Exhibit 10.34
JOINDER AGREEMENT
This JOINDER AGREEMENT (this "JOINDER AGREEMENT") is dated effective as of
July 1, 1997, and is executed and delivered by SAHARA NISSAN, INC. (the "JOINING
BORROWER"), a Nevada corporation, to TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a
national banking association, AS AGENT ON BEHALF OF BANKS (in such capacity,
together with its successors in such capacity, the "AGENT").
W I T N E S S E T H:
RECITALS:
1. Cross-Continent Auto Retailers, Inc., a Delaware corporation
("PARENT"), of which the Joining Borrower is a Subsidiary (together with the
other Borrowers thereto), has entered into that certain Revolving Credit
Agreement dated as of June 26, 1997 (as amended, modified, restated and
supplemented from time to time, the "CREDIT AGREEMENT") with Agent and certain
financial institutions which are signatories thereto or which may become a party
thereto from time to time.
2. Pursuant to the terms of the Credit Agreement, the Joining Borrower is
now required, among other things and subject to certain terms and conditions
thereof, to join in the execution and delivery to Agent on behalf of Banks and
the Issuing Bank of (a) a new Note, in amendment and restatement of the existing
Note and (b) the Credit Agreement and the other Loan Documents, by its execution
and delivery of this Joinder Agreement and otherwise by such action as Agent or
any Bank may reasonably require.
3. In order to comply with such requirement, the Joining Borrower
executes and delivers this Joinder Agreement.
AGREEMENTS:
Now, in consideration of the credit and financial accommodations extended
and to be extended to the Borrowers pursuant to the Credit Agreement and the
other Loan Documents or otherwise, which Joining Borrower hereby agrees have and
shall continue to benefit Joining Borrower and its shareholders, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Joining Borrower hereby agrees, assumes, ratifies, joins and
acknowledges as follows:
1. ASSUMPTION. Joining Borrower hereby unconditionally, jointly and
severally, assumes liability for all covenants, warranties,
representations, indemnifications, obligations and other Debt of the
Borrowers now existing or which may hereafter arise under the Loan
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Documents and shall be liable therefor as though Joining Borrower had
originally been a party to the Loan Documents. Without limitation of the
foregoing, Joining Borrower, as a primary obligor and not as a surety,
unconditionally, jointly and severally, shall be liable unto Agent for the
benefit of Banks and the Issuing Bank for the payment of the Debt of
Borrowers under the Loan Documents when due (whether at the stated
maturity, by acceleration or otherwise) in accordance with the terms of the
Loan Documents.
2. TERMS RATIFIED. Joining Borrower hereby expressly ratifies all
terms, covenants, representations, warranties, agreements, provisions,
indemnifications, WAIVERS, RELEASES, restrictions, duties and
responsibilities of Borrowers under the Loan Documents and agrees that they
shall apply to Joining Borrower as if Joining Borrower had executed the
Loan Documents, and that any reference to "Borrowers" or a "Borrower"
contained in the Credit Agreement or any other Loan Documents shall mean,
without limitations, the Joining Borrower.
3. REPRESENTATIONS. Joining Borrower (a) confirms that it has
received a copy of the Loan Documents, together with such other documents
and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Joinder Agreement; (b) agrees that
it will, independently and without reliance upon Agent or any Bank and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, and (c) represents that the value of the
consideration received and to be received by Joining Borrower is reasonably
worth at least as much as the liability and obligation of such Joining
Borrower hereunder, and that such liability and obligation may reasonably
be expected to benefit Joining Borrower directly or indirectly. The Board
of Directors of Joining Borrower has duly adopted resolutions certifying
that the execution, delivery and performance of this Joinder Agreement (and
the effect thereof) will benefit Joining Borrower and its shareholders.
4. NO IMPAIRMENT. Nothing herein shall in any manner impair or
extinguish any of the other Loan Documents or any lien or security interest
now or hereafter securing the payment of any of the Debt arising pursuant
to the Loan Documents.
5. CONDITIONS. This Joinder Agreement shall not become effective
until Agent has received each of the following:
(a) an Officer's Certificate of Joining Borrower, in form and
substance reasonably satisfactory to Agent, dated as of the date
hereof, as to (i) the resolutions of the Board of Directors (or
similar governing body) of the Joining Borrower authorizing the
execution, delivery and performance of this Joinder Agreement and of
all instruments contemplated herein to be executed and delivered by
Joining Borrower in connection herewith (a copy of such resolutions to
be incorporated into
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such certificate), such certificate to state that said copy is a
true and correct copy of such resolutions and that such resolutions
were duly adopted and have not been amended, superseded, revoked or
modified in any respect and remain in full force and effect as of
the date of such certificate; (ii) the election, incumbency and
signatures of the officer or officers (or other official) of Joining
Borrower executing and delivering this Joinder Agreement and each
other instrument or document furnished in connection herewith; (iii)
Joining Borrower's organizational documents in effect as of the date
hereof (a copy thereof to be attached to the certificate), and (iv)
such other documents and information as Agent or any Bank shall
reasonably request;
(b) a legal opinion from the legal counsel for Joining Borrower
acceptable to Agent, in form, substance and scope reasonably
satisfactory to Agent;
(c) a new Note dated as of the date hereof, in amendment and
restatement, but not novation, of the existing Note, to which all
existing Borrowers and Joining Borrower are parties, in form and
substance reasonably satisfactory to Agent;
(d) unless such action is prohibited by the applicable
Franchise Agreement, an amendment to the Pledge Agreement dated as of
the date hereof pledging all outstanding shares of Joining Borrower,
in form and substance reasonably satisfactory to Agent;
(e) a certificate from the appropriate public official of each
jurisdiction in which Joining Borrower is organized as to the
continued existence and good standing of Joining Borrower;
(f) a certificate from the appropriate public official of each
jurisdiction in which Joining Borrower is authorized and qualified to
do business as to the due qualification and good standing of Joining
Borrower unless failure is not reasonably likely to have a Material
Adverse Effect; and
(g) certified copies of Requests for Information of Copies
(Form UCC-11), or equivalent reports, listing all effective financing
statements which name Joining Borrower (under its present name, any
trade names and any previous names) as debtor and which are filed,
together with copies of all such financing statements.
6. GOVERNING LAW. UNLESS OTHERWISE SPECIFIED THEREIN, THIS JOINDER
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF TEXAS AND THE UNITED STATES OF AMERICA.
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7. SURVIVAL; PARTIES BOUND. All representations, warranties,
covenants and agreements made by or on behalf of the Joining Borrower in
connection herewith shall survive the execution and delivery of this
Joinder Agreement and the other Loan Documents, shall not be affected by
any investigation made by any Person, and shall bind the Joining Borrower
and its successors, trustees, receivers and assigns and inure to the
benefit of the successors and assigns of Agent and Banks. The term of this
Joinder Agreement shall be until the termination of the Credit Agreement as
to all parties.
8. CAPTIONS. The headings and captions appearing in this Joinder
Agreement have been included solely for convenience and shall not be
considered in construing this Joinder Agreement.
9. DEFINITIONS. Terms used herein and not defined herein, but which
are defined in the Credit Agreement, shall have the meanings herein
assigned to them in the Credit Agreement.
10. PARTIES BOUND. This Joinder Agreement shall bind and benefit the
parties hereto and their respective successors and assigns, except that
Joining Borrower may not assign its rights or obligations hereunder without
the prior written consent of Agent and Banks.
11. AMENDMENTS, ETC. No amendment or waiver of any provision of this
Joinder Agreement or by any other Loan Document, nor any consent to any
departure by the Joining Borrower therefrom, shall in any event be
effective unless the same shall be agreed or consented to by Agent, Banks
and Joining Borrower, and each such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given,
unless otherwise specifically provided in the Credit Agreement.
IN WITNESS WHEREOF, the Joining Borrower has executed this Agreement as of
the date set forth above.
SAHARA NISSAN, INC.
By:
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Name:
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Title:
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ATTEST:
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Name:
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Title:
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