Exhibit 10.22


 


DEED OF
TRUST NOTE


 


	
  $105,770,000

  	
  June 15, 2005

  



 


FOR VALUE RECEIVED, RPT 1425 NEW YORK AVENUE LLC, a Delaware limited liability company having
its principal place of business at c/o Republic Properties Corporation, 1280
Maryland Avenue, SW, Suite 280, Washington D.C. 20024 (hereinafter
referred to as “Borrower”), promises
to pay to the order of ARCHON FINANCIAL,
L.P., a Delaware limited partnership, at its principal place of
business at 600 East Las Colinas Boulevard, Suite 450, Irving, Texas 75039
(together with all successors and assigns hereinafter referred to as “Lender”), or at such place as the holder
hereof may from time to time designate in writing, the principal sum of One Hundred Five Million Seven Hundred Seventy
Thousand and No/100 Dollars ($105,770,000),
in lawful money of the United States of America, with interest thereon to be
computed on the unpaid principal balance from time to time outstanding as
hereinafter provided, to be paid in installments as provided herein, together
with all other amounts payable to Lender under the Loan Documents with respect
to the Loan as provided therein. This Note is evidence of that certain loan
made by Lender to Borrower contemporaneously herewith (the “Loan”).
The provisions of this Note shall be subject to the provisions of the Deed of
Trust, the provisions of which are incorporated herein by this reference as if
fully set forth herein. Capitalized terms used but not otherwise defined herein
have the meaning ascribed thereto in Paragraph 45 of the Deed of Trust.


 


1.                                  Payment Terms.  A
payment of interest only for the period from and including the first date on
which principal is advanced to Borrower on this Note to and including July 5,
2005 will be reserved and paid to Lender on the first date on which principal
is advanced to Borrower on this Note. Commencing with Payment Date in August,
2005, and on each and every Payment Date thereafter, Borrower shall pay to
Lender interest on the outstanding principal balance of this Note for the
Interest Accrual Period ending immediately prior to such Payment Date at a rate
of five and fifteen one-hundredths percent (5.15%) per annum (the “Interest Rate”). Interest accruing for the first Interest Accrual Period will be
reserved and paid to Lender on the first date on which principal is advanced to
Borrower on this Note. Interest payable hereunder shall be computed on the
basis of a 360-day year and the actual number of days elapsed. All payments
made by Borrower hereunder or under the other Loan Documents shall be made
irrespective of, and without any deduction for, any setoffs or counterclaims. THIS IS A BALLOON NOTE REQUIRING NO SCHEDULED
INSTALLMENT PAYMENTS OF PRINCIPAL.


 


Except as otherwise
specifically provided in this Note, all payments and prepayments shall be made
to Lender not later than 11:00 a.m., New York City time, on the date when
due and shall be made by wire transfer in federal or other immediately
available funds to the account specified from time to time by Lender. Any funds
received by Lender after such time shall be deemed to have been paid on the
next succeeding Business Day. Lender shall notify Borrower in writing of any
changes in the account to which payments are to be made. If the amount received
from Borrower (or from the Cash Management Bank) is less than the sum of all
amounts then due and payable hereunder, such amount shall be applied, at Lender’s
sole discretion, toward the components of the Debt (e.g., interest,
principal and other amounts payable hereunder), the Loan and the Note Components
in such sequence as Lender shall elect in its sole


 


Archon Financial, L.P.


Deed of Trust Note


1425 New York Avenue,
Washington DC


 


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discretion, or toward such
other obligations of Borrower under the Loan Documents, and in such sequence,
as Lender shall determine in its sole discretion.


 


2.                                     Term.  This Note shall mature on the Maturity Date.


 


3.                                     Security.  This Note is secured by (a) a Deed of Trust, Assignment of Rents,
Security Agreement and Fixture Filing of even date herewith in the amount of
this Note given by Borrower for the use and benefit of Lender covering the fee
estate of Borrower in certain premises as more particularly described therein
(the “Deed of Trust”), (b) an Assignment of Leases
and Rents of even date herewith executed by Borrower in favor of Lender (the “Assignment of Leases”), and (c) the
other Loan Documents (as hereinafter defined). The term “Loan Documents” as used in this Note means
collectively this Note, the Deed of Trust, the Assignment of Leases and any and
all other documents securing, evidencing, or guaranteeing all or any portion of
the Loan or otherwise executed and/or delivered in connection with this Note
and the Loan, as the same may be extended, renewed, substituted, replaced, amended,
modified and/or restated. Any term used but not defined in this Note shall have
the meaning ascribed to it in the Deed of Trust or other Loan Document in which
its definition is set forth.


 


4.                                     Late Charge.  Any payments of interest and principal not paid when due hereunder
shall, when paid, be accompanied by a late fee in an amount equal to the lesser
of five percent (5%) of such unpaid sum or the maximum amount permitted by
applicable law. Borrower acknowledges that (i) a delinquent payment will
cause damage to Lender; (ii) the late fee is intended to compensate Lender
for the loss of use of the delinquent payment and the expense incurred and time
and effort associated with recovering the delinquent payment; (iii) it
will be extremely difficult and inpractical to ascertain the extent of Lender’s
damages caused by the delinquency; and (iv) the late fee represents Lender’s
and Borrower’s reasonable estimate of Lender’s damages from the delinquency and
is not a penalty.


 


5.                                     Default and Acceleration.  The whole of the principal sum of this Note, together with all interest
accrued and unpaid thereon and all other sums (including, without limitation,
any Yield Maintenance Premium and all other amounts, sums and expenses
reimbursable by Borrower to Lender) due under the Loan Documents in respect of
this Note (all such amounts, sums and reimbursable expenses hereinafter
collectively referred to as the “Debt”), or any
portion thereof, shall without notice become immediately due and payable at the
option of Lender if any payment required in this Note is not paid on the date
on which it is due or upon the happening of any other Event of Default. If in
Lender’s reasonable judgment it should become necessary to collect or enforce
the Debt or to protect or foreclose the security therefor or to defend against
any claims asserted by Borrower arising from or related to the Loan Documents,
Borrower also shall pay on demand all such costs incurred by Lender, including
reasonable attorneys’ fees and costs incurred for the services of counsel.


 


6.                                     Default Interest.  Any payments of interest and principal not paid when due hereunder shall
bear interest at the applicable Default Rate. Borrower agrees that upon the
occurrence and during the continuance of an Event of Default (including upon
the failure of Borrower to pay the Debt in full on the Maturity Date), Lender
shall be entitled to receive and Borrower shall pay interest on the entire
unpaid principal sum and any other amounts due at the Default Rate. The Default
Rate shall be computed from the occurrence of the Event of Default until the
date Borrower cures the Event of Default. This charge shall be added to the
Debt and shall be secured by the Deed of Trust. This paragraph, however, shall
not be construed as an agreement or privilege to extend the date of the payment
of the Debt, nor as a waiver of any other right or remedy accruing to Lender by
reason of the occurrence of any Event of Default.


 


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7.                                   Prepayment.  This Note may not be prepaid except in accordance with the terms, provisions
and conditions of the Deed of Trust. Notwithstanding the foregoing sentence,
Borrower shall have the privilege to prepay the entire amount of the
outstanding Debt on the Payment Date in any of the three (3) calendar
months preceding the month in which the scheduled Maturity Date occurs without Defeasance
or the payment of the Yield Maintenance Premium or any other premium or
penalty. If any such prepayment of the entire amount of the outstanding Debt is
made during any of the three (3) calendar months preceding the month in
which the scheduled Maturity Date occurs but other than on a Payment Date, such
prepayment shall include such additional amount as is necessary to pay interest
to, but excluding, the Payment Date following the date of prepayment.
Notwithstanding the foregoing, if all or any portion of the outstanding
principal balance is paid to Beneficiary following acceleration of the Loan other
than during any of the three (3) calendar months preceding the month in
which the scheduled Maturity Date occurs, Trustor shall pay to Beneficiary an
amount equal to the applicable Yield Maintenance Premium. Trustor acknowledges
that (i) a prepayment will cause damage to Beneficiary; (ii) it will
be extremely difficult and impractical to ascertain the extent of Beneficiary’s
damages caused by a prepayment after an acceleration or any other prepayment
not permitted by the Loan Documents; and (iii) the Yield Maintenance
Premium represents Beneficiary’s and Trustor’s reasonable estimate of Beneficiary’s
damages from the prepayment and is not a penally.


 


8.                                   Savings Clause.  It is expressly stipulated and agreed to be the intent of Borrower and
Lender at all times to comply with applicable state law or applicable United
States federal law (to the extent that United States federal law permits Lender
to contract for, charge, take, reserve, or receive a greater amount of interest
than under state law) and that this paragraph shall control every other
covenant and agreement in this Note and the other Loan Documents. If the
applicable law (state or federal) is ever judicially interpreted so as to
render usurious any amount called for under this Note or under any of the other
Loan Documents, or contracted for, charged, taken, reserved, or received with
respect to the Debt, or if Lender’s exercise of the option to accelerate the
Maturity Date, or if any prepayment by Borrower or the exercise of any
defeasance results in Borrower having paid any interest in excess of that
permitted by applicable law, then it is Lender’s express intent that all excess
amounts theretofore collected by Lender shall be credited on the principal
balance of this Note and all other Debt and the provisions of this Note and the
other Loan Documents immediately be deemed reformed and the amounts thereafter
collectible hereunder and thereunder reduced, without the necessity of the
execution of any new documents, so as to comply with the applicable law, but so
as to permit the recovery of the fullest amount otherwise called for hereunder
or thereunder. All sums paid or agreed to be paid to Lender for the use,
forbearance, or detention of the Debt shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
full stated term of the Debt until payment in full so that the rate or amount
of interest on account of the Debt does not exceed the maximum lawful rate from
time to time in effect and applicable to the Debt for so long as the Debt is
outstanding. Notwithstanding anything to the contrary contained herein or in
any of the other Loan Documents, it is not the intention of Lender to
accelerate the maturity of any interest that has not accrued at the time of
such acceleration or to collect unearned interest at the time of such
acceleration.


 


9.                                   No Oral Change; Successors
and Assigns; Liability.  This Note may not be modified, amended,
waived, extended, changed, discharged or terminated orally or by any act or
failure to act on the part of Borrower or Lender, but only by an agreement in
writing signed by the party against whom enforcement of any modification,
amendment, waiver, extension, change, discharge or termination is sought.
Whenever used, the singular number shall include the plural, the plural the
singular, and the


 


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words “Lender” and “Borrower” shall include their respective successors, assigns,
heirs, executors and administrators. If Borrower consists of more than one
person or party, the obligations and liabilities of each such person or party
shall be joint and several.


 


10.                              Waivers.  Except as specifically provided in the Loan Documents, Borrower and any
endorsers, sureties or guarantors hereof jointly and severally waive presentment
and demand for payment, notice of intent to accelerate maturity, notice of
acceleration of maturity, protest and notice of protest and non-payment, all
applicable exemption rights, valuation and appraisement, notice of demand, and
all other notices in connection with the delivery, acceptance, performance,
default or enforcement of the payment of this Note and the bringing of suit and
diligence in taking any action to collect any sums owing hereunder or in
proceeding against any of the rights and collateral securing payment hereof.
Borrower and any surety, endorser or guarantor hereof agree (i) that the
time for any payments hereunder may be extended from time to time without
notice and consent, (ii) to the acceptance by Lender of further collateral,
(iii) the release by Lender of any existing collateral for the payment of
this Note, (iv) to any and all renewals, waivers or modifications that may
be granted by Lender with respect to the payment or other provisions of this
Note, and/or (v) that additional Borrowers, endorsers, guarantors or
sureties may become parties hereto all without notice to them and without in
any manner affecting their liability under or with respect to this Note. No
extension of time for the payment of this Note or any installment hereof shall
affect the liability of Borrower under this Note or any endorser or guarantor
hereof even though the Borrower or such endorser or guarantor is not a party to
such agreement. Failure of Lender to exercise any of the options granted herein
to Lender upon the happening of one or more of the events giving rise to such
options shall not constitute a waiver of the right to exercise the same or any
other option at any subsequent time in respect to the same or any other event.
The acceptance by Lender of any payment hereunder that is less than payment in
full of all amounts due and payable at the time of such payment shall not
constitute a waiver of the right to exercise any of the options granted herein
to Lender at that time or at any subsequent time or nulllify any prior exercise
of any such option without the express written acknowledgment of the Lender.


 


11.                              Authority.  Borrower (and the undersigned representative of Borrower, if any)
represents that Borrower has full power, authority and legal right to execute,
deliver and perform its obligations pursuant to this Note, the Deed of Trust
and the other Loan Documents and that this Note, the Deed of Trust and the
other Loan Documents constitute valid and binding obligations of Borrower.


 


12.                              Notices.  All
notices or other communications required or permitted to be given pursuant hereto
shall be given in the manner specified in the Deed of Trust directed to the
parties at their respective addresses as provided therein.


 


13.                              Exculpation.  The obligations of Maker under this Note shall be limited by the terms,
provisions and conditions of Paragraph 50 of the Deed of Trust, the provisions
of which are incorporated herein by this reference as if fully set forth
herein.


 


14.                              WAIVER OF JURY TRIAL.  BORROWER AND, BY ACCEPTING THIS NOTE, LENDER
HEREBY EACH AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT
BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY
SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR
ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS
WAIVER OF RIGHT TO TRIAL


 


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BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY BORROWER AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY
EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD
OTHERWISE ACCRUE. EACH OF LENDER AND BORROWER IS HEREBY AUTHORIZED TO FILE A
COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER
BY BORROWER.


 


15.                            Transfer.  Other
than as expressly set forth in the Deed of Trust, this Note may not be assigned
in whole or in part by Borrower. Lender shall have the right from time to time
at its discretion to make an assignment or sell a participation subject to and
in accordance with the terms set forth in the Deed of Trust. Lender’s
obligations in connection with any such assignment or participation shall be as
set forth in the Loan Documents.


 


16.                            APPLICABLE LAW; JURISDICTION AND
VENUE.  THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE LAND (AS DEFINED IN THE
DEED OF TRUST) IS LOCATED AND THE APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA WITHOUT REFERENCE OR GIVING EFFECT TO ANY CHOICE OF LAW DOCTRINE. BORROWER
AND LENDER, TO THE FULL EXTENT PERMITTED BY LAW, EACH HEREBY KNOWINGLY, INTENTIONALLY
AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, (A) SUBMITS
TO PERSONAL JURISDICTION IN THE STATE WHERE THE LAND IS LOCATED OVER ANY SUIT,
ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS NOTE, (B) AGREES
THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN EITHER THE CITY OR THE
COUNTY WHERE THE LAND IS LOCATED, (C) SUBMITS TO THE JURISDICTION OF SUCH
COURTS, AND (D) TO THE FULLEST EXTENT PERMITTED BY LAW, AGREES THAT IT
WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM AND BORROWER AND
LENDER EACH FURTHER CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY REGISTERED OR
CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO BORROWER OR LENDER, AS THE CASE MAY BE,
AT THE ADDRESS FOR NOTICES DESCRIBED ON THE FIRST PAGE HEREOF, AND CONSENTS AND
AGREES THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT
NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN
ANY OTHER MANNER PERMITTED BY LAW).


 


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Signature page(s) follow


 


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Borrower has duly executed
this Note to be effective as of the date first above written.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  RPT 1425 NEW YORK AVENUE
  LLC

  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark Keller

  	
   

  
	
   

  	
   

  	
  Mark Keller

  
	
   

  	
   

  	
  President

  



 


 


Signature Page to
Deed of Trust Note