be maintained under Regulation D by member
        banks of the Federal Reserve System in New York City with deposits exceeding
        one
        billion U.S. Dollars against “Eurocurrency
        Liabilities”,
        as such
        quoted term is used in Regulation D. Without
        limiting the effect of the foregoing, the Reserve Requirement shall reflect
        any
        reserves required to be maintained by such member banks by reason of any
        Regulation against (a) any category of liabilities which includes deposits
        by
        reference to which the Fixed Rate is to be determined as provided in this
        Note,
        or (b) any category of extensions of credit or other assets which includes
        loans
        the interest rate on which is determined on the basis of rates referred to
        in
        the definition of “LIBOR Rate”. 

       

      “Security
        Instrument”
—
The
        Open-End Mortgage, Security Agreement and Fixture Filing of even date herewith
        more particularly described herein. 

       

      “Spread”
—
        2.75%.

       

      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. 

       

       

      
        
          
          

        

        
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      (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.

       

      (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.

       

       

      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

         

      

       

      (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.

       

      (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.

       

       

      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

         

      

       

      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 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.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:

       

       

      
        
          
          

        

        
          7

          
            

          

        

        
          
          

        

         

         

      

      (i)  written
        notice thereof isgiven
        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.

       

      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.

       

       

      
        
          
          

        

        
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      (e)  As
        used
        herein, the term “Make-Whole
        Breakage Amount”
shall
        mean an amount calculated as follows:

       

      (i)  If
        the
        Make Whole Calculation Rate is equal to or greater than the Fixed Rate then
        in
        effect with respect to the Fixed Rate Amount and related Interest Period
        in
        question, the Make-Whole Breakage Amount shall be zero with respect to such
        Fixed Rate Amount.

       

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

       

      (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.  Intentionally
        Omitted.

       

      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 

       

       

      
        
          
          

        

        
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      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 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.

       

       

      
        
          
          

        

        
          10

          
            

          

        

        
          
          

        

         

      

       

      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.

       

      12.  FORUM
        SELECTION. 
        BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF
        ANY
        STATE OR FEDERAL COURT SITTING IN DALLAS, TEXAS (OR ANY COURT OF COMPETENT
        JURISDICTION WHERE ANY PORTION OF THE PROPERTY IS LOCATED) OVER ANY SUIT,
        ACTION
        OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE OR ANY OF THE LOAN
        DOCUMENTS, AND BORROWER HEREBY AGREES AND CONSENTS THAT, IN ADDITION TO ANY
        METHODS OF SERVICE OF PROCESS PROVIDED FOR UNDER APPLICABLE LAW, ALL SERVICE
        OF
        PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY STATE OR FEDERAL COURT
        SITTING IN DALLAS, TEXAS (OR ANY COURT OF COMPETENT JURISDICTION WHERE ANY
        PORTION OF THE PROPERTY IS LOCATED) MAY BE MADE BY CERTIFIED OR REGISTERED
        MAIL,
        RETURN RECEIPT REQUESTED, DIRECTED TO BORROWER AT THE ADDRESS OF BORROWER
        FOR
        THE GIVING OF NOTICES UNDER THE SECURITY INSTRUMENT, AND SERVICE SO MADE
        SHALL
        BE COMPLETE 5 DAYS AFTER THE SAME SHALL HAVE BEEN SO
        MAILED.

       

      13.  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.

       

       

      
        
          
          

        

        
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      14.  Time
        of the Essence.
        Time
        is of
        the essence of each obligation of Borrower hereunder.

       

      


       

      REMAINDER
        OF PAGE INTENTIONALLY BLANK

      SIGNATURE
        PAGE FOLLOWS

       

      


       

       

       

       

       

       

       

       

       

       

       

      
        
          
          

        

        
          12

          
            

          

        

        
          
          

        

         

         

      

      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

                
	 
	 
	
                   

                	
                  
                    By:

                  

                	 
	 	 	Name:
                  	 
	
                   

                	 	Title: