EXHIBIT 10.36.1
CROSS DEFAULT AND CROSS COLLATERALIZATION AGREEMENT
THIS AGREEMENT dated this 22nd day of August, 1997, is entered into
by GENERAL MOTORS ACCEPTANCE CORPORATION, A NEW YORK CORPORATION,
(hereinafter referred to as "GMAC"), on the one hand, and MIDWAY CHEVROLET,
INC., A TEXAS CORPORATION; PLAINS CHEVROLET, INC., A TEXAS CORPORATION;
QUALITY NISSAN, INC., A TEXAS CORPORATION; WESTGATE CHEVROLET, INC., A TEXAS
CORPORATION, SAHARA NISSAN, INC., D/B/A NISSAN WEST, a Nevada Corporation,
and CROSS-CONTINENT AUTO RETAILERS, INC., on the other hand (collectively
referred to herein as "BORROWERS").
W I T N E S S E T H
WHEREAS, the BORROWERS are indebted to GMAC under various promissory
notes, security agreements, mortgages, guaranties and other agreements
(collectively referred to herein as "loan documents"), and
WHEREAS, GMAC may hereafter make additional loans, advances, and other
extensions of credit to BORROWERS; and
WHEREAS, GMAC is willing to extend credit evidenced by the loan documents
to BORROWERS if BORROWERS agree to provide additional security by cross
default and cross collateralizing all of said existing, proposed, and future
loans, advances, or extensions of credit to them individually and/or
collectively; and
WHEREAS, BORROWERS have requested that GMAC release certain parties from
their guaranty agreements by which they had previously guaranteed all of
certain BORROWERS' indebtedness to GMAC; and
WHEREAS, it is the intention of BORROWERS and GMAC that all collateral in
which GMAC now has or may hereafter obtain a lien on or security in from any
and/or all of Borrowers shall secure payment and performance of all loans,
advances, and other extensions of credit now or hereafter made by GMAC to any
and/or all of BORROWERS.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is acknowledged, including the inducement of GMAC, in
its sole discretion, to extend credit to BORROWERS, IT IS AGREED as follows:
(1) DEFINITIONS: As used in this Agreement, the terms listed below shall
have the following meaning:
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(a) OBLIGATIONS shall mean any liability, indebtedness, or obligation of
BORROWERS, either individually and/or collectively, to GMAC
of every kind and nature, now existing or hereafter arising, whether
created directly or acquired by assignment, whether matured or
unmatured, and any costs or expense, including reasonable attorneys,
fees incurred in the collection or enforcement of any such obligation;
(b) SECURITY AGREEMENT shall mean any existing or future agreements
between BORROWERS, individually and/or collectively, and GMAC which
creates or provides for a security interest in or lien upon any of the
assets or property (tangible or intangible, real or personal) of
BORROWERS, including but not limited to security agreements, deeds of
trust, mortgages, and wholesale floorplan agreements.
(2) CROSS-COLLATERALIZATION: All collateral now or hereafter subject to
a security interest or lien of GMAC pursuant to any or all of the Security
Agreements between BORROWERS and GMAC shall secure any and all Obligations,
and any proceeds of any collateral may he applied to any of the Obligations
as GMAC may see fit, subject to applicable law.
(3) CROSS DEFAULT: In addition to and not in substitution for any
provisions in any of the Security Agreements evidencing obligations, it is
agreed that any default or breach by BORROWERS, individually and/or
collectively, in payment or default of a material nature under any agreement
evidencing an Obligation shall, at the option of GMAC, constitute a default
under each and all loan documents executed by any of the BORROWERS in favor
of GMAC.
(4) EFFECT ON OTHER AGREEMENTS: This Agreement shall constitute an
amendment and supplement of each Security Agreement now or hereafter executed
and shall augment and be in addition to and not in substitution for any
provision of any Security Agreement or Obligation and shall not otherwise
limit or affect the rights and remedies of GMAC under any such Security
Agreement or Obligation.
(5) FUTURE LOANS: GMAC may, in its sole and absolute discretion, make
additional loans and other financing accommodations to BORROWERS, all of
which will be subject to the terms of this Agreement. Notwithstanding
anything to the contrary, any future change in the terms of any of BORROWERS'
Obligations shall require the written consent of GMAC.
(6) NOTICES: Any notices or other communications required or permitted
to be given by this document or by any of the loan documents must be given in
writing and must be personally delivered or mailed by prepaid certified,
registered, or first class mail or delivered by a nationally recognized
overnight courier to the party to whom such notice
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or communication is directed at the address set forth in this document. Any
notice or other communication shall be deemed to have been given (whether
actually received or not) on the day it is personally delivered or, if
mailed, on the third day after it is mailed as aforesaid. Either party may
change its address for purposes of this document by giving ten (10) days
prior written notice of such change to the other party pursuant to the terms
of this clause.
(7) NO OTHER UNDERSTANDINGS: Other than as recited herein, BORROWERS
acknowledge that GMAC has made no promises to induce execution of this
Agreement and that there are no other agreements or understandings, either
oral or in writing, affecting this Agreement and nothing in this Agreement
shall be considered a waiver by GMAC of any existing or future default(s) by
any BORROWERS of any Security Agreement or Obligation. No further
modification or amendment of this Agreement shall be made except in writing
executed by all parties.
(8) GOVERNING LAW: This Agreement shall he deemed to be a contract
entered into and made pursuant to the laws of the State of Oklahoma and shall
in all respects be governed, construed, and enforced in accordance with the
laws of said State.
(9) SUCCESSORS AND ASSIGNS: The provisions of this Agreement shall be
binding upon and shall inure to the benefit of the successors and assigns of
BORROWERS and GMAC.
MIDWAY CHEVROLET, INC.,
A TEXAS CORPORATION
WITNESS:
By: /s/ Bill Gilliland
-----------------------------------
BILL GILLILAND
/s/ Kathy Rieken
- --------------------------- Title PRESIDENT
/s/ Diana Walling Address: Canyon Expressway & Rockwell
- --------------------------- -------------------------------
Amarillo, Texas 79106
-------------------------------
PLAINS CHEVROLET, INC.,
A TEXAS CORPORATION
WITNESS:
By: /s/ Bill Gilliland
-----------------------------------
BILL GILLILAND
/s/ Kathy Rieken
- --------------------------- Title PRESIDENT
---------------------------------
/s/ Diana Walling Address: 2200 I-40 East
- --------------------------- -------------------------------
Amarillo, Texas 79103
QUALITY NISSAN, INC.
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A TEXAS CORPORATION
WITNESS:
By: /s/ Bill Gilliland
-----------------------------------
BILL GILLILAND
/s/ Kathy Rieken
- --------------------------- Title PRESIDENT
---------------------------------
/s/ Diana Walling Address: 4121 South Georgia
- --------------------------- -------------------------------
Amarillo, Texas 79110
WESTGATE CHEVROLET, INC.,
A TEXAS CORPORATION
WITNESS:
By: /s/ Bill Gilliland
-----------------------------------
BILL GILLILAND
/s/ Kathy Rieken
- --------------------------- Title PRESIDENT
---------------------------------
/s/ Diana Walling Address: 7300 I-40 West
- --------------------------- -------------------------------
Amarillo, Texas 79016
SAHARA NISSAN, INC., D/B/A
NISSAN WEST, A NEVADA CORPORATION
WITNESS:
By: /s/ Bill Gilliland
-----------------------------------
BILL GILLILAND
/s/ Kathy Rieken
- --------------------------- Title PRESIDENT
---------------------------------
/s/ Diana Walling Address: 5050 West Sahara Avenue
- --------------------------- -------------------------------
Las Vegas, Nevada 89102
CROSS-CONTINENT AUTO RETAILERS, INC.
A DELAWARE CORPORATION
WITNESS:
By: /s/ Bill Gilliland
-----------------------------------
BILL GILLILAND
/s/ Kathy Rieken
- --------------------------- Title CHAIRMAN OF THE BOARD
---------------------------------
CHIEF EXECUTIVE OFFICER
---------------------------------
/s/ Diana Walling Address: 1201 South Taylor Street
- --------------------------- -------------------------------
Amarillo, Texas 79105
"BORROWERS"
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GENERAL MOTORS ACCEPTANCE CORPORATION
WITNESS:
By:
----------------------------------
- ---------------------------
Title Area Manager
-------------------------------
- --------------------------- Address: 6303 Waterford Blvd.
----------------------------
Suite 100
----------------------------
Oklahoma City, OK 73118
----------------------------
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