The printed portions of this form approved by
the Colorado Real Estate Commission (TD 72-11-83)
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Exhibit 10.35.3
IF THIS FORM IS USED IN A CONSUMER CREDIT TRANSACTION, CONSULT LEGAL COUNSEL.
THIS IS A LEGAL INSTRUMENT. IF NOT UNDERSTOOD, LEGAL, TAX OR OTHER COUNSEL
SHOULD BE CONSULTED BEFORE SIGNING.
DEED OF TRUST
(Due on Transfer -- Strict)
THIS DEED OF TRUST is made this 30th day of September, 1997, between
Cross-Continent Auto Retailers, a Delaware corporation (Borrower), whose
address is 1201 S. Taylor, Amarillo, Texas 79101-4313; and the Public Trustee
of the County in which the Property (see paragraph 1) is situated (Trustee);
for the benefit of R. Douglas Spedding, individually, (Lender), whose address
is c/o RDS, Inc., 4380 E. Alameda Avenue, Glendale, Colorado 80222.
Borrower and Lender covenant and agree as follows:
1. Property in Trust. Borrower, in consideration of the indebtedness
herein recited and the trust herein created, hereby grants and conveys to
Trustee in trust, with power of sale, the following described property
located in the County of Adams, State of Colorado:
Lot 2, Turnpike-Interstate Addition, Filing No. 1, County of
Adams, State of Colorado
which has the address of 7300 North Broadway, Denver, Colorado (Property
Address), together with all its appurtenances (Property).
2. Note; Other Obligations Secured. This Deed of Trust is given to
secure to Lender:
A. the repayment of the indebtedness evidenced by Borrower's note (Note)
dated September 30, 1997, in the principal sum of Seven Million Four
Hundred Thousand Dollars ($7,400,000.00) U.S. Dollars, with interest
on the unpaid principal balance from September 30, 1997, until paid,
at the rate of ______________* percent per annum, with principal and
interest payable at 4380 E. Alameda Ave., Glendale, Colorado 80222 or
such other place as the Lender may designate, in monthly interest
payments of __________* Dollars (U.S. $_____________) due on the 10th
day of each month beginning November 10, 1997; such payments to
continue until the entire indebtedness evidenced by said Note is
fully paid; however, if not sooner paid, the entire principal amount
outstanding and accrued interest thereon, shall be due and payable on
October 31, 1998;
* Interest at the Prime or Reference Rate announced by the Bank of
America, as published in the Western Edition of THE WALL STREET
JOURNAL, plus 1% additional interest. The interest rate of this note
will adjust as the Bank of America Prime or Reference Rate adjusts
and Borrower is to pay to Lender a late charge of 10% of any payment
not received by the Lender within 10 days after payment is due; and
Borrower has the right to prepay the principal amount outstanding
under said Note, in whole or in part, at any time without penalty
except this loan may be prepaid in whole or in part at any time
without penalty. Any payment not received by the tenth day of any
month shall, at the option of Holder, constitute a default hereunder.
Default rate shall be 18%, see Promissory Note for additional terms.
B. the payment of all other sums, with interest thereon at 18% per
annum, disbursed by Lender in accordance with this Deed of Trust to
protect the security of this Deed of Trust; and
C. the performance of the covenants and agreements of Borrower herein
contained.
3. Title. Borrower covenants that Borrower owns and has the right to
grant and convey the Property, and warrants title to the same, subject to
general real estate taxes for the current year, easements of record or in
existence, and recorded declarations, restrictions, reservations and
covenants, if any, as of this date and except:
Exceptions as listed on Exhibit "A" attached and made a part hereof
as if fully set forth herein.
4. Payment of Principal and Interest. Borrower shall promptly pay when
due the principal of and interest on the indebtedness evidenced by the Note,
and late charges as provided in the Note and shall perform all of Borrower's
other covenants contained in the Note.
5. Application of Payments. All payments received by Lender under the
terms hereof shall be applied by Lender first in payment of amounts due
pursuant to paragraph 23 (Escrow Funds for Taxes and Insurance), then to
amounts disbursed by Lender pursuant to paragraph 9 (Protection of Lender's
Security), and the balance in accordance with the terms and conditions of the
Note.
6. Prior Mortgages and Deed of Trust; Charges; Liens. Borrower shall
perform all of Borrower's obligations under any prior deed of trust and any
other prior liens. Borrower shall pay all taxes, assessments and other
charges, fines and impositions attributable to the Property which may have or
attain a priority over this Deed of Trust, and leasehold payments or ground
rents, if any, in the manner set out in paragraph 23 (Escrow Funds for Taxes
and Insurance) or, if not required to be paid in such manner, by Borrower
making payment when due, directly to the payee thereof. Despite the
foregoing, Borrower shall not be required to make payments otherwise required
by this paragraph if Borrower, after notice to Lender, shall in good faith
contest such obligation or forfeiture of the property or any part thereof,
only upon Borrower making all such contested payments and other payments as
ordered by the Court to the registry of the court in which such proceedings
are filed.
7. Property Insurance. Borrower shall keep the improvements now
existing or hereafter erected on the Property insured against loss by fire or
hazards included within the term "extended coverage" in an amount at least
equal to the lesser of (1) the insurable value of the Property or (2) an
amount sufficient to pay the sums secured by this Deed of Trust as well as
any prior encumbrances on the Property. All of the foregoing shall be known
as "Property Insurance".
The insurance carrier providing the insurance shall be qualified to write
Property Insurance in Colorado and shall be chosen by Borrower subject to
Lender's right to reject the chosen carrier for reasonable cause. All
insurance policies and renewals thereof shall include a standard mortgage
clause in favor of Lender, and shall provide that the insurance carrier shall
notify Lender at least ten (10) days before cancellation, termination or any
material change of coverage. Insurance policies shall be furnished to Lender
at or before closing. Lender shall have the right to hold the policies and
renewals thereof.
In the event of loss, Borrower shall give prompt notice to the insurance
carrier and Lender. Lender may make proof of loss if
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not made promptly by Borrower.
Insurance proceeds shall be applied to restoration or repair of the
Property damaged, provided such restoration or repair is economically
feasible and the security of this Deed of Trust is not thereby impaired. If
such restoration or repair is not economically feasible or if the security of
this Deed of Trust would be impaired, the insurance proceeds shall be applied
to the sums secured by this Deed of Trust, with the excess, if any, paid to
Borrower. If the Property is abandoned by Borrower, or if Borrower fails to
respond to Lender within 30 days from the date notice is given in accordance
with paragraph 16 (Notice) by Lender to Borrower that the insurance carrier
offers to settle a claim for insurance benefits, Lender is authoirzed to
collect and apply the insurance proceeds, at Lender's option, either to
restoration or repair of the Property or to the sums secured by this Deed of
Trust.
Any such application of proceeds to principal shall not extend or
postpone the due date of the installments referred to in paragraphs 4
(Payment of Principal and Interest) and 23 (Escrow Funds for Taxes and
Insurance) or change the amount of such installments. Notwithstanding
anything herein to the contrary, if under paragraph 18 (Acceleration;
Foreclosure; Other Remedies) the Property is acquired by Lender, all right,
title and interest of Borrower in and to any insurance policies and in and to
the proceeds thereof resulting from damage to the Property prior to the sale
or acquisition shall pass to Lender to the extent of the sums secured by this
Deed of Trust immediately prior to such sale or acquisition.
All of the rights of Borrower and Lender hereunder with respect to
insurance carriers, insurance policies and insurance proceeds are sujbect to
the rights of any holder of a prior deed of trust with respect to said
insurance carriers, policies and proceeds.
8. Preservation and Maintenance of Property. Borrower shall keep the
Property in good repair and shall not commit waste or permit impairment or
deterioration of the Property and shall comply with the provisions of any
lease if this Deed of Trust is on a leasehold. Borrower shall perform all of
Borrower's obligations under any declarations, covenants, by-laws, rules, or
other documents governing the use, ownership or occupancy of the Property.
9. Protection of Lender's Security. Except when Borrower has exercised
Borrower's rights under paragraph 6 above, if the Borrower fails to perform
the covenants and agreements contained in this Deed of Trust, or if a default
occurs in a prior lien, or if any action or proceeding is commenced which
materially affects Lender's interest in the Property, then Lender, at
Lender's option, with notice to Borrower if required by law, may make such
appearances, disburse such sums and take such action as is necessary to
protect Lender's interest, including, but not limited to, disbursements of
reasonably attorneys' fees and entry upon the Property to make repairs.
Borrower hereby assigns to Lender any right Borrower may have by reason of
any prior encumbrance on the Property or by law or otherwise to cure any
default under said prior encumbrance.
Any amounts disbursed by Lender pursuant to this paragraph 9, with
interest thereon, shall become additional indebtedness of Borrower secured by
this Deed of Trust. Such amounts shall be payable upon notice from Lender to
Borrower requesting payment thereof, and Lender may bring suit to collect any
amounts so disbursed plus interest specified in paragraph 2B (Note; Other
Obligations Secured). Nothing contained in this paragraph 9 shall require
Lender to incur any expense or take any action hereunder.
10. Inspection. Lender may make or cause to be made reasonable entires
upon and inspection of the Property, provided that Lender shall give Borrower
notice prior to any such inspection specifying reasonable cause therefor
related to Lender's interest in the Property.
11. Condemnation. The proceeds of any award or claim for damages,
direct or consequential, in connection with any condemnation or other taking
of the Property, or part thereof, or for conveynace in lieu of condemnation,
are hereby assigned and shall be paid to Lender as herein provided. However,
all of the rights of Borrower and Lender hereunder with respect to such
proceeds are subject to the rights of any holder of a prior deed of trust.
In the event of a total taking of the Property, the proceeds shall be
applied to the sums secured by this Deed of Trust, with the excess, if any,
paid to Borrower. In the event of a partial taking of the Property, the
proceeds remaining after taking out any part of the award due any prior lien
holder (net award) shall be divided between Lender and Borrower, in the same
ratio as the amount of the sums secured by this Deed of Trust immediately
prior to the date of taking bears to Borrower's equity in the Property
immediatley prior to the date of taking. Borrower's equity in the Property
means the fair market value of the Property less the amount of sums secured
by both this Deed of Trust and all prior liens (except taxes) that are to
receive any of the award, all at the value immediately prior to the date of
taking.
If the Property is abandoned by Borrower, or if, after notice by Lender
to Borrower that the condemnor offers to make an award or settle a claim for
damages, Borrower fails to respond to Lender witihin 30 days after the date
such notice is given, Lender is authorized to collect and apply the proceeds,
at Lender's option, either to restoration or repair of the Property or to the
sums secured by this Deed of Trust.
Any such application of proceeds to principal shall not extend or
postpone the due date of the installments referred to in paragraphs 4
(Payment of Principal and Interest) and 23 (Escrow Funds for Taxes and
Insurance) nor change the amount of such installments.
12. Borrower Not Released. Extension of the time for payment or
modification of amortization of the sums secured by this Deed of Trust
granted by Lender to any successor in interest of Borrower shall not operate
to release, in any manner, the liability of the original Borrower, nor
Borrower's successors in interest, from the original terms of this Deed of
Trust. Lender shall not be required to commence proceedings against such
successor or refuse to extend time for payment or otherwise modify
amortization of the sums secured by this Deed of Trust by reason of any
demand made by the original Borrower nor Borrower's successors in interest.
13. Forbearance by Lender Not a Waiver. Any forbearance by Lender in
exercising any right or remedy hereunder, or otherwise afforded by law, shall
not be a waiver or preclude the exercise of any such right or remedy.
14. Remedies Cumulative. Each remedy provided in the Note and this Deed
of Trust is distinct from and cumulative to all other rights or remedies
under the Note and this Deed of Trust or afforded by law or equity, and may
be exercised concurrently, independently or successively.
15. Successors and Assigns Bound; Joint and Several Liability; Captions.
The Covenants and Agreements herein contained shall bind, and the rights
hereunder shall inure to, the respective successors and assigns of Lender and
Borrower, subject to the provisions of paragraph 24 (Transfer of the
Property; Assumption). All covenants and agreements of Borrower shall be
joint and several. The Captions and headings of the paragraphs in this Deed
of Trust are for convenience only and are not to be used to interpret or
define the provisions hereof.
16. Notice. Except for any notice required by law to be given in
another manner, (a) any notice to Borrower provided for in this Deed of Trust
shall be in writing and shall be given and be effective upon (1) delivery to
Borrower or (2) mailing such notice by first-class U.S. mail, addressed to
Borrower at Borrower's address stated herein or at such other address as
Borrower may designate by notice to Lender as provided herein, and (b) any
notice to Lender shall be in writing and shall be given and be effective upon
(1) delivery to Lender or (2) mailing such notice by first-class U.S. mail,
to Lender's address stated herein or to such other address as Lender may
designate by notice to Borrower as provided herein. Any notice provided for
in this Deed of Trust shall be deemed to have been given to Borrower or
Lender when given in any manner designated herein.
17. Governing Law; Severability. The Note and this Deed of Trust shall
be governed by the law of Colorado. In the event that any provision or
clause of this Deed of Trust or the Note conflicts with the law, such
conflict shall not affect other provisions of this Deed of Trust or the Note
which can be given effect without the conflicting provisions, and to this end
the provisions of the Deed of Trust and Note are declared to be severable.
18. Acceleration; Foreclosure; Other Remedies. Except as provided in
paragraph 24 (Transfer of the Property; Assumption),
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upon Borrower's breach of any covenant or agreement of Borrower in this Deed
of Trust, or upon any default in a prior lien upon the Property, (unless
Borrower has exercised Borrower's rights under paragraph 6 above), at
Lender's option, all of the sums secured by this Deed of Trust shall be
immediately due and payable (Acceleration). To exercise this option, Lender
may invoke the power of sale and any other remedies permitted by law. Lender
shall be entitled to collect all reasonable costs and expenses incurred in
pursuing the remedies provided in this Deed of Trust, including, but not
limited to, reasonable attorneys' fees.
If Lender invokes the power of sale, Lender shall give written notice to
Trustee of such election. Trustee shall give such notice to Borrower of
Borrower's rights as is provided by law. Trustee shall record a copy of such
notice as required by law. Trustee shall advertise the time and place of the
sale of the Property, for not less than four weeks in a newspaper of general
circulation in each county in which the Property is situated, and shall mail
copies of such notice of sale to Borrower and other perons as prescribed by
law. After the lapse of such time as may be required by law, Trustee,
without demand on Borrower, shall sell the Property at public auction to the
highest bidder for cash at the time and place (which may be on the Property
or any part thereof as permitted by law) in one or more parcel as Trustee
may think best and in such order as Trustee may determine. Lender or
Lender's designee may purchase the Property at any sale. It shall not be
obligatory upon the purchaser at any such sale to see to the application of
the purchase money.
Trustee shall apply the proceeds of the sale in the following order: (a)
to all reasonable costs and expenses of the sale, including, but not limited
to, reasonable Trustee's and attorneys' fees and costs of title evidence; (b)
to all sums secured by this Deed of Trust; and (c) the excess, if any, to the
person or persons legally entitled thereto.
19. Borrower's Right to Cure Default. Whenever foreclosure is commenced
for nonpayment of any sums due hereunder, the owners of the Property or
parties liable hereon shall be entitled to cure said defaults by paying all
delinquent principal and interest payments due as of the date of cure, costs,
expenses, late charges, attorney's fees and other fees all in the manner
provided by law. Upon such payment, this Deed of Trust and the obligations
secured hereby shall remain in full force and effect as though no
Acceleration had occurred, and the foreclosure proceedings shall be
discontinued.
20. Assignment of Rents; Appointment of Receiver; Lender in Possession.
As additional security hereunder, Borrower hereby assigns to Lender the
rents of the Property; however, Borrower shall, prior to Acceleration under
paragraph 18 (Acceleration; Foreclosure; Other Remedies) or abandonment of
the Property, have the right to collect and retain such rents as they become
due and payable.
Lender or the holder of the Trustee's certificate of purchase shall be
entitled to a receiver for the Property after Acceleration under paragraph
18 (Acceleration; Foreclosure; Other Remedies), and shall also be so entitled
during the time covered by foreclosure proceedings and the period of
redemption, if any; and shall be entitled thereto as a matter of right
without regard to the solvency or insolvency of Borrower or of the then owner
of the Property, and without regard to the value thereof. Such receiver may
be appointed by any Court of competent jurisdiction upon ex parte application
and without notice -- notice being hereby expressly waived.
Upon Acceleration under paragraph 18 (Acceleration; Foreclosure; Other
Remedies) or abandonment of the Property, Lender, in person, by agent or by
judicially-appointed receiver, shall be entitled to enter upon, take
possession of and manage the Property and to collect the rents of the
Property including those past due. All rents collected by Lender or the
receiver shall be applied, first, to payment of the costs of preservation and
management of the Property, second, to payments due upon prior liens, and
then to the sums secured by this Deed of Trust. Lender and the receiver
shall be liable to account only for those rents actually received.
21. Release. Upon payment of all sums secured by this Deed of Trust,
Lender shall cause Trustee to release this Deed of Trust and shall produce
for Trustee the Note. Borrower shall pay all costs of recordation and shall
pay the statutor Trustee's fees. If Lender shall not produce the Note as
aforesaid, the Lender, upon notice in accordance with paragraph 16 (Notice)
from Borrower to Lender, shall obtain, at Lender's expense, and file any lost
instrument bond required by Trustee or pay the cost thereof to effect the
release of this Deed of Trust.
22. Waiver of Exemptions. Borrower hereby waives all right of homestead
and any other exemption in the Property under state or federal law presently
existing or hereafter enacted.
23. Escrow Funds for Taxes and Insurance. This paragraph 23 is not
applicable if Funds as defined below are being paid pursuant to a prior
encumbrance. Subject to applicable law, Borrower shall pay to Lender, on
each day installments of principal and interest are payable under the Note,
until the Note is paid in full, a sum (herein referred to as "Funds") equal
to N/A of the yearly taxes and assessments which may attain priority
over this Deed of Trust, plus N/A of yearly premium installments for
Property Insurance, all as reasonably estimated initially and from time to
time by Lender on the basis of assessments and bills and reasonable estimates
thereof, taking into account any excess Funds not used or shortages.
The principal of the Funds shall be held in a separate account by the
Lender in trust for the benefit of the Borrower and deposited in an
institution the deposits or accounts of which are insured or guaranteed by a
federal or state agency. Lender shall apply the Funds to pay said taxes,
assessments and insurance premiums. Lender may not charge for so holding and
applying the Funds, analyzing said account or verifying and compiling said
assessments and bills. Lender shall not be required to pay Borrower any
interest or earnings on the Funds. Lender shall give to Borrower, without
charge, an annual accounting of the Funds showing credits and debits to the
Funds and the purpose for which each debit to the Funds was made. The Funds
are pledged as additional security for the sums secured by this Deed of Trust.
If the amount of the Funds held by Lender shall not be sufficient to pay
taxes, assessments and insurance premiums as they fall due, Borrower shall
pay to Lender any amount necessary to make up the deficiency within 30 days
from the date notice is given in accordance with paragraph 16 (Notice) by
Lender to Borrower requesting payment thereof.
Upon payment in full of all sums secured by this Deed of Trust, Lender
shall simultaneouly refund to Borrower any Funds held by Lender. If under
paragraph 18 (Acceleration; Foreclosure; Other Remedies) the Property is sold
or the Property is otherwise acquired by Lender, Lender shall apply, no later
than imemdiately prior to the sale of the property or its acquisition by
Lender, whichever occurs first, any Funds held by Lender at the time of
application as a credit against the sums secured by this Deed of Trust.
24. Transfer of the Property; Assumption. The following events shall be
referred to herein as a "Transfer": (i) a transfer or conveyance of title (or
any portion thereof, legal or equitable) of the Property (or any part thereof
or interest therin), (ii) the execution of a contract or agreement creating a
right to title (or any portion thereof, legal or equitable) in the Property
(or any part thereof or interest therein), (iii) or an agreement granting a
possessory right in the Property (or any portion thereof), in excess of three
(3) years, (iv) a sale or transfer of, or the execution of a contract or
agreement creating a right to acquire or receive, more than fifty percent
(50%) of the controlling interest or more than fifty percent (50%) of the
beneficial interest in the Borrower, (v) the reorganization, liquidation or
dissolution of the Borrower. Not to be included as a Transfer are (i) the
creation of a lien or encumbrance subordinate to this Deed of Trust, (ii) the
creation of a purchase money security interest for household appliances, or
(iii) a transfer by devise, descent or by operation of the law upon the death
of a joint tenant. At the election of Lender, in the event of each and every
Transfer:
(a) All sums secured by this Deed of Trust shall become immediately due
and payable (Acceleration).
(b) If a Transfer occurs and should Lender not exercise Lender's option
pursuant to this paragraph 24 to Accelerate, Transferee shall be deemed to
have assumed all of the obligations of Borrower under this Deed of Trust
including all sums secured hereby whether or not the instrument evidencing
such conveyance, contract or grant expressly so provides. This covenant
shall run with the Property and remain in full force and effect until said
sums are paid in full. The Lender may without notice to the Borrower deal
with Transferee in the same manner as with the Borrower with reference to
said sums including the payment or credit to Transferee of undisbursed
reserve Funds on payment in full of said sums, without in any way altering or
discharging the Borrower's liability
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hereunder for the obligations hereby secured.
(c) Should Lender not elect to Accelerate upon the occureence of such
Transfer then, subject to (b) above, the mere fact of a lapse of time or the
acceptance of payment subsequent to any of such events, whether or not Lender
had actual or constructive notice of such Transfer, shall not be deemed a
waiver of Lender's right to make such election nor shall Lender be estopped
therefrom by virtue thereof. The issuance on behalf of the Lender of a
routine statement showing the status of the loan, whether or not Lender had
actual or constructive notice of such Transfer, shall not be a waiver or
estoppel of Lender's said rights.
25. Borrower's Copy. Borrower acknowledges receipt of a copy of the
Note and this Deed of Trust.
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EXECUTED BY BORROWER:
IF BORROWER IS NATURAL PERSON(s):
- -------------------------------------- --------------------------------------
doing business as
- -------------------------------------- --------------------
IF BORROWER IS CORPORATION:
ATTEST: CROSS-CONTINENT AUTO RETAILERS, INC.
A DELAWARE CORPORATION
--------------------------------------
Name of Corporation
/s/ R. Wayne Moore by: /s/ Bill Gilliland
- -------------------------------------- --------------------------------------
Secretary Bill Gilliland, Chairman
IF BORROWER IS PARTNERSHIP:
--------------------------------------
Name of Partnership
By:
--------------------------------
A General Partner
STATE OF TEXAS )
)
COUNTY OF POTTER )
The foregoing instrument was acknowledged before me this 10th day of
October, 1997, by * Bill Gilliland as Chairman of Cross-Continent Auto
Retailers, Inc., a Delaware Corporation.
Witness my hand and official seal.
My commission expires: 5-6-98
----------
/s/ Kathy Rieken
--------------------------------------
Notary Public
1201 S. TAYLOR, AMARILLO, TX 79101
--------------------------------------
Address
*If a natural person or persons, insert the name(s) of such person(s). If a
corporation, insert, for example, "John Doe as President and Jane Doe as
Secretary of Doe & Co., a Colorado corporation. "If a partnership, insert,
for example, "Sam Smith as general partner in and for Smith & Smith, a
general partnership."
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