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EXHIBIT 10.198
This instrument was prepared by
and after recording return to:
Xxxxx X. Xxxxx, Esq.
Xxxxxxx & Xxxxxxx
Two Xxxxx Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
SECOND AMENDMENT TO DEED OF TRUST
(HARTSEL SPRINGS RANCH)
THIS SECOND AMENDMENT TO DEED OF TRUST ("Amendment") is made
as of the 17th day of December, 1999, by and among PREFERRED EQUITIES
CORPORATION, a Nevada corporation ("Trustor"), whose mailing address is 0000
Xxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx 00000-0000, and FINOVA CAPITAL CORPORATION, a
Delaware corporation ("Beneficiary"), having an office and mailing address at
0000 Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 (Attention:
Vice President - Law).
R E C I T A L S
A. Reference is made to that certain Deed of Trust, Assignment
of Rents and Proceeds and Security Agreement recorded among the Official Records
of Park County, Colorado at Reception No. 485871 as amended by a First Amendment
to the same recorded among the aforestated public records at Reception No.
512026 (collectively, the "Original Deed of Trust"). Capitalized terms used in
this Amendment which are defined in the Original Deed of Trust shall have the
same meaning and definition when used in this Amendment unless such definition
is amended or modified by this Amendment.
B. The Trustor and Beneficiary desire to amend the Original
Deed of Trust in the manner hereinafter set forth.
NOW THEREFORE, the parties agree as follows:
1. The WITNESSETH clause of the Original Deed of Trust is
deleted in its entirety and replaced with the following:
"Beneficiary has loaned to Trustor certain funds pursuant to
the Loan Agreement, as defined below, which Loan (as defined in the
Loan Agreement) is
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evidenced by, among other things, the Hartsel Springs Ranch Note (as
defined below) and the Additional Advance Note (as defined below)".
2. The paragraph entitled " NOW, THEREFORE " which is found in
Article I of the Original Deed of Trust, is deleted in its entirety and
replaced with the following:
NOW, THEREFORE, in consideration for the
making of the Loan, for the purpose of securing (a) the timely
repayment of the Loan, as evidenced by that certain Promissory
Note [Additional Advance Note], dated December 23, 1998 (the
"Additional Advance Note"), in the amount of Five Million Six
Hundred Sixty-Two Thousand United States Dollars (U.S.
$5,662,000), (b) the timely repayment of that certain First
Amended and Restated Promissory Note [Xxxxxxx Building
Addition] dated November 6, 1998 (the "Xxxxxxx Building
Addition Note") in the amount of Two Million Three Hundred
Ninety-Seven Thousand Five Hundred United States Dollars (U.S.
$2,397,500), as amended, (c) the timely repayment of that
certain First Amended and Restated Promissory Note [Xxx
Building Addition] dated November 6, 1998 (the "Xxx Building
Addition Note") in the amount of Two Million One Hundred
Twenty-Five Thousand Two Hundred Twenty and 80/100 United
States Dollars (U.S. $2,125,220.80), as amended, (d) the
timely repayment of that certain First Amended and Restated
and Consolidated Promissory Note [Aloha Bay Phase I] dated
November 6, 1998 (the "Aloha Bay Note") in the amount of Xxx
Xxxxxxx Xxxxx Xxxxxxxx Xxx Xxxxxxx Xxxxxx Xxxxxx Dollars (U.S.
$1,007,100), as amended, (e) the timely repayment of that
certain Second Amended and Restated Promissory Note dated May
15, 1997 (the "Receivables Note") in the principal amount of
Seventy-Five Million United States Dollars (U.S.
$75,000,000.00), as amended, (f) the timely repayment of that
certain Third Amended and Restated Promissory Note
[Headquarters and FCFC Property] dated as of September 29,
1998 (the "Office Note") in the original principal amount of
Six Million Five Hundred Eighty-Three Thousand Four Hundred
Six and 43/100 United States Dollars (U.S. $6,583,406.43), as
amended, (g) the timely repayment of that certain Promissory
Note (the "Towers Note") dated as of December 13, 1995, as
amended pursuant to that Amendment No. 1 to Promissory Note
[Towers Lobby] dated as of August 16, 1996, in the original
principal amount of One Million Two Hundred Eighty-Six
Thousand One Hundred Twenty-Six and No/100 United States
Dollars (U.S. $1,286,126.00), as amended, (h) the timely
repayment of that certain Note [Hartsel Springs Ranch] dated
as of February 18, 1998 (the "Hartsel Springs Ranch Note") in
the original principal amount of Four Million United States
Dollars (U.S.$4,000,000.00), as amended, (i) the timely
repayment of that certain Promissory Note [Biloxi Property]
dated as of March 20, 1998 (the "Biloxi Note") in the original
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principal amount of One Million One Hundred Seventy-Three
Thousand Seven Hundred Fifty United States Dollars (U.S.
$1,173,750.00), as amended (j) the timely repayment of any and
all indebtedness evidenced by any Project Note as may be
executed by Trustor for the benefit of Beneficiary, from time
to time, as contemplated by the Loan Agreement hereinafter
described, (k) the full, timely and faithful performance of
and compliance with ("Performance") all the covenants and
conditions made by Trustor herein, in the Receivables Note, in
the Office Note, in the Towers Note, in the Xxx Building
Addition Note, in the Aloha Bay Note, in the Xxxxxxx Building
Addition Note, in the Hartsel Springs Ranch Note, in the
Biloxi Note, in the Additional Advance Note, in any Project
Note, in the Second Amended and Restated and Consolidated Loan
and Security Agreement between Trustor and Beneficiary dated
effective as of May 15, 1997, as may be now or subsequently
amended (as so amended and restated, the "Loan Agreement"), in
the Documents (as defined in the Loan Agreement), and in each
and every other document executed in connection therewith,
other than the Environmental Certificates with
Representations, Covenants and Warranties which were
previously executed by the Trustor in favor of the Beneficiary
and the Environmental Certificates and Indemnity Agreements
executed in connection with Additional Advance Note
(collectively the "Environmental Certificate") and in any and
all modifications, extensions, renewals, replacements or
restatements of any of the foregoing (this Deed of Trust, the
Receivables Note, the Office Note, the Towers Note, the Xxx
Building Addition Note, the Aloha Bay Note, the Xxxxxxx
Building Addition Note, the Hartsel Springs Ranch Note, the
Biloxi Note, Additional Advance Note, any Project Note, the
Loan Agreement, the Documents and the other documents
(exclusive of the Environmental Certificate), as from time to
time modified, extended, renewed, replaced or restated, are
collectively referred to as the "Loan Documents"), and also
(l) the payment of any and all other indebtedness, direct or
contingent (other than arising out of the Environmental
Certificate), that may now or hereafter become owing to
Beneficiary from Trustor or any successor-in-ownership of the
Trust Property (all of the foregoing secured obligations
collectively "Obligations" or individually "Obligation"),
Trustor hereby irrevocably grants, conveys, bargains, sells,
assigns, warrants and confirms unto Trustee, its successors
and assigns, in trust, with power of sale and right of entry
and possession, all of Trustor's right, title and interest in
and to the real estate located in Park County, Colorado, and
more fully described in Exhibit A attached hereto and by this
reference incorporated herein ("Premises") (the Premises and
other rights, titles and interests hereby granted, conveyed,
bargained, sold and assigned to Trustee and/or Beneficiary as
provided below are collectively referred to as the "Trust
Property").
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3. Paragraph 6.1 (i) of the Original Deed of Trust is deleted
is deleted in its entirety and replaced with the following:
"(i) The payment to Beneficiary of a Project Release
Fee in the amount of Three Thousand Six Hundred Dollars
($3,600.00) with respect to such Lot, which shall be applied
in accordance with the provisions of the Loan Agreement."
4. Except as specifically modified or amended hereby, the
Original Deed of Trust shall remain in full force and effect. All references in
the Original Deed of Trust and in this Amendment to the term "Deed of Trust"
shall be deemed to refer to the Original Deed of Trust as amended by this
Amendment. Capitalized terms used in the Deed of Trust which are not
specifically defined therein, shall have the same meaning and definition as set
forth in the Loan Agreement. This Amendment shall not constitute a waiver of any
existing default or a breach of any term or provision of the Deed of Trust.
5. This Amendment may be executed simultaneously in any number
of identical copies, any number of which having been executed by all parties
hereto shall constitute an original for all purposes.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Amendment is duly executed as of the
day and year first above written.
"TRUSTOR"
Witness: PREFERRED EQUITIES CORPORATION, a
Nevada corporation
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By: /s/ Xxx Xxxxxx
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Name: Xxx X. Xxxxxx
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[SEAL] Title: Vice President
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"BENEFICIARY"
Witness: FINOVA CAPITAL CORPORATION, a
Delaware corporation
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By:
----------------------------------------
Name:
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[SEAL] Title:
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STATE OF )
) ss.
County of )
On December 17th, 1999, personally appeared before me, a
notary public, Xxx Xxxxxx, personally known to me to be the person whose name is
subscribed to the above instrument who acknowledged that he executed the
instrument as Vice President of Preferred Equities Corporation, a Nevada
corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 17th day of
December, 1999.
_____________________________________
Notary Public in and for_____________
County,______________________________
NOTARY SEAL:
STATE OF )
) ss.
County of )
On __________, 1999, personally appeared before me, a notary
public, ________________________________________, personally known to me to be
the person whose name is subscribed to the above instrument who acknowledged
that he executed the instrument as ____________________ of FINOVA Capital
Corporation, a Delaware corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the ____ day of
_______________, 1999.
_____________________________________
Notary Public in and for_____________
County,______________________________
NOTARY SEAL:
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