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EXHIBIT 10.90
DEED OF TRUST NOTE
$11,369,500.00 San Francisco, California
December 12, 2000
FOR VALUE RECEIVED, the undersigned, ARV VALLEY VIEW, L.P., a California
limited partnership, promises to pay RED MORTGAGE CAPITAL, INC., an Ohio
corporation, or order, at its principal office at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ or at such other place as may be designated in
writing by the holder of this Note, the principal sum of ELEVEN MILLION THREE
HUNDRED SIXTY-NINE THOUSAND FIVE HUNDRED AND 00/100THS DOLLARS ($11,369,500.00),
with interest thereon from the date hereof at the rate of Eight per centum
(8.00%) 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, 2001. Thereafter, commencing on February 1,
2001, monthly installments of principal and interest at the rate
of Eight per centum (8.00 %) per annum shall be due and payable
in the sum of EIGHTY THOUSAND SEVEN HUNDRED FIFTY-THREE AND
11/100THS DOLLARS ($80,753.11) 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 ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ 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
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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.
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 ▇▇▇▇▇▇▇▇, 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 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 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.
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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.
ARV VALLEY VIEW, 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: _____________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇
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 Walnut Creek, Contra Costa County, California.
Dated this ____ day of December, 2000.
[SEAL] __________________________________________
Notary Public
My Commission Expires: ___________________