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EXHIBIT 10.85
DEED OF TRUST NOTE
$8,855,000.00 San Francisco, California
December 5, 2000
FOR VALUE RECEIVED, the undersigned, ARV SUNNYVALE, L.P., a California
limited partnership, promises to pay RED MORTGAGE CAPITAL, INC., an Ohio
corporation, or order, at its principal office at 150 East Gay Street, 22nd
Floor, Columbus, Ohio 43215 or at such other place as may be designated in
writing by the holder of this Note, the principal sum of EIGHT MILLION EIGHT
HUNDRED FIFTY-FIVE THOUSAND AND 00/100THS DOLLARS ($8,855,000.00), with interest
thereon from the date hereof at the rate of Eight and three hundredths per
centum (8.03 %) per annum on the unpaid balance until paid. The principal and
interest shall be payable in monthly installments as follows:
Interest alone shall be due and payable on the
first day of January, 2000. Thereafter, commencing on February 1,
2001, monthly installments of principal and interest at the rate
of Eight and three hundredths per centum (8.03 %) per annum shall
be due and payable in the sum of SIXTY-THREE THOUSAND EIGHTY-SIX
AND 65/100THS DOLLARS ($63,086.65) each, such payments to
continue monthly thereafter on the first day of each succeeding
month until the entire indebtedness has been paid in full. In any
event, the balance of principal (if any) remaining unpaid, plus
accrued interest, shall be due and payable on January 1, 2036.
The installments of principal and interest shall be applied first
to interest at the rate aforesaid upon the principal sum or so
much thereof as shall from time to time remain unpaid, and the
balance thereof shall be applied on account of principal.
Both principal and interest under this Note, as well as the additional
payments set forth in the Deed of Trust shall be payable at the office of RED
MORTGAGE CAPITAL, INC., at its principal office at 150 East Gay Street, 22nd
Floor, Columbus, Ohio 43215 or such other place as the holder may designate in
writing.
Prepayment of this Note is subject to the terms and provisions set forth
in Allonge #1 attached hereto and incorporated herein by this reference.
If default be made in the payment of any installment under this Note,
and if the default is not made good prior to the due date of the next such
installment, the entire principal sum and accrued interest shall at once become
due and payable without notice at the option of the holder of this Note. Failure
to exercise this option shall not constitute a waiver of the right to exercise
the same in the event of any subsequent default.
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The makers and endorsers severally waive diligence, presentment,
protest, and demand, and also notice of protest, dishonor, and nonpayment of
this Note, and expressly agree that this Note, or any payment thereunder, may be
extended from time to time, and consent to the acceptance of further security
for this Note, including other types of security, all without in any way
affecting the liability of the makers and endorsers hereof. The right to plead
any and all statutes of limitations as a defense to any demand on this Note, or
any guaranty thereof, or to any agreement to pay the same, or to any demand
secured by the Deed of Trust, (hereinafter defined) or other security, securing
this Note, or any and all obligations, or liabilities arising out of or in
connection with said Note or Deed of Trust by any of the parties hereto, is
expressly waived by each and every of the makers, endorsers, guarantors or
sureties.
Principal and interest are payable in lawful money of the United States.
If action be instituted on this Note, the undersigned promise(s) to pay in
addition to the costs and disbursements allowed by law such sum as the Court may
adjudge reasonable as attorney's fees in said action. This Note is secured by a
Deed of Trust, of even date herewith, to Fidelity National Title Insurance
Company, as Trustee, on real estate situated in the City of Sunnyvale, County of
Santa Clara, California (the "Deed of Trust").
In the event any installment or part of any installment due hereunder
becomes delinquent for more than fifteen (15) days, there shall be due, at the
option of the holder, in addition to other sums due hereunder, a sum equal to
two percent (2%) of the amount of such installment of principal and interest so
delinquent. Whenever under the law of the jurisdiction where the property is
located, the amount of any such late charge is considered to be additional
interest, this provision shall not be effective if the rate of interest
specified in this Note, together with the amount of the late charge, would
aggregate an amount in excess of the maximum rate of interest permitted and
would constitute usury.
All parties to this Note, whether principal, surety, guarantor, or
endorser hereby waive presentment for payment, demand, protect, notice of
protest, and notice of dishonor.
Notwithstanding any other provision contained in this Note, it is agreed
that the execution of this Note shall impose no personal liability on the maker
hereof (nor any of its present or future limited or general partners) for
payment of the indebtedness evidenced hereby and in the event of a default, the
holder of this Note shall look solely to the property described in the Deed of
Trust and to the rents, issues and profits thereof in satisfaction of the
indebtedness evidenced hereby and will not seek or obtain any deficiency or
personal judgment against the maker hereof (nor any of its present or future
limited or general partners) except such judgment or decree as may be necessary
to foreclose and bar its interest in the property and all other property
mortgaged, pledged, conveyed or assigned to secure payment of this Note, except
as set out in the Deed of Trust of even date given to secure this indebtedness.
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed
in its name and on its behalf by its Senior Vice President, thereunto duly
authorized the day and year first above written.
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ARV SUNNYVALE, L.P.
a California limited partnership
By: American Retirement Villas Properties II
a California limited partnership
General Partner
By: ARV Assisted Living, Inc.
a Delaware corporation
General Partner
By: _____________________________
Abdo H. Khoury
Senior Vice President
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I HEREBY CERTIFY that this is the Note described in and secured by the
Deed of Trust of even date herewith, and in the same principal amount as herein
stated, to Fidelity National Title Insurance Company, Trustee(s), on real estate
in the City of Sunnyvale, Santa Clara County, California.
Dated this ____ day of December, 2000.
[SEAL] __________________________________________
Notary Public
My Commission Expires: ___________________