RECEIVES, 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
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INTEREST RECEIVED FOR THE ACTUAL PERIOD OF EXISTENCE THEREOF EXCEEDS THE MAXIMUM
RATE, IF ANY, 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 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 ORDER OF PAYEE.
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IN WITNESS WHEREOF, Maker has caused this Note to be duly executed and delivered
in Dallas, Texas, as of