EXHIBIT 10.6.3
DEED OF TRUST AND ASSIGNMENT OF RENTS
THIS DEED OF TRUST, made this 10th day of April, 1997, between CROSS-CONTINENT
AUTO RETAILERS, INC., a Delaware Corporation, herein called GRANTOR or TRUSTOR,
whose address is 1201 S. Taylor, Amarillo, TX 79101, OLD REPUBLIC TITLE COMPANY
OF NEVADA, a Nevada corporation, herein called TRUSTEE, and R. DOUGLAS SPEDDING,
a married man, herein called BENEFICIARY, whose address is 4380 E. Alameda
Avenue, Glendale, CO 80222,
Witnesseth: That Trustor IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS TO TRUSTEE
IN TRUST, WITH POWER OF SALE, that property in CLARK County, Nevada, described
as:
That portion of the Southwest Quarter (SW 1/4) of the Southeast Quarter (SE
1/4) of Section 2, Township 21 South, Range 60 East M.D.B. & M., described as
Lots 1 and 2 of Parcel Map located in File 18, Page 15, recorded March 23, 1978
in Book 863 of Official Records, as Document No. 822241, in the Office of the
County Recorder of Clark County, Nevada.
In the event the herein described property or any part thereof, or any interest
therein is sold, agreed to be sold, conveyed or allocated by the Trustor, or by
the operation of law or otherwise, all obligations secured by this instrument,
irrespective of the maturity dates expressed therein, at the option of the
holder hereof and without demand or notice shall immediately become due and
payable.
Together With the rents, issues and profits thereof, SUBJECT, HOWEVER, to the
right, power and authority given to and conferred upon Beneficiary by paragraph
(10) of the provisions incorporated herein by reference to collect and apply
such rents, issues and profits.
For the Purpose of Securing: 1. Performance of each agreement of Trustor
incorporated by reference or contained herein. 2. Payment of the indebtedness
evidenced by one promissory note of even date herewith, and any extension or
renewal thereof, in the principal sum of $5,500,000.00 executed by Trustor in
favor of Beneficiary or order, 3.
To Protect the Security of This Deed of Trust, Trustor Agrees: By the execution
and delivery of this Deed of Trust and the note secured hereby, that he will
observe and perform the provisions printed hereinafter; and that the references
to property, obligations, and parties in said provisions shall be construed to
refer to the property, obligations, and parties set forth in this Deed of Trust.
1. To properly care for and keep said property in good condition and repair;
not to remove or demolish any building thereon; to complete in a good and
workmanlike manner any building which may be constructed thereon, and to
pay when due all claims for labor performed and materials furnished
therefor; to comply with all laws, ordinances and regulations requiring any
alterations or improvements to be made thereon; not to commit or permit any
waste thereof; not to commit, suffer or permit any act to be done in or
upon said property in violation of law; to cultivate, irrigate, fertilize,
fumigate, prune and/or do any other act or acts, all in a timely and proper
manner, which, from the character or use of said property, may be
reasonably necessary, the specific enumerations herein not excluding the
general.
2. The Grantor agrees to pay and discharge all costs, fees and expenses of
these Trusts, including cost of evidence of title and Trustee's fees in
connection with sale, whether completed or not, which amounts shall become
due upon delivery of Trustee of Declaration of Default and Demand for sale,
as hereinafter provided.
3. The amount collected under any fire insurance policy shall be credited:
first, to accrued interest, next to expenditures hereunder; and any
remainder upon the principal, and interest shall thereupon cease upon the
amount so credited upon principal; provided, however, that at the option of
the Beneficiary, the entire amount collected under the policies or any part
thereof may be released to the Grantor, without liability upon the Trustee
for such release.
4. The Grantor promises and agrees that if, during the existence of the Trust
there be commenced or pending any suit or action affecting said conveyed
premises, or any part thereof, or the title thereto, or if any adverse
claim for or against said premises, or any part thereof, be made or
asserted, he will appear in and defend any such matter purporting to affect
the security and will pay all costs and damages arising because of such
action.
5. Any award of damages in connection with any condemnation for public use of,
or injury to, any property or any part thereof is hereby assigned and shall
be paid to Beneficiary, who may apply or release such moneys received by
him in the same manner and with the same effect as herein provided for
disposition of proceeds of insurance.
6. Trustee shall be under no obligation to notify any party hereto of any
pending sale hereunder or of action or proceeding of any kind in which
Grantor, Beneficiary and/or Trustee shall be named as defendant, unless
brought by Trustee.
7. Acceptance by Beneficiary of any sum in payment of any indebtedness secured
hereby, after the date when the same is due, shall not constitute a waiver
of the right either to require prompt payment, when due, of all other sums
so secured or to declare default as herein provided for failure so to pay.
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8. Trustee may, at any time, or from time to time, without liability therefor
and without notice, upon written request of Beneficiary and presentation of
this Deed of Trust and the notes secured hereby for endorsement, and
without affecting the personal liability of any person for payment of the
indebtedness secured hereby or the effect of this Deed of Trust upon the
remainder of said property: reconvey any part of said property; consent in
writing to the making of any map or plat thereof; join in granting any
easement thereon; or join in any extension agreement or subordination
agreement in connection herewith.
9. Upon receipt of written request from Beneficiary reciting that all sums
secured hereby have been paid and upon surrender of this Deed of Trust and
said note to Trustee for cancellation and retention and upon payment of its
fees, the Trustee shall reconvey without warranty the property then held
hereunder. The recitals in such reconveyance of any matters of fact shall
be conclusive proof of the truth thereof. The Grantee in such reconveyance
may be described in general terms as "the person or persons legally
entitled thereto": and Trustee is authorized to retain this Deed of Trust
and the cancelled note.
(a) Should default be made by Grantor in payment of any indebtedness
secured hereby and/or in performance of any agreement herein, then
Beneficiary may declare all sums secured hereby immediately due by delivery
to Trustee of a written declaration of default and demand for sale, and of
written notice of default and election to cause said property to be sold
(which notice Trustee shall cause to be filed for record) and shall
surrender to Trustee this Deed, the notes and all documents evidencing any
expenditure secured hereby after 20 days written notice from Beneficiary
stating the nature of the default.
10. After three months shall have elapsed following recordation of any such
notice of default, Trustee shall sell said property at such time and at
such place in the State of Nevada as the Trustee, in its sole discretion,
shall deem best to accomplish the objects of these Trusts, having first
given notice of such sale as then required by law. Place of sale may be
either in the county in which the property to be sold, or any part thereof,
is situated, or at an office of the Trustee located in the State of Nevada.
(a) The Grantor, Pledgor and Mortgagor of the personal property herein
pledged and/or mortgaged waives any and all other demands or notices as
conditions precedent to sale of such personalty.
(b) Trustee may postpone sale of all, or any portion, of said property by
public announcement at the time fixed by said notice of sale, and may
thereafter postpone said sale from time to time by public announcement at
the time previously appointed.
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(c) At the time of sale so fixed, Trustee may sell the property so
advertised or any party thereof, either as a whole or in separate parcels
at its sole discretion at public auction, to the highest bidder for cash in
lawful money of the United States, payable at time of sale, and shall
deliver to such purchaser a deed conveying the property so sold, but
without covenant or warranty, express or implied. Grantor hereby agrees to
surrender, immediately and without demand, possession of said property to
such purchaser.
11. Trustee shall apply the proceeds of any such sale to payment of: expenses
of sale and all charges and expenses of Trustee and of these Trusts,
including cost of evidence of title and Trustee's fee in connection with
sale; all sums expended under the terms hereof, not then repaid, with
accrued interest at the rate of ten percent (10%) per annum; all other sums
then secured hereby, and the remainder, if any, to the person or persons
legally entitled thereto.
12. The Beneficiary or assigns may, at any time, by instrument in writing,
appoint a successor or successors to the Trustee named herein or acting
hereunder, which instrument, executed and acknowledged by beneficiary, and
recorded in the Office of the County Recorder of the County or Counties
wherein said property is situated, shall be conclusive proof of the proper
substitution of such successor or trustee, who shall have all the estate,
powers, duties and trusts in the premises vested in or conferred on the
original Trustee. If there be more than one Trustee, either may act alone
and execute the Trusts upon the request of the Beneficiary and his acts
shall be deemed to be the acts of all Trustees, and the recital in any
conveyance executed by such sole trustee of such requests shall be
conclusive evidence thereof, and of the authority of such sole Trustee to
act.
13. This Deed of Trust applies to, inures to the benefit of, and binds all
parties hereto, their heirs, legatees, devisees, administrators, executors,
successors and assigns.
14. Trustee accepts these trusts when this Deed of Trust, duly executed and
acknowledged, is made a public record as provided by law.
15. In this Deed of Trust, whenever the context so requires, the masculine
gender includes the feminine and/or neuter, and the singular number
includes the plural, and the term Beneficiary shall include any future
holder, including pledgees, of the note secured hereby.
16. Where not inconsistent with the above, Covenant Nos. 1, 2, 3, 4, 5, 6, 7, 8
or NRS 107.030 are hereby adopted and made a part of this Deed of Trust.
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The undersigned Trustor requests that a copy of any Notice of Default and
of any Notice of Sale hereunder be mailed to him at his address
hereinbefore set forth.
Signature of Trustor
CROSS-CONTINENT AUTO RETAILERS, INC.
By: /s/ Bill Gilliland
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BILL GILLILAND, CHAIRMAN
STATE OF COLORADO
COUNTY OF ARAPAHOE
On April 10, 1997 before me, the undersigned, a Notary Public in and for said
State, personally appeared Bill Gilliland personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person(s) whose name(s)
in/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ Heidi Aemmer
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Name Heidi Aemmer
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Title Order No. 97-51-700
Escrow No. 97-51-700-DS
WHEN RECORDED MAIL TO
Name
R. DOUGLAS SPEDDING
4380 E. Alameda Avenue
Street Glendale, CO 80222
Address
City &
State
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