Exhibit 10.16


 


Loan No. V_30495


 


 


FIXED RATE NOTE


 


	
  $21,500,000.00

  	
   

  	
  September 23, 2002

  



 


FOR VALUE RECEIVED, RKB PENDER LLC, a Delaware limited
liability company, (hereinafter referred to as “Borrower”),
promises to pay to the order of JPMORGAN CHASE BANK, a New York banking
corporation, its successors and assigns (hereinafter referred to as “Lender”), at the office of Lender or its agent, designee, or
assignee at 270 Park Avenue, New York, New York 10017, Attention: Loan
Servicing, or at such place as Lender or its agent, designee, or assignee may
from time to time designate in writing, the principal sum of TWENTY-ONE MILLION,
FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($21,500,000.00), 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 at the Applicable
Interest Rate (hereinafter defined) at all times prior to the occurrence of an
Event of Default (as defined in the Security Instrument [hereinafter defined]),
and to be paid in installments as set forth below. Unless otherwise herein
defined, all initially capitalized terms shall have the meanings given such
terms in the Security Instrument.


 


1.     PAYMENT TERMS


 


Principal and interest due under this Note shall be
paid as follows:


 


(a)           A
payment of interest only on the date hereof for the period from the date hereof
through September 30, 2002, both inclusive; and


 


(b)           A
constant payment of $126,151.90, on the first day of November, 2002 and on the
first day of each calendar month thereafter up to and including the first day
of September, 2009;


 


with payments under this Note to be applied as follows:


 


(i)            First,
to the payment of interest and other costs and charges due in connection with
this Note or the Debt, as Lender may determine in its sole discretion; and


 


(ii)           The
balance shall be applied toward the reduction of the principal sum;


 


and the balance of said principal sum, together with accrued and unpaid
interest and any other amounts due under this Note shall be due and payable on
the first day of October, 2009 or upon earlier maturity hereof whether by
acceleration or otherwise (the “Maturity Date”).
Interest on the principal sum of this Note shall be calculated on the basis of
a three hundred sixty (360) day year and paid for the actual number of days
elapsed. All amounts due under this Note shall be payable without setoff,
counterclaim or any other deduction whatsoever.


 


 


 





















 


2.     INTEREST


 


The term “Applicable Interest Rate”
means from the date of this Note through and including the Maturity Date, a
rate of FIVE AND EIGHTY HUNDREDTHS percent (5.80%) per annum.


 


3.     SECURITY


 


This Note is secured by, and Lender is entitled to the
benefits of, the Security Instrument, the Assignment, the Environmental
Indemnity, and the other Loan Documents (hereinafter defined). The term “Security Instrument” means the Deed of Trust and Security
Agreement dated the date hereof given by Borrower for the use and benefit of
Lender covering the estate of Borrower in certain premises as more particularly
described therein (which premises, together with all properties, rights,
titles, estates and interests now or hereafter securing the Debt and/or other
obligations of Borrower under the Loan Documents, are collectively referred to
herein as the “Property”). The term “Assignment” means the Assignment of Leases and Rents of even
date herewith executed by Borrower in favor of Lender. The term "Environmental Indemnity" means the Environmental Indemnity
Agreement of even date herewith executed by Borrower in favor of Lender. The
term "Loan Documents" refers
collectively to this Note, the Security Instrument, the Assignment, the Indemnity,
and any and all other documents executed in connection with this Note or now or
hereafter executed by Borrower and/or others and by or in favor of Lender,
which wholly or partially secure or guarantee payment of this Note or pertains
to indebtedness evidenced by this Note.


 


4.     LATE FEE


 


If any installment payable under this Note (including
the final installment due on the Maturity Date) is not received by Lender prior
to the seventh (7th) calendar day after the same is due (without regard to any
applicable cure and/or notice period), Borrower shall pay to Lender upon demand
an amount equal to the lesser of (a) five percent (5%) of such unpaid sum or
(b) the maximum amount permitted by applicable law to defray the expenses
incurred by Lender in handling and processing such delinquent payment and to
compensate Lender for the loss of the use of such delinquent payment, and such
amount shall be secured by the Loan Documents.


 


5.     DEFAULT AND ACCELERATION


 


So long as an Event of Default exists, Lender may, at
its option, without notice or demand to Borrower, declare the Debt immediately
due and payable. All remedies hereunder, under the Loan Documents and at law or
in equity shall be cumulative. In the event that it should become necessary to
employ counsel to collect the Debt or to protect or foreclose the security for
the Debt or to defend against any claims asserted by Borrower arising from or
related to the Loan Documents, Borrower also agrees to pay to Lender on demand
all costs of collection or defense incurred by Lender, including reasonable
attorneys’ fees for the services of counsel whether or not suit be brought.


 


 


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6.     DEFAULT INTEREST


 


Upon the occurrence of an Event of Default Borrower
shall pay interest on the entire unpaid principal sum and any other amounts due
under the Loan Documents at the rate equal to the lesser of (a) the maximum
rate permitted by applicable law, or (b) the greater of (i) five percent (5%)
above the Applicable Interest Rate or (ii) five percent (5%) above the Prime
Rate (hereinafter defined), in effect at the time of the occurrence of the Event
of Default (the “Default Rate”). The term “Prime Rate” means the prime rate reported in the Money Rates
section of The Wall Street Journal. In the event
that The Wall Street Journal should cease or
temporarily interrupt publication, the term “Prime Rate”
shall mean the daily average prime rate published in another business
newspaper, or business section of a newspaper, of national standing and general
circulation chosen by Lender. In the event that a prime rate is no longer
generally published or is limited, regulated or administered by a governmental
or quasi-governmental body, then Lender shall select a comparable interest rate
index which is readily available and verifiable to Borrower but is beyond
Lender’s control. The Default Rate shall be computed from the occurrence of the
Event of Default until the actual receipt and collection of a sum of money
determined by Lender to be sufficient to cure the Event of Default. Amounts of
interest accrued at the Default Rate shall constitute a portion of the Debt,
and shall be deemed secured by the Loan Documents. This clause, 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.


 


7.     PREPAYMENT


 


(a)           The
principal balance of this Note may not be prepaid in whole or in part (except with
respect to the application of casualty or condemnation proceeds) prior to the
Maturity Date. If following the occurrence of any Event of Default, Borrower
shall tender payment to Lender or Lender shall receive proceeds (whether
through foreclosure or the exercise of the other remedies available to Lender
under the Security Instrument or the other Loan Documents), Borrower shall pay
in addition to interest accrued and unpaid on the principal balance of this
Note and all other sums then due under this Note and the other Loan Documents a
prepayment consideration in an amount equal to the greater of (A) one percent
(1%) of the outstanding principal balance of this Note at the time such payment
or proceeds are received, or (B) (x) the present value as of the date such
payment or proceeds are received of the remaining scheduled payments of
principal and interest from the date such payment or proceeds are received
through the Maturity Date (including any balloon payment) determined by
discounting such payments at the Discount Rate (as hereinafter defined), less
(y) the amount of the payment or proceeds received. The term “Discount Rate” means the rate which, when compounded
monthly, is equivalent to the Treasury Rate (as hereinafter defined), when
compounded semi-annually. The term “Treasury Rate”
means the yield calculated by the linear interpolation of the yields, as
reported in Federal Reserve Statistical Release H.15-Selected Interest Rates
under the heading “U.S. Government Securities/Treasury Constant Maturities” for
the week ending prior to the date the payment of such proceeds are received, of
U.S. Treasury constant maturities with maturity dates (one longer and one
shorter) most nearly approximating the Maturity Date. (In the event Release
H.15 is no longer published, Lender shall select a comparable publication to
determine the Treasury Rate.) Lender shall notify Borrower of the amount and
the basis of determination of the required prepayment consideration, which
shall be conclusive except in the case of manifest error.


 


 


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Notwithstanding the foregoing, Borrower shall have the additional
privilege to prepay the entire principal balance of this Note (together with
any other sums constituting the Debt) on any scheduled payment date occurring
on or after that date which is three (3) months preceding the Maturity Date
without any fee or consideration for such privilege.


 


(b)           If
the prepayment results from the application to the Debt of the casualty or
condemnation proceeds from the Property, no prepayment consideration will be
imposed. Partial prepayments of principal resulting from the application of
casualty or condemnation proceeds to the Debt shall not change the amounts of
subsequent monthly installments nor change the dates on which such installments
are due, unless Lender shall otherwise agree in writing.


 


(c)           (i)            Notwithstanding any provision of
this Section 7 to the contrary, at any time after the earlier of (1) the date
which is two (2) years after the “startup day,” within the meaning of Section
860G(a)(9) of the Internal Revenue Code of 1986, as amended from time to time
or any successor statute (the “Code”), of a “real estate mortgage
investment conduit,” within the meaning of Section 860D of the Code, that holds
this Note, and (2) a regularly scheduled payment date on or after that date
which is four (4) years after the date of the first monthly payment due under
Section 1(b), Borrower may cause the release of the Property (in whole but not
in part) from the lien of the Security Instrument and the other Loan Documents
upon the satisfaction of the following conditions precedent:


 


(A)          not less than thirty (30) days prior
written notice to Lender specifying a regularly scheduled payment date (the “Release
Date”) on which the Defeasance Deposit (hereinafter defined) is to be made;


 


(B)           the payment to Lender of interest accrued
and unpaid on the principal balance of this Note to and including the Release
Date;


 


(C)           the payment to Lender of all other
sums, not including scheduled interest or principal payments, due under this
Note, the Security Instrument and the other Loan Documents;


 


(D)          the payment to Lender of the
Defeasance Deposit; and


 


(E)           the delivery to Lender of:


 


(1)           a security agreement, in form and
substance satisfactory to Lender, creating a first priority lien on the Defeasance
Deposit and the U.S. Obligations (hereinafter defined) purchased on behalf of
Borrower with the Defeasance Deposit in accordance with this subparagraph (the “Security
Agreement”);


 


(2)           a release of the Property from the
lien of the Security Instrument (for execution by Lender) in a form appropriate
for the jurisdiction in which the Property is located;


 


(3)           an officer’s certificate of Borrower
certifying that the requirements set forth in this subparagraph (i) have been
satisfied;


 


 


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(4)           an opinion of counsel for Borrower in
form satisfactory to Lender stating, among other things, that defeasance of
this Note, in and of itself, will not cause any adverse consequences to any
REMIC holding the Loan or the holders of any securities issued by the REMIC or
result in a taxation of the income from the Loan to such REMIC or cause a loss
of REMIC status, and that Lender has a perfected first priority security
interest in the Defeasance Deposit and the U.S. Obligations purchased by Lender
on behalf of Borrower;


 


(5)           an opinion of a certified public
accountant acceptable to Lender to the effect that the Defeasance Deposit is
adequate to provide payment on or prior to, but as close as possible to, all
successive scheduled payment dates after the Release Date upon which interest
and principal payments are required under this Note (including the amounts due
on the Maturity Date) and in amounts equal to the scheduled payments due on
such dates under this Note;


 


(6)           evidence in writing from the
applicable Rating Agencies to the effect that such release will not result in a
re-qualification, reduction or withdrawal of any rating in effect immediately
prior to such defeasance for any Securities;


 


(7)           payment of all Lender’s expenses
incurred in connection with the defeasance including, without limitation,
reasonable attorneys fees; and


 


(8)           such other certificates, documents or
instruments as Lender may reasonably request.


 


In connection with the conditions set forth in
subsection (c)(i)(E) above, Borrower hereby appoints Lender as its agent and
attorney-in-fact for the purpose of using the Defeasance Deposit to purchase
U.S. Obligations which provide payment on or prior to, but as close as possible
to, all successive scheduled payment dates after the Release Date upon which
interest and principal payments are required under this Note (including the
amounts due on the Maturity Date) and in amounts equal to the scheduled
payments due on such dates under this Note (the “Scheduled Defeasance
Payments”). Borrower, pursuant to the Security Agreement or other
appropriate document, shall authorize and direct that the payments received
from the U.S. Obligations may be made directly to Lender and applied to satisfy
the obligations of the Borrower under this Note.


 


(ii)           Upon
compliance with the requirements of this subsection (c), the Property shall be
released from the lien of the Security Instrument and the pledged U.S.
Obligations shall be the sole source of collateral securing this Note. Any
portion of the Defeasance Deposit in excess of the amount necessary to purchase
the U.S. Obligations required by subparagraph (c)(i) above and satisfy the
Borrower’s obligations under this subsection (c) shall be remitted to the
Borrower with the release of the Property from the lien of the Security
Instrument.


 


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(iii)          For purposes of this subsection (c),
the following terms shall have the following meanings:


 


(A)          The term “Defeasance Deposit” shall
mean an amount equal to 100% of the remaining principal amount of this Note,
the Yield Maintenance Premium, any costs and expenses incurred or to be
incurred in the purchase of the U.S. Obligations necessary to meet the
Scheduled Defeasance Payments and any revenue, documentary stamp or intangible
taxes or any other tax or charge due in connection with the transfer of this
Note or otherwise required to accomplish the agreements of this subsection;


 


(B)           The term “Yield Maintenance Premium”
shall mean the amount (if any) which, when added to the remaining principal
amount of this Note, will be sufficient to purchase U.S. Obligations providing
the required Scheduled Defeasance Payments; and


 


(C)           The term “U.S. Obligations” shall
mean direct non-callable obligations of the United States of America.


 


(iv)          Upon
the release of the Property in accordance with this subsection (c), Borrower
shall, at Lender’s request, assign all its obligations and rights under this
Note, together with the pledged Defeasance Deposit, to a successor special
purpose entity designated by Borrower and approved by Lender in its sole
discretion. Such successor entity shall execute an assumption agreement in form
and substance satisfactory to Lender in its sole discretion pursuant to which
it shall assume Borrower’s obligations under this Note and the Security
Agreement. In connection with such assignment and assumption, Borrower shall
(x) deliver to Lender an opinion of counsel in form and substance and delivered
by counsel satisfactory to Lender in its sole discretion stating, among other
things, that such assumption agreement is enforceable against Borrower and such
successor entity in accordance with its terms and that this Note, the Security
Agreement and the other Loan Documents, as so assumed, are enforceable against
such successor entity in accordance with their respective terms, and (y) pay
all costs and expenses incurred by Lender or its agents in connection with such
assignment and assumption (including, without limitation, the review of the
proposed transferee and the preparation of the assumption agreement and related
documentation). In connection with such assignment and assumption, Borrower and
any Guarantor may be released of personal liability under the Note and the
other Loan Documents, but only as to acts or events occurring after the closing
of such assignment and assumption.


 


(v)           Upon
the release of the Property in accordance with this subsection (c), Borrower
shall have no further right to prepay this Note pursuant to the other
provisions of this Section 7 or otherwise.


 


8.     SAVINGS CLAUSE


 


This Note is subject to the express condition that at
no time shall Borrower be obligated or required to pay interest on the
principal balance due hereunder at a rate which could subject Lender to either
civil or criminal liability as a result of being in excess of the maximum
interest


 


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rate which Borrower is permitted by applicable law to contract or agree
to pay. If by the terms of this Note, Borrower is at any time required or obligated
to pay interest on the principal balance due hereunder at a rate in excess of
such maximum rate, the Applicable Interest Rate or the Default Rate, as the
case may be, shall be deemed to be immediately reduced to such maximum rate and
all previous payments in excess of the maximum rate shall be deemed to have
been payments in reduction of principal and not on account of the interest due
hereunder. 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 this Note until payment in full so that the rate or amount
of interest on account of the Debt does not exceed the maximum lawful rate of
interest 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.     WAIVERS


 


(a)           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 matter 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.


 


(b)           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 nullify any prior exercise of any such
option without the express written acknowledgment of the Lender.


 


 


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10.  EXCULPATION


 


(a)           Notwithstanding
anything in the Loan Documents to the contrary, but subject to the
qualifications below, Lender and Borrower agree that:


 


(i)            Borrower
shall be liable upon the Debt and for the other obligations arising under the
Loan Documents to the full extent (but only to the extent) of the security
therefor; provided, however, that in the event the Property or
any part thereof becomes an asset in a voluntary bankruptcy or insolvency
proceeding, the limitation on recourse set forth in this Subsection 10(a)
will be null and void and completely inapplicable, and this Note shall be with
full recourse to Borrower.


 


(ii)           If
a default occurs in the timely and proper payment of all or any part of the
Debt, Lender shall not enforce the liability and obligation of Borrower to perform
and observe the obligations contained in this Note or the Security Instrument
by any action or proceeding wherein a money judgment shall be sought against
Borrower, except that Lender may bring a foreclosure action, action for
specific performance or other appropriate action or proceeding to enable Lender
to enforce and realize upon the Security Instrument, the Other Loan Documents
and the interest in the Property, the Rents and any other collateral given to
Lender created by the Security Instrument and the Other Loan Documents; provided,
however, that any judgment in any action or proceeding shall be
enforceable against Borrower only to the extent of Borrower’s interest in the
Property, in the Rents and in any other collateral given to Lender. Lender, by
accepting this Note and the Security Instrument, agrees that it shall not,
except as otherwise herein provided, sue for, seek or demand any deficiency
judgment against Borrower in any action or proceeding, under or by reason of or
under or in connection with this Note, the Other Loan Documents or the Security
Instrument.


 


(iii)          The
provisions of this Subsection 10(a) shall not (A) constitute a waiver,
release or impairment of any obligation evidenced or secured by this Note, the
Other Loan Documents or the Security Instrument; (B) impair the right of Lender
to name Borrower as a party defendant in any action or suit for judicial
foreclosure and sale under the Security Instrument; (C) affect the validity or
enforceability of any indemnity, guaranty, master lease or similar instrument
made in connection with this Note, the Security Instrument, or the Other Loan
Documents; (D) impair the right of Lender to obtain the appointment of a
receiver; (E) impair the enforcement of the Assignment executed in connection
herewith; (F) impair the right of Lender to enforce the provision of Article 11
of the Security Instrument; or (G) impair the right of Lender to obtain a
deficiency judgment or judgment on this Note against Borrower if necessary to
obtain any insurance proceeds or condemnation awards to which Lender would
otherwise be entitled under the Security Instrument; provided, however,
Lender shall only enforce such judgment against the insurance proceeds and/or
condemnation awards.


 


(iv)          Notwithstanding
the provisions of this Article to the contrary, Borrower shall be personally
liable to Lender for the Losses it incurs due to: (A) fraud, willful misconduct
or material misrepresentation by Borrower, its general partners, if any, its
members, if any, its principals, its affiliates, its agents or its employees or
by any Guarantor in connection with the loan evidenced by this Note, (B) a
breach or default under Sections 4.3 or 8.2 of the Security
Instrument, (C) the misapplication or misappropriation of Rents; (D) the
misapplication or


 


 


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misappropriation of insurance proceeds or condemnation awards; (E)
Borrower’s failure to return or to reimburse Lender for all Personal Property
taken from the Property by or on behalf of Borrower and not replaced with
Personal Property of the same utility and of the same or greater value; (F) any
act of actual physical waste (not occasioned merely by reason of lack of
available funds) or arson by Borrower, any principal, affiliate, general
partner or member thereof or by any Guarantor; (G) any fees or commissions paid
by Borrower to any principal, affiliate, general partner or member of Borrower,
or any Guarantor in violation of the terms of this Note, the Security
Instrument or the Other Loan Documents; (H) Borrower’s failure to comply with
the provisions of Section 11.2 of the Security Instrument; or (I) any breach of
the Environmental Indemnity.


 


(b)           Nothing
herein shall be deemed to be a waiver of any right which Lender may have under
Sections 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code
to file a claim for the full amount of the Debt or to require that all
collateral shall continue to secure all of the Debt, owing to Lender in
accordance with this Note, the Security Instrument and the Other Loan
Documents.


 


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 and
the other Loan Documents and that this Note and the other Loan Documents
constitute legal, valid and binding obligations of Borrower.  Borrower further represents that the loan
evidenced by the Loan Documents was made for business or commercial purposes
and not for personal, family or household use.


 


12.  NOTICES


 


All notices or other communications required or
permitted to be given pursuant hereto shall be given in the manner and be
effective as specified in the Security Instrument, directed to the parties at
their respective addresses as provided therein.


 


13.  TRANSFER


 


Lender shall have the unrestricted right at any time
or from time to time to sell this Note and the loan evidenced by this Note and
the Loan Documents or participation interests therein. Borrower shall execute,
acknowledge and deliver any and all instruments requested by Lender to satisfy
such purchasers or participants that the unpaid indebtedness evidenced by this
Note is outstanding upon the terms and provisions set out in this Note and the
other Loan Documents. To the extent, if any, specified in such assignment or
participation, such assignee(s) or participant(s) shall have the rights and
benefits with respect to this Note and the other Loan Documents as such
assignee(s) or participant(s) would have if they were the Lender hereunder.


 


14.  WAIVER OF TRIAL BY JURY


 


EACH OF BORROWER AND LENDER
HEREBY 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


 


 


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SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS
NOTE OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION
ARISING IN CONNECTION THEREWITH INCLUDING, BUT NOT LIMITED TO, THOSE RELATING
TO (A) ALLEGATIONS THAT A PARTNERSHIP EXISTS BETWEEN LENDER AND BORROWER; (B)
USURY OR PENALTIES OR DAMAGES THEREFOR; (C) ALLEGATIONS OF UNCONSCIONABLE ACTS,
DECEPTIVE TRADE PRACTICE, LACK OF GOOD FAITH OR FAIR DEALING, LACK OF COMMERCIAL
REASONABLENESS, OR SPECIAL RELATIONSHIPS (SUCH AS FIDUCIARY, TRUST OR
CONFIDENTIAL RELATIONSHIP); (D) ALLEGATIONS OF DOMINION, CONTROL, ALTER EGO,
INSTRUMENTALITY, FRAUD, REAL ESTATE FRAUD, MISREPRESENTATION, DURESS, COERCION,
UNDUE INFLUENCE, INTERFERENCE OR NEGLIGENCE; (E) ALLEGATIONS OF TORTIOUS
INTERFERENCE WITH PRESENT OR PROSPECTIVE BUSINESS RELATIONSHIPS OR OF ANTITRUST;
OR (F) SLANDER, LIBEL OR DAMAGE TO REPUTATION. THIS WAIVER OF RIGHT TO TRIAL 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. LENDER AND BORROWER ARE EACH HEREBY
AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER BY BORROWER AND LENDER.


 


15.  APPLICABLE LAW


 


This Note shall be governed by and construed in
accordance with the laws of the state in which the real property encumbered by
the Security Instrument is located (without regard to any conflict of laws or
principles) and the applicable laws of the United States of America.


 


16.  JURISDICTION


 


BORROWER HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY COURT OF COMPETENT JURISDICTION LOCATED IN
THE STATE IN WHICH THE PROPERTY IS LOCATED IN CONNECTION WITH ANY PROCEEDING
ARISING OUT OF OR RELATING TO THIS NOTE.


 


17.  NO ORAL CHANGE


 


The provisions of this Note and the Loan Documents may
be amended or revised only by an instrument in writing signed by the Borrower
and Lender. This Note and all the other Loan Documents embody the final, entire
agreement of Borrower and Lender and supersede any and all prior commitments,
agreements, representations and understandings, whether written or oral,
relating to the subject matter hereof and thereof and may not be contradicted
or varied by evidence of prior, contemporaneous or subsequent oral agreements
or discussions of Borrower and Lender. There are no oral agreements between
Borrower and Lender.


 


[signature page follows]


 


 


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This FIXED RATE NOTE is executed as of the day and
year first above written.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  	
   

  
	
   

  	
  RKB PENDER LLC, a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven A. Grigg

  
	
   

  	
  Name:

  	
  Steven A. Grigg

  
	
   

  	
  Title:

  	
  President