COLLECTS OR APPLIES AS INTEREST, ANY SUM IN
EXCESS OF THE MAXIMUM RATE, IF ANY, SUCH EXCESS AMOUNT SHALL BE APPLIED TO THE
REDUCTION OF THE UNPAID PRINCIPAL BALANCE OF THIS NOTE, AND IF THIS NOTE IS PAID
IN FULL, ANY REMAINING EXCESS SHALL BE PAID TO MAKER.
IN DETERMINING WHETHER OR
NOT THE INTEREST PAID OR PAYABLE, UNDER ANY SPECIFIC CONTINGENCY, EXCEEDS THE
MAXIMUM RATE, IF ANY, MAKER AND PAYEE OR ANY HOLDER HEREOF SHALL, TO THE MAXIMUM
EXTENT PERMITTED UNDER APPLICABLE LAW: (A) CHARACTERIZE ANY NON-PRINCIPAL
PAYMENT AS AN EXPENSE OR FEE RATHER THAN AS INTEREST, (B) EXCLUDE VOLUNTARY
PREPAYMENTS AND THE EFFECTS THEREOF, (C) "SPREAD" THE TOTAL AMOUNT OF INTEREST
THROUGHOUT THE ENTIRE TERM OF THIS NOTE; PROVIDED THAT IF THIS NOTE IS PAID AND
PERFORMED IN FULL PRIOR TO THE END OF THE FULL CONTEMPLATED TERM HEREOF, AND IF
THE INTEREST RECEIVED FOR THE ACTUAL PERIOD OF EXISTENCE THEREOF EXCEEDS THE
MAXIMUM RATE, IF ANY,
9
PAYEE OR ANY HOLDER HEREOF SHALL REFUND TO MAKER THE AMOUNT OF SUCH EXCESS, OR
CREDIT THE AMOUNT OF SUCH EXCESS AGAINST THE AGGREGATE UNPAID PRINCIPAL BALANCE
OF ALL ADVANCES MADE BY THE PAYEE OR ANY HOLDER HEREOF UNDER THIS NOTE AT THE
TIME IN QUESTION.
17.
CHOICE OF LAW.
THIS NOTE IS BEING EXECUTED AND DELIVERED, AND IS
INTENDED TO BE PERFORMED IN THE STATE OF TEXAS.
EXCEPT TO THE EXTENT THAT THE
LAWS OF THE UNITED STATES MAY APPLY TO THE TERMS HEREOF, THE SUBSTANTIVE LAWS OF
THE STATE OF TEXAS SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND
INTERPRETATION OF THIS NOTE. IN THE EVENT OF A DISPUTE INVOLVING THIS NOTE OR
ANY OTHER INSTRUMENTS EXECUTED IN CONNECTION HEREWITH, THE UNDERSIGNED
IRREVOCABLY AGREES THAT VENUE FOR SUCH DISPUTE SHALL LIE IN ANY COURT OF
COMPETENT JURISDICTION IN DALLAS COUNTY, TEXAS TO THE EXTENT SUCH DISPUTE IS NOT
RESOLVED BY BINDING ARBITRATION PURSUANT TO THE PAYEE'S CURRENT ARBITRATION
PROGRAM DESCRIBED IN SECTION 19 BELOW.
18.
LOAN AGREEMENT.
THIS NOTE IS EXECUTED IN CONNECTION WITH THE LOAN
AGREEMENT AND THE HOLDER HEREOF IS ENTITLED TO ALL THE BENEFITS PROVIDED THEREIN
AND IN THE OTHER AGREEMENTS, DOCUMENTS, INSTRUMENTS AND CERTIFICATES ENTERED
INTO IN CONNECTION WITH THE LOAN AGREEMENT.
19.
AGREEMENT FOR BINDING ARBITRATION.
THE PARTIES AGREE TO BE BOUND
BY THE TERMS AND PROVISIONS OF THE PAYEE'S CURRENT ARBITRATION PROGRAM WHICH IS
INCORPORATED BY REFERENCE HEREIN AND IS ACKNOWLEDGED AS RECEIVED BY THE PARTIES
PURSUANT TO WHICH ANY AND ALL DISPUTES SHALL BE RESOLVED BY MANDATORY BINDING
ARBITRATION UPON THE REQUEST OF ANY PARTY.
20.
AMENDMENT AND RESTATEMENT.
THIS NOTE INCREASES, AMENDS, MODIFIES
AND RESTATES, BUT DOES NOT EXTINGUISH THE INDEBTEDNESS EVIDENCED BY, THAT
CERTAIN AMENDED AND RESTATED REVOLVING LINE OF CREDIT NOTE DATED SEPTEMBER 22,
2005, IN THE STATED PRINCIPAL AMOUNT OF $100,000,000, EXECUTED BY MAKER AND
PAYABLE TO THE ORDER OF PAYEE AND THAT CERTAIN REVOLVING LINE OF CREDIT NOTE
DATED SEPTEMBER 23, 2004, IN THE STATED PRINCIPAL AMOUNT OF $50,000,000,
EXECUTED BY MAKER AND PAYABLE TO THE