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EXHIBIT 10.1
TRAVELCENTERS OF AMERICA, INC.
$428,000,000
AMENDED AND RESTATED CREDIT
AGREEMENT
dated as of
November 14, 2000
Chase Securities Inc. and
Credit Suisse First Boston
as Co-Lead Arrangers
The Chase Manhattan Bank
as Administrative Agent
Credit Suisse First Boston
as Syndication Agent
Firstar Bank, N.A.
as Documentation Agent
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TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Defined Terms.................................................... 1
SECTION 1.02. Terms Generally.................................................. 28
ARTICLE II
The Credits
SECTION 2.01. Commitments...................................................... 29
SECTION 2.02. Loans............................................................ 30
SECTION 2.03. Notice of Borrowings............................................. 32
SECTION 2.04. Evidence of Debt; Repayment of Loans............................. 33
SECTION 2.05. Fees............................................................. 33
SECTION 2.06. Interest on Loans................................................ 34
SECTION 2.07. Default Interest................................................. 34
SECTION 2.08. Alternate Rate of Interest....................................... 35
SECTION 2.09. Termination and Reduction of Commitments......................... 35
SECTION 2.10. Conversion and Continuation of Term Borrowings................... 36
SECTION 2.11. Repayment of Term Borrowings..................................... 37
SECTION 2.12. Optional Prepayment.............................................. 37
SECTION 2.13. Mandatory Prepayments............................................ 38
SECTION 2.14. Reserve Requirements; Change in Circumstances.................... 40
SECTION 2.15. Change in Legality............................................... 42
SECTION 2.16. Indemnity........................................................ 42
SECTION 2.17. Pro Rata Treatment............................................... 43
SECTION 2.18. Sharing of Setoffs............................................... 44
SECTION 2.19. Payments......................................................... 44
SECTION 2.20. Taxes............................................................ 45
SECTION 2.21. Swingline Loans.................................................. 48
SECTION 2.22. Replacement of Lenders........................................... 49
ARTICLE III
Letters of Credit
SECTION 3.01. Issuance of Letters of Credit.................................... 50
SECTION 3.02. Participations; Unconditional Obligations........................ 50
SECTION 3.03. LC Fee........................................................... 51
SECTION 3.04. Agreement To Repay LC Disbursements.............................. 51
SECTION 3.05. Letter of Credit Operations...................................... 53
SECTION 3.06. Cash Collateralization........................................... 53
SECTION 3.07. Termination of LC Commitment..................................... 53
SECTION 3.08. Fronting Bank Fees............................................... 54
SECTION 3.09. Resignation or Removal of Fronting Bank.......................... 54
SECTION 3.10. Existing Letters of Credit....................................... 54
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ARTICLE IV
Representations and Warranties
SECTION 4.01. Organization; Powers............................................. 55
SECTION 4.02. Authorization.................................................... 55
SECTION 4.03. Enforceability................................................... 55
SECTION 4.04. Governmental Approvals........................................... 56
SECTION 4.05. Financial Statements............................................. 56
SECTION 4.06. No Material Adverse Change....................................... 56
SECTION 4.07. Title to Properties; Possession Under Leases..................... 57
SECTION 4.08. Subsidiaries..................................................... 57
SECTION 4.09. Litigation; Compliance with Laws................................. 57
SECTION 4.10. Agreements....................................................... 58
SECTION 4.11. Federal Reserve Regulations...................................... 58
SECTION 4.12. Investment Company Act; Public Utility Holding Company Act....... 58
SECTION 4.13. Use of Proceeds.................................................. 58
SECTION 4.14. Tax Returns...................................................... 59
SECTION 4.15. No Material Misstatements........................................ 59
SECTION 4.16. Employee Benefit Plans........................................... 60
SECTION 4.17. Environmental and Safety Matters................................. 60
SECTION 4.18. Solvency......................................................... 61
SECTION 4.19. Employment and Management Agreements............................. 61
SECTION 4.20. Capitalization................................................... 62
SECTION 4.21. Security Documents............................................... 63
SECTION 4.22. Labor Matters.................................................... 63
SECTION 4.23. Location of Real Property and Leased Premises.................... 64
SECTION 4.24. Insurance........................................................ 64
SECTION 4.25. Delivery of Documents............................................ 64
SECTION 4.26. Fees and Expenses................................................ 65
ARTICLE V
Conditions of Restatement, Lending and Issuance of Letters of Credit
SECTION 5.01. All Credit Events................................................ 65
SECTION 5.02. Restatement and Initial Borrowing................................ 66
SECTION 5.03. Certain Qualifications........................................... 71
ARTICLE VI
Affirmative Covenants
SECTION 6.01. Existence; Businesses and Properties............................. 72
SECTION 6.02. Insurance........................................................ 73
SECTION 6.03. Obligations and Taxes............................................ 75
SECTION 6.04. Financial Statements, Reports, etc. ............................. 75
SECTION 6.05. Litigation and Other Notices..................................... 77
SECTION 6.06. ERISA............................................................ 77
SECTION 6.07. Maintaining Records; Access to Properties and Inspections........ 78
SECTION 6.08. Use of Proceeds.................................................. 78
SECTION 6.09. Fiscal Year...................................................... 78
SECTION 6.10. Further Assurances............................................... 78
SECTION 6.11. Rate Protection Agreements....................................... 79
SECTION 6.12. Environmental and Safety Laws.................................... 80
SECTION 6.13. Material Contracts............................................... 81
SECTION 6.14. Estoppel Certificates and Subordination and Attornment Agreements 81
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ARTICLE VII
Negative Covenants
SECTION 7.01. Indebtedness..................................................... 81
SECTION 7.02. Liens............................................................ 85
SECTION 7.03. Sale and Lease-Back Transactions................................. 88
SECTION 7.04. Investments, Loans and Advances.................................. 88
SECTION 7.05. Mergers, Consolidations, Sales of Assets and Acquisitions........ 90
SECTION 7.06. Dividends and Distributions...................................... 92
SECTION 7.07. Transactions with Affiliates..................................... 93
SECTION 7.08. Business of Borrower, the Guarantors and TAFSI................... 93
SECTION 7.09. Limitations on Debt Prepayments.................................. 93
SECTION 7.10. Amendment of Certain Documents................................... 94
SECTION 7.11. Limitation on Leases............................................. 94
SECTION 7.12. Subsidiaries..................................................... 95
SECTION 7.13. Capital Expenditures............................................. 95
SECTION 7.14. Interest Expense Coverage Ratios................................. 96
SECTION 7.15. Leverage Ratio................................................... 96
SECTION 7.16. Synthetic Repurchases............................................ 97
SECTION 7.17. Designated Indebtedness.......................................... 97
ARTICLE VIII
Events of Default............................... 97
ARTICLE IX
The Administrative Agent............................ 101
ARTICLE X
Miscellaneous
SECTION 10.01. Notices......................................................... 104
SECTION 10.02. Survival of Agreement........................................... 104
SECTION 10.03. Binding Effect.................................................. 105
SECTION 10.04. Successors and Assigns.......................................... 105
SECTION 10.05. Expenses; Indemnity............................................. 109
SECTION 10.06. Right of Setoff................................................. 110
SECTION 10.07. APPLICABLE LAW.................................................. 111
SECTION 10.08. Waivers; Amendment.............................................. 111
SECTION 10.09. Interest Rate Limitation........................................ 112
SECTION 10.10. Entire Agreement................................................ 112
SECTION 10.11. WAIVER OF JURY TRIAL............................................ 112
SECTION 10.12. Severability.................................................... 113
SECTION 10.13. Counterparts.................................................... 113
SECTION 10.14. Headings........................................................ 113
SECTION 10.15. Jurisdiction; Consent to Service of Process..................... 113
SECTION 10.16. Confidentiality................................................. 114
SECTION 10.17. Release of Mortgaged Property................................... 115
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Exhibits
Exhibit A Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Guarantee Agreement
Exhibit D Form of Indemnity and Subrogation Agreement
Exhibit E-1 Form of Mortgage
Exhibit E-2 Form of Leasehold Mortgage
Exhibit F Form of Pledge Agreement
Exhibit G Form of Security Agreement
Exhibit H Form of Trademark Security Agreement
Exhibit I-1 Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Exhibit I-2 Form of Opinion of General Counsel of TravelCenters
Exhibit I-3 Form of Opinion of Local Counsel
Schedules
Schedule 1.01(a) Mortgaged Properties
Schedule 1.01(c) Mortgage Filing Offices
Schedule 1.01(d) Existing Synthetic Leases
Schedule 2.01 Commitments and Lenders
Schedule 4.07(b) Lease Exceptions
Schedule 4.07(c) Notices of Condemnation
Schedule 4.07(d) Dispositions
Schedule 4.09 Litigation
Schedule 4.19 Employment and Management Agreements
Schedule 4.20(a)(i) Stockholders
Schedule 4.20(f) Agreements Relating to Capital Stock
Schedule 4.21 UCC Filing Offices
Schedule 4.23(a) Owned Real Property
Schedule 4.23(b) Leased Real Property
Schedule 5.02(a) Local Counsel Listing
Schedule 7.01 Indebtedness
Schedule 7.02 Liens
Schedule 7.04(l) Investments
Schedule 7.05(g) Permitted TravelCenters Dispositions
Schedule 7.07 Permitted Affiliate Transactions
Schedule 7.08(b) Existing Leases
Schedule 7.11(a) Leases
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AMENDED AND RESTATED CREDIT AGREEMENT dated
as of November 14, 2000, among the Borrower, the
Lenders, the Agents, the Documentation Agent, the
Fronting Bank and the Swingline Lenders (each such
term used but not defined in this preamble having the
meaning assigned thereto in Article I).
The parties hereto desire to amend and restate the Existing
Credit Agreement (as defined in Article I) pursuant to and in accordance with
this Agreement. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Term Loan or ABR Revolving Loan.
"ABR Revolving Loan" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Alternate Base Rate in
accordance with the provisions of Article II.
"ABR Spread" shall mean (a) in the case of Term Loans, 2.25%
per annum and (b) in the case of Revolving Loans and Swingline Loans, 1.75% per
annum.
"ABR Term Loan" shall mean any Term Loan bearing interest at a
rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Adjusted LIBO Rate" shall mean, with respect to any
Eurodollar Borrowing for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/100 of 1%) equal to the product of
(a) the LIBO Rate in effect for such Interest Period and (b) Statutory Reserves.
"Administrative Agent" shall mean The Chase Manhattan Bank, a
New York banking corporation, in its capacity as administrative agent for the
Lenders.
"Administrative Fee Letter" shall have the meaning assigned to
such term in Section 2.05(b).
"Administrative Fees" shall have the meaning assigned to such
term in Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative
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Questionnaire in the form of Exhibit A.
"Affiliate" shall mean, when used with respect to a specified
Person, another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the
Person specified.
"Agents" shall mean the Administrative Agent and the
Syndication Agent.
"Alternate Base Rate" shall mean, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. For purposes hereof, the term "Prime Rate" shall mean
the rate of interest per annum publicly announced from time to time by the
Administrative Agent as its prime rate in effect at its principal office in New
York City; each change in the Prime Rate shall be effective on the date such
change is publicly announced as being effective. The term "Base CD Rate" shall
mean the sum of (a) the product of (i) the Three- Month Secondary CD Rate and
(ii) Statutory Reserves and (b) the Assessment Rate. The term "Three-Month
Secondary CD Rate" shall mean, for any day, the secondary market rate for three-
month certificates of deposit reported as being in effect on such day (or, if
such day shall not be a Business Day, the next preceding Business Day) by the
Board through the public information telephone line of the Federal Reserve Bank
of New York (which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the week
following such day) or, if such rate shall not be so reported on such day or
such next preceding Business Day, the average of the secondary market quotations
for three-month certificates of deposit of major money center banks in New York
City received at approximately 10:00 a.m., New York City time, on such day (or,
if such day shall not be a Business Day, on the next preceding Business Day) by
the Administrative Agent from three New York City negotiable certificate of
deposit dealers of recognized standing selected by it. The term "Federal Funds
Effective Rate" shall mean, for any day, the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York or, if such rate is not so published
for any day that is a Business Day, the average of quotations for the day of
such transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Base CD
Rate or the Federal Funds Effective Rate or both for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient quotations
in accordance with the terms thereof, the Alternate Base Rate shall be
determined without regard to clause (b) or (c), or both, of the first sentence
of this definition, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change
in the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective
Rate, respectively.
"Applicable Percentage" of any Participating Lender shall mean
the percentage of the aggregate Revolving Credit Commitments represented by such
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Participating Lender's Revolving Credit Commitment.
"Assessment Rate" shall mean for any date the annual rate
(rounded upwards, if necessary, to the next 1/100 of 1%) most recently estimated
by the Administrative Agent as the then-current net annual assessment rate that
will be employed in determining amounts payable by the Administrative Agent to
the Federal Deposit Insurance Corporation (or any successor) for insurance by
such Corporation (or such successor) of time deposits made in dollars at the
Administrative Agent's domestic offices.
"Assigned Indebtedness" shall mean (a) the principal amount of
any Indebtedness outstanding under the Existing Credit Agreement on the Closing
Date immediately prior to consummation of the transactions contemplated hereby,
to the extent that (i) such Indebtedness is held at such time by a lender under
the Existing Credit Agreement that is not a party to this Agreement as a Lender
and (ii) such lender shall have agreed to assign such Indebtedness to the
Lenders hereunder on the Closing Date pursuant to the Assignment Agreement and
(b) the principal amount of any outstanding Indebtedness represented by the
Senior Notes on the Closing Date immediately prior to the consummation of the
transactions contemplated hereby to the extent the holder of such Indebtedness
shall have agreed to assign such Indebtedness to the Lenders hereunder (to be
restated as Term Loans) on the Closing Date pursuant to the Assignment
Agreement.
"Assignment Agreement" shall mean an agreement entered into by
one or more holders of Assigned Indebtedness with the Administrative Agent and
the Borrower, pursuant to which such holder or holders of Assigned Indebtedness
shall have agreed to assign the principal amount of such Assigned Indebtedness
to the Lenders on the Closing Date in consideration of the payment to such
holder or holders (a) by the Lenders, of an amount equal to the principal amount
of the Assigned Indebtedness so assigned to them and (b) by the Borrower, of all
other amounts accrued and owing to such holder or holders under the Existing
Credit Agreement or under the Senior Notes, as the case may be, in each case as
of the Closing Date.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee, and accepted by the
Administrative Agent, in the form of Exhibit B or such other form as shall be
approved by the Administrative Agent.
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States.
"Borrower" shall mean TravelCenters of America, Inc., a
Delaware corporation.
"Borrowing" shall mean a group of Loans of a single Type made
by the applicable Lenders on a single date and as to which a single Interest
Period is in effect.
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"Business Day" shall mean any day (other than a Saturday,
Sunday or legal holiday in the State of New York) on which banks are open for
business in New York City; provided, however, that, when used in connection with
a Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Expenditures" shall mean, for any period, the sum of
all amounts that would, in accordance with GAAP, be included as additions to
property, plant and equipment and other capital expenditures on a consolidated
statement of cash flows for the Borrower and its subsidiaries during such period
(including the amount of assets leased under any Capital Lease Obligation).
Notwithstanding the foregoing, the term "Capital Expenditures" shall not include
(a) capital expenditures in respect of the reinvestment of sales proceeds,
insurance proceeds and condemnation proceeds received by the Borrower or its
subsidiaries in connection with the sale, transfer or other disposition of the
Borrower's or its subsidiaries' business units, assets or properties, if (as
contemplated in the definition of the term "Prepayment Event") such reinvestment
(including, in the case of insurance proceeds, reinvestment in the form of
restoration or replacement of damaged property) shall have resulted in the event
giving rise to the receipt of such amounts not being considered a "Prepayment
Event" as contemplated in the definition of such term or (b) the purchase price
with respect to any Permitted Business Acquisition.
"Capital Lease Obligations" of any Person shall mean the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Cash Interest Expense" shall mean, for any period, the net
interest expense of the Borrower and its subsidiaries for such period determined
on a consolidated basis in accordance with GAAP, excluding, to the extent
included therein (a) any fees and expenses payable or amortized and (b) any
non-cash interest expense attributable to the amortization of the original issue
discount on the Subordinated Notes, in each case during such period by the
Borrower or its subsidiaries in connection with the Transactions. For purposes
of the foregoing, net interest expense shall be determined after giving effect
to any net payments made or received by the Borrower with respect to Rate
Protection Agreements.
"Casualty" shall have the meaning assigned to such term in
Section 9 of the Guarantee Agreement.
"CERCLA" shall have the meaning assigned to such term in the
definition of the term "Environmental and Safety Laws".
A "Change in Control" shall be deemed to have occurred if:
(a) any Person or group (within the meaning of Rule 13d-5 of
the Securities and Exchange Commission as in effect on the date
hereof), other than
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the Sponsor or any of its Affiliates, shall directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise, have the ability to elect a majority of the board of
directors of the Borrower;
(b) the Sponsor and its Affiliates shall cease to own and
control in the aggregate, directly or indirectly, beneficially and of
record, shares representing at least 45.0% (or, after an IPO, 35%) of
the aggregate ordinary voting power represented by the issued and
outstanding capital stock of the Borrower;
(c) prior to an IPO, the Original Control Group shall cease to
beneficially own and control in the aggregate, directly or indirectly,
beneficially and of record, shares representing at least 50.1% of the
aggregate ordinary voting power represented by the issued and
outstanding capital stock of the Borrower;
(d) any Person or group (within the meaning of Rule 13d-5 of
the Securities and Exchange Commission as in effect on the date
hereof), other than the Sponsor and its Affiliates, shall own directly
or indirectly, beneficially or of record, shares of capital stock of
the Borrower representing more than the percentage of the aggregate
ordinary voting power represented by the shares of capital stock of the
Borrower beneficially owned and controlled, directly or indirectly, by
the Sponsor and its Affiliates at such time;
(e) prior to an IPO, a majority of the seats (other than
vacant seats) on the board of directors of the Borrower shall at any
time be occupied by Persons who were neither (i) nominated by the
Sponsor and its Affiliates nor (ii) elected by directors so nominated;
(f) after an IPO, a majority of the seats (other than vacant
seats) on the board of directors of the Borrower shall at any time be
occupied by Persons who were neither (i) nominated by the board of
directors of the Borrower nor (ii) appointed by directors so nominated;
(g) any "Change in Control" (however denominated) shall have
occurred under the Subordinated Note Indenture;
(h) the Borrower shall cease to beneficially own and control
directly or indirectly (other than as a result of a merger of one
Guarantor into another Guarantor permitted pursuant to Section
7.05(h)(iii)), 100% of each class of outstanding capital stock of each
Guarantor and TAFSI free and clear of all Liens (other than any Liens
created under the Pledge Agreement); or
(i) any Guarantor or TAFSI shall issue any class of capital
stock (or security convertible into any of its capital stock) that is
not pledged to the Collateral Agent for the ratable benefit of the
Secured Parties.
"Class" (a) when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans or Term Loans, (b) when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Credit Commitment or a Term
Loan Commitment and (c) when used in reference to any Lender, refers to whether
such Lender is a Term
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Lender or a Revolving Lender.
"Closing Date" shall mean the date on which the conditions set
forth in Section 5.02 are satisfied (or waived in accordance with this
Agreement).
"Code" shall mean the Internal Revenue Code of 1986, or any
successor statute thereto, as the same may be amended from time to time.
"Collateral" shall mean all the "Collateral" as defined in any
Security Document and shall also include the Lockbox Collateral and the
Mortgaged Properties.
"Collateral Agent" shall mean The Chase Manhattan Bank, as
Collateral Agent under the Security Documents and the Guarantee Agreement.
"Commitment" shall mean, with respect to each Lender, such
Lender's Term Loan Commitment and Revolving Credit Commitment.
"Commitment Fee" shall have the meaning assigned to such term
in Section 2.05(a).
"Common Stock" shall have the meaning assigned to such term in
Section 4.20.
"Condemnation Proceeds" shall have the meaning assigned to
such term in Section 9 of the Guarantee Agreement.
"Confidential Information Memorandum" shall mean the
Confidential Information Memorandum of the Borrower dated October 2000.
"Control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Credit Event" shall have the meaning assigned to such term in
Article V.
"Debt Tender Offer" shall mean the tender offer and consent
solicitation to be consummated by the Borrower in connection with the Merger in
respect of the 10 1/4% Subordinated Notes.
"Default" shall mean any event or condition that upon notice,
lapse of time or both would constitute an Event of Default.
"Default Rate" shall have the meaning assigned to such term in
Section 2.07.
"Designated Senior Indebtedness" shall have the meaning
assigned to such term in the Subordinated Note Indenture.
"Documentation Agent" shall mean Firstar Bank, N.A., a
national banking
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association, in its capacity as documentation agent for the Lenders hereunder.
"dollars" or "$" shall mean lawful money of the United States.
"EBITDA" with respect to the Borrower and its subsidiaries for
any period shall mean the sum of (a) Net Income for such period, (b) all
Federal, state, local and foreign income taxes deducted in determining such Net
Income, (c) interest expense deducted in determining such Net Income, (d)
depreciation, amortization and other noncash charges deducted in determining
such Net Income, (e) any non-recurring fees, expenses or charges deducted in
determining such Net Income related to any issuance of capital stock by the
Borrower, any investment or acquisition, or any incurrence of Indebtedness
permitted under this Agreement (in each case, whether or not successful),
including any such fees, expenses or charges related to the Transactions, in
each case not exceeding $5,000,000 in the aggregate for all such non-recurring
fees, expenses and charges attributable to the same transaction or event (or
group of related transactions or events), (f) any extraordinary, one time or
non-recurring charges deducted in determining such Net Income related to
one-time severance and relocation costs incurred in connection with the
transactions or acquisitions consummated after the Closing Date, in each case
not exceeding $2,000,000 in the aggregate for all such charges attributable to
the same transaction or acquisition (or group of related transactions or
acquisitions), and (g) Transition Expenses deducted in determining such Net
Income not exceeding 3% of the value of any related acquisition or disposition
and not exceeding, on a cumulative basis during the term of this Agreement,
$15,000,000 in the aggregate. For the purposes of calculating the Interest
Expense Coverage Ratio, the term "EBITDA" shall not include the gain on the
initial sale of assets to any lessee in connection with the leasing of any
TravelCenter in accordance with Section 7.08. For the purposes of calculating
EBITDA for any period of four consecutive fiscal quarters (each, a "Reference
Period") pursuant to any determination of the Leverage Ratio, (i) if at any time
since the commencement of such Reference Period the Borrower or any subsidiary
shall have made any Material Disposition, the EBITDA for such Reference Period
shall be reduced by an amount equal to the EBITDA (if positive) attributable to
the property that is the subject of such Material Disposition for such Reference
Period or increased by an amount equal to the EBITDA (if negative) attributable
thereto for such Reference Period and (ii) if at any time since the commencement
of such Reference Period the Borrower or any subsidiary shall have made a
Material Acquisition, EBITDA for such Reference Period shall be calculated after
giving pro forma effect thereto as if such Material Acquisition occurred on the
first day of such Reference Period; provided that any such pro forma
calculations may include cost savings reductions for such period resulting
directly from the Material Acquisition which is being given pro forma effect
that (A) are permitted by Regulation S-X of the Securities Act of 1933, as
amended, or (B) have been realized or for which the steps necessary for
realization have been taken or are reasonably expected to be taken within 90
days following such Material Acquisition, provided, however, that such pro forma
calculations shall not give effect to such cost savings reductions unless the
Borrower shall have delivered to the Administrative Agent a certificate of a
Financial Officer of the Borrower stating (a) the amount of such cost savings
reductions and (b) that such cost savings reductions are based on the reasonable
good faith belief of the Financial Officer executing such
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certificate at the time of such execution; provided further that if such pro
forma calculations give effect to any cost savings reductions for which the
steps necessary for realization have not been taken at the time of the
applicable Material Acquisition but are expected to be taken within 90 days
thereafter, then, for purposes of determining the Leverage Ratio on and after
the date that is 90 days after the date of consummation of such Material
Acquisition, such pro forma calculations shall not give effect to such cost
savings reductions to the extent that the steps necessary for realization
thereof were not actually taken during such 90-day period. As used in this
definition, "Material Acquisition" means any acquisition of property or series
of related acquisitions of property that involves the payment of consideration
by the Borrower and its subsidiaries in excess of $10,000,000; and "Material
Disposition" means any disposition of property or series of related dispositions
of property that yields gross proceeds to the Borrower or any of its
subsidiaries in excess of $10,000,000. Each certificate delivered pursuant to
Section 6.04(c) shall include in the calculations of the Leverage Ratio set
forth in such certificate a reasonably detailed calculation of all pro forma
adjustments made for purposes of calculating EBITDA to give effect to Material
Acquisitions and Material Dispositions, including any pro forma cost savings
reductions.
"Environmental Agreements" shall mean (a) the Environmental
Agreement dated as of July 22, 1993 (as amended, supplemented or otherwise
modified from time to time), among BP Exploration & Oil Inc., TA and certain
other parties and (b) the Environmental Agreement dated as of November 23, 1992
(as amended, supplemented or otherwise modified from time to time), between
Union Oil Company of California and National.
"Environmental and Safety Laws" shall mean any and all
applicable current and future treaties, laws, regulations, enforceable
requirements, binding determinations, orders, decrees, judgments, injunctions,
permits, approvals, authorizations, licenses, permissions, notices or binding
agreements issued, promulgated or entered by any Governmental Authority,
relating to the environment, to employee health or safety as it pertains to the
use or handling of, or exposure to, Hazardous Substances, to preservation or
reclamation of natural resources or to the management, release or threatened
release of contaminants or noxious odors, including the Hazardous Materials
Transportation Act, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986 ("CERCLA"), the Solid Waste Disposal Act, as amended
by the Resource Conservation and Recovery Act of 1976 and the Hazardous and
Solid Waste Amendments of 1984, the Federal Water Pollution Control Act, as
amended by the Clean Water Act of 1977, the Clean Air Act of 1970, as amended,
the Toxic Substances Control Act of 1976, the Occupational Safety and Health Act
of 1970, as amended, the Emergency Planning and Community Right-to-Know Act of
1986, the Safe Drinking Water Act of 1974, as amended, and any similar or
implementing state or local laws and all amendments or regulations promulgated
thereunder.
"Environmental Claim" shall mean any written notice of any
Governmental Authority alleging potential liability for damage to the
environment or by
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any Person alleging potential liability for personal injury (including sickness,
disease or death), in either case, resulting from or based upon (a) the presence
or Release (including intentional and unintentional, negligent and nonnegligent,
sudden or nonsudden, accidental or nonaccidental leaks or spills) of any
Hazardous Substance at, in or from the property, whether or not owned or leased
by the Borrower or a Guarantor or (b) any other circumstances forming the basis
of any violation, or alleged violation, of any Environmental and Safety Law.
"Equity Contributions" shall mean the sum of (i) the Sponsor
Contribution and (ii) the Rollover Company Stock.
"Equity Interests" shall mean shares of the capital stock,
partnership interests, membership interest in a limited liability company,
beneficial interests in a trust or other equity interests in the Borrower or any
of its subsidiaries or any warrants, options or other rights to acquire such
interests.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, or any successor statute as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not incorporated) that is, was or hereafter becomes a member of a group of which
the Borrower is a member and which is treated as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of
the Code.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Loan" shall mean any Eurodollar Term Loan or
Eurodollar Revolving Loan.
"Eurodollar Revolving Loan" shall mean any Revolving Loan
bearing interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Term Loan" shall mean any Term Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Event of Default" shall have the meaning assigned to such
term in Article VIII.
"Excepted Properties" shall mean real properties constituting
TravelCenters with respect to which Liens are granted for the purposes described
in Section 7.02(n) or (o); provided that (i) the total number of properties that
constitute "Excepted Properties" during the term of this Agreement shall not
exceed four and (ii) the aggregate fair market value of all properties that
constitute "Excepted Properties" during the term of this Agreement shall not
exceed $15,000,000.
"Excess Cash Flow" shall mean, for any period, the
consolidated Net
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Income of the Borrower and its subsidiaries during such period plus, without
duplication, (a) (i) the aggregate amounts deducted in determining such Net
Income in respect of all deferred charges and depreciation, amortization and
other noncash charges (including any interest expense other than Cash Interest
Expense), (ii) all noncash losses deducted in determining such Net Income, (iii)
to the extent not included in such Net Income, the aggregate amount of all
income tax refunds received during such period, (iv) the principal amount of any
Indebtedness incurred or assumed pursuant to Section 7.01(c) during such period,
(v) the aggregate amount of Indebtedness with respect to Capital Lease
Obligations incurred pursuant to Sections 7.01(d) and 7.11(c) during such
period, (vi) the net negative change, if any, in Net Working Capital during such
period and (vii) the cash received in respect of investments made under Sections
7.04(c), (d), (h) (other than cash received in respect of investments in a
consolidated subsidiary of the Borrower) and (j), to the extent such cash
receipts were not included in Net Income for such period minus, without
duplication, (b) (i) all noncash gains and credits included in such Net Income,
(ii) scheduled payments during such period of the principal of Term Loans, (iii)
scheduled payments during such period of the principal of Indebtedness permitted
under Section 7.01 other than the Loans (including the Subordinated Notes), but
only to the extent that such payments cannot by their terms be reborrowed or
redrawn, (iv) prepayments during such period of Term Loans pursuant to Section
2.12, (v) the aggregate amount of prepayments during such period of Revolving
Loans and Swingline Loans, but only to the extent accompanied by permanent
reductions of the Revolving Credit Commitments, (vi) the aggregate amount of
Capital Expenditures of the Borrower and its subsidiaries made and permitted
hereunder during such period, (vii) repayments during such period of the portion
of Capital Lease Obligations of the Borrower and its subsidiaries not allocable
to Cash Interest Expense, (viii) the net positive change, if any, in Net Working
Capital during such period, in each case determined in accordance with GAAP and
(ix) the amount of cash investments made during such period under Sections
7.04(c), (d), (h) (to the extent such investment is not in a consolidated
subsidiary of the Borrower) and (j), to the extent that such investments were
financed with internally generated cash flow of the Borrower and its
subsidiaries.
"Existing Credit Agreement" shall mean the Credit Agreement
dated as of March 21, 1997, as amended and restated as of November 24, 1998,
among the Borrower, the lenders party thereto, and The Chase Manhattan Bank, as
administrative agent, fronting bank and swingline lender, as in effect on the
Closing Date.
"Existing Letters of Credit" shall mean all letters of credit
that are issued and outstanding under the Existing Credit Agreement as of the
Closing Date.
"Existing Synthetic Leases" shall mean the leases described on
Schedule 1.01(d).
"Existing Term Loans" shall have the meaning assigned to such
term in Section 2.01(b).
"Fee Letters" shall have the meaning assigned to such term in
Section 2.05(c).
"Fees" shall mean the Administrative Fees, the Commitment
Fees, the
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LC Fees and the fees specified in Section 2.05(b), Section 2.05(c) and Section
3.08.
"Financial Officer" of any corporation shall mean the chief
financial officer, principal accounting officer, Treasurer or Controller of such
corporation.
"Foreign Subsidiary" shall mean any subsidiary of the Borrower
that is organized under the laws of any jurisdiction other than the United
States of America or any State thereof or the District of Columbia.
"Franchise Agreements" shall mean the Franchise Agreements
pursuant to which the Franchisees have or shall become franchisees of any
Guarantor or TAFSI.
"Franchisee" shall mean each party who has executed, or will
execute, a Franchise Agreement with any Guarantor or TAFSI.
"Fronting Bank" shall mean The Chase Manhattan Bank, a New
York banking corporation, in its capacity as fronting bank for Letters of
Credit.
"GAAP" shall mean generally accepted accounting principles in
the United States.
"Governmental Authority" shall mean any Federal, state, local
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Granting Bank" shall have the meaning assigned to such term
in Section 10.04(b).
"Guarantee" of or by any Person shall mean any obligation,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including any
obligation of such Person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (b) to purchase property, securities or
services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness or (c) to maintain working capital, equity capital
or other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness; provided, however, that
the term "Guarantee" shall not include endorsements for collection or deposit,
in either case in the ordinary course of business.
"Guarantee Agreement" shall mean the Guarantee Agreement, as
amended and restated as of the Closing Date and substantially in the form of
Exhibit C, between each of the Guarantors and the Collateral Agent.
"Guarantors" shall mean TA, TA Licensing, TA Travel, TC
Realty, TC Properties and each other Person that is or becomes a party to the
Guarantee
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Agreement, as a guarantor, and the permitted successors and assigns of each such
Person.
"Hazardous Substances" shall mean any toxic, radioactive,
caustic or otherwise hazardous substance, material or waste, including
petroleum, its derivatives, by-products and other similar hydrocarbons, or any
substance displaying any of the foregoing characteristics, including
polychlorinated biphenyls ("PCBs"), asbestos or asbestos-containing material,
and any substance, waste or material regulated under Environmental and Safety
Laws.
"Indebtedness" of any Person shall mean, without duplication,
(a) all obligations of such Person for borrowed money or with respect to
deposits or advances of any kind, (b) all obligations of such Person evidenced
by bonds, debentures, notes or similar instruments, (c) all obligations of such
Person upon which interest charges are customarily paid, (d) all obligations of
such Person under conditional sale or other title retention agreements relating
to assets purchased by such Person, (e) all obligations of such Person issued or
assumed as the deferred purchase price of property or services (excluding trade
accounts payable and accrued expenses arising in the ordinary course of business
in accordance with customary trade terms), (f) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the obligations secured thereby have
been assumed by such Person, (g) all Guarantees by such Person of Indebtedness
of others (including pursuant to Synthetic Leases), (h) all Capital Lease
Obligations of such Person, (i) all obligations of such Person in respect of
interest rate protection agreements, foreign currency exchange agreements or
other interest or exchange rate hedging arrangements, (j) all obligations of
such Person as an account party to reimburse any bank or any other Person in
respect of letters of credit and bankers' acceptances and (k) all obligations of
such Person in respect of fuel-supply hedging agreements and arrangements;
provided that (i) the obligations described in clauses (i) and (k) above and
obligations under Synthetic Leases shall not be considered as "Indebtedness" for
purposes of determining the Leverage Ratio and (ii) the amount of any
"Indebtedness" that constitutes "Indebtedness" solely by reason of clause (f)
above, and which has not been assumed, shall be limited to the value of the
property subject to the relevant Lien. The Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture in which such
Person is a general partner or member, other than to the extent that the
instrument or agreement evidencing such Indebtedness expressly limits the
liability of such Person in respect thereof pursuant to provisions and terms
reasonably satisfactory to the Administrative Agent.
"Indemnity and Subrogation Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, as amended and restated as of
the Closing Date and substantially in the form of Exhibit D, between the
Borrower, the Guarantors and the Collateral Agent.
"Insurance Proceeds" shall have the meaning assigned to such
term in Section 8 of the Guarantee Agreement.
"Interest Expense Coverage Ratio" shall mean with respect to
the Borrower and its subsidiaries on a consolidated basis, for any period, the
ratio of
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(a) EBITDA for such period to (b) Cash Interest Expense for such period.
"Interest Payment Date" shall mean, with respect to any Loan,
the last day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Eurodollar Borrowing with an Interest
Period of more than three months' duration, each day that would have been an
Interest Payment Date had successive Interest Periods of three months' duration
been applicable to such Borrowing and, in addition, the date of any refinancing
or conversion of such Borrowing with or to a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing or on the last
day of the immediately preceding Interest Period applicable to such Borrowing,
as the case may be, and ending on the numerically corresponding day (or, if
there is no numerically corresponding day, on the last day) in the calendar
month that is 1, 2, 3 or 6 months thereafter (or 9 or 12 months thereafter if,
at the time requested for the relevant Eurodollar Borrowing, all Lenders
participating therein agree to make an interest period of such duration
available), as the Borrower may elect, and (b) as to any ABR Borrowing, the
period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case
may be and ending on the earliest of (i) the next succeeding March 31, June 30,
September 30 or December 31, (ii) the Revolving Credit Maturity Date or the Term
Loan Maturity Date, as applicable, and (iii) the date such Borrowing is
converted to a Borrowing of a different Type in accordance with Section 2.10 or
repaid or prepaid in accordance with Section 2.11, 2.12 or 2.13; provided,
however, that, if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless, in the case of a Eurodollar Borrowing only, such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day. Interest shall accrue from
and including the first day of an Interest Period to but excluding the last day
of such Interest Period.
"Interest Rate Spreads" shall mean the ABR Spread and LIBOR
Spread.
"IPO" shall mean a bona fide underwritten public offering by
the Borrower of shares of its voting common stock that is consummated after the
Closing Date, resulting in the receipt by the Borrower of at least $25,000,000
of gross cash proceeds.
"LC Commitment" shall mean $25,000,000, as the same may be
reduced from time to time pursuant to Section 3.07. The LC Commitment shall
automatically and permanently terminate on LC Maturity Date.
"LC Disbursement" shall mean any payment or disbursement made
by the Fronting Bank under or pursuant to a Letter of Credit.
"LC Exposure" shall mean, at any time of determination, the
sum of (a) the aggregate undrawn amount of all Letters of Credit outstanding at
such time and (b) the aggregate amount that has been drawn under such Letters of
Credit but for which the Fronting Bank or the Lenders, as the case may be, have
not been reimbursed by the Borrower at such time.
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"LC Fee" shall have the meaning assigned to such term in
Section 3.03.
"LC Maturity Date" shall mean the fifth Business Day prior to
the Revolving Credit Maturity Date.
"Leasehold Mortgage" shall mean an amended and restated
leasehold or subleasehold mortgage, deed of trust or deed to secure debt
substantially in the form of Exhibit E-2; provided that any newly-granted
Leasehold Mortgages shall not be captioned or described as "amended and
restated".
"Lender Affiliate" shall mean, (a) with respect to any Lender,
(i) an Affiliate of such Lender or (ii) any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by a Lender or an
Affiliate of such Lender and (b) with respect to any Lender that is a fund which
invests in bank loans and similar extensions of credit, any other fund that
invests in bank loans and similar extensions of credit and is managed by the
same investment advisor as such Lender or by an Affiliate of such investment
advisor.
"Lenders" shall mean the financial institutions party hereto.
"Letters of Credit" shall mean letters of credit issued by the
Fronting Bank for the account of the Borrower pursuant to Section 3.01(a).
"Leverage Ratio" shall mean, on any date, the ratio of (a)
Total Debt of the Borrower and its subsidiaries determined on a consolidated
basis as of such date to (b) EBITDA of the Borrower and its subsidiaries
determined on a consolidated basis for the period of four consecutive fiscal
quarters most recently ended as of such date.
"LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, the rate appearing on Page 3750 of the
Telerate Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO Rate"
with respect to such Eurodollar Borrowing for such Interest Period shall be the
rate at which dollar deposits of $5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIBOR Spread" shall mean (a) in the case of Term Loans, 3.25%
per
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annum and (b) in the case of Revolving Loans, 2.75% per annum.
"Lien" shall mean, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, assignment for security (whether
collateral or otherwise), hypothecation, encumbrance, easement, restriction,
covenant, lease, sublease, charge or security interest in or on such asset, (b)
the interest of a vendor or a lessor under any conditional sale agreement,
capital lease or title retention agreement or financing lease having
substantially the same economic effect as any of the foregoing relating to such
asset, (c) in the case of securities, any purchase option, call or similar right
of a third party with respect to such securities and (d) zoning or land use
restrictions.
"Loan Documents" shall mean this Agreement, the Security
Documents, the Guarantee Agreement and the Indemnity and Subrogation Agreement.
"Loans" shall mean the Revolving Loans and the Term Loans
(and, unless the context requires otherwise, the Swingline Loans).
"Lockbox Agreements" shall mean the lockbox agreements among
the Borrower, TAFSI, each of the Guarantors, the Collateral Agent and a
Sub-Agent (as defined in each Lockbox Agreement), substantially in the form of
Annex 1 to the Security Agreement or in such other form as the Collateral Agent
may specify.
"Lockbox Collateral" shall have the meaning assigned to such
term in each of the Lockbox Agreements.
"Margin Stock" shall have the meaning assigned to such term
under Regulation U.
"Material Adverse Effect" shall mean (a) a materially adverse
effect on the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and its subsidiaries, taken as a whole, or (b) a
material impairment of the rights of or benefits available to the Agents, the
Fronting Bank, the Swingline Lenders, the Collateral Agent or the Lenders under
any Loan Document.
"Merger" shall mean the series of transactions pursuant to
which TCA Acquisition will be merged with and into the Borrower, with the
Borrower as the surviving corporation, in accordance with the terms and
conditions of Merger Agreement, pursuant to which (a) the shareholders of TCA
Acquisition immediately prior to the Merger will receive approximately 94% of
the equity ownership of the surviving corporation, (b) the Rollover Shareholders
will receive Rollover Company Stock constituting approximately 6% of the equity
ownership of the surviving corporation and (c) each other share of capital stock
of the Borrower outstanding immediately prior to the Merger will be cancelled in
exchange for cash payment of the Per Share Merger Consideration to the Selling
Stockholders' Representative.
"Merger Agreement" shall mean the Recapitalization Agreement
and Plan of Merger, dated May 31, 2000, as amended by Amendment No. 1 thereto
dated as of October 2, 2000, among the Borrower, TCA Acquisition Corporation,
the Selling Stockholders' Representative and the Selling Stockholders.
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"Merger Consideration" shall have the meaning assigned to such
term in Section 3.01 of the Merger Agreement.
"▇▇▇▇▇'▇" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgaged Properties" shall mean the owned real properties
and leasehold and subleasehold interests of the Guarantors specified on Schedule
1.01(a) and includes each other parcel of real property and improvements thereto
with respect to which a Mortgage is granted pursuant to Section 6.10.
"Mortgages" shall mean the amended and restated mortgages,
deeds of trust, deeds to secure debt, leasehold mortgages, assignments of leases
and rents and other security documents, delivered pursuant to clause (i) of
Section 5.02(k) or pursuant to Section 6.10, each substantially in the form of
Exhibit E-1 or E-2, as applicable; provided that any newly-granted Mortgages
shall not be captioned or described as "amended and restated".
"Multiemployer Plan" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate (other than one considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Section 414 of the Code) is making or accruing an
obligation to make contributions, or has within any of the preceding five plan
years made or accrued an obligation to make contributions.
"National" shall mean National Auto/Truckstops, Inc., a
Delaware corporation that is a direct, wholly owned subsidiary of the Borrower
prior to giving effect to the merger of such corporation with and into TA on the
Closing Date.
"Net Cash Proceeds" shall mean, with respect to any Prepayment
Event or any issuance of equity of the Borrower or its subsidiaries, (a) the
gross cash proceeds (including insurance proceeds, condemnation awards and
payments from time to time in respect of installment obligations, if applicable)
received by or on behalf of the Borrower or any subsidiary thereof in respect of
such Prepayment Event or equity issuance, less (b) the sum of (i) in the case of
a Prepayment Event, the amount, if any, of all taxes (other than income taxes)
payable by the Borrower or any subsidiary thereof in connection with such
Prepayment Event and the Borrower's good-faith best estimate of the amount of
all income taxes payable in connection with such Prepayment Event (to the extent
that such amount shall have been set aside for the purpose of paying such income
taxes), (ii) in the case of a Prepayment Event that is an asset sale or
disposition, (A) the amount of any reasonable reserve established in accordance
with GAAP against any liabilities associated with the assets sold or disposed of
and retained by the Borrower or any subsidiary thereof, provided that the amount
of any subsequent reduction of such reserve (other than in connection with a
payment in respect of any such liability) shall be deemed to be Net Cash
Proceeds of a Prepayment Event occurring on the date of such reduction, and (B)
the amount applied to repay any Indebtedness (other than the Term Loans) to the
extent such Indebtedness is required by its terms to be repaid as a result of
such Prepayment Event and (iii) reasonable and customary fees, commissions and
expenses and other costs paid by the Borrower or any subsidiary thereof in
connection with such Prepayment Event or equity issuance (other than those
payable to the Borrower or any Affiliate of the Borrower (other than customary
financial advisory fees payable to the Sponsor or its Affiliates in connection
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therewith to the extent that such fees are no greater than the financial
advisory fees that a third party could have obtained for the same services after
negotiation at arm's-length)), in each case only to the extent not already
deducted in arriving at the amount referred to in clause (a).
"Net Income" shall mean, for any period, the aggregate net
income (or net deficit) of the Borrower and its subsidiaries determined on a
consolidated basis for such period, which shall be equal to gross revenues for
the Borrower and its subsidiaries determined on a consolidated basis during such
period less the aggregate for the Borrower and its subsidiaries determined on a
consolidated basis during such period of, without duplication, (a) cost of goods
sold, (b) interest expense, (c) operating expenses, (d) selling, general and
administrative expenses, (e) taxes, (f) depreciation, depletion and amortization
of properties and (g) any other items that are treated as expense under GAAP,
all computed in accordance with GAAP; provided, however, that the term "Net
Income" shall exclude (i) extraordinary gains or losses from the sale of assets
other than in the ordinary course of business, (ii) one-time charges taken in
connection with the Transactions and (iii) any write-up in the value of any
asset.
"Net Working Capital" shall mean, with respect to any Person
and its subsidiaries on a consolidated basis at any date, (a) the sum of
inventory, current receivables (including trade receivables and current rent
receivables) and prepaid expenses minus (b) the sum of accrued expenses payable
and trade payables, as each of such items would appear on a consolidated balance
sheet of such Person and its subsidiaries as of the date of determination in
accordance with GAAP.
"Obligations" shall mean all obligations defined as
"Obligations" in the Guarantee Agreement and the Security Documents.
"Original Control Group" shall mean the Sponsor, Oak Hill
Capital Management Partners, L.P., Olympus Executive Fund, L.P., Olympus Growth
Fund III, L.P., Monitor Clipper Equity Partners, L.P., Monitor Clipper Equity
Partners (Foreign), L.P., UBS Capital Americas II, LLC and Credit Suisse First
Boston LFG Holdings 2000, LLC, their respective Affiliates and members of
management of the Borrower.
"Other Transactions" shall mean the series of transactions in
connection with the Merger in which (a) the Borrower will repay all amounts
outstanding under the Existing Credit Agreement (other than the principal amount
of any loans outstanding thereunder on the Closing Date that are held by, or
assigned to, the Lenders hereunder and are to remain outstanding hereunder as
provided in Section 2.01(b)) and the Existing Credit Agreement will be amended
and restated as provided in this Agreement; (b) the Borrower will repay, redeem
or repurchase in full all of the Senior Notes (other than any such Senior Notes
that constitute Assigned Indebtedness); (c) the Borrower will consummate the
Debt Tender Offer; (d) the Borrower will borrow Loans hereunder; (e) the
Borrower will issue approximately $190,000,000 in aggregate principal amount of
the Subordinated Notes in a public offering or in a Rule 144A offering or other
private placement; (f) the Sponsor will make the Sponsor Contribution; (g) the
Transaction Costs will be paid; and (h) National will be merged with and into
TA, with TA as the
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surviving corporation.
"Outstanding Letters of Credit" shall mean at any time the
Letters of Credit outstanding at such time.
"Participating Lender" shall mean at any time any Lender with
a Revolving Credit Commitment at such time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA or any successor thereto.
"Per Share Merger Consideration" shall have the meaning
assigned to such term in Section 3.01 of the Merger Agreement.
"Perfection Certificate" shall mean the Perfection
Certificate, substantially in the form of Annex 2 to the Security Agreement,
prepared by the Borrower.
"Permitted Business Acquisition" shall mean any acquisition of
assets from, or shares or other equity interests in, any Person if (a)
immediately after giving effect thereto, no Default or Event of Default shall
have occurred and be continuing or would result therefrom, (b) all transactions
related thereto shall be consummated in accordance with applicable laws, (c) in
the case of any acquisition of shares or other equity interests in any Person,
such acquisition is an acquisition of 100% of the shares or other equity
interests of such Person and, simultaneously with or immediately following such
acquisition, such acquired Person (and each of its subsidiaries, if any) shall
become a Guarantor and (d) neither the Borrower nor any of its subsidiaries
shall assume or otherwise become liable for any Indebtedness in connection with
such acquisition (except for Indebtedness permitted by clauses (n) and (o) of
Section 7.01).
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within three months from the date of acquisition
thereof;
(b) without limiting the provisions of paragraph (d) below,
investments in commercial paper maturing within three months from the
date of acquisition thereof and having, at such date of acquisition,
the highest credit rating obtainable from Standard & Poor's and from
▇▇▇▇▇'▇;
(c) investments in certificates of deposit, banker's
acceptances and time deposits (including Eurodollar time deposits)
maturing within three months from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, (i) any domestic office of the
Administrative Agent or (ii) any domestic office of any other
commercial bank of recognized standing organized under the laws of the
United States of America or any state thereof that has a combined
capital and surplus and undivided profits of not less than $250,000,000
and which is rated (or the senior debt
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securities of the holding company of such commercial bank are rated) A
or better by Standard & Poor's or A2 by ▇▇▇▇▇'▇, or carrying an
equivalent rating by another nationally recognized rating agency if
neither of the two named rating agencies shall rate such commercial
bank (or the holding company of such commercial bank);
(d) investments in commercial paper maturing within three
months from the date of acquisition thereof and issued by (i) the
holding company of the Administrative Agent or (ii) the holding company
of any other commercial bank of recognized standing organized under the
laws of the United States of America or any state thereof that has (A)
a combined capital and surplus in excess of $250,000,000 and (B)
commercial paper rated at least A-1 or the equivalent thereof by
Standard & Poor's or at least P-1 or the equivalent thereof by ▇▇▇▇▇'▇,
or carrying an equivalent rating by another nationally recognized
rating agency, if both of the two named rating agencies cease
publishing ratings of investments;
(e) repurchase agreements having a term of seven days or less
with (i) any domestic office of the Administrative Agent or (ii) any
domestic office of any other commercial bank of recognized standing
organized under the laws of the United States of America or any state
thereof that has combined capital and surplus and undivided profits of
not less than $250,000,000 and which is rated (or the senior debt
securities of the holding company of such commercial bank are rated) A
or better by Standard & Poor's or A2 by ▇▇▇▇▇'▇, or carrying an
equivalent rating by another nationally recognized rating agency if
neither of the two named rating agencies shall rate such bank relating
to marketable direct obligations issued or unconditionally guaranteed
by the United States but only if the securities collateralizing such
repurchase agreements are delivered to or to the order of the
Collateral Agent;
(f) other investment instruments approved in writing by the
Required Lenders and offered by financial institutions that have a
combined capital and surplus and undivided profits of not less than
$250,000,000; and
(g) investments consisting of Rate Protection Agreements.
"Permitted Joint Venture" shall have the meaning assigned to
such term in Section 7.04(h).
"Person" shall mean any natural person, corporation, business
trust, joint venture, association, company, limited liability company,
partnership or government, or any agency or political subdivision thereof.
"Plan" shall mean any pension plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
that is maintained for employees of the Borrower or any ERISA Affiliate.
"Pledge Agreement" shall mean the Pledge Agreement, as amended
and restated as of the Closing Date and substantially in the form of Exhibit F,
among the Borrower, each of the Guarantors, TAFSI and the Collateral Agent.
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"Prepayment Account" shall have the meaning assigned to such
term in Section 2.13(f).
"Prepayment Event" shall mean (a) any sale, transfer or other
disposition of any business units, assets or other properties of the Borrower or
any subsidiary thereof (including dispositions in the nature of casualties (to
the extent covered by insurance) or condemnations (including any Casualty or
Condemnation in respect of a Mortgaged Property as contemplated in Section 9 of
the Guarantee Agreement), (b) any sale and leaseback of any asset or the
mortgaging of any real property other than (i) any Sale and Lease-Back
Transaction permitted by Section 7.03 or (ii) pursuant to a Mortgage (or a
modification thereof) by the Borrower or any subsidiary thereof or (c) the
issuance or incurrence by the Borrower or any subsidiary thereof of any
Indebtedness (excluding any Indebtedness permitted under Section 7.01), or the
issuance or sale by the Borrower or any subsidiary thereof of any debt
securities or any obligations convertible into or exchangeable for, or giving
any Person or entity any right, option or warrant to acquire from the Borrower
or any subsidiary thereof any Indebtedness or any such debt securities or any
such convertible or exchangeable obligations (excluding any Indebtedness
permitted under Section 7.01). Notwithstanding the foregoing, the term
"Prepayment Event" shall not include:
(i) sales, transfers and other dispositions of used or surplus
equipment, vehicles and other assets in the ordinary course of business
permitted pursuant to Section 7.05(b) not exceeding in the aggregate
$2,000,000 in any fiscal year, provided that (A) at any time when such
sales, transfers and other dispositions in the ordinary course of
business shall exceed $2,000,000 in any fiscal year, the resultant
Prepayment Event shall include the entire amount of such sales,
transfers and dispositions since the date of such most recent payment,
if any, with respect to such fiscal year and not just amounts above
such dollar threshold and (B) to the extent that the Borrower or any of
its subsidiaries shall have reinvested on the date of such Prepayment
Event (or certified to the Administrative Agent that it intends to
reinvest within 360 days of such Prepayment Event) any of the proceeds
of such sales, transfers and dispositions in equipment, vehicles or
other assets used in the principal lines of business of the Borrower's
subsidiaries, the resultant Prepayment Event shall be reduced by the
amount so reinvested or to be reinvested;
(ii) sales of inventory in the ordinary course of business;
(iii) sales, transfers and other dispositions of TravelCenters
and the related assets permitted pursuant to Section 7.05(d) or 7.05(g)
resulting in Net Cash Proceeds in an aggregate amount not exceeding (A)
during the period commencing on the Closing Date and ending on December
31, 2003, $20,000,000 and (B) during each period of four consecutive
fiscal quarters ending on each December 31 thereafter, $10,000,000,
provided that (1) within 360 days after receipt of any such Net Cash
Proceeds, such Net Cash Proceeds are either (x) used to repay or
voluntarily prepay Loans, in accordance with this Agreement, on such
date as may be elected by the Borrower or (y) reinvested in other
TravelCenter properties and related assets, and (2) in connection with
any such reinvestment, the Borrower (x) provides the Agents and the
Collateral
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Agent with such opinions, documents, certificates, title insurance
policies (as required by Section 5.02(k)), surveys and other insurance
policies as they may reasonably request and (y) takes such other
actions as the Agents and the Collateral Agent may reasonably deem
necessary or appropriate (including actions with respect to the
delivery to the Collateral Agent of a first priority Mortgage as
required by Section 5.02(k) and assignment with respect to the related
real property for the ratable benefit of the Secured Parties);
(iv) the receipt of insurance or condemnation proceeds (other
than Condemnation Proceeds and Insurance Proceeds in respect of
Mortgaged Properties), provided that such proceeds are reinvested in
equipment, vehicles or other assets used in the principal lines of
business of the Borrower's subsidiaries within 360 days after the
receipt thereof;
(v) the receipt of Condemnation Proceeds and Insurance
Proceeds in respect of Mortgaged Properties to the extent that (A) such
Condemnation Proceeds or Insurance Proceeds are used to restore, repair
or locate, acquire and replace the related Mortgaged Property in
accordance with Section 8 of the Guarantee Agreement, (B) such
Condemnation Proceeds or Insurance Proceeds, pursuant to Section 8 of
the Guarantee Agreement, are not otherwise required to be applied as a
mandatory prepayment pursuant to Section 2.13(b), (C) to the extent
permitted by Section 8 of the Guarantee Agreement, any Condemnation
Proceeds or Insurance Proceeds are reinvested in equipment, vehicles or
other assets used in the principal lines of business of the Borrower's
subsidiaries within 360 days after the receipt thereof or (D) such
Condemnation Proceeds and Insurance Proceeds do not exceed $1,000,000
in the aggregate during any fiscal year of the Borrower;
(vi) except as otherwise specified in Section 9 of the
Guarantee Agreement, any sale, transfer and other disposition of any
portion of a Mortgaged Property in connection with the development of
such property as permitted in, and in accordance with, the provisions
of Section 9 of the Guarantee Agreement; and
(vii) in respect of any Mortgaged Property, sales, transfers
and other dispositions of any portion of the Land (as defined in the
related Mortgage) on which there are no significant improvements that
are permitted pursuant to Section 7.05(f) in an aggregate amount not
exceeding $3,000,000 in any fiscal year or $15,000,000 since the
Closing Date, provided that the proceeds of each such sale are
reinvested in equipment, vehicles or other assets used in the principal
lines of business of the Borrower's subsidiaries within 360 days of the
date of such sale.
Notwithstanding the foregoing, if an event would otherwise
constitute a "Prepayment Event", but does not constitute a "Prepayment Event" by
reason of any of the foregoing exclusions, then such event will constitute a
"Prepayment Event" as and to the extent necessary to require the prepayment of
Loans immediately prior to the expiry of any period that (if the Loans were not
prepaid) would result in the Borrower or any Guarantor being required to prepay,
redeem or repurchase (or offer to prepay, redeem or repurchase) any Subordinated
Notes, Subordinated Note Refinancing Indebtedness, 10-1/4% Subordinated Notes or
Subordinated Acquisition Financing.
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"Pro Forma Balance Sheet" shall have the meaning assigned to
such term in Section 4.05(a).
"Rate Protection Agreements" shall mean (a) interest rate cap
agreements, (b) interest rate swap agreements, (c) interest rate collar
agreements or (d) similar agreements, in each case entered into by Borrower to
provide protection to the Borrower against fluctuations in interest rates. Each
Rate Protection Agreement shall be on terms reasonably satisfactory to the
Administrative Agent with a counterparty satisfactory to the Administrative
Agent.
"Register" shall have the meaning assigned to such term in
Section 10.04(d).
"Regulation U" shall mean Regulation U of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Regulation X" shall mean Regulation X of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Related Parties" shall mean, with respect to any specified
Person, such Person's Affiliates and the respective directors, officers,
employees, agents, trustees and advisors of such Person and such Person's
Affiliates.
"Release" shall mean any discharge, emission, release, or
threat thereof, including a "Release" as defined in CERCLA at 42 U.S.C. Section
9601(22), and the term "Released" has a meaning correlative thereto.
"Reportable Event" shall mean any reportable event as defined
in Section 4043(b) of ERISA or the regulations issued thereunder (other than an
event as to which the 30-day notice period is waived) with respect to a Plan
(other than a Plan maintained by an ERISA Affiliate that is considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Code).
"Required Lenders" shall mean, at any time, Lenders holding
Loans, a share of the used LC Commitment and unused Commitments representing
more than 50% of the aggregate of (a) the aggregate principal amount of the
Loans and Swingline Loans at such time, (b) the LC Exposure at such time and (c)
the aggregate unused Commitments at such time.
"Responsible Officer" of any corporation shall mean any
executive officer or Financial Officer of such corporation and any other officer
or similar official thereof responsible for the administration of the
obligations of such corporation in respect of this Agreement.
"Restricted Indebtedness" shall mean Indebtedness of the
Borrower or any subsidiaries, the optional payment, prepayment, redemption,
repurchase or defeasance of which is restricted under Section 7.09(a).
"Revolving Credit Borrowing" shall mean a Borrowing comprised
of
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Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each
Lender, the commitment of such Lender to make Revolving Loans hereunder as set
forth in clause (ii) of Section 2.01(a), as the same may be reduced from time to
time pursuant to Section 2.09.
"Revolving Credit Maturity Date" shall mean November 14, 2006.
"Revolving Credit Utilization" shall mean, at any time of
determination, the sum of (a) the aggregate principal amount of Revolving Loans
outstanding at such time, (b) the aggregate principal amount of Swingline Loans
outstanding at such time and (c) the LC Exposure at such time.
"Revolving Facility" shall mean the aggregate of the Lenders'
Revolving Credit Commitments.
"Revolving Lender" shall mean any Lender that has a Revolving
Credit Commitment.
"Revolving Loans" shall mean the revolving loans made by the
Lenders to the Borrower pursuant to clause (ii) of Section 2.01(a). Each
Revolving Loan shall be a Eurodollar Revolving Loan or an ABR Revolving Loan.
"Rollover Shareholders" shall mean the holders of Rollover
Company Stock upon the consummation of the Merger.
"Rollover Company Stock" shall have the meaning set forth in
Section 6.16 of the Merger Agreement.
"Sale and Lease-Back Transaction" shall have the meaning
assigned to such term in Section 7.03.
"Santa Nella Note" shall mean the promissory note dated
September 1, 1998, issued by National in favor of Mid California Auto/Truck
Plaza, Inc.
"Secured Parties" shall have the meaning assigned to such term
in the Security Agreement.
"Security Agreement" shall mean the Security Agreement, as
amended and restated as of the Closing Date and substantially in the form of
Exhibit G, among the Borrower, each of the Guarantors, TAFSI and the Collateral
Agent.
"Security Documents" shall mean the Mortgages, the Security
Agreement, the Pledge Agreement, the Lockbox Agreements, the Trademark Security
Agreement and each of the security agreements, mortgages and other instruments
and documents executed and delivered pursuant to any of the foregoing or
pursuant to Section 6.10.
"Selling Stockholders" shall mean National Partners, L.P.,
National Partners III, L.P., Clipper/Merchant I, L.P., Olympus Private Placement
Fund, L.P. and
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Olympus Growth Fund II, L.P.
"Selling Stockholders' Representative" shall mean Clipper
Capital Associates, L.P., a Delaware limited partnership.
"Senior Facilities" shall mean, collectively, the Term
Facility and the Revolving Facility.
"Senior Notes" shall mean the Borrower's existing 8.94% Series
I Senior Secured Notes due 2002.
"SPC" shall have the meaning assigned to such term in Section
10.04(b)
"Sponsor" shall mean Oak Hill Capital Partners, L.P., a Texas
limited partnership.
"Sponsor Contribution" shall mean a cash equity contribution
made by the Sponsor (and certain other investors identified by the Sponsors to
the Agents in writing prior to the date hereof) to TCA Acquisition in connection
with the Merger in an aggregate amount which, together with the value of the
Rollover Company Stock (each valued at the Per Share Merger Consideration
amount), shall not be less than $220,000,000 (it being understood that the
Sponsor Contribution will be represented by Common Stock; provided that the
Sponsor Contribution will be increased (i) to the extent the Transaction Costs
exceed $32,000,000 up to and including $34,000,000 minus any additional excess
cash of the Borrower on the Closing Date applied to such excess, (ii) to the
extent the Transaction Costs exceed $34,000,000 (such Transaction Costs, in any
event, not to exceed $35,000,000) as described in Section 4.26 and (iii) to the
extent of any increase in the Merger Consideration pursuant to the adjustment
provisions of the Merger Agreement (other than any increase of up to $10,000,000
that is paid out of the proceeds of Revolving Loans as described in Section
4.13).
"Standard & Poor's" shall mean Standard & Poor's Rating Group.
"Statutory Reserves" shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum applicable reserve
percentages, including any marginal, special, emergency or supplemental reserves
(expressed as a decimal) established by the Board and any other banking
authority to which the Administrative Agent is subject (a) with respect to the
Base CD Rate (as such term is used in the definition of the term "Alternate Base
Rate") for new negotiable nonpersonal time deposits in dollars of over $100,000
with maturities approximately equal to three months and (b) with respect to the
Adjusted LIBO Rate, for Eurocurrency Liabilities (as defined in Regulation D of
the Board). Such reserve percentages shall include those imposed pursuant to
Regulation D of the Board. Eurodollar Loans shall be deemed to constitute
Eurocurrency Liabilities and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offset that may be available
from time to time to any Lender under such Regulation D. Statutory Reserves
shall be adjusted
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automatically on and as of the effective date of any change in any reserve
percentage.
"Subordinated Acquisition Financing" shall mean any
Indebtedness incurred by the Borrower as contemplated in Section 7.01(o).
"Subordinated Acquisition Financing Documents" shall mean any
agreements (or comparable documents, such as loan agreements or indentures)
entered into by the Borrower in connection with the incurrence of Subordinated
Acquisition Financing and any ancillary documents related thereto.
"Subordinated Notes" shall mean the Senior Subordinated Notes
due 2009 issued by the Borrower pursuant to the Subordinated Note Indenture.
"Subordinated Note Documents" shall mean the Subordinated Note
Guarantees, the Subordinated Note Indenture and the Subordinated Notes.
"Subordinated Note Guarantees" shall mean, collectively, the
Guarantees of the Guarantors guaranteeing repayment of the Subordinated Notes.
"Subordinated Note Indenture" shall mean the Senior
Subordinated Note Indenture dated as of November 14, 2000, among the Borrower,
the Guarantors and State Street Bank and Trust Company, as trustee, as amended
from time to time in accordance with the terms hereof and thereof.
"Subordinated Note Refinancing Indebtedness" shall mean any
Indebtedness incurred by the Borrower as contemplated in Section 7.01(h) in
connection with the refinancing of the Subordinated Notes.
"Subordinated Note Refinancing Documents" shall mean any
agreements (or comparable documents, such as loan agreements or indentures)
entered into by the Borrower in connection with the sale or issuance of
Subordinated Note Refinancing Indebtedness and any ancillary documents related
thereto.
"subsidiary" shall mean, with respect to any Person (herein
referred to as the "parent"), any corporation, partnership, limited liability
company, association or other business entity (a) of which securities or other
ownership interests representing more than 50% of the equity or more than 50% of
the ordinary voting power or more than 50% of the general partnership interests
are, at the time any determination is being made, owned, controlled or held or
(b) that is, at the time any determination is made, otherwise Controlled by the
parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.
"Swingline Lender" shall mean each of The Chase Manhattan Bank
and Credit Suisse First Boston, in each case in its capacity as a lender of
Swingline Loans hereunder.
"Swingline Loans" shall mean the swingline loans made by the
Swingline Lenders pursuant to Section 2.21.
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"Syndication Agent" shall mean Credit Suisse First Boston, a
bank organized under the laws of Switzerland acting through its New York branch,
in its capacity as syndication agent for the Lenders.
"Synthetic Lease" shall mean any lease of assets that is not a
Capital Lease Obligation of the lessee, but is effectively a Guarantee of
Indebtedness of the lessor by the lessee, including the Existing Synthetic
Leases.
"Synthetic Purchase Agreement" shall mean any swap, derivative
or other agreement or combination of agreements pursuant to which the Borrower
or any of its subsidiaries is or may become obligated to make (i) any payment in
connection with a purchase by any third party from a Person other than the
Borrower or any of its subsidiaries of any Equity Interest or Restricted
Indebtedness or (ii) any payment (other than on account of a permitted purchase
by it of any Equity Interest or any Restricted Indebtedness) the amount of which
is determined by reference to the price or value at any time of any Equity
Interest or Restricted Indebtedness; provided that no phantom stock or similar
plan providing for payments only to current or former directors, officers or
employees of the Borrower or its subsidiaries (or to their heirs or estates)
shall be deemed to be a Synthetic Purchase Agreement.
"TA" shall mean TA Operating Corporation, a Delaware
corporation that is a direct wholly owned subsidiary of the Borrower and a
Guarantor.
"TA Licensing" shall mean TA Licensing, Inc., a Delaware
corporation, that is a direct wholly owned subsidiary of TA and a Guarantor.
"TA Travel" shall mean TA Travel, L.L.C., a Delaware limited
liability company that is 99% held by TA and 1% held by TC Realty and a
Guarantor.
"TAFSI" shall mean TA Franchise Systems Inc., a Delaware
corporation that is a direct wholly owned subsidiary of the Borrower.
"TCA Acquisition" shall mean TCA Acquisition Corporation, a
Delaware corporation.
"TC Properties" shall mean TravelCenters Properties, L.P., a
Delaware limited partnership, that is 99% held by TC Realty and 1% held by TA
and a Guarantor.
"TC Realty" shall mean TravelCenters Realty, Inc., a Delaware
corporation, that is a wholly owned subsidiary of TA and a Guarantor.
"10 1/4% Subordinated Note Documents" shall mean the 10 1/4%
Subordinated Note Indenture, the 10 1/4% Subordinated Notes and any Guarantees
relating thereto.
"10 1/4% Subordinated Note Indenture" shall mean the 10 1/4%
Senior Subordinated Note Indenture dated as of March 24, 1997, among the
Borrower, the
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guarantors thereunder and Fleet National Bank, as trustee, as amended on or
prior to the Closing Date in connection with the Debt Tender Offer and from time
to time thereafter in accordance with the terms hereof and thereof.
"10 1/4% Subordinated Notes" shall mean the Borrower's
existing 10 1/4% Senior Subordinated Notes due 2007.
"Term Borrowing" shall mean a Borrowing comprised of Term
Loans.
"Term Facility" shall mean the aggregate amount of the
Lenders' Term Loan Commitments.
"Term Lender" shall mean any Lender that has a Term Loan
Commitment or holds any Term Loans.
"Term Loan Commitments" shall mean, with respect to each
Lender, the commitment of such Lender to make Term Loans hereunder (or to
purchase Existing Term Loans and Assigned Indebtedness that become Term Loans
hereunder) as set forth in clause (i) of Section 2.01(a).
"Term Loan Maturity Date" shall mean November 14, 2008.
"Term Loan Repayment Amount" shall have the meaning assigned
to such term in Section 2.11(a).
"Term Loan Repayment Date" shall have the meaning assigned to
such term in Section 2.11(a).
"Term Loans" shall mean the term loans made by the Lenders to
the Borrower (and Existing Term Loans and Assigned Indebtedness purchased by the
Lenders) pursuant to clause (i) of Section 2.01(a). Each Term Loan shall be a
Eurodollar Term Loan or an ABR Term Loan.
"Total Debt" shall mean, with respect to the Borrower and its
subsidiaries on a consolidated basis at any time, all Capital Lease Obligations,
Indebtedness for borrowed money and Indebtedness in respect of deferred purchase
price of property or services of the Borrower and its subsidiaries at such time
and all preferred stock at such time mandatorily redeemable on or prior to the
first anniversary of the Term Loan Maturity Date, less the amount of cash and
cash equivalents set forth on the Borrower's consolidated balance sheet at such
time (including all amounts on deposit in the Collateral Account at such time)
in excess of $2,500,000.
"Trademark Security Agreement" shall mean the Trademark
Security Agreement, as amended and restated as of the Closing Date and
substantially in the form of Exhibit H, among the Borrower, the Guarantors,
TAFSI and the Collateral Agent.
"Transaction Documents" shall mean the Loan Documents and the
Subordinated Note Documents.
"Transactions" shall mean the Merger and the Other
Transactions and
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the execution and delivery of the Loan Documents and the borrowing of Loans.
"Transaction Costs" shall have the meaning assigned to such
term in Section 4.26.
"Transition Expenses" shall mean, for any period, costs
incurred in connection with (i) the Borrower's conversion of acquired
TravelCenters into the Borrower's network of TravelCenters and (ii) the
disposition of TravelCenters to the extent such disposition is in connection
with a Permitted Business Acquisition permitted by Section 7.05(h).
"TravelCenter" shall mean a facility owned, operated, leased
or franchised by the Borrower or any of its subsidiaries that provides fuel and
nonfuel products, services and amenities primarily to the trucking industry.
"Type" when used in respect of any Loan or Borrowing, shall
refer to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, the term "Rate"
shall include the Adjusted LIBO Rate and the Alternate Base Rate.
"Underwriting Fee Letter" shall have the meaning assigned to
such term in Section 2.05(c).
"Underwriting Fees" shall have the meaning assigned to such
term in Section 2.05(c).
"Withdrawal Liability" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed to be references to Articles and Sections of, and Exhibits and Schedules
to, this Agreement unless the context shall otherwise require. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP as
in effect from time to time, applied on a basis consistent with the application
used in the financial statements referred to in Section 4.05(b); provided that,
if the Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall
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have been withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) On the terms and subject to the
conditions and relying upon the representations and warranties herein set forth,
each Lender agrees, severally and not jointly, (i) to make Terms Loans to the
Borrower (or to purchase Existing Term Loans (as defined in paragraph (b) below)
or Assigned Indebtedness that shall thereupon be deemed to constitute Term
Loans) on the Closing Date in an aggregate principal amount not to exceed the
Term Loan Commitment set forth opposite such Lender's name on Schedule 2.01, and
(ii) to make Revolving Loans to the Borrower, at any time and from time to time
on or after the Closing Date and prior to the earlier of the Revolving Credit
Maturity Date and the termination of the Revolving Credit Commitment of such
Lender in accordance with the terms hereof, in an aggregate principal amount at
any time outstanding not to exceed (after giving effect to all Revolving Loans
repaid, and all reimbursements of LC Disbursements made, concurrently with the
making of any Revolving Loans) an amount equal to the difference between (A) the
Revolving Credit Commitment set forth opposite such Lender's name on Schedule
2.01, as the same may be reduced from time to time pursuant to Section 2.09, and
(B) such Lender's Applicable Percentage of the sum of (1) the aggregate
principal amount of Swingline Loans outstanding at such time and (2) the LC
Exposure at such time. Within the limits set forth in clause (ii) of the
preceding sentence, the Borrower may borrow, pay or prepay and reborrow
Revolving Loans on or after the Closing Date and prior to the Revolving Credit
Maturity Date, on the terms and subject to the conditions and limitations set
forth herein. Amounts paid or prepaid in respect of Term Loans may not be
reborrowed.
(b) It is the purpose and intent of this Agreement that, after
giving effect to the amendment and restatement of the Existing Credit Agreement
and the fundings hereunder on the Closing Date, each Term Lender will hold
outstanding Term Loans equal to its Term Loan Commitment set forth opposite its
name on Schedule 2.01 and each Revolving Lender will have a Revolving Credit
Commitment as set forth opposite its name on Schedule 2.01 (and any extensions
of credit hereunder will be made ratably in accordance with the applicable
Commitments). In order to give effect to the foregoing, on and as of the Closing
Date (i) each Lender that holds any Senior Notes or any "Term Loans" then
outstanding under and as defined in the Existing Credit Agreement ("Existing
Term Loans") shall be deemed to have assigned (and hereby assigns, effective on
the Closing Date) the outstanding principal of its Senior Notes and/or Existing
Term Loans to the Term Lenders hereunder, (ii) each Term Lender shall fund to
the Administrative Agent, in accordance with this Agreement, the full amount of
its Term Loan Commitment, with such funding being treated as the purchase of
Existing Term Loans under clause (i) above, the purchase of Assigned
Indebtedness and/or the advance of additional Term Loans, as appropriate, (iii)
Existing Term Loans and Assigned Indebtedness purchased as provided above and
additional Term Loans made
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hereunder shall be allocated among the Term Lenders to achieve the result
specified in the first sentence of this paragraph, (iv) the Administrative Agent
will apply the proceeds of the fundings described in clause (ii) above, first,
to pay the purchase price of the Existing Term Loans and Assigned Indebtedness
(in an amount equal to 100% of the principal amount thereof) and, second, as
specified by the Borrower in accordance with the applicable provisions of this
Agreement, (v) the Borrower will pay all accrued interest and other amounts
owing in respect of the Existing Term Loans and Assigned Indebtedness (other
than outstanding principal so assigned and purchased, with such assignments, in
the case of assignments of Indebtedness under the Existing Credit Agreement,
being treated as prepayments for purposes of Section 2.16 of the Existing Credit
Agreement), (vi) the Borrower will pay all other amounts then outstanding or
accrued and owing under the Existing Credit Agreement (including outstanding
"Revolving Loans" and "Swingline Loans", as defined in the Existing Credit
Agreement, but without prejudice to the Borrower's right to borrow Revolving
Loans and Swingline Loans hereunder in accordance with this Agreement), (vii)
all "Commitments", as defined in the Existing Credit Agreement, shall be
reallocated as provided in Schedule 2.01 and, to the extent inconsistent with
such Schedule, shall be terminated, (viii) the "Interest Period", as defined in
the Existing Credit Agreement, of all Existing Term Loans and Assigned
Indebtedness shall terminate and the initial Interest Period of the Term Loans
hereunder resulting from the purchase of such Existing Term Loans and Assigned
Indebtedness shall be determined based upon the Borrower's initial notice under
Section 2.03, (ix) the principal amount of all Senior Notes that constitutes
Assigned Indebtedness assigned to Term Lenders shall be amended and restated to
constitute "Term Loans" hereunder, and (x) the Existing Credit Agreement shall
be amended and restated in its entirety in the form of this Agreement. On the
Closing Date, the Existing Credit Agreement shall be deemed amended and restated
in its entirety as set forth herein and all Existing Term Loans and Assigned
Indebtedness shall continue to remain outstanding as Term Loans hereunder,
without extinguishing such Indebtedness. The amendment and restatement of the
Existing Credit Agreement shall not affect the Borrower's liability in respect
of its obligations accrued thereunder. However, unless and until the Closing
Date occurs as provided herein, the Existing Credit Agreement and Senior Notes
shall remain in effect and shall not be affected by this Agreement.
SECTION 2.02. Loans. (a) Each Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their respective Term Loan Commitments or Revolving Credit Commitments, as the
case may be; provided, however, that the failure of any Lender to make any Loan
shall not in itself relieve any other Lender of its obligation to lend hereunder
(it being understood, however, that no Lender shall be responsible for the
failure of any other Lender to make any Loan required to be made by such other
Lender). The Loans comprising each Borrowing shall be in an aggregate principal
amount that is an integral multiple of $500,000 and not less than $3,000,000 (or
in the case of the Revolving Credit Commitments, the lesser of $3,000,000 and an
aggregate principal amount equal to the remaining balance of the Revolving
Credit Commitments).
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans, as the Borrower may request
pursuant to Section 2.03. Each Lender may at its option fulfill its Commitment
with respect to any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of
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such Lender to make such Loan, provided that any exercise of such option shall
not (i) affect the obligation of the Borrower to repay such Loan in accordance
with the terms of this Agreement or (ii) impose any additional obligation on the
part of the Borrower pursuant to Section 2.14. Borrowings of more than one Type
may be outstanding at the same time; provided, however, that the Borrower shall
not be entitled to request any Borrowing that, if made, would result in an
aggregate of more than eight separate Eurodollar Loans of any Lender being
outstanding hereunder at any one time. For purposes of the foregoing, Loans
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Loans.
(c) Subject to paragraph (e) below and except with respect to
Loans made pursuant to paragraph (f) below, each Lender shall make a Loan in the
amount of its pro rata portion, as determined under Section 2.17, of each
Borrowing hereunder on the proposed date thereof by wire transfer of immediately
available funds to such account in New York City as the Administrative Agent may
designate not later than 12:00 noon, New York City time, and the Administrative
Agent shall by 3:00 p.m., New York City time, credit the amounts so received to
the general deposit account of the Borrower maintained with the Administrative
Agent or, if a Borrowing shall not occur on such date because any condition
precedent herein specified shall not have been met, return the amounts so
received to the respective Lenders. Unless the Administrative Agent shall have
received notice from a Lender prior to the date of any Borrowing that such
Lender will not make available to the Administrative Agent such Lender's portion
of such Borrowing, the Administrative Agent may assume that such Lender has made
such portion available to the Administrative Agent on the date of such Borrowing
in accordance with this paragraph (c) and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have made
such portion available to the Administrative Agent, such Lender and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, for the first such day, the Federal Funds
Effective Rate, and thereafter, the Alternate Base Rate. If such Lender shall
repay to the Administrative Agent such corresponding amount, such amount shall
constitute such Lender's Loan as part of such Borrowing for purposes of this
Agreement.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Revolving Credit Borrowing if the
Interest Period requested with respect thereto would end after the Revolving
Credit Maturity Date.
(e) The Borrower may refinance all or any part of any
Revolving Credit Borrowing with a Revolving Credit Borrowing of the same or a
different Type, subject to the conditions and limitations set forth in this
Agreement. Any Revolving Credit Borrowing or part thereof so refinanced shall be
deemed to be repaid or prepaid in accordance with Section 2.04 or 2.12, as
applicable, with the proceeds of a new Revolving Credit Borrowing, and the
proceeds of the new Revolving Credit Borrowing, to the extent they do not exceed
the principal amount of the Revolving Credit Borrowing being refinanced, shall
not be paid by the Lenders to the Administrative Agent or by the Administrative
Agent to the Borrower pursuant to paragraph (c) above.
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(f) If the Administrative Agent has not received from the
Borrower the payment required by Section 3.04(a) by 11:00 a.m., New York City
time, on the date on which the Fronting Bank has notified the Borrower that
payment of a draft presented under any Letter of Credit will be made (or such
later time as is not later than three hours after the Borrower shall have
received such notice or, if the Borrower shall have received such notice later
than 2:00 p.m., New York City time, on such Business Day, not later than 10:00
a.m., New York City time, on the immediately following Business Day), as
provided in Section 3.04(a), the Administrative Agent will notify not later than
12:00 noon, New York City time, the Fronting Bank and each Participating Lender
of the LC Disbursement and, in the case of each Participating Lender, its
Applicable Percentage of such LC Disbursement. Each Participating Lender will
pay by wire transfer of immediately available funds to the Administrative Agent
not later than 4:00 p.m., New York City time, on such date an amount equal to
such Participating Lender's Applicable Percentage of such LC Disbursement (it
being understood that such amount shall constitute an ABR Revolving Loan of such
Lender and such payment shall be deemed to have reduced the LC Exposure), and
the Administrative Agent will promptly pay such amount to the Fronting Bank. The
Administrative Agent will promptly remit to each Participating Lender its
Applicable Percentage of any amounts subsequently received by the Administrative
Agent from the Borrower in respect of such LC Disbursement. If any Lender shall
not have made its Applicable Percentage of such LC Disbursement available to the
Fronting Bank as provided above, such Lender agrees to pay interest on such
amount, for each day from and including the date such amount is required to be
paid in accordance with this paragraph (f) to but excluding the date an amount
equal to such amount is paid to the Administrative Agent for prompt payment to
the Fronting Bank at, for the first such day, the Federal Funds Effective Rate,
and thereafter, the Alternate Base Rate.
SECTION 2.03. Notice of Borrowings. The Borrower shall give
the Administrative Agent written or telecopy notice (or telephone notice
promptly confirmed in writing or by telecopy) (a) in the case of a Eurodollar
Borrowing, not later than 12:00 noon, New York City time, three Business Days
before a proposed borrowing and (b) in the case of an ABR Borrowing, not later
than 12:00 noon, New York City time, one Business Day before a proposed
borrowing. Such notice shall be irrevocable and shall in each case refer to this
Agreement and specify (i) whether the Borrowing then being requested is to be a
Term Borrowing or a Revolving Credit Borrowing, and whether such Borrowing is to
be a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing
(which shall be a Business Day) and the amount thereof; and (iii) if such
Borrowing is to be a Eurodollar Borrowing, the Interest Period with respect
thereto. If no election as to the Type of Borrowing is specified in any such
notice, then the requested Borrowing shall be an ABR Borrowing. If no Interest
Period with respect to any Eurodollar Borrowing is specified in any such notice,
then the Borrower shall be deemed to have selected an Interest Period of one
month's duration. If the Borrower shall not have given notice in accordance with
this Section 2.03 of its election to refinance a Revolving Credit Borrowing
prior to the end of the Interest Period in effect for such Borrowing, then the
Borrower shall (unless such Borrowing is repaid at the end of such Interest
Period) be deemed to have given notice of an election to refinance such
Borrowing with an ABR Borrowing. The Administrative Agent shall promptly advise
the Lenders of any notice given pursuant to this Section 2.03 and of each
Lender's portion of the requested Borrowing and shall promptly notify each
Lender of the determination
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of the Adjusted LIBO Rate applicable to any Eurodollar Loan.
The Borrower shall include in its initial notice under this
Section all information with respect to amounts to be funded to purchase
Existing Term Loans and Assigned Indebtedness, as provided in Section 2.01.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The
outstanding principal balance of each Loan shall be payable (i) in the case of a
Revolving Loan or a Swingline Loan, on the Revolving Credit Maturity Date and
(ii) in the case of a Term Loan, as provided in Section 2.11.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which
it will record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder from the Borrower or any Guarantor and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) above shall be prima facie evidence of the existence and
amounts of the obligations therein recorded; provided, however, that the failure
of any Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of the Borrower to repay
the Loans in accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in
the event any Lender shall request and receive a promissory note payable to such
Lender and its registered assigns, the interests represented by such note shall
at all times (including after any assignment of all or part of such interests
pursuant to Section 10.04) be represented by one or more promissory notes
payable to the payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each
Lender, through the Administrative Agent, the following fees (each, a
"Commitment Fee") on the last day of March, June, September and December in each
year and on each date on which any of the Revolving Credit Commitments of such
Lender shall expire or be terminated as provided herein, a commitment fee of
0.50% per annum on the average daily unused amount of the Revolving Credit
Commitment (without giving effect to any deemed reduction thereto in connection
with the issuance of Swingline Loans) of such Lender during the preceding
quarter (or other period commencing with the Closing Date or ending with the
date on which the Revolving Credit Commitment of such Lender shall
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expire or be terminated). The Commitment Fee due to each Lender in respect of
its Revolving Credit Commitment pursuant to the immediately preceding sentence
shall accrue from and including the Closing Date. For purposes of calculating
Commitment Fees in respect of Revolving Credit Commitments, any portion of such
Revolving Credit Commitments unavailable due to Outstanding Letters of Credit
shall be deemed to be used amounts. All Commitment Fees shall be computed on the
basis of the actual number of days elapsed in a year of 360 days.
(b) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees (the "Administrative Fees") at the time and in the
amounts agreed upon in the administrative fee letter agreement dated October 2,
2000 (the "Administrative Fee Letter"), between TCA Acquisition and the
Administrative Agent.
(c) The Borrower agrees to pay to the Agents, for their
respective accounts, fees (the "Underwriting Fees") at the time and in the
amounts agreed upon in the underwriting fee letter agreement dated October 2,
2000 (the "Underwriting Fee Letter", together with the Administrative Fee
Letter, the "Fee Letters"), among TCA Acquisition, Chase Securities Inc. and the
Agents.
(d) The Borrower agrees to pay to the Fronting Bank, for its
own account, the fees specified in Section 3.08.
(e) All Fees (other than the fees payable to the Fronting Bank
under Section 3.08) shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders. Once paid, none of the Fees shall be refundable under any
circumstances (other than corrections of error in payment).
SECTION 2.06. Interest on Loans. (a) Subject to the provisions
of Section 2.07, the Loans comprising each ABR Borrowing (including any
Borrowing of Swingline Loans) shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as the case may
be, when the Alternate Base Rate is determined by reference to the Prime Rate
and over a year of 360 days at all other times) at a rate per annum equal to the
Alternate Base Rate plus the ABR Spread.
(b) Subject to the provisions of Section 2.07, the Loans
comprising each Eurodollar Borrowing shall bear interest (computed on the basis
of the actual number of days elapsed over a year of 360 days) at a rate per
annum equal to the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the LIBOR Spread.
(c) Interest on each Loan shall be payable on the Interest
Payment Dates applicable to such Loan except as otherwise provided in this
Agreement. The applicable Alternate Base Rate or Adjusted LIBO Rate for each
Interest Period or day within an Interest Period, as the case may be, shall be
determined in accordance with this Agreement by the Administrative Agent, and
such determination shall be presumptively correct absent manifest error.
SECTION 2.07. Default Interest. If the Borrower shall default
in the payment of the principal of or interest on any Loan or Swingline Loan or
any other amount becoming due hereunder or under any Security Document, by
acceleration or
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otherwise, the Borrower shall on demand from time to time pay interest, to the
extent permitted by law, on such defaulted amount up to (but not including) the
date of actual payment (after as well as before judgment) at a rate per annum
(the "Default Rate") (computed on the basis of the actual number of days elapsed
over a year of 360 days) equal to (a) in the case of any Loan or Swingline Loan,
the rate applicable to such Loan under Section 2.06 plus 2% per annum and (b) in
the case of any other amount, the rate that would be applicable to an ABR
Revolving Loan under Section 2.06 plus 2% per annum.
SECTION 2.08. Alternate Rate of Interest. In the event, and on
each occasion, that on the day two Business Days prior to the commencement of
any Interest Period for a Eurodollar Borrowing the Administrative Agent shall
have determined that dollar deposits in the principal amounts of the Loans
comprising such Borrowing are not generally available in the London interbank
market, or that the rates at which such dollar deposits are being offered will
not adequately and fairly reflect the cost to any Lender of making or
maintaining its Eurodollar Loan during such Interest Period, or that reasonable
means do not exist for ascertaining the Adjusted LIBO Rate, the Administrative
Agent shall, as soon as practicable thereafter, give written or telecopy notice
of such determination to the Borrower and the Lenders. In the event of any such
determination, any request by the Borrower for a Eurodollar Borrowing pursuant
to Section 2.03 or 2.10 shall, until the Administrative Agent shall have advised
the Borrower and the Lenders that the circumstances giving rise to such notice
no longer exist, be deemed to be a request for an ABR Borrowing. Each
determination by the Administrative Agent hereunder shall be conclusive absent
manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a)
The Term Loan Commitments shall be automatically terminated at 5:00 p.m., New
York City time, on the Closing Date. The Revolving Credit Commitments and the LC
Commitment shall be automatically terminated at 5:00 p.m., New York City time,
on the Revolving Credit Maturity Date and the LC Maturity Date, respectively.
Notwithstanding the foregoing, all the Commitments and the LC Commitment shall
be automatically terminated at 5:00 p.m., New York City time, on November 15,
2000, if the Closing Date has not occurred by such time.
(b) Upon at least three Business Days' prior irrevocable
written or telecopy notice to the Administrative Agent, the Borrower may at any
time in whole permanently terminate, or from time to time in part permanently
reduce, the Revolving Credit Commitments; provided, however, that (i) each
partial reduction of such Commitments shall be in an integral multiple of
$500,000 and in a minimum principal amount of $3,000,000 and (ii) the Borrower
shall not be permitted to terminate or reduce the Revolving Credit Commitments
if, as the result of such termination or reduction, (A) the LC Commitment would
exceed the aggregate remaining amount of the Revolving Credit Commitments or (B)
the Revolving Credit Utilization would exceed the aggregate remaining Revolving
Credit Commitments. The LC Commitments may be voluntarily terminated or reduced
by the Borrower as provided in Section 3.07.
(c) Each reduction in the Revolving Credit Commitments
hereunder shall be made ratably among the applicable Lenders in accordance with
their respective Revolving Credit Commitments. The Borrower shall pay to the
Administrative Agent for the account of the applicable Lenders, on the date of
each termination or reduction, the
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Commitment Fees on the amount of the Revolving Credit Commitments so terminated
or reduced accrued to but excluding the date of such termination or reduction.
(d) Nothing in this Section 2.09 shall prejudice any rights
that the Borrower may have against any Lender that fails to lend as required
hereunder prior to the date of termination of any Commitment.
SECTION 2.10. Conversion and Continuation of Term Borrowings.
The Borrower shall have the right at any time (subject to Section 2.08) upon
prior irrevocable notice to the Administrative Agent (i) not later than 12:00
noon, New York City time, one Business Day prior to conversion, to convert any
Eurodollar Term Borrowing into an ABR Term Borrowing, (ii) not later than 11:00
a.m., New York City time, three Business Days prior to conversion or
continuation, to convert any ABR Term Borrowing into a Eurodollar Term Borrowing
or to continue any Eurodollar Term Borrowing as a Eurodollar Term Borrowing for
an additional Interest Period and (iii) not later than 11:00 a.m., New York City
time, three Business Days prior to conversion, to convert the Interest Period
with respect to any Eurodollar Term Borrowing to another permissible Interest
Period, subject in each case to the following:
(a) each conversion or continuation shall be made pro rata
among the Lenders in accordance with the respective principal amounts
of the Loans comprising the converted or continued Term Borrowings;
(b) if less than all the outstanding principal amount of any
Term Borrowing shall be converted or continued, then each resulting
Borrowing shall satisfy the limitations specified in Sections 2.02(a)
and 2.02(b) regarding the principal amount and maximum number of
Borrowings of the relevant Type;
(c) each conversion shall be effected by each Lender by
applying the proceeds of the new Term Loan of such Lender resulting
from such conversion to the Term Loan (or portion thereof) of such
Lender being converted, and accrued interest on a Term Loan (or portion
thereof) being converted shall be paid by the Borrower at the time of
conversion;
(d) if any Eurodollar Term Borrowing is converted at a time
other than the end of the Interest Period applicable thereto, the
Borrower shall pay, upon demand, any amounts due to the Lenders
pursuant to Section 2.16; and
(e) no Interest Period may be selected for any Eurodollar Term
Borrowing that would end later than the Term Loan Maturity Date.
Each notice pursuant to this Section 2.10 shall be irrevocable
and shall refer to this Agreement and specify (i) the identity and amount of the
Term Borrowing that the Borrower requests be converted or continued, (ii)
whether such Term Borrowing is to be converted to or continued as a Eurodollar
Term Borrowing or an ABR Term Borrowing, (iii) if such notice requests a
conversion, the date of such conversion (which shall be a Business Day) and (iv)
if such Term Borrowing is to be converted to or continued as a Eurodollar Term
Borrowing, the Interest Period with respect thereto. If no Interest Period is
specified in any such notice with respect to any conversion to or continuation
as a Eurodollar Term Borrowing, the Borrower shall be deemed to have
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selected an Interest Period of one month's duration. The Administrative Agent
shall advise the other Lenders of any notice given pursuant to this Section
2.10, of the Administrative Agent's determination, if applicable, of the
Adjusted LIBO Rate of any Eurodollar Loan and of each Lender's portion of any
converted or continued Term Borrowing. If the Borrower shall not have given
notice in accordance with this Section 2.10 to continue any Term Borrowing into
a subsequent Interest Period (and shall not otherwise have given notice in
accordance with this Section 2.10 to convert such Term Borrowing), such Term
Borrowing shall, at the end of the Interest Period applicable thereto (unless
repaid pursuant to the terms hereof), automatically be continued into a new
Interest Period as an ABR Term Borrowing.
SECTION 2.11. Repayment of Term Borrowings. (a) The Borrower
shall pay to the Administrative Agent, for the account of the Lenders, on each
March 31, June 30, September 30 and December 31 in any period set forth below
(each such date being a "Term Loan Repayment Date") a principal amount of the
Term Loans (such amount, as adjusted from time to time pursuant to Sections
2.12(b) and 2.13(d), being called the "Term Loan Repayment Amount") equal to
one-quarter of the amount set forth below for each such other period, together
in each case with accrued and unpaid interest on the principal amount to be paid
to but excluding the date of such payment:
From and Including: To and Including: Amount:
January 1, 2002 December 31, 2002 $ 3,280,000
January 1, 2003 December 31, 2003 $ 3,280,000
January 1, 2004 December 31, 2004 $ 3,280,000
January 1, 2005 December 31, 2005 $ 3,280,000
January 1, 2006 December 31, 2006 $ 3,280,000
January 1, 2007 December 31, 2007 $ 80,360,000
January 1, 2008 Term Loan Maturity Date $ 231,240,000
On each Term Loan Repayment Date, the Administrative Agent shall apply the Term
Loan Repayment Amount paid to the Administrative Agent to pay the Term
Borrowings.
(b) To the extent not previously paid, all Term Borrowings
shall be due and payable on the Term Loan Maturity Date, together with accrued
and unpaid interest on the principal amount to be paid to but excluding the date
of payment.
(c) All repayments pursuant to this Section 2.11 shall be
subject to Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.12 Optional Prepayment. (a) The Borrower shall have
the right at any time and from time to time to prepay (i) Revolving Credit
Borrowings, (ii) Term Borrowings or (iii) Swingline Borrowings, in each case in
whole or in part, upon at least three Business Days' (in the case of a
Eurodollar Borrowing), or one Business Day's (in the case of an ABR Borrowing),
prior written or telecopy notice (or telephone notice promptly confirmed by
written or telecopy notice) to the Administrative Agent;
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provided, however, that each partial prepayment shall be in an amount that is an
integral multiple of $500,000.
(b) Each prepayment of principal of the Term Borrowings
pursuant to paragraph (a) above shall be applied pro rata against the remaining
scheduled payments of principal due under Section 2.11(a).
(c) Each notice of prepayment shall specify (i) the amount to
be prepaid, (ii) the prepayment date, (iii) whether the prepayment relates to
Revolving Credit Borrowings, Term Borrowings or Swingline Borrowings and (iv)
the principal amount to be prepaid of (A) Revolving Credit Borrowings (or
portion thereof), (B) Term Borrowings (or portion thereof) or (C) Swingline
Borrowings (or portion thereof). Each such notice shall be irrevocable and shall
commit the Borrower to prepay such obligations by the amount specified therein
on the date specified therein. All prepayments of Borrowings under this Section
2.12 shall be subject to Section 2.16 but otherwise without premium or penalty.
All prepayments under this Section 2.12 shall be accompanied by accrued interest
on the principal amount being prepaid to but excluding the date of payment.
(d) Except as contemplated in the definition of the term
"Excess Cash Flow", no optional prepayment of Term Borrowings made by the
Borrower pursuant to this Section 2.12 shall reduce the Borrower's obligation to
make mandatory prepayments pursuant to Section 2.13.
SECTION 2.13. Mandatory Prepayments. (a) On the date of any
termination or reduction of the Revolving Credit Commitments pursuant to Section
2.09, the Borrower shall pay or prepay so much of the Swingline Loans and
Revolving Credit Borrowings as shall be necessary in order that (i) the
aggregate principal amount of Swingline Loans and Revolving Loans outstanding at
such time will not exceed (ii) the aggregate Revolving Credit Commitments (after
giving effect to such termination or reduction and after giving effect to each
deemed reduction to the Revolving Credit Commitments in connection with the
making of a Swingline Loan) less the aggregate LC Exposure at such time.
(b) Substantially simultaneously with (and in any event not
later than two Business Days after) the occurrence of a Prepayment Event, the
Borrower shall apply an amount equal to 100% of the Net Cash Proceeds therefrom
to prepay Term Loans outstanding under this Agreement.
(c) No later than the earlier of (i) 105 days after the end of
each fiscal year, commencing with the fiscal year ending on December 31, 2001,
and (ii) the date on which the financial statements with respect to such period
are delivered pursuant to Section 6.04(a), the Borrower shall apply an amount
equal to 50% of Excess Cash Flow for such period to prepay Term Loans
outstanding under this Agreement.
(d) Each mandatory prepayment of principal of the Term
Borrowings pursuant to paragraph (b) or (c) above shall be applied to reduce the
scheduled payments of principal due under Section 2.11(a) after the date of such
prepayment pro rata.
(e) The Borrower shall deliver to the Administrative Agent,
(i) at the time of each prepayment required under paragraph (b) or paragraph
(c), a certificate signed
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by a Financial Officer of the Borrower setting forth in reasonable detail the
calculation of the amount of such prepayment and (ii) at least three Business
Days prior to the time of each prepayment required under this Section 2.13 (if
known at such time), a notice of such prepayment. Each required notice of
prepayment (i) shall specify the prepayment date, the Type of each Borrowing
being prepaid and the principal amount of each Borrowing (or portion thereof) to
be prepaid, (ii) shall be irrevocable and (iii) shall commit the Borrower to
prepay such obligations by the amount stated therein on the date stated therein.
All prepayments of Borrowings and Swingline Loans under this Section 2.13 shall
be subject to Section 2.16, but shall otherwise be without premium or penalty.
All prepayments of Borrowings and Swingline Loans under this Section 2.13 (other
than prepayments pursuant to paragraph (c) above) shall be accompanied by
accrued interest on the principal amount being prepaid to but excluding the date
of payment. All prepayments of Borrowings and Swingline Loans pursuant to
paragraph (c) of this Section 2.13 shall be applied first to the payment of
accrued interest on the principal amount being prepaid and then to the payment
of such principal.
(f) Net Cash Proceeds and such other amounts to be applied
pursuant to this Section 2.13 to the prepayment of Term Borrowings and Revolving
Credit Borrowings shall be applied, as applicable, first to reduce outstanding
ABR Term Borrowings and ABR Revolving Credit Borrowings. Any amounts remaining
after each such application shall, at the option of the Borrower, be applied to
prepay Eurodollar Term Borrowings or Eurodollar Revolving Credit Borrowings, as
the case may be, immediately or shall be deposited in the Prepayment Account (as
defined below). The Administrative Agent shall apply any cash deposited in the
Prepayment Account (i) allocable to Term Borrowings to prepay Eurodollar Term
Borrowings and (ii) allocable to Revolving Credit Borrowings to prepay
Eurodollar Revolving Credit Borrowings, in each case on the last day of their
respective Interest Periods (or, at the direction of the Borrower, on any
earlier date) until all outstanding Term Borrowings or Revolving Credit
Borrowings, as the case may be, have been prepaid or until all the allocable
cash on deposit with respect to such Borrowings has been exhausted. For purposes
of this Agreement, "Prepayment Account" shall mean an account established by the
Borrower with the Administrative Agent and over which the Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal for application in accordance with this paragraph (f). The
Administrative Agent will, at the request of the Borrower, invest amounts on
deposit in the Prepayment Account in Permitted Investments maturing prior to the
last day of the applicable Interest Periods of the Eurodollar Term Borrowings or
Eurodollar Revolving Credit Borrowings to be prepaid, as the case may be;
provided, however, that (i) the Administrative Agent shall not be required to
make any investment that, in its sole judgment, would require or cause the
Administrative Agent to be in, or would result in any, violation of any law,
statute, rule or regulation and (ii) the Administrative Agent shall have no
obligation to invest amounts on deposit in the Prepayment Account if a Default
or Event of Default shall have occurred and be continuing. The Borrower shall
indemnify the Administrative Agent for any losses relating to the investments so
that the amount available to prepay Eurodollar Borrowings on the last day of the
applicable Interest Periods is not less than the amount that would have been
available had no investments been made pursuant thereto. Other than any interest
earned on such investments, the Prepayment Account shall not bear interest.
Interest or profits, if any, on such investments shall be deposited in the
Prepayment Account and reinvested as specified above. If the maturity of the
Loans
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has been accelerated pursuant to Article VIII, the Administrative Agent may, in
its sole discretion, apply all amounts on deposit in the Prepayment Account to
satisfy any of the Obligations. The Borrower hereby grants to the Administrative
Agent, for its benefit and the benefit of the Syndication Agent, the Fronting
Bank, the Swingline Lenders and the Lenders, a security interest in the
Prepayment Account.
SECTION 2.14. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein, if after the date of this
Agreement, any change in applicable law or regulation or in the interpretation
or administration thereof by any governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender of the
principal of or interest on any Eurodollar Loan made by such Lender or any
Letter of Credit reimbursement obligations, Fees or other amount payable
hereunder (other than changes in respect of income and franchise taxes imposed
on such Lender by the jurisdiction in which such Lender is organized or has its
principal office or by any political subdivision or taxing authority thereof or
therein), or shall impose, modify, or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of or credit extended by such Lender (except any such reserve
requirement that is reflected in the Adjusted LIBO Rate or in the Alternate Base
Rate) or shall impose on such Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender or
any Letter of Credit issued hereunder, and the result of any of the foregoing
shall be to increase the cost to such Lender of making or maintaining any
Eurodollar Loan or increase the cost to any Lender of issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable by
such Lender hereunder (whether of principal, interest or otherwise) by an amount
deemed by such Lender to be material, then the Borrower will pay to such Lender
following receipt of a certificate of such Lender to such effect in accordance
with Section 2.14(c) such additional amount or amounts as will compensate such
Lender for such additional costs incurred or reduction suffered.
(b) If any Lender, any Swingline Lender or the Fronting Bank
shall have determined that the applicability of any law, rule, regulation,
agreement or guideline adopted pursuant to or arising out of the July 1988
report of the Basic Committee on Banking Regulations and Supervisory Practices
entitled "International Convergence of Capital Measurement and Capital
Standards", or the adoption after the date of this Agreement of any other law,
rule, regulation, agreement or guideline regarding capital adequacy, or any
change in any of the foregoing or in the interpretation or administration of any
of the foregoing by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or any lending office of such Lender), any Swingline Lender or
the Fronting Bank or any Lender's, any Swingline Lender's or the Fronting Bank's
holding company with any request or directive regarding capital adequacy issued
under any law, rule, regulation or guideline (whether or not having the force of
law) of any such authority, central bank or comparable agency, has or would have
the effect of reducing the rate of return on such Lender's, such Swingline
Lender's or the Fronting Bank's capital or on the capital of such Lender's, such
Swingline Lender's or the Fronting
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Bank's holding company, if any, as a consequence of this Agreement or the Loans
made by such Lender, the Swingline Loans made by such Swingline Lender or the
Letters of Credit issued by the Fronting Bank pursuant hereto to a level below
that which such Lender, such Swingline Lender or the Fronting Bank or such
Lender's, such Swingline Lender's or the Fronting Bank's holding company could
have achieved but for such applicability, adoption, change or compliance (taking
into consideration such Lender's, such Swingline Lender's or the Fronting Bank's
policies and the policies of such Lender's, such Swingline Lender's or the
Fronting Bank's holding company with respect to capital adequacy) by an amount
deemed by such Lender, such Swingline Lender or the Fronting Bank to be
material, then from time to time the Borrower shall pay to such Lender, such
Swingline Lender or the Fronting Bank following receipt of a certificate of such
Lender, such Swingline Lender or the Fronting Bank to such effect in accordance
with Section 2.14(c) such additional amount or amounts as will compensate such
Lender, such Swingline Lender or the Fronting Bank or such Lender's, such
Swingline Lender's or the Fronting Bank's holding company for any such reduction
suffered. Notwithstanding any other provision in this paragraph (b), none of any
Lender, the Swingline Lender or the Fronting Bank shall be entitled to demand
compensation pursuant to this paragraph (b) if it shall not be the general
practice of such Lender, the Swingline Lender or the Fronting Bank, as
applicable, to demand such compensation in similar circumstances under
comparable provisions of other comparable credit agreements.
(c) A certificate of each Lender, each Swingline Lender or the
Fronting Bank setting forth such amount or amounts as shall be necessary to
compensate such Lender, such Swingline Lender or the Fronting Bank or its
holding company as specified in paragraph (a) or (b) above, as the case may be,
and setting forth in reasonable detail an explanation of the basis of requesting
such compensation in accordance with paragraph (a) or (b) above, shall be
delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay each Lender, each Swingline Lender or the Fronting Bank the
amount shown as due on any such certificate delivered by it within 10 days after
its receipt of the same.
(d) Failure on the part of any Lender, any Swingline Lender or
the Fronting Bank to demand compensation for any increased costs or reduction in
amounts received or receivable or reduction in return on capital with respect to
any period shall not constitute a waiver of such Lender's, such Swingline
Lender's or the Fronting Bank's right to demand compensation with respect to
such period or any other period, except that none of any Lender, any Swingline
Lender or the Fronting Bank shall be entitled to compensation under this Section
2.14 for any costs incurred or reductions suffered with respect to any date
unless such Lender, such Swingline Lender or the Fronting Bank, as applicable,
shall have notified the Borrower that it will demand compensation for such costs
or reductions under paragraph (c) above not more than six months after the later
of (i) such date and (ii) the date on which such Lender, such Swingline Lender
or the Fronting Bank, as applicable, shall have become aware of such costs or
reductions. The protection of this Section 2.14 shall be available to each
Lender, each Swingline Lender or the Fronting Bank regardless of any possible
contention of the invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition that shall have occurred or been imposed.
(e) Each Lender will, at the written request of the Borrower,
designate a
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different lending office if such designation (i) will avoid the need for, or
minimize the amount of, any compensation to which such Lender is entitled
pursuant to this Section 2.14 and (ii) will not, in the sole judgment of such
Lender, be otherwise disadvantageous to such Lender. The Borrower hereby agrees
to pay all reasonable costs and expenses incurred by any Lender in connection
with any such designation or assignment.
(f) With respect to any Lender that is entitled to any
compensation pursuant to paragraph (a) above, the Borrower shall have the right
to elect by notice to such Lender that all outstanding Eurodollar Loans made by
such Lender be automatically converted to ABR Loans as of the effective date of
such notice and that any requests thereafter by the Borrower for a Eurodollar
Borrowing shall, as to such Lender only, be deemed a request for an ABR Loan.
SECTION 2.15. Change in Legality. (a) Notwithstanding any
other provision herein, if after the date of this Agreement any change in any
law or regulation or in the interpretation thereof by any governmental authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made
by such Lender hereunder, whereupon any request by the Borrower for a
Eurodollar Borrowing shall, as to such Lender only, be deemed a request
for an ABR Loan unless such declaration shall be subsequently
withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it
be converted to ABR Loans, in which event all such Eurodollar Loans
shall be automatically converted to ABR Loans as of the effective date
of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the
Borrower by any Lender shall be effective as to each Eurodollar Loan, if lawful,
on the last day of the Interest Period currently applicable to such Eurodollar
Loan; in all other cases such notice shall be effective on the date of receipt
by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each
Lender against any loss or expense that such Lender may sustain or incur as a
consequence of (a) any failure by the Borrower to fulfill on the date of any
borrowing hereunder the applicable conditions set forth in Article V, (b) any
failure by the Borrower to borrow or to refinance, convert or continue any Loan
hereunder after irrevocable notice of such borrowing, refinancing, conversion or
continuation has been given pursuant to Section 2.03 or 2.10, (c) any payment,
prepayment or conversion of a Eurodollar Loan
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required by any other provision of this Agreement or otherwise made or deemed
made on a date other than the last day of the Interest Period applicable
thereto, (d) any default in payment or prepayment of the principal amount of any
Loan or any part thereof or interest accrued thereon, as and when due and
payable (at the due date thereof, whether by scheduled maturity, acceleration,
irrevocable notice of prepayment or otherwise) or (e) the occurrence of any
Event of Default, including, in each such case, any loss or reasonable expense
sustained or incurred or to be sustained or incurred in liquidating or employing
deposits from third parties acquired to effect or maintain such Loan or any part
thereof as a Eurodollar Loan. Such loss or reasonable expense shall be equal to
the sum of (a) such Lender's actual costs and expenses incurred (other than any
lost profits) in connection with, or by reason of, any of the foregoing events
and (b) an amount equal to the excess, if any, as reasonably determined by such
Lender of (i) its cost of obtaining the funds for the Loan being paid, prepaid,
converted or not borrowed, converted or continued (assumed to be the Adjusted
LIBO Rate applicable thereto) for the period from and including the date of such
payment, prepayment, conversion or failure to borrow, convert or continue to but
excluding the last day of the Interest Period for such Loan (or, in the case of
a failure to borrow, convert or continue, the Interest Period for such Loan that
would have commenced on the date of such failure) over (ii) the amount of
interest (as reasonably determined by such Lender) that would be realized by
such Lender in reemploying the funds so paid, prepaid, converted or not
borrowed, converted or continued for such period or Interest Period, as the case
may be. A certificate of any Lender setting forth in reasonable detail any
amount or amounts that such Lender is entitled to receive pursuant to this
Section 2.16 shall be delivered to the Borrower and shall be conclusive absent
manifest error.
SECTION 2.17. Pro Rata Treatment. (a) Except as required under
Section 2.15, each Borrowing, each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans, each payment of the Commitment
Fees, each payment of the LC Fees, each reduction of the Revolving Credit
Commitments and each refinancing of any Borrowing with, conversion of any
Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall
be allocated pro rata among the Lenders in accordance with their respective
applicable Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
applicable outstanding Loans). Each Lender agrees that in computing such
Lender's portion of any Borrowing to be made hereunder, the Administrative Agent
may, in its discretion, round each Lender's percentage of such Borrowing,
computed in accordance with Section 2.01, to the next higher or lower whole
dollar amount.
(b) If any Lender shall obtain any payment of or recovery with
respect to any Obligations with proceeds of any sale of or other realization on
any Collateral (including any Mortgaged Property) in which the Lenders as a
whole do not have a pro rata Lien, and such payment or recovery is in excess of
its pro rata share of payments or recovery with respect to all Obligations then
outstanding, such Lender shall purchase from the other Lenders such
participations in Obligations held by such other Lenders as shall be necessary
to cause such purchasing Lender to share the excess payment or other recovery
ratably with each of such other Lenders; provided, however, that if all or any
portion of the excess payment or other recovery is thereafter recovered from
such purchasing Lender, the purchase shall be rescinded and each Lender which
has sold a participation to the purchasing Lender shall repay to the purchasing
Lender the
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purchase price to the ratable extent of such recovery together with an amount
equal to such selling Lender's ratable share (according to the proportion of (a)
the amount of such selling Lender's required repayment to the purchasing Lender
to (b) the total amount so recovered from the purchasing Lender) of any interest
or other amount paid or payable by the purchasing Lender in respect of the total
amount so recovered. The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section may, to the fullest
extent permitted by law, exercise all its rights of payment with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured claim
in lieu of a setoff to which this Section applies, such Lender shall, to the
extent practicable, exercise its rights in respect of such secured claim in a
manner consistent with the rights of the Lenders entitled under this Section to
share in the benefits of any recovery on such secured claim.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if
it shall, through the exercise of a right of banker's lien, setoff or
counterclaim against the Borrower, or pursuant to a claim under Section 506 of
Title 11 of the United States Code or other security or interest arising from,
or in lieu of, such secured claim, received by such Lender under any applicable
bankruptcy, insolvency, or other similar law or otherwise, or by any other
means, obtain payment (voluntary or involuntary) in respect of any Loan or Loans
or LC Exposure as a result of which the unpaid principal portion of its Loans or
its LC Exposure shall be proportionately less than the unpaid principal portion
of the Loans of any other Lender or any other Lender's LC Exposure, such Lender
shall be deemed simultaneously to have purchased from such other Lender at face
value, and shall promptly pay to such other Lender the purchase price for, a
participation in the Loans of such other Lender or the LC Exposure of such other
Lender, so that the aggregate unpaid principal amount of the Loans, LC Exposures
and participations in Loans and LC Exposures held by each Lender shall be in the
same proportion to the aggregate unpaid principal amount of all Loans and LC
Exposures then outstanding as the principal amount of such Lender's Loans and LC
Exposures prior to such exercise of banker's lien, setoff or counterclaim or
other event was to the principal amount of all Loans and LC Exposures
outstanding prior to such exercise of banker's lien, setoff or counterclaim or
other event; provided, however, that, if any such purchase or purchases or
adjustments shall be made pursuant to this Section 2.18 and the payment giving
rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustment restored without interest. The Borrower expressly
consents to the foregoing arrangements and agrees that any Lender holding a
participation in a Loan or LC Exposure deemed to have been so purchased may
exercise any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing by the Borrower to such Lender by reason
thereof as fully as if such Lender had made a Loan directly to the Borrower in
the amount of such participation.
SECTION 2.19. Payments. (a) Except as provided in Sections
2.05(d), the Borrower shall make each payment (including principal of or
interest on any Borrowing or any Fees or other amounts) hereunder and under any
other Loan
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Document not later than 12:00 noon, New York City time, on the date when due in
dollars to the Administrative Agent (for the account of the Agents, the Fronting
Bank, the Swingline Lenders or the Lenders, as the case may be), at its offices
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, in immediately available funds. The
Administrative Agent shall promptly remit in dollars to any Agent, the Fronting
Bank, the Swingline Lenders or the Lenders, as the case may be, its share of
such payments received by the Administrative Agent.
(b) Whenever any payment (including principal of or interest
on any Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by or on behalf
of the Borrower hereunder shall be made, in accordance with Section 2.19, free
and clear of and without deduction for any and all current or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding (i) taxes imposed on the net income of any Agent, the
Fronting Bank, any Swingline Lender or any Lender (or any transferee or assignee
thereof, including a participation holder (any such entity being called a
"Transferee")) and (ii) franchise taxes imposed on any Agent, the Fronting Bank,
any Swingline Lender or any Lender (or Transferee) by the United States or any
jurisdiction under the laws of which any Agent, the Fronting Bank, any Swingline
Lender or any such Lender (or Transferee) is organized or has its principal
office or lending office or any political subdivision or taxing authority
thereof or therein (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If any Taxes are required to be deducted from or in respect of any sum payable
hereunder to any Lender (or any Transferee), any Agent, any Swingline Lender or
the Fronting Bank, (i) the sum payable shall be increased by the amount
necessary so that after making all required deductions (including deductions for
Taxes applicable to additional sums payable under this Section 2.20) such Lender
(or Transferee), such Agent, such Swingline Lender or the Fronting Bank (as the
case may be) shall receive an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower shall make such deduction, and
(iii) the Borrower shall pay the full amount deducted to the relevant taxing
authority or other Governmental Authority in accordance with applicable law;
provided, however, that the Borrower shall not be required to increase any such
amounts payable to any Lender (or any Transferee), any Agent, any Swingline
Lender or the Fronting Bank (other than an assignee pursuant to a request by the
Borrower under Section 2.22) with respect to any Taxes that are United States
withholding taxes that are in effect and would be imposed on amounts payable to
such Lender (or Transferee), Agent, Swingline Lender or the Fronting Bank at the
time such Lender (or Transferee), Agent, Swingline Lender or the Fronting Bank
becomes a party to this Agreement, except to the extent that such Lender (or its
assignor, if any, or any Transferee), any Agent, any Swingline Lender or the
Fronting Bank would be entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to any withholding tax pursuant to this Section 2.20, and provided
further that no Transferee of any Lender shall be entitled to receive any
greater payment under this paragraph (a) than such Lender would have been
entitled to receive with respect to the rights assigned, participated or
otherwise transferred unless such assignment, participation or transfer shall
have been made at a
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time when the circumstances giving rise to such greater payment did not exist.
(b) In addition, the Borrower agrees to pay any current or
future stamp, intangible or documentary taxes or any other excise, transfer,
sales or property taxes, charges or similar levies (including mortgage recording
taxes and similar fees), together with interest, penalties and fees, that arise
from any payment made hereunder or from the execution, delivery, enforcement or
registration of, or otherwise with respect to, this Agreement, any Assignment
and Acceptance entered into at the request of the Borrower or any other Loan
Document (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender (or Transferee),
each Agent, each Swingline Lender and the Fronting Bank for the full amount of
Taxes and Other Taxes paid by such Lender (or Transferee), such Agent, such
Swingline Lender or the Fronting Bank, as the case may be, including Taxes and
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section 2.20(a), and any liability (including penalties, interest and expenses
(including reasonable attorney's fees and expenses)) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted by the relevant taxing authority or other Governmental
Authority. A certificate as to the amount of such payment or liability prepared
by any Agent, Lender, Swingline Lender or Fronting Bank, as applicable, shall be
conclusive absent manifest error. Such indemnification shall be made within 30
days after the date any Lender (or Transferee), any Agent, any Swingline Lender
or the Fronting Bank, as the case may be, makes written demand therefore. If a
Lender (or Transferee), an Agent, a Swingline Lender or the Fronting Bank shall
become aware that it is entitled to receive a refund in respect of Taxes or
Other Taxes as to which it has been indemnified by the Borrower pursuant to this
Section 2.20, it shall promptly notify the Borrower of the availability of such
refund and shall, within 30 days after receipt of a request by the Borrower,
apply for such refund at the Borrower's expense. If any Lender (or Transferee),
any Agent, any Swingline Lender or the Fronting Bank receives a refund in
respect of any Taxes or Other Taxes as to which it has been indemnified by the
Borrower pursuant to this Section 2.20, it shall promptly notify the Borrower of
such refund and shall, within 15 days of receipt, repay such refund to the
Borrower, net of all out-of-pocket expenses of such Lender, such Agent, such
Swingline Lender or the Fronting Bank and without any interest (other than the
interest, if any, included in such refund); provided, however, that the
Borrower, upon the request of such Lender (or Transferee), such Agent, such
Swingline Lender or the Fronting Bank, agrees to return such refund (plus
penalties, interest or other charges) to such Lender (or Transferee), such
Agent, such Swingline Lender or the Fronting Bank in the event such Lender (or
Transferee), such Agent, such Swingline Lender or the Fronting Bank is required
to repay such refund. Nothing contained in this paragraph (c) shall require any
Lender (or Transferee), any Agent, any Swingline Lender or the Fronting Bank to
make available any of its tax returns (or any other information relating to its
taxes that it deems to be confidential).
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes withheld by the Borrower in respect of any payment to any Lender (or
Transferee), any Agent, any Swingline Lender or the Fronting Bank, the Borrower
will
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furnish to the Administrative Agent, at its address referred to in Section
10.01, the original or a certified copy of a receipt evidencing payment thereof
or other evidence reasonably satisfactory to such Lender (or Transferee), such
Agent, such Swingline Lender or the Fronting Bank, as the case may be.
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.20
shall survive the payment in full of the principal of and interest hereunder or
any Loan Document.
(f) Each Lender (or Transferee) or successor Fronting Bank
that is organized under the laws of a jurisdiction other than the United States,
any State thereof or the District of Columbia (a "Non-U.S. Lender") shall
deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation was purchased)
two copies of either United States Internal Revenue Service Form W-8BEN or Form
W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption from U.S.
Federal withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest", a Form W-8BEN, or any subsequent versions
thereof or successors thereto (and, if such Non-U.S. lender delivers a Form
W-8BEN, a certificate representing that such Non-U.S. Lender is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within
the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Code)), properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S.
Federal withholding tax on payments of interest by the Borrower under this
Agreement and the other Loan Documents. Such forms shall be delivered by each
Non-U.S. Lender, on or before the date it becomes a party to this Agreement,
upon the written request of the Borrower and after being supplied with all
applicable documentation by the Borrower. In addition, each Non-U.S. Lender
shall deliver substitute forms promptly upon the obsolescence or invalidity of
any form previously delivered by such Non-U.S. Lender, provided that the
Borrower notifies such Lender of such obsolescence or invalidity and supplies
all substitute forms. Each Non-U.S. Lender shall notify the Borrower at any time
it determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose and previously delivered
to the Borrower). Notwithstanding any provision of Section 2.20(a) to the
contrary, the Borrower shall not have any obligation to pay any additional
amounts, any Taxes or Other Taxes (except to the extent required by law)
pursuant to Section 2.20 to the extent that such Taxes or Other Taxes result
from (i) the failure of any Lender (or Transferee), any Agent, the Fronting Bank
or the Swingline Bank to comply with its obligations pursuant to this Section
2.20(f), unless as a result of any change in any law or regulation or in the
interpretation thereof by any governmental authority charged with the
administration or interpretation thereof such compliance is no longer necessary,
or (ii) any representation made on Form W-8BEN or W-8ECI or successor applicable
form or certification by the Lender (or Transferee), the Agent, the Fronting
Bank, or the Swingline Bank incurring such Taxes or Other Taxes proving to have
been incorrect, false or misleading in any material respect when so made or
deemed to be made.
(g) Any of the Fronting Bank, any Swingline Lender, any Lender
(or Transferee) or any Agent claiming any additional amounts payable pursuant to
this
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Section 2.20 shall use reasonable efforts, consistent with legal and regulatory
restrictions (including reasonable efforts to change the jurisdiction of its
applicable lending office), to avoid the need for or reduce the amount of any
such additional amounts that may thereafter accrue, provided that such efforts
would not, in the sole determination of such Lender (or Transferee), Agent,
Fronting Bank, or Swingline Lender, as the case may be, be otherwise
disadvantageous to such Lender (or Transferee), such Agent, the Fronting Bank,
or such Swingline Lender. The Borrower hereby agrees to pay all reasonable costs
and expenses incurred by any Agent, Lender, Fronting Bank or Swingline Lender in
connection with such efforts.
SECTION 2.21. Swingline Loans. (a) On the terms and subject to
the conditions and relying upon the representations and warranties herein set
forth, each Swingline Lender agrees, at any time and from time to time from and
including the Closing Date to but excluding the earlier of the Revolving Credit
Maturity Date and the termination of the Revolving Credit Commitments, in
accordance with the terms hereof, to make Swingline Loans (which shall be ABR
Borrowings) to the Borrower in an aggregate principal amount at any time
outstanding (for both Swingline Lenders combined) not to exceed the lesser of
(i) $10,000,000 and (ii) the difference between (A) the aggregate Revolving
Credit Commitments, as the same may be reduced from time to time pursuant to
Section 2.09, at such time and (B) the sum of the aggregate principal amount of
Revolving Loans outstanding at such time and the LC Exposure at such time.
Swingline Loan borrowings shall be made from the several Swingline Lenders
ratably in proportion to their respective Swingline Commitments. Each Lender's
Revolving Credit Commitment shall be deemed utilized by an amount equal to such
Lender's pro rata share (based upon the percentage that such Lender's Revolving
Credit Commitment bears to the aggregate amount of the Revolving Loan
Commitments on such date) of each Swingline Loan. Immediately upon the making of
each Swingline Loan, the Swingline Lender that made such Swingline Loan shall be
deemed to have sold and transferred to each such Lender, and each such Lender
shall be deemed to have purchased and received from such Swingline Lender, in
each case irrevocably and without any further action by any party, an undivided
interest and participation in such Swingline Loan and the Obligations of the
Borrower under this Agreement in respect thereof in an amount equal to such
Lender's pro rata share (determined as aforesaid) of such Swingline Loan. Each
borrowing of Swingline Loans shall be in a principal amount that is an integral
multiple of $500,000. Within the limits set forth in the first sentence of this
paragraph, the Borrower may borrow, pay or prepay and reborrow Swingline Loans
on or after the Closing Date and prior to the Revolving Credit Maturity Date on
the terms and subject to the conditions and limitations set forth herein.
(b) The Borrower shall give the Administrative Agent
telephonic, written or telecopy notice (in the case of telephonic notice, such
notice shall be promptly confirmed in writing or by telecopy) not later than
1:00 p.m., New York City time, on the day of a proposed Swingline Loan
borrowing. Such notice shall be delivered on a Business Day, shall be
irrevocable and shall refer to this Agreement and shall specify the requested
date (which shall be a Business Day) and amount of such Swingline Loan. Upon
receipt of such notice, the Administrative Agent shall promptly notify each
Swingline Lender of the contents thereof and of such Swingline Lender's share of
such borrowing. Each Swingline Lender shall make each Swingline Loan to be made
by it hereunder on the proposed date thereof by wire transfer of immediately
available funds by 2:00 p.m., New York City time, to such account as the
Administrative Agent may
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designate. The Administrative Agent shall make the funds so received from the
Swingline Lenders available to the Borrower by means of a credit to the general
deposit account of the Borrower by 4:00 p.m. on the date such Swingline Loan is
requested to be made pursuant to such notice.
(c) Forthwith upon demand by any Swingline Lender, each
Revolving Lender shall pay to the Administrative Agent, as payment for its
participation, such Revolving Lender's pro rata percentage (as determined in
paragraph (a) above) of each outstanding Swingline Loan of such Swingline Lender
(but without any requirement for compliance with the provisions of Sections
2.01, 2.02 and 2.03 or the applicable conditions set forth in Article V) and
shall make available to the Administrative Agent for the account of such
Swingline Lender, in the same day funds if such Swingline Lender makes such
demand prior to 11:00 a.m., New York City time, and otherwise in funds available
on the next Business Day, the amount of its participation, and the proceeds of
such participations shall be distributed by the Administrative Agent to such
Swingline Lender. If any Revolving Lender shall not have made such amount
available to the Administrative Agent, such Revolving Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on demand such
amount together with interest thereon, for each day from the date of demand by
the applicable Swingline Lender until the date such amount is paid to the
Administrative Agent at (i) in the case of the Borrower, the interest rate
applicable at such time under Section 2.06 to an ABR Revolving Loan and (ii) in
the case of such Revolving Lender, the Federal Funds Effective Rate. If such
Revolving Lender shall pay to the Administrative Agent such amount, such amount
so paid shall constitute such Lender's Revolving Loan for purposes of this
Agreement and the aggregate amount of Swingline Loans outstanding shall be
reduced by the amount of each such Revolving Loan (it being understood that (i)
each Revolving Lender's obligation to make such payment is absolute and
unconditional and shall not be affected by any event or circumstance whatsoever,
including the occurrence of any Default or Event of Default hereunder or the
failure of any condition precedent set forth in Article V to be satisfied, or
any delay on any Swingline Lender's part in demanding payment, and (ii) each
such payment shall be made without any offset, abatement, withholding or
reduction whatsoever).
SECTION 2.22. Replacement of Lenders. If any Lender requests
compensation under Section 2.14, or if the Borrower is required to pay any
additional amount to any Lender or any governmental authority for the account of
any Lender pursuant to Section 2.20, or if any Lender defaults in its obligation
to fund Loans hereunder, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 10.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Commitment is
being assigned, the Fronting Bank and Swingline Lenders), which consent shall
not unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in LC
Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and
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(iii) in the case of any such assignment resulting from a claim for compensation
under Section 2.14 or payments required to be made pursuant to Section 2.20,
such assignment will result in a material reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
ARTICLE III
Letters of Credit
SECTION 3.01. Issuance of Letters of Credit. (a) The Fronting
Bank agrees, on the terms and subject to the conditions hereinafter set forth,
to issue Letters of Credit, in a form reasonably acceptable to the
Administrative Agent and the Fronting Bank, appropriately completed, for the
account of the Borrower, at any time and from time to time on and after the
Closing Date until the earlier of the LC Maturity Date and the termination of
the LC Commitment in accordance with the terms hereof; provided, however, that
any Letter of Credit shall be issued by the Fronting Bank only if, and each
request by the Borrower for the issuance of any Letter of Credit shall be deemed
a representation and warranty of the Borrower that, immediately following the
issuance of any such Letter of Credit, (i) the LC Exposure shall not exceed the
LC Commitment in effect at such time and (ii) the Revolving Credit Utilization
at such time shall not exceed the aggregate Revolving Credit Commitments at such
time.
(b) Each Letter of Credit shall expire at the close of
business on the earlier of the date that is 12 months after the date of issuance
of such Letter of Credit and the LC Maturity Date, unless such Letter of Credit
expires by its terms on an earlier date; provided that any Letter of Credit with
a term of 12 months or less may provide for the renewal thereof for additional
periods of 12 months or less if the Fronting Bank has the ability to avoid any
such renewal at the time of such renewal and in any event any such renewal shall
not extend beyond the LC Maturity Date. Each Letter of Credit shall provide for
payments of drawings in dollars.
(c) Each issuance of any Letter of Credit shall be made on at
least three Business Days' prior written or telecopy notice from the Borrower to
the Fronting Bank and the Administrative Agent (which shall give prompt notice
thereof to each Participating Lender) specifying the date of issuance, the date
on which such Letter of Credit is to expire (which shall comply with paragraph
(b) above), the amount of such Letter of Credit, the name and address of the
beneficiary of such Letter of Credit and such other information as may be
necessary or desirable to complete such Letter of Credit. The Fronting Bank will
give the Administrative Agent and the Administrative Agent will give to each
Participating Lender reasonably prompt notice of the issuance and amount of each
Letter of Credit and the expiration of each Letter of Credit.
SECTION 3.02. Participations; Unconditional Obligations. (a)
By the issuance of a Letter of Credit and without any further action on the part
of the Fronting
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Bank or the Participating Lenders in respect thereof, the Fronting Bank hereby
grants to each Participating Lender, and each Participating Lender hereby agrees
to acquire from the Fronting Bank, a participation in such Letter of Credit
equal to such Participating Lender's Applicable Percentage of the face amount of
such Letter of Credit, effective upon the issuance of such Letter of Credit. In
consideration and in furtherance of the foregoing, each Participating Lender
hereby absolutely and unconditionally agrees to pay to the Administrative Agent,
on behalf of the Fronting Bank in accordance with Section 2.02(f), such
Participating Lender's Applicable Percentage of each LC Disbursement made by the
Fronting Bank; provided, however, that the Participating Lenders shall not be
obligated to make any such payment to the Fronting Bank with respect to any
wrongful payment or disbursement made under any Outstanding Letter of Credit as
a result of the gross negligence or wilful conduct of the Fronting Bank.
(b) Each Participating Lender acknowledges and agrees that its
obligation to acquire participations pursuant to paragraph (a) of this Section
3.02 in respect of Letters of Credit is absolute and unconditional and shall not
be affected by any circumstance whatsoever, including the occurrence and
continuance of an Event of Default or Default hereunder, and that each such
payment shall be made without any offset, abatement, withholding or reduction
whatsoever.
SECTION 3.03. LC Fee. The Borrower agrees to pay to the
Administrative Agent for the account of the Participating Lenders for each
calendar quarter (or shorter period commencing with the Closing Date, or ending
with the first date on which the LC Commitment shall have expired or been
terminated and there shall be no Outstanding Letters of Credit) a fee (the "LC
Fee") on the average daily amount of the Outstanding Letters of Credit at a rate
per annum equal to the LIBOR Spread in effect for Revolving Loans at the
beginning of such period. The LC Fee shall be computed on the basis of the
actual number of days elapsed over a year of 360 days. The Administrative Agent
agrees to disburse to each Participating Lender its pro rata portion of such LC
Fee promptly upon receipt. The LC Fee shall be paid in arrears on the last day
of March, June, September and December of each year and on the Revolving Credit
Maturity Date (or the first date on which the LC Commitment shall have expired
or been terminated and there shall be no Outstanding Letters of Credit, if
earlier), commencing on the first such date following the Closing Date. Once
paid, the LC Fee shall not be refundable in any circumstances (other than
corrections of error in payment).
SECTION 3.04. Agreement To Repay LC Disbursements. (a) If the
Fronting Bank shall pay any draft presented under a Letter of Credit, the
Borrower shall pay to the Administrative Agent, on behalf of the Fronting Bank,
an amount equal to the amount of such draft before 11:00 a.m., New York City
time, on the Business Day on which the Fronting Bank shall have notified the
Borrower that payment of such draft will be made (or such later time as is not
later than three hours after the Borrower shall have received such notice or, if
the Borrower shall have received such notice later than 2:00 p.m., New York City
time, on any Business Day, not later than 10:00 a.m., New York City Time, on the
immediately following Business Day). The Administrative Agent will promptly pay
any such amounts received by it to the Fronting Bank. In the event that, after
the payment of any such amount to the Fronting Bank, the Fronting Bank shall not
pay such amount in respect of such draft, the Fronting Bank shall return to the
Administrative Agent, for the account of the Borrower, any such unpaid amount,
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together with interest thereon accrued at the Federal Funds Effective Rate then
in effect from and including the date such amount was paid by the Borrower to
the Administrative Agent to but excluding the date such amount was repaid by the
Fronting Bank to the Administrative Agent.
(b) The Borrower's obligation to repay the Fronting Bank for
LC Disbursements made by the Fronting Bank under the Outstanding Letters of
Credit shall be absolute, unconditional and irrevocable under any and all
circumstances and irrespective of the following:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, setoff, defense or other
right that the Borrower or any other Person may at any time have
against the beneficiary under any Letter of Credit, the Fronting Bank,
the Administrative Agent or any other Lender (other than the defense of
payment in full in accordance with the terms of this Agreement or a
defense based on the gross negligence or wilful misconduct of the
Fronting Bank) or any other Person in connection with this Agreement or
any other agreement or transaction;
(iii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect, provided that payment by the Fronting Bank under such Letter
of Credit against presentation of such draft or document shall not have
constituted gross negligence or wilful misconduct of the Fronting Bank;
(iv) payment by the Fronting Bank under a Letter of Credit
against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, provided that such payment
shall not have constituted gross negligence or wilful misconduct of the
Fronting Bank; and
(v) any other circumstance or event whatsoever, whether or not
similar to any of the foregoing, provided that such other circumstance
or event shall not have been the result of gross negligence or wilful
misconduct of the Fronting Bank.
It is understood that in making any payment under a Letter of
Credit (A) the Fronting Bank's exclusive reliance on the documents presented to
it under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary equals the amount of
such draft and whether or not any document presented pursuant to such Letter of
Credit proves to be insufficient in any respect, if such document on its face
appears to be in order, and whether or not any other statement or any other
document presented pursuant to such Letter of Credit proves to be forged or
invalid or any statement therein proves to be inaccurate or untrue in any
respect whatsoever, and (B) any noncompliance in any immaterial respect of the
documents presented under a Letter of Credit with the terms thereof shall, in
each case, not be deemed wilful misconduct or gross negligence of the Fronting
Bank.
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SECTION 3.05. Letter of Credit Operations. The Fronting Bank
shall, promptly following its receipt thereof, examine all documents purporting
to represent a demand for payment under an Outstanding Letter of Credit to
ascertain that the same appear on their face to be in conformity with the terms
and conditions of such Outstanding Letter of Credit. The Fronting Bank shall as
promptly as possible, but in no event later than two hours after such demand for
payment, give oral notification, confirmed by facsimile notice, to the
Administrative Agent and the Borrower of such demand for payment and shall as
promptly as possible, but in no event later than two hours prior to any payment
in respect of such demand, give oral notification, confirmed by facsimile
notice, to the Administrative Agent and the Borrower of the determination by the
Fronting Bank as to whether such demand for payment was in accordance with the
terms and conditions of such Outstanding Letter of Credit and whether the
Fronting Bank has made or will make an LC Disbursement thereunder, provided that
the failure to give such notice shall not relieve the Borrower of its obligation
to reimburse the Fronting Bank with respect to any such LC Disbursement, and the
Administrative Agent shall promptly give each Participating Lender notice
thereof.
SECTION 3.06. Cash Collateralization. If any Event of Default
shall occur and be continuing, the Borrower shall on the Business Day it
receives notice from the Administrative Agent or the Required Lenders (or, if
the maturity of the Loans has been accelerated, Participating Lenders holding
participations in Outstanding Letters of Credit representing at least 51% of the
aggregate undrawn amount of all Outstanding Letters of Credit) therefor, deposit
in an account with the Collateral Agent, for the benefit of the Participating
Lenders, an amount in cash equal to the LC Exposure as of such date. Such
deposit shall be held by the Collateral Agent as collateral for the payment and
performance of the Obligations. The Collateral Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such deposits in
Permitted Investments, which investments shall be made at the option and sole
discretion of the Collateral Agent, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall (a) automatically be applied by the
Administrative Agent to reimburse the Fronting Bank for LC Disbursements, (b) be
held for the satisfaction of the reimbursement obligations of the Borrower for
the LC Exposure at such time and (c) if the maturity of the Loans has been
accelerated (but subject to the consent of Participating Lenders holding
participations in Outstanding Letters of Credit representing at least 51% of the
aggregate undrawn amount of all Outstanding Letters of Credit), such amount (to
the extent not applied as aforesaid) shall be applied to satisfy the
Obligations. If the Borrower is required to provide an amount of cash collateral
hereunder as a result of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business
Days after all Events of Default have been cured or waived.
SECTION 3.07. Termination of LC Commitment. The Borrower may
permanently terminate, or from time to time in part permanently reduce, the LC
Commitment, in each case upon at least one Business Day's prior written or
facsimile notice to the Administrative Agent and the Fronting Bank; provided
that, after giving effect to such termination or reduction, the LC Commitment
shall not be less than the LC Exposure at such time or greater than the
aggregate Revolving Credit Commitments at such time.
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SECTION 3.08. Fronting Bank Fees. (a) The Borrower shall pay
to the Fronting Bank, for its own account, such commissions, issuance fees,
transfer fees and other fees and charges in connection with the issuance or
administration of each Letter of Credit as the Borrower and the Fronting Bank
shall agree.
(b) The Borrower shall pay to the Fronting Bank, for its own
account, a fronting fee (the "Fronting Fee") on the average daily aggregate
maximum amount available to be drawn (assuming compliance with all conditions to
drawing) under all outstanding Letters of Credit at the rate of 0.20% per annum,
payable in arrears on the last day of each March, June, September and December
of each year and on the Revolving Credit Maturity Date (or the first date on
which the LC Commitment shall have expired or been terminated and there shall be
no Outstanding Letters of Credit, if earlier), commencing on the first such date
following the Closing Date. The Fronting Fee shall be computed on the basis of
the actual number of days elapsed over a year of 360 days.
SECTION 3.09. Resignation or Removal of Fronting Bank. (a) The
Fronting Bank may resign at any time by giving 180 days' prior written notice to
the Administrative Agent, the Lenders and the Borrower, and may be removed at
any time by the Borrower by notice to the Fronting Bank, the Administrative
Agent and the Lenders. Upon any such resignation or removal, the Borrower shall
(within 180 days after such notice of resignation or removal) either appoint a
Lender (with the consent of such Lender) as successor, or terminate the
unutilized LC Commitment; provided, however, that, if the Borrower elects to
terminate the unutilized LC Commitment, the Borrower may at any time thereafter
that the Revolving Credit Commitments are in effect reinstate by notice to the
Administrative Agent and the Lenders the LC Commitment in connection with the
appointment of a successor Fronting Bank. Subject to paragraph (b) below, upon
the acceptance of any appointment as Fronting Bank hereunder by a successor
Fronting Bank, such successor shall succeed to and become vested with all the
interests, rights and obligations of the retiring Fronting Bank and the retiring
Fronting Bank shall be discharged from its obligations to issue additional
Letters of Credit hereunder. At the time such removal or resignation shall
become effective, the Borrower shall pay all accrued and unpaid fees pursuant to
Section 2.05(d). The acceptance of any appointment as Fronting Bank hereunder by
a successor Fronting Bank shall be evidenced by an agreement entered into by
such successor, in a form satisfactory to the Borrower and the Administrative
Agent, and, from and after the effective date of such agreement, (i) such
successor shall be a party hereto and have all the rights and obligations of the
Fronting Bank under this Agreement and the other Loan Documents and (ii)
references herein and in the other Loan Documents to the "Fronting Bank" shall
be deemed to refer to such successor or to any previous Fronting Bank, or to
such successor and all previous Fronting Banks, as the context shall require.
(b) After the resignation or removal of the Fronting Bank
hereunder, the retiring Fronting Bank shall remain a party hereto and shall
continue to have all the rights and obligations of the Fronting Bank under this
Agreement and the other Loan Documents with respect to Letters of Credit issued
by it prior to such resignation or removal, but shall not be required to issue
additional Letters of Credit.
SECTION 3.10. Existing Letters of Credit. All Existing Letters
of Credit shall be deemed to constitute Letters of Credit issued under this
Agreement as of the
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Closing Date.
ARTICLE IV
Representations and Warranties
The Borrower represents and warrants to each of the Lenders,
the Agents, the Swingline Lenders and the Fronting Bank that:
SECTION 4.01. Organization; Powers. Each of the Borrower,
TAFSI and the Guarantors (a) is a corporation, limited partnership or limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware, (b) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted and as
proposed to be conducted, (c) is qualified to do business and in good standing
in every jurisdiction where such qualification is required, except where the
failure so to qualify or be in good standing would not result in a Material
Adverse Effect and (d) has the power and authority (corporate or otherwise) to
execute, deliver and perform its obligations under each of the Transaction
Documents and each other agreement or instrument contemplated thereby to which
it is or will be a party and, in the case of Borrower, to borrow hereunder.
SECTION 4.02. Authorization. The execution, delivery and
performance by the Borrower, each Guarantor and TAFSI, as applicable, of each of
the Transaction Documents to which it is a party, the borrowings hereunder, the
creation of the security interests contemplated by the Security Documents and
the other transactions contemplated by the Transaction Documents (a) have been
duly authorized by all requisite corporate, limited liability company or limited
partnership and, if required, stockholder, member or partner action and (b) will
not (i) violate (A) any provision of law, statute, rule, regulation or order of
any Governmental Authority, other than any law, statute, rule, regulation or
order of any Governmental Authority, the violation of which will not result in a
Material Adverse Effect, or of the certificate of incorporation, certificate of
formation or other constitutive documents or by-laws, operating agreements or
agreement of limited partnership, as the case may be, of the Borrower, any
Guarantor or TAFSI or (B) any provision of any material indenture, agreement or
other instrument to which the Borrower, any Guarantor or TAFSI is a party or by
which any of them or any of their property (including the Mortgaged Properties)
or assets is or may be bound, (ii) be in conflict with, result in a breach of or
constitute (alone or with notice or lapse of time or both) a default under any
such indenture, agreement or other instrument or (iii) result in the creation or
imposition of any Lien (other than any Lien created under the Security
Documents) upon or with respect to any property or assets now owned or hereafter
acquired by the Borrower, any Guarantor or TAFSI.
SECTION 4.03. Enforceability. This Agreement has been duly
executed and delivered by the Borrower and constitutes, and each other
Transaction Document to which the Borrower, any Guarantor or TAFSI is a party
constitutes, or when executed and delivered by it will constitute, a legal,
valid and binding obligation of the Borrower,
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such Guarantor or TAFSI, as the case may be, enforceable against it in
accordance with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other
similar laws affecting creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a proceeding
at law or in equity).
SECTION 4.04. Governmental Approvals. No action, consent or
approval of, registration or filing with or any other action by any Governmental
Authority by any Guarantor, TAFSI or the Borrower is or will be required in
connection with the Transactions, except such as have been made or obtained and
are in full force and effect and other than filings, recordings and approvals
(i) to record deeds and leases with respect to real properties, (ii) to record
and/or perfect the security interest created by the Security Documents, (iii) to
record a leasehold memorandum, if currently unrecorded, in respect of any
leasehold interest to which a Leasehold Mortgage relates and (iv) that would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
SECTION 4.05. Financial Statements. (a) The unaudited pro
forma consolidated balance sheet of the Borrower and its subsidiaries as of June
30, 2000 (including the notes thereto) (the "Pro Forma Balance Sheet"), copies
of which have heretofore been furnished to each Lender, has been prepared giving
effect (as if such events had occurred on such date) to (i) the Transactions
(including the Borrowings under this Agreement contemplated to be made on the
Closing Date), (ii) the Sale and Lease-Back Transactions contemplated under
Section 7.03 and (iii) the payment of fees and expenses in connection with the
foregoing. The Pro Forma Balance Sheet has been prepared based on the
assumptions used to prepare the pro forma financial information contained in the
Confidential Information Memorandum, is based on the best information available
to the Borrower as of the date of delivery thereof, and presents fairly on a pro
forma basis the estimated consolidated financial position of the Borrower and
its subsidiaries as of June 30, 2000, assuming that the events specified in the
preceding sentence had actually occurred at June 30, 2000.
(b) The Borrower has heretofore furnished to the Lenders its
consolidated and consolidating balance sheets and related statements of
operations, stockholders' equity and cash flows (i) as of and for the fiscal
years ended December 31, 1999, 1998 and 1997, audited by and accompanied by the
opinion of PricewaterhouseCoopers LLP, independent public accountants, and (ii)
as of and for the fiscal quarter and the portion of the fiscal year ended June
30, 2000, certified by its chief financial officer . Such financial statements
present fairly the financial condition and results of operations and cash flows
of the Borrower and its consolidated subsidiaries as of such dates and for such
periods. Such financial statements and the notes thereto disclose all material
liabilities required under GAAP to be disclosed, direct or contingent, of the
Borrower and its consolidated subsidiaries as of the dates thereof. Such
financial statements were prepared in accordance with GAAP applied on a
consistent basis, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.
SECTION 4.06. No Material Adverse Change. There has been no
material adverse change in the business, assets, operations, prospects or
condition, financial or otherwise, of the Borrower and its subsidiaries, taken
as a whole, since
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December 31, 1999.
SECTION 4.07. Title to Properties; Possession Under Leases.
(a) After giving effect to the consummation of the Transactions on the Closing
Date, each of the Borrower, the Guarantors and TAFSI will have good and
marketable title to, or valid leasehold interests in, all its material
properties and assets (including, in the case of the Guarantors, all Mortgaged
Property); all such material properties and assets shall be free and clear of
Liens, other than Liens expressly permitted by Section 7.02; and, except for
leases of Mortgaged Properties set forth on Schedule 7.02 and leases permitted
by Section 7.03, no material portion of any Mortgaged Property shall be subject
to any lease, license, sublease or other agreement granting to any Person any
right to use, occupy, or enjoy the same.
(b) Except as set forth on Schedule 4.07(b), after giving
effect to the consummation of the Transactions on the Closing Date, each
Guarantor shall have complied with all material obligations under all material
leases to which such Guarantor shall then be a party, and all such leases shall
be in full force and effect; and each Guarantor shall enjoy peaceful and
undisturbed possession under all such material leases under which it is tenant.
Neither the Borrower nor TAFSI is a party to any lease.
(c) Except as set forth on Schedule 4.07(c), neither the
Borrower nor any Guarantor has received any notice of, or has any knowledge of,
any pending or contemplated condemnation proceeding affecting the Mortgaged
Properties or any sale or disposition thereof in lieu of condemnation.
(d) Except as set forth on Schedule 4.07(d), as of the Closing
Date, neither the Borrower nor any Guarantor is obligated under any right of
first refusal, option or other contractual right to sell, assign or otherwise
dispose of any Mortgaged Property or any interest therein.
SECTION 4.08. Subsidiaries. As of the Closing Date, (a) the
Borrower has no subsidiaries other than the Guarantors and TAFSI, (b) none of
the Guarantors other than TA and TC Realty has any subsidiaries, (c) TA has no
subsidiaries other than TA Travel, TC Realty and TA Licensing and (d) TAFSI has
no subsidiaries.
SECTION 4.09. Litigation; Compliance with Laws. (a) Except as
set forth on Schedule 4.09, there are no actions, suits or proceedings at law or
in equity or by or before any Governmental Authority now pending or, to the
knowledge of the Borrower, threatened against or affecting the Borrower, any
Guarantor or TAFSI or any business, property (including the network of
TravelCenters operated by the Borrower's subsidiaries), assets or rights of any
such Person (i) that involve any Transaction Document or the Transactions or
(ii) as to which there is a reasonable possibility of an adverse determination
and which, if adversely determined, could, individually or in the aggregate,
result in a Material Adverse Effect.
(b) None of the Borrower, the Guarantors or TAFSI, nor any of
their respective material properties or assets (including all Mortgaged
Properties), are in violation of, nor will the continued operation of their
material properties and assets (including all Mortgaged Properties) as currently
conducted, violate any material law, rule, regulation or statute (including any
zoning, building, Environmental and Safety Law,
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ordinance, code or approval or any building permits) or any restrictions of
record or agreements affecting such properties or assets, or are in default with
respect to any judgment, writ, injunction, decree or order of any Governmental
Authority, where such violation or default could reasonably be expected to
result in a Material Adverse Effect. The issuance of the Letters of Credit will
not violate any applicable law or regulation or violate or be prohibited by any
judgment, writ, injunction, decree or order of any Governmental Authority, where
such violation would have a Material Adverse Effect.
(c) All certificates of occupancy and/or completion and other
permits, licenses, consents and approvals required by law or by any order, rule
or regulation of any Governmental Authority for the use and operation of the
Mortgaged Properties for their intended purposes have been issued and are in
full force and effect except to the extent that the failure to have them would
not, individually or in the aggregate, result in a Material Adverse Effect.
SECTION 4.10. Agreements. After giving effect to the
Transactions, none of the Borrower, the Guarantors or TAFSI is in default in any
manner under any provision of any indenture or other agreement or instrument
evidencing Indebtedness, or any other material agreement or instrument to which
it is a party or by which it or any of its properties or assets are or may be
bound, where such default could reasonably be expected to result in a Material
Adverse Effect.
SECTION 4.11. Federal Reserve Regulations. (a) None of the
Borrower, the Guarantors or TAFSI is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
buying or carrying Margin Stock.
(b) No part of the proceeds of any Letter of Credit or any
Loan or Swingline Loan will be used by the Borrower, any Guarantor or TAFSI,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or is inconsistent
with, the provisions of the Regulations of the Board, including Regulations T, U
and X.
SECTION 4.12. Investment Company Act; Public Utility Holding
Company Act. None of the Borrower, the Guarantors or TAFSI (a) is an "investment
company" as defined in, or is subject to regulation under, the Investment
Company Act of 1940 or (b) is a "holding company" as defined in, or is subject
to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 4.13. Use of Proceeds. The proceeds of the Term Loans,
together with the net proceeds of the issuance of the Subordinated Notes, the
Sponsor Contribution and a portion of the Borrower's excess cash, are to be used
solely (a) to fund the cash Merger Consideration of approximately $290,600,000
(subject to adjustment as described in Section 3.02 of the Merger Agreement) to
be paid in connection with the Merger, (b) to repay (or, in the case of Existing
Term Loans and Assigned Indebtedness, to purchase, as provided in Section
2.01(b)) in full all Indebtedness of the Borrower and its subsidiaries
outstanding on the Closing Date (other than (i) any such Indebtedness set forth
in Schedule 7.01, (ii) any 10 1/4% Subordinated Notes that are not tendered
pursuant to the Debt Tender Offer and (iii) any such Indebtedness permitted
pursuant to clauses (e), (i), (j), (k), (m) and (p) of Section 7.01), including
the payment of accrued interest and prepayment premiums with
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respect thereto and (c) to pay the Transaction Costs. The Letters of Credit will
be used solely for general corporate purposes in the ordinary course of business
of the Borrower and its subsidiaries. The proceeds of the Swingline Loans and
the Revolving Loans are to be used solely for general corporate purposes of the
Borrower and its subsidiaries; provided that Revolving Loans will not be used
for any of the purposes described in clauses (a) through (c) above, except that
(i) on the Closing Date Revolving Loans not exceeding $305,000 in the aggregate
will be permitted for such purposes and (ii) within 45 days after the Closing
Date, solely upon a determination in accordance with the procedures set forth in
the Merger Agreement that an increase in the Merger Consideration is required
pursuant to Section 3.02 of the Merger Agreement, Revolving Loans in an
aggregate principal amount of up to $10,000,000 may be used by the Borrower to
pay for such increase in the Merger Consideration if (A), based on the unaudited
pro forma balance sheet of the Borrower as of the last day of the fiscal month
most recently ended at least 30 days before the date of determination of the
amount of such increase, the Borrower's ratio of Total Debt to EBITDA,
determined for the four consecutive calendar quarters ending on the last day of
such fiscal month, does not exceed 4.90 to 1.00, and (B) the ratio of (1) the
Equity Contributions to (2) the sum of (x) Total Debt and (y) the Equity
Contributions is not less than 0.30 to 1.00, in the case of each of clauses (A)
and (B) after giving effect to the Transactions, including such Borrowing of up
to $10,000,000 and any other Revolving Loans.
SECTION 4.14. Tax Returns. Each of the Borrower, TAFSI and the
Guarantors has timely filed or caused to be filed all material Federal, state,
local and foreign tax returns and reports required to have been filed by it or
with respect to it and has paid or caused to be paid all taxes and assessments
required to have been paid by it, except (a) taxes that are being contested in
good faith by appropriate proceedings and for which the Borrower, TAFSI or such
Guarantor, as applicable, shall have set aside on its books adequate reserves in
accordance with GAAP and (b) to the extent that the failure to do so would not
reasonably be expected to result in a Material Adverse Effect. Each of the
Borrower, TAFSI and the Guarantors has filed or made adequate provision in
accordance with GAAP on its books for any material taxes payable by it in
connection with the Transactions.
SECTION 4.15. No Material Misstatements. The information
provided by or on behalf of the Borrower and contained in the Confidential
Information Memorandum (including all attachments and exhibits thereto), as
supplemented, and as supplemented further by information heretofore provided in
writing by or on behalf of the Borrower to the Lenders, when taken as a whole,
was, as of the date of the Confidential Information Memorandum, the dates
otherwise specified therein or the dates upon which such information was
provided in writing, accurate in all material respects and does not contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading, provided that (a) the statements
therein describing documents and agreements are summaries only and as such are
qualified in their entirety by reference to such documents and agreements, (b)
to the extent any such information therein was based upon or constitutes a
forecast or projection, the Borrower represents only that it acted in good faith
and utilized reasonable assumptions, due and careful consideration and the best
information known to it at the time in the preparation of such information and
(c) as to the information that is specified as having been supplied by third
parties other than Affiliates of the Borrower, the Borrower represents only that
it is not aware of any material misstatement therein or
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omission therefrom.
SECTION 4.16. Employee Benefit Plans. Each of the Borrower,
the Guarantors, TAFSI and their ERISA Affiliates is in compliance in all
respects with the applicable provisions of ERISA and the regulations and
published interpretations thereunder, except where the liability that could
reasonably be expected to result from noncompliance would not have a Material
Adverse Effect. No Reportable Event has occurred or exists or is reasonably
expected to occur as to which the Borrower, any Guarantor, TAFSI or any ERISA
Affiliate was or is required to file a report with the PBGC, and the present
value of all benefit liabilities under each Plan (based on those assumptions
used to fund such Plan) did not, as of the last annual valuation date applicable
thereto, exceed by more than $5,000,000 the value of the assets of such Plan.
None of the Borrower, the Guarantors, TAFSI or any ERISA Affiliate has incurred
any Withdrawal Liability that could result in a Material Adverse Effect. None of
the Borrower, the Guarantors, TAFSI or any ERISA Affiliate has received any
notification that any Multiemployer Plan is in reorganization or has been
terminated within the meaning of Title IV of ERISA, and no Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated where such
reorganization or termination has resulted or could reasonably be expected to
result, through increases in the contributions required to be made to such Plan
or otherwise, in a Material Adverse Effect.
SECTION 4.17. Environmental and Safety Matters. (a) After
giving effect to the Transactions, each of the Borrower, the Guarantors and
TAFSI is in compliance with all Environmental and Safety Laws, with the
exception of instances that will not in the aggregate result in a Material
Adverse Effect.
(b) (i) None of the Borrower, the Guarantors, or TAFSI has
received written notice of any failure to comply with, nor has any such notice
been issued that has not been fully satisfied so as to bring any property of the
Borrower, TAFSI or any Guarantor into full compliance with, all Environmental
and Safety Laws, except where such noncompliance would not reasonably be
expected to have a Material Adverse Effect; (ii) after giving effect to the
Transactions, the plants and facilities of the Borrower and its subsidiaries do
not use, manage, treat, store or dispose of any Hazardous Substances in
violation of any Environmental and Safety Laws, except where such violations
would not reasonably be expected to have a Material Adverse Effect; (iii) after
giving effect to the Transactions, all licenses, permits or registrations (or
any extensions thereof) required under any Environmental and Safety Law for the
business of the Borrower and its subsidiaries as conducted have been obtained
and each of the Borrower and its subsidiaries is in compliance therewith, except
for the failure to obtain such licenses, permits or registrations or to comply
therewith which would not reasonably be expected to have a Material Adverse
Effect; and (iv) neither the Borrower nor any of its subsidiaries is in
noncompliance with, breach of or default under any applicable writ, order,
judgment, injunction or decree (in each case under any Environmental and Safety
Law) where all instances of such noncompliance, breach or default at any time
would, in the aggregate, reasonably be expected to result in a Material Adverse
Effect.
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(c) (i) No Hazardous Substance has been Released (and no
written notification of such Release has been filed) or is present whether or
not in a reportable or threshold planning quantity, at, on or under any property
owned or leased by the Borrower or any of its subsidiaries during the period of
the Borrower's or such subsidiary's ownership or lease of such property, or to
the knowledge of the Borrower or such subsidiary at any time previous to such
ownership or lease, under conditions that require remedial action under
applicable Environmental and Safety Laws, except where such remedial action
would not reasonably be expected to have a Material Adverse Effect, (ii) no
property now or previously owned or leased by the Borrower or any of its
subsidiaries has, directly or indirectly, transported or arranged for the
transportation of any Hazardous Substances related to the Borrower or any of its
Subsidiaries to any site listed, or proposed for listing, on the National
Priorities List promulgated pursuant to CERCLA, on CERCLIS (as defined in
CERCLA) or on any similar Federal, state or foreign list of sites requiring
investigation or cleanup, except where any liability for such transportation or
arrangement for transportation could not reasonably be expected to result in a
Material Adverse Effect. Neither the Borrower nor any of its subsidiaries is
aware of any event, condition or circumstance involving environmental pollution
or contamination, or employee safety or health relating to the use or handling
of, or exposure to, Hazardous Substances, that would reasonably be expected to
result in a Material Adverse Effect.
(d) The Borrower and its subsidiaries, taken as a whole, are
not and have no reason to believe that they will be subject to any requirement
of Environmental and Safety Laws that will result in cash expenditures related
to environmental, health or safety matters that would reasonably be expected to
result in a Material Adverse Effect.
SECTION 4.18. Solvency. After giving effect to the
Transactions to occur on the Closing Date, (a) the fair salable value of the
assets of (i) the Borrower and its subsidiaries, on a consolidated basis, and
(ii) each Guarantor will exceed the amount that will be required to be paid on
or in respect of the existing debts and other liabilities (including contingent
liabilities) of the Borrower and its subsidiaries, on a consolidated basis, and
such Guarantor, respectively, as they mature, (b) the assets of (i) the Borrower
and its subsidiaries, on a consolidated basis, and (ii) each Guarantor will not
constitute unreasonably small capital to carry out its businesses as conducted
or as proposed to be conducted, including the capital needs of the Borrower and
its subsidiaries, on a consolidated basis, or such Guarantor, respectively
(taking into account, in each case, the particular capital requirements of the
businesses conducted by such entities and the projected capital requirements and
capital availability of such businesses), and (c) neither the Borrower nor the
Guarantors intend to, nor do they believe that they will, incur debts beyond
their ability to pay such debts as they mature (taking into account the timing
and amounts of cash to be received by them and the amounts to be payable on or
in respect of their obligations).
SECTION 4.19. Employment and Management Agreements. Except as
disclosed on Schedule 4.19, as of the Closing Date there are no (a) employment
agreements covering senior management employees of the Borrower, TAFSI or any
Guarantor or other material agreements relating to the compensation of
management employees (including the issuance of securities of the Borrower to
management employees), (b) agreements for senior management or consulting
services to which the
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Borrower, TAFSI or any Guarantor is a party or by which any of them is bound or
(c) collective bargaining agreements or other labor agreements covering any of
the employees of the Borrower, any Guarantor or TAFSI.
SECTION 4.20. Capitalization. (a) As of the Closing Date and
after giving effect to the Transactions, the authorized capital stock of the
Borrower consists of 20,000,000 shares of Common Stock, par value $.00001 per
share (the "Common Stock"), of which 6,929,756 shares are issued and
outstanding. All outstanding shares of capital stock of the Borrower are fully
paid and nonassessable. Set forth on Schedule 4.20(a)(i) is a list of every
Person that, as of the Closing Date (after giving effect to the Transactions),
will own beneficially (as defined in Rule 13d-3 promulgated under the Securities
Exchange Act of 1934 or any successor thereto) and of record shares of any class
of capital stock of the Borrower, together with the number of shares of such
class so owned.
(b) All outstanding shares of capital stock of TA are fully
paid and non assessable and are owned beneficially and of record by the Borrower
and have been duly and validly pledged under the Pledge Agreement to the
Collateral Agent for the ratable benefit of the Secured Parties.
(c) All outstanding shares of capital stock of TAFSI are fully
paid and nonassessable and are owned beneficially and of record by the Borrower
and have been duly and validly pledged under the Pledge Agreement to the
Collateral Agent for the ratable benefit of the Secured Parties.
(d) All outstanding shares of capital stock of TA Licensing
are fully paid and nonassessable and are owned beneficially and of record by TA
and have been duly and validly pledged under the Pledge Agreement to the
Collateral Agent for the ratable benefit of the Secured Parties.
(e) All outstanding membership interests of TA Travel are
fully paid and nonassessable and are owned beneficially and of record by TA and
TC Realty and have been duly and validly pledged under the Pledge Agreement to
the Collateral Agent for the ratable benefit of the Secured Parties.
(f) Except as set forth on Schedule 4.20(f), as of the Closing
Date, there are no outstanding subscriptions, options, warrants, calls, rights
(including preemptive rights) or other agreements or commitments (including
pursuant to management or employee stock plans or similar plans) of any nature
relating to any capital stock of the Borrower, TAFSI, TA or any other Guarantor.
(g) All outstanding shares of capital stock of TC Realty are
fully paid and nonassessable and are owned beneficially and of record by TA and
have been duly and validly pledged under the Pledge Agreement to the Collateral
Agent for the ratable benefit of the Secured Parties.
(h) All outstanding partnership interests of TC Properties are
fully paid and nonassessable and are owned beneficially and of record by TC
Realty and TA and have been duly and validly pledged under the Pledge Agreement
to the Collateral Agent for the ratable benefit of the Secured Parties.
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SECTION 4.21. Security Documents. (a) The Pledge Agreement is
effective to create in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement) and proceeds thereof and, when
the Collateral is delivered to the Collateral Agent, the Pledge Agreement shall
constitute a fully perfected first-priority Lien on, and security interest in,
all right, title and interest of the Borrower, each Guarantor or TAFSI, as
applicable, in such Collateral and the proceeds thereof, in each case prior and
superior in right to any other Person.
(b) The Security Agreement is effective to create in favor of
the Collateral Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Collateral (as defined in the
Security Agreement) and proceeds thereof, and when financing statements in
appropriate form are filed in the offices specified on Schedule 4.21 (or, in the
case of TAFSI, in the offices of the Secretary of State of the State of Ohio),
the Security Agreement shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Borrower, TAFSI and each
Guarantor, as applicable, in such Collateral and the proceeds thereof, in each
case prior and superior in right to any other Person, other than with respect to
Liens expressly permitted by Section 7.02.
(c) The Mortgages are effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable Lien on all of each Guarantor's right, title and interest in and
to the Mortgaged Properties thereunder and the proceeds thereof, and, when the
Mortgages are filed in the offices specified on Schedule 1.01(c), the Mortgages
shall constitute fully perfected Liens on, and security interests in, all right,
title and interest of such Guarantor in such Mortgaged Properties and the
proceeds thereof, in each case prior and superior in right to any other Person,
other than with respect to Liens expressly permitted by Section 7.02.
(d) The Trademark Security Agreement is effective to create in
favor of the Collateral Agent, for ratable benefit of the Secured Parties, a
legal, valid and enforceable security interest in the Collateral (as defined in
the Trademark Security Agreement) and the proceeds thereof, and upon the filing
of assignment statements with the United States Patent and Trademark Office,
together with financing statements in appropriate form filed in the offices
specified on Schedule 4.21, the Trademark Security Agreement shall constitute a
fully perfected Lien on, and security interest in, all right, title and interest
of the Borrower, TAFSI and each Guarantor in such Collateral and the proceeds
thereof, in each case prior and superior in right to any other Person, other
than with respect to Liens expressly permitted by Section 7.02.
SECTION 4.22. Labor Matters. As of the Closing Date, there are
no strikes, lockouts or slowdowns against the Borrower or any of its
subsidiaries pending or, to the Borrower's knowledge, threatened. The hours
worked by and payment made to employees of the Borrower and its subsidiaries
have not been in violation of the Fair Labor Standards Act or any other
applicable Federal, state, local or foreign law dealing with such matters, where
such violations could reasonably be expected to result in a Material Adverse
Effect. The consummation of the Transactions will not give rise to a right of
termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which the Borrower or any of its subsidiaries
is a party or by
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which the Borrower or any of its subsidiaries is bound on the Closing Date.
SECTION 4.23. Location of Real Property and Leased Premises.
(a) Schedule 4.23(a) lists completely and correctly as of the Closing Date all
real property owned by the Guarantors and the addresses thereof. Each Guarantor
will own in fee all the real property set forth on Schedule 4.23(a) with respect
to such Guarantor.
(b) Schedule 4.23(b) lists completely and correctly as of the
Closing Date all real property leased or subleased by the Guarantors as tenants
and the addresses thereof. Each Guarantor has a valid lease or sublease in all
the real property set forth on Schedule 4.23(b) with respect to such Guarantor.
(c) The Borrower and TAFSI do not and, as of the Closing Date,
TA Travel does not, own or lease any real property.
SECTION 4.24. Insurance. The Borrower and each Guarantor
maintains with financially sound insurance companies insurance on all its
properties in at least such amounts and against at least such risks (but,
including in any event, all-risk casualty, public liability and product
liability) as are usually insured against in the same general geographic area by
companies engaged in the same or similar business.
SECTION 4.25. Delivery of Documents. (a) The Borrower has
previously made available, and has caused each Guarantor to make available, to
the Agents true, correct and complete copies of all real property leases or
subleases, easement agreements, option agreements and other agreements,
instruments and documents (whether or not recorded) that encumber or otherwise
affect title to the Mortgaged Properties.
(b) On or prior to the Closing Date, the Agents have received
true, correct and complete copies of the Environmental Agreements and the
Subordinated Note Indenture, including all exhibits, schedules and disclosure
letters referred to therein or delivered pursuant thereto (if any), and all
amendments thereto, waivers relating thereto and other side letters or
agreements affecting the terms thereof. None of such documents and agreements
has been amended, supplemented or otherwise modified, nor have any of the
provisions thereof been waived, in each case in any manner that, in the
reasonable judgment of the Agents, is adverse in any material respect to the
Lenders, except pursuant to a written agreement or instrument that has
heretofore been consented to by the Required Lenders.
(c) Each of the Environmental Agreements, the amendment to the
10 1/4% Subordinated Note Indenture contemplated by the Debt Tender Offer and
the Subordinated Note Indenture has been duly executed and delivered by the
Borrower, TAFSI and the applicable Guarantor and, to the Borrower's knowledge,
by each party thereto and each of the material terms and provisions thereof is
in full force and effect.
(d) Each of the Franchise Agreements has been duly executed
and delivered by each of the Borrower, TAFSI and the Guarantors that is a party
thereto
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and, to the Borrower's knowledge, by each other party thereto and each is in
full force and effect, there having been no default thereunder by the Borrower,
TAFSI or the applicable Guarantor. There has been no amendment, change or
modification to any Franchise Agreement that is adverse in any material respect
to the interests of the Secured Parties without the written consent of the
Collateral Agent.
(e) On or before the date of this Agreement, each Agent has
received true, correct and complete copies of the Merger Agreement, including
all exhibits, schedules and disclosure letters referred to therein or delivered
pursuant thereto (if any), and all amendments thereto, waivers relating thereto
or other side letters or agreements affecting the terms thereof. None of such
documents and agreements has been amended, supplemented or otherwise modified
since the date of this Agreement, nor have any of the provisions thereof been
waived, in each case except (i) for any such amendment, supplement or other
modification that does not adversely affect, or is otherwise reasonably
satisfactory to, the Lenders or (ii) pursuant to a written agreement or
instrument that has heretofore been consented to by the Required Lenders.
SECTION 4.26. Fees and Expenses. The aggregate amount of fees
and expenses incurred in connection with the Transactions by the Borrower, TAFSI
and the Guarantors (the "Transaction Costs") will not exceed the sum of (a)
$32,000,000 plus (b) any amount of up to $3,000,000 by which any additional
excess cash of the Borrower as of the Closing Date will have been applied or the
Sponsor Contribution will have been increased pursuant to clauses (i) and (ii)
of the definition of "Sponsor Contribution".
ARTICLE V
Conditions of Restatement, Lending and Issuance of Letters of Credit
SECTION 5.01. All Credit Events. The obligations of the
Lenders to make Loans hereunder, the obligation of the Swingline Lenders to make
Swingline Loans hereunder and the obligation of the Fronting Bank to issue any
Letter of Credit (each, a "Credit Event") hereunder are subject to the
satisfaction on the date of each Credit Event, other than a Borrowing in which
Revolving Loans are refinanced with new Revolving Loans (without any increase in
the aggregate principal amount of Revolving Loans outstanding) as contemplated
by Section 2.02(e) and other than any Revolving Loan made pursuant to Section
2.02(f), of the following conditions:
(a) The Administrative Agent and, where applicable, the
Fronting Bank or each Swingline Lender shall have received a notice of
such Credit Event as required by Section 2.03, Section 3.01(c) and
Section 2.21(b), respectively.
(b) The representations and warranties set forth in Article IV
hereof shall be true and correct in all material respects on and as of
the date of such Credit Event with the same effect as though made on
and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date or that there are
changes to the factual information contained in such representations
and warranties that do not reflect any violation of or failure to
comply with any provision of this Agreement or any other Loan Document.
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(c) The Borrower shall be in compliance with all the material
terms and provisions set forth herein and in each other Loan Document
on its part to be observed or performed, and at the time of and
immediately after such Credit Event no Event of Default or Default
shall have occurred and be continuing.
Each Credit Event shall be deemed to constitute a
representation and warranty by the Borrower on the date of such Credit
Event as to the matters specified in paragraphs (b) and (c) of this
Section 5.01. Continuations and conversions of outstanding Term
Borrowings pursuant to Section 2.10 shall not be deemed to be new
Borrowings for the purpose of this Section 5.01.
SECTION 5.02. Restatement and Initial Borrowing. The amendment
and restatement of the Existing Credit Agreement in the form hereof and the
obligations of each Lender to make Loans hereunder (including the obligations of
the Term Lenders to purchase Existing Term Loans and Assigned Indebtedness)
shall not become effective until the date on which each of the following
conditions is satisfied:
(a) The Agents shall have received a favorable written opinion
of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Borrower, the Guarantors and
TAFSI, to the effect set forth in Exhibit I-1, (ii) the General Counsel of the
Borrower to the effect set forth in Exhibit I-2 and (iii) each local counsel
listed on Schedule 5.02(a) to the effect set forth in Exhibit I-3, in each case
(A) dated the Closing Date, (B) addressed to the Agents, the Fronting Bank, the
Lenders, the Swingline Lenders and the Collateral Agent and (C) covering such
other matters incidental to the Loan Documents and the Transactions as the
Agents shall reasonably request. The Borrower hereby instructs each such counsel
to deliver its opinion to the Agents.
(b) All legal matters incident to this Agreement and the
Borrowings hereunder shall be satisfactory to the Lenders and their counsel and
to Cravath, Swaine & ▇▇▇▇▇, counsel for the Agents.
(c) The Agents shall have received (i) a copy of the
certificate of incorporation (or certificate of formation), including all
amendments thereto, of each of the Borrower, TAFSI and the Guarantors, certified
as of a recent date by the Secretary of State of the State of Delaware, and a
certificate as to the good standings of each of the Borrower, TAFSI and the
Guarantors as of a recent date, from such Secretary of State; (ii) a certificate
of the Secretary or Assistant Secretary of each of the Borrower, TAFSI and the
Guarantors dated the Closing Date and certifying (A) that, if applicable,
attached thereto is a true and complete copy of the By-laws of the Borrower,
TAFSI or such Guarantor, as the case may be, as in effect on the Closing Date
and at all times since a date prior to the date of the resolutions described in
clause (B) below, (B) that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors (or Managers or Managing
Member) of the Borrower, TAFSI or such Guarantor, as the case may be,
authorizing the execution, delivery, and performance of the Transaction
Documents to which the Borrower, TAFSI or such Guarantor is or will be a party
and, in the case of the Borrower, the borrowings hereunder, and that such
resolutions have not been modified, rescinded or amended and are in full force
and effect, (C) that the certificate of incorporation (or certificate of
formation) of the Borrower, TAFSI or such Guarantor, as the case may be, has not
been amended since the date of the last amendment thereto shown on the
certificate of good standing
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furnished pursuant to clause (i) above and (D) as to the incumbency and specimen
signature of each officer executing any Transaction Document or any other
document delivered in connection herewith on behalf of the Borrower, such
Guarantor or TAFSI, as the case may be; (iii) a certificate of another officer
as to the incumbency and specimen signature of the Secretary or Assistant
Secretary executing the certificate pursuant to (ii) above; and (iv) such other
documents as Cravath, Swaine & ▇▇▇▇▇, counsel for the Agents, may reasonably
request.
(d) The Agents shall have received a certificate, dated the
Closing Date and signed by a Financial Officer of the Borrower, confirming
compliance with the conditions precedent set forth in paragraphs (b) and (c) of
Section 5.01.
(e) The Agents shall have received (i) all Fees due and
payable on or prior to the Closing Date and (ii) reimbursement (or payment) of
all expenses required to be reimbursed (or paid) by the Borrower for which
invoices have been presented.
(f) The Guarantee Agreement shall have been duly executed by
each Guarantor and the Collateral Agent, and shall be in full force and effect.
The Indemnity and Subrogation Agreement shall have been duly executed by the
Borrower, each applicable Guarantor and the Collateral Agent and shall be in
full force and effect.
(g) The Pledge Agreement shall have been duly executed by the
parties thereto and delivered to the Collateral Agent and shall be in full force
and effect, and all the outstanding capital stock of each Guarantor and TAFSI
shall have been duly and validly pledged thereunder to the Collateral Agent for
the ratable benefit of the Secured Parties and certificates representing such
shares, accompanied by instruments of transfer and stock powers endorsed in
blank, shall be in the actual possession of the Collateral Agent.
(h) Each of the Security Agreement and the Trademark Security
Agreement shall have been duly executed by the Borrower and all other parties
thereto and shall have been delivered to the Collateral Agent and shall be in
full force and effect on such date and each document (including each Uniform
Commercial Code financing statement) required by law or reasonably requested by
the Agents to be filed, registered or recorded in order to create in favor of
the Collateral Agent for the benefit of the Secured Parties a valid, legal and
perfected first- priority security interest in or lien on the Collateral
(subject to any Lien expressly permitted by Section 7.02) described in each of
such agreements shall have been delivered to the Collateral Agent.
(i) The Collateral Agent shall have received the results of a
search of the Uniform Commercial Code filings (or equivalent filings) made with
respect to the Borrower, each Guarantor, National and TAFSI in the States (or
other jurisdictions) in which are located the chief executive offices of such
Persons, any offices of such Persons in which records have been kept relating to
accounts and the other jurisdictions in which Uniform Commercial Code filings
(or equivalent filings) are to be made pursuant to the preceding paragraph,
together with copies of the financing statements (or similar documents)
disclosed by such search, and accompanied by evidence
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satisfactory to the Agents that the Liens indicated in any such financing
statement (or similar document) would be permitted under Section 7.02 or have
been (or, upon consummation of the fundings on the Closing Date, will be)
released.
(j) The Collateral Agent shall have received a Perfection
Certificate with respect to each of the Guarantors, TAFSI, National and the
Borrower dated the Closing Date and duly executed by a Responsible Officer of
each such entity.
(k) (i) Each of the Security Documents, in form and substance
satisfactory to the Agents, relating to each of the Mortgaged Properties shall
have been duly executed by the parties thereto and delivered to the Collateral
Agent and shall be in full force and effect, (ii) each of such Mortgaged
Properties shall not be subject to any Lien other than those permitted under
Section 7.02, (iii) each of such Security Documents shall have been filed and
recorded in the recording office as specified on Schedule 1.01(c) or the
Borrower shall have made arrangements reasonably satisfactory to the Agents for
such recordation and payment of all applicable recording taxes and charges, (iv)
lender's title insurance policies with such endorsements, coinsurance and
reinsurance as may be reasonably requested by the Agents, in each case in form
and substance reasonably acceptable to the Agents, insuring each Mortgage shall
have been received by Agents or a nationally recognized title insurance company
reasonably acceptable to the Agents shall have unconditionally committed to
issue such policies and (v) the Collateral Agent shall have received such other
documents, surveys, abstracts, appraisals and legal opinions required to be
furnished pursuant to the terms of this Agreement or the Mortgages or to obtain
the policies of title insurance described above and such additional legal
opinions as may be reasonably requested by the Agents.
(l) The Merger shall have been consummated or shall be
consummated simultaneously with the initial borrowings under the Senior
Facilities in accordance with applicable law, the Merger Agreement and all other
related documentation (without giving effect to any amendment or waiver not
approved by the Agents). The Merger Agreement and such related documentation
shall be reasonably satisfactory to the Agents and the Agents shall be
reasonably satisfied with the capitalization, structure and equity ownership of
the Borrower and its subsidiaries, after giving effect to the Transactions. In
addition, National shall have been merged with and into TA, and the Agents shall
have received and shall be reasonably satisfied with all documentation effecting
such merger and with the terms thereof.
(m) The Sponsor Contribution shall have been made.
(n) The Borrower shall have received approximately
$182,900,000 in gross cash proceeds from the issuance of the Subordinated Notes
in a public offering or Rule 144A or other private placement to purchasers
reasonably satisfactory to the Agents, which Subordinated Notes shall (i) bear
interest at a rate not greater than the then-current market rate of interest as
determined in good faith by the Borrower at the time of issuance of the
Subordinated Notes, (ii) mature not earlier than the tenth anniversary of the
Closing Date, and not be subject to any sinking fund requirements or other
amortization, (iii) be subordinated to the Senior Facilities on terms reasonably
satisfactory to the Agents and (iv) otherwise have terms and conditions
reasonably satisfactory in all respects to the Agents (including but not limited
to terms relating to
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fees, covenants, events of default and remedies).
(o) The Borrower shall have (a) repurchased, redeemed or
repaid all of the Senior Notes (other than Senior Notes constituting Assigned
Indebtedness), (b) repurchased at least a majority of the 10 1/4% Subordinated
Notes pursuant to the Debt Tender Offer at prices and on terms reasonably
satisfactory in all respects to the Agents and the Agents shall be reasonably
satisfied that all significant negative covenants of the 10 1/4% Subordinated
Notes shall have been eliminated, (c) paid all principal, interest, fees and
other amounts outstanding under the Existing Credit Agreement (other than
Existing Term Loans and Assigned Indebtedness), and (d) the Agents shall have
received reasonably satisfactory evidence of the foregoing.
(p) After giving effect to the Transactions, the Borrower and
its subsidiaries shall have outstanding no Indebtedness or preferred stock other
than (a) the loans and other extensions of credit under the Senior Facilities,
(b) the Subordinated Notes, (c) any 10 1/4% Subordinated Notes not tendered
pursuant to the Debt Tender Offer, (d) any Indebtedness set forth in Schedule
7.01, (e) the Indebtedness evidenced by the Santa Nella Note and (f) any
Indebtedness permitted pursuant to clauses (e), (i), (j), (k), (m) and (p) of
Section 7.01. The terms and conditions of all indebtedness to remain outstanding
after the Closing Date (including but not limited to terms and conditions
relating to the interest rate, fees, amortization, maturity, redemption,
subordination, covenants, events of default and remedies) shall be reasonably
satisfactory in all respects to the Agents. On the Closing Date, after giving
effect to the Transactions, the Agents shall be satisfied that the Borrower's
total outstanding Indebtedness (on a consolidated basis), excluding the Existing
Synthetic Leases, shall not exceed $523,000,000 (subject to any additional
amounts made available under the Revolving Facility pursuant to a working
capital adjustment to the Merger Consideration as described in Section 4.13).
(q) The Agents shall have received (a) audited consolidated
balance sheets and related statements of income, stockholders' equity and cash
flows of the Borrower for the three fiscal years ended prior to the Closing Date
(including such balance sheets and statements for the fiscal year ended December
31, 1999) and (b) unaudited consolidated balance sheets and related statements
of income, stockholders' equity and cash flows of the Borrower for (i) each
subsequent fiscal quarter ended 45 days before the Closing Date and (ii) except
in the case of stockholders' equity, each fiscal month after the most recent
fiscal quarter for which financial statements were received by the Agents as
described above and ended 30 days before the Closing Date, which financial
statements shall not be materially adversely inconsistent with the financial
statements or forecasts previously provided to the Agents.
(r) The Agents shall have received the Pro Forma Balance
Sheet, which balance sheet shall not be materially adversely inconsistent with
the forecasts previously provided to the Agents.
(s) The Agents shall have been afforded the opportunity to
review all other documentation relating to the Transactions and other
transactions contemplated hereby, including without limitation, any employment
agreement, management
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compensation arrangement or financing arrangement of the Borrower or any of its
subsidiaries, and shall be reasonably satisfied in all respects with such
documentation and reasonably satisfied that no member of management of the
Borrower shall be subject to any noncompete agreement or other similar agreement
or arrangement with any other person.
(t) The Agents shall be reasonably satisfied in all respects
with the tax and ERISA positions and the contingent tax and other liabilities
of, and with any tax sharing agreements among, each Guarantor, TAFSI and the
Borrower, after giving effect to the Transactions, and the plans of such
Guarantor and the Borrower with respect thereto.
(u) The Agents shall have received a solvency certificate, in
form and substance satisfactory to the Agents, from the Chief Financial Officer
of the Borrower, together with such other evidence reasonably requested by the
Lenders, of the solvency of (i) the Guarantors, TAFSI and the Borrower, on a
consolidated basis, and (ii) each Guarantor, in each case after giving effect to
the Transactions.
(v) All requisite Governmental Authorities and third parties
shall have approved or consented to the Transactions to the extent required, all
applicable appeal periods shall have expired and there shall be no governmental
or judicial action, actual or threatened, that has or would have a reasonable
likelihood of restraining, preventing or imposing burdensome conditions on the
Transactions or the other transactions contemplated hereby.
(w) The Agents shall be reasonably satisfied with the
management of the Borrower after giving effect to the Transactions and with the
arrangements for the retention of such management.
(x) There shall be no litigation or administrative proceedings
or other legal or regulatory developments, actual or threatened, that, in the
judgment of the Lenders could reasonably be expected to have a Material Adverse
Effect.
(y) The Mortgaged Properties shall each be in compliance with
all applicable material laws, rules, regulations, statutes (including any
zoning, building, Environmental and Safety Law, ordinance, code or approval or
any building permits) and all restrictions of record and all material agreements
affecting the Mortgaged Property and all decrees or orders of any Governmental
Authority with jurisdiction with respect thereto, except to the extent such non-
compliance or failure to obtain any necessary permits are not reasonably likely
to result in a Material Adverse Effect.
(z) The Agents shall have received the documents required to
be delivered to them pursuant to Section 4.25(b).
(aa) The Agents shall have received either (i) a satisfactory
certificate from a Responsible Officer of the applicable Guarantor certifying to
the applicable title company that, since the date of the most recent surveys
relating to the Mortgaged Properties of such Guarantor delivered to the
Administrative Agent, there have been no material improvements or alterations at
such Mortgaged Properties, provided that such certificate shall satisfy the
title company's requirement for issuance of a title insurance
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policy without any survey exception, (ii) a current survey (or an update of a
survey previously certified to the Collateral Agent), in form and substance
reasonably acceptable to the Agents, of such Mortgaged Property, or (iii) the
Borrower shall have made arrangements reasonably satisfactory to the Agents for
delivery of the survey materials described in (ii) above within 90 days after
the Closing Date.
(bb) The Agents shall have received management's consolidated
financial projections for the Borrower and its subsidiaries for the period from
2000 to 2009, detailed on a quarter-by-quarter basis for fiscal year 2000, which
projections shall reflect the Transactions and include the written assumptions
upon which such projections are based, and such projections shall be
satisfactory in all respects to the Agents (such satisfaction or
dissatisfaction, as the case may be, to be based on a good faith evaluation of
the projections by the Agents), including with respect to any cost savings
projected for the Borrower and its subsidiaries therein. Such projections shall
be substantially similar in form to the projections previously furnished to the
Agents.
(cc) The Agents shall have received any forecasts of financial
results for the Borrower and its subsidiaries for the period from August through
December 2000 received by the Sponsor (the "Forecast").
(dd) The Borrower's EBITDA for the twelve month period ended
August 31, 2000, shall be not less than $104,600,000. After giving effect to the
Transactions and the other transactions contemplated hereby, the ratio of (i)
the Borrower's Total Debt, based on the unaudited pro forma consolidated balance
sheet of the Borrower as of the Closing Date, to (ii) EBITDA for the period of
twelve fiscal months ended August 31, 2000, shall not exceed 5.01 to 1.00. The
Borrower's ratio of Total Debt to EBITDA, for the twelve month periods ending
October 31, 2000 and December 31, 2000, in each case based on the Forecast,
shall not exceed 5.08 to 1.00.
(ee) The Agents shall have received:
(i) estoppel certificates from ground lessors of any Mortgaged
Property dated not more than 30 days prior to the Closing Date for not
less than [ ]% of the aggregate fair market value of the Mortgaged
Properties as of the Closing Date which are or which include leasehold
estates;
(ii) subordination and attornment agreements from not less
than [ ]% of the Franchisees under leases affecting the Mortgaged
Properties which are not, by their terms, subject and subordinate to
the Lien of the applicable Mortgage or Leasehold Mortgage; and
(iii) copies of each lease between TC Properties, as lessor,
and TA, as lessee, which shall be in form and substance satisfactory to
the Agents.
Section 5.03. Certain Qualifications. In respect of the
condition set forth in Section 5.01(b) that the representations and warranties
set forth in Article IV shall be true and correct as of the date of each Credit
Event, the Agents and Lenders will not
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claim that such condition is not satisfied with respect to the representation in
Section 4.06 as a result of a material adverse change in the "financial
condition" and "results of operations" of the Borrower and its subsidiaries (as
such terms are used in the definition of "Company Material Adverse Effect" in
the Merger Agreement and applied in Section 2.4(c) of Amendment No. 1 thereto)
unless Holdings would be able to claim such a material adverse change for the
same period pursuant to Section 2.4(c) of Amendment No. 1 to the Merger
Agreement; provided, however, that this understanding shall not have any
application after the Closing Date and this understanding shall not prohibit (a)
a claim that the Borrower has breached any representation regarding the absence
of a material adverse change or (b) a claim by the Agents or the Lenders that
any other condition to the initial Borrowing under this Agreement has not been
satisfied, in the case of (a) and (b) with respect to events, changes, effects
or developments affecting (i) the results of operations of the Borrower and its
subsidiaries for the periods following the period described in the Closing
Forecast (as defined in the Merger Agreement), (ii) the financial condition of
the Borrower and its subsidiaries, or (iii) the business, properties, assets or
prospects of the Borrower and its subsidiaries (in each case referred to in
clauses (i) and (ii) and in the case of prospects, other than events, changes,
effects or developments (including, without limitation, trends in the "results
of operations" of the Borrower and its subsidiaries) directly resulting from, or
directly relating to, results of operations of the Borrower and its subsidiaries
for the period described in the Closing Forecast) .
ARTICLE VI
Affirmative Covenants
The Borrower covenants and agrees with each Lender, the
Agents, the Fronting Bank and the Swingline Lenders that, so long as this
Agreement shall remain in effect or the principal of or interest on any Loan or
Swingline Loan or LC Disbursement, any Fees or any other expenses or amounts
payable under any Loan Document shall be unpaid, unless the Required Lenders
shall otherwise consent in writing, the Borrower will and will cause each of its
subsidiaries to:
SECTION 6.01. Existence; Businesses and Properties. (a) Do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect its legal existence; provided that the foregoing shall not be
construed to prohibit any merger or consolidation permitted by Section 7.05 or
the liquidation or dissolution of any subsidiary of the Borrower that is not
prohibited by any other provision of this Agreement.
(b) Do or cause to be done all things necessary to obtain,
preserve, renew, extend and keep in full force and effect the rights, licenses,
permits, franchises, authorizations, patents, copyrights, trademarks and trade
names material to the conduct of its business, maintain and operate such
business in substantially the manner in which it is currently conducted and
operated; comply with all applicable laws, rules, regulations and statutes
(including any zoning, building, Environmental and Safety Law, ordinance, code
or approval or any building permits or any restrictions of record or agreements
affecting the Mortgaged Property) and decrees and orders of any Governmental
Authority, whether now in effect or hereafter enacted, except to the extent that
the failure to do so, individually or in the aggregate, could not reasonably be
expected to
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have a Material Adverse Effect; and at all times maintain and preserve all
property material to the conduct of such business and keep such property in good
repair, working order and condition and from time to time make, or cause to be
made, all needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times.
(c) Maintain all financial records in accordance with GAAP.
SECTION 6.02. Insurance. (a) Keep its properties (including
Improvements and Personal Property (each as defined in the Mortgages)) insured
at all times by financially sound and reputable insurers against loss by fire,
casualty and such other hazards as may be afforded by an "all risk" policy or a
fire policy covering "special" causes of loss, including building ordinance law
endorsements; cause all such policies to be endorsed or otherwise amended to
include a "standard" or "New York" lender's loss payable endorsement, in form
and substance reasonably satisfactory to the Administrative Agent and the
Collateral Agent, which endorsement shall provide that, from and after the
Closing Date, the insurance carrier shall pay all proceeds otherwise payable to
the Borrower, the applicable Guarantor or any independent operator engaged to
operate a TravelCenter (if any) under such policies directly to the Collateral
Agent unless (i) the amounts so payable shall not exceed $50,000 and (ii) the
insurance carrier shall not have received written notice from the Administrative
Agent or the Collateral Agent that an Event of Default has occurred and, if
received, such notice shall not have been withdrawn (with the Administrative
Agent agreeing to withdraw such notice if the related Event of Default shall
have been cured and no other Event of Default shall then exist), cause all such
policies to provide that neither the Borrower, the Guarantors, the
Administrative Agent, the Collateral Agent nor any other party shall be a
coinsurer thereunder and to contain a "Replacement Cost Endorsement", without
any deduction for depreciation, and such other provisions as the Administrative
Agent or the Collateral Agent may reasonably require from time to time to
protect its interest; deliver original or certified copies of all such policies
to the Collateral Agent; cause each such policy to provide that it shall not be
canceled, modified or not renewed (i) by reason of nonpayment of premium upon
not less than 10 days' prior written notice thereof by insurer to the
Administrative Agent and the Collateral Agent or (ii) for any other reason upon
not less than 30 days' prior written notice thereof by insurer to the
Administrative Agent and the Collateral Agent; deliver to the Administrative
Agent and the Collateral Agent, prior to the cancellation, modification or
nonrenewal of any such policy of insurance, a copy of a renewal or replacement
policy (or other evidence of renewal of a policy previously delivered to the
Administrative Agent and the Collateral Agent) together with evidence
satisfactory to the Administrative Agent and the Collateral Agent of payment of
the premium therefor; and cause each all-risk policy maintained by the Borrower
or any Guarantor to be endorsed to provide for a waiver by the related insurer
of all its rights to recovery against any independent operator engaged to
operate a TravelCenter (if any) for damage covered by such policy.
(b) If at any time the area in which the Premises (as defined
in the Mortgages) are located is designated (i) a "special flood hazard area" in
any Flood Insurance Rate Map published by the Federal Emergency Management
Agency, obtain (and/or cause the related Franchisee, if any, to obtain) flood
insurance in such total amount as the Collateral Agent or the Administrative
Agent may from time to time
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require, and otherwise comply with the National Flood Insurance Program as set
forth in said Flood Disaster Protection Act of 1973, as it may be amended from
time to time or (ii) "Zone I" area, obtain (and/or cause the related Network
Operator, if any, to obtain) earthquake insurance in such total amount as the
Administrative Agent, the Collateral Agent or the Required Lenders may from time
to time require.
(c) With respect to any Mortgaged Property, carry and maintain
comprehensive general liability insurance including the "broad form CGL
endorsement" and coverage on an occurrence basis against claims made for
personal injury (including bodily injury, death and property damage) and
umbrella liability insurance against any and all claims, in no event for a
combined single limit of less than $5,000,000, naming the Collateral Agent as an
additional insured, on forms satisfactory to the Collateral Agent.
(d) Notify the Administrative Agent and the Collateral Agent
immediately whenever any separate insurance concurrent in form or contributing
in the event of loss with that required to be maintained under this Section 6.02
is taken out by the Borrower, any Guarantor or any independent operator engaged
to operate a TravelCenter and promptly deliver to the Administrative Agent and
the Collateral Agent a duplicate original copy of such policy or policies.
(e) In connection with the covenants set forth in this Section
6.02, it is understood and agreed that:
(i) neither the Administrative Agent, the Lenders, the
Swingline Lenders, the Fronting Bank nor their agents or employees
shall be liable for any loss or damage insured by the insurance
policies required to be maintained under this Section 6.02, it being
understood that (A) the Borrower shall look, and shall cause each
Guarantor to look, solely to its insurance company or any other parties
other than the aforesaid parties for the recovery of such loss or
damage and (B) such insurance company shall have no rights of
subrogation against the Administrative Agent, the Collateral Agent, the
Lenders, the Swingline Lenders, the Fronting Bank or their agents or
employees. If, however, the insurance policies do not provide waiver of
subrogation rights against such parties as requested above, then the
Borrower hereby agrees, to the extent permitted by law, to waive its
right of recovery, if any, against the Administrative Agent, the
Collateral Agent, the Lenders, the Swingline Lenders, the Fronting Bank
and their agents and employees; and
(ii) the designation of any form, type or amount of insurance
coverage by the Administrative Agent or the Collateral Agent under this
Section 6.02, shall in no event be deemed a representation, warranty,
or advice by the Administrative Agent or the Collateral Agent that such
insurance is adequate for the purposes of the Borrower's and each
Guarantor's business or the protection of the Borrower's and each
Guarantor's properties and the Administrative Agent and the Collateral
Agent shall have the right from time to time to require the Borrower to
keep (and/or cause any Guarantor or the related Network Operator, if
any, to keep) other insurance in such form and amount as the
Administrative Agent or the Collateral Agent may reasonably request,
provided that such insurance shall be obtainable on commercially
reasonable terms.
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SECTION 6.03. Obligations and Taxes. Pay its Indebtedness and
other material obligations promptly, and in accordance with their terms and pay
and discharge promptly when due all material taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or in respect of
its property, before the same shall become delinquent or in default, its well as
all lawful claims for labor, materials and supplies or otherwise that, if
unpaid, might give rise to a Lien upon such properties or any part thereof;
provided, however, that such payment and discharge shall not be required with
respect to any such obligation, tax, assessment, charge, levy or claim so long
as the validity or amount thereof shall be contested in good faith by
appropriate proceedings and the Borrower, TAFSI or a Guarantor, as applicable,
shall have set aside on its books adequate reserves with respect thereto in
accordance with GAAP and such contest operates to suspend collection of the
contested obligation, tax, assessment or charge and enforcement of a Lien and,
in the case of a Mortgaged Property, there is no risk of forfeiture of such
property.
SECTION 6.04. Financial Statements, Reports, etc. Furnish to
the Administrative Agent (for distribution to the Lenders):
(a) within 105 days after the end of each fiscal year (or 90
days during any time that the Borrower is subject to the periodic
reporting requirements of the Securities Exchange Act of 1934, as
amended), the consolidated and consolidating balance sheets and related
statements of income and cash flow, showing the consolidated financial
condition of the Borrower and its consolidated subsidiaries as of the
close of such fiscal year and the results of their operations during
such year, all audited by PricewaterhouseCoopers LLP or other
independent public accountants of recognized national standing
reasonably acceptable to the Required Lenders and accompanied by an
opinion of such accountants (which shall not be qualified in any
material respect) to the effect that such consolidated financial
statements fairly present the consolidated financial condition and
results of operations of the Borrower and its consolidated subsidiaries
on a consolidated basis in accordance with GAAP consistently applied;
(b) within 60 days (or 45 days during any time that the
Borrower is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934, as amended) after the end of each of
the first three fiscal quarters of each fiscal year, the unaudited
consolidated and consolidating balance sheets and related statements of
income and changes in financial position, showing the consolidated
financial condition of the Borrower and its consolidated subsidiaries
as of the close of such fiscal quarter and the results of their
operations during such fiscal quarter and the then elapsed portion of
the fiscal year, all certified by a Financial Officer of the Borrower
as fairly presenting the consolidated financial condition and results
of operations of the Borrower and its consolidated subsidiaries in
accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes required by GAAP;
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(c) concurrently with any delivery of financial statements
under (a) or (b) above, a certificate of the accounting firm or a
Financial Officer of the Borrower opining on or certifying such
statements (which certificate, when furnished by an accounting firm,
may be limited to accounting matters and disclaim responsibility for
legal interpretations) (i) certifying that no Event of Default or
Default has occurred or, if such an Event of Default or Default has
occurred, specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto, (ii) setting
forth computations in reasonable detail satisfactory to the
Administrative Agent calculating the Leverage Ratio as of the end of
the period covered by such financial statements and demonstrating
compliance with the covenants contained in Sections 7.13. 7.14, and
7.15 and (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the Borrower's audited financial
statements for the fiscal year ended December 31, 1999, and, if any
such change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(d) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Borrower or any of its subsidiaries with the Securities
and Exchange Commission, or any governmental authority succeeding to
any of or all the functions of said Commission, or with any national
securities exchange, or distributed to any of their shareholders, as
the case may be;
(e) promptly following the preparation thereof, copies of each
management letter prepared by the Borrower's, a Guarantor's or TAFSI's
auditors (together with any response thereto prepared by the Borrower,
such Guarantor or TAFSI);
(f) as soon as available, and in any event no later than 105
days after the end of each fiscal year historical summary data for the
immediately preceding year and forecasted financial projections and
summary data through the end of the then current fiscal year, in
substantially the same form and format as set forth in Sections 9 and
10 of the Confidential Information Memorandum (including a
specification of the underlying assumptions and a management discussion
of historical results), all certified by a Financial Officer of the
Borrower to be a fair summary of its results and its good faith
estimate of the forecasted financial projections and results of
operations for the period through the then-current fiscal year;
(g) upon the earlier of (i) 105 days after the end of each
fiscal year of the Borrower and (ii) the date on which the financial
statements with respect to such period are delivered pursuant to
paragraph (a) above, a certificate of a Financial Officer of the
Borrower setting forth, in detail satisfactory to the Administrative
Agent, the amount of Excess Cash Flow, if any, for such period;
(h) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
any Guarantor, TAFSI or the Borrower, or compliance with the terms of
any Loan Document, as the Administrative Agent, the Fronting Bank, any
Swingline Lender or any Lender
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may reasonably request;
(i) promptly, a copy of any amendment or waiver of any
provisions of any agreement referenced in Section 7.10 or any other
amendment or waiver of any provisions of any agreement to the extent
that such amendment or waiver is required hereunder to be furnished to
the Administrative Agent, the Fronting Bank or any Lender;
(j) promptly a copy of any notice of default received by the
Borrower, TAFSI or any Guarantor or under the Subordinated Note
Indenture or an indenture in respect of any Subordinated Note
Refinancing Indebtedness, as the case may be;
(k) a copy of all notices (other than regarding any scheduled
or mandatory repayments), certificates, financial statements and
reports, as and when delivered by or on behalf of the Borrower, TAFSI
or any Guarantor or under the Subordinated Note Indenture or an
indenture in respect of any Subordinated Note Refinancing Indebtedness,
as the case may be (except to the extent any such notice, certificate,
financial statement or report is otherwise required to be delivered
pursuant to this Agreement); and
(l) a copy of all solicitations or requests for any proposed
waiver or amendment of any of the provisions of the Subordinated Note
Indenture or an indenture in respect of any Subordinated Note
Refinancing Indebtedness, as the case may be (but only if the consent
or approval of the Lenders is required in connection therewith).
SECTION 6.05. Litigation and Other Notices. Furnish to the
Administrative Agent, the Fronting Bank, each Swingline Lender, the Collateral
Agent and each Lender prompt written notice of the occurrence of the following:
(a) promptly after obtaining knowledge thereof, any Event of
Default or Default, specifying the nature and extent thereof and the
corrective action (if any) proposed to be taken with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any Person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against the Borrower or any Affiliate thereof
that, if adversely determined, could reasonably be expected to result
in a Material Adverse Effect; and
(c) any development that has resulted in, or could reasonably
be anticipated to result in, a Material Adverse Effect.
SECTION 6.06. ERISA. (a) Comply in all respects with the
applicable provisions of ERISA where failure to do so could reasonably be
expected to have a Material Adverse Effect and (b) furnish to the Administrative
Agent (i) as soon as possible, and in any event within 30 days after any
Responsible Officer of the Borrower or any Guarantor or any ERISA Affiliate
either knows or has reason to know that any Reportable Event has occurred, as to
which the Borrower, any Guarantor, TAFSI or any
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ERISA Affiliate was or is required to file a report with the PBGC, that alone or
together with any other Reportable Event could reasonably be expected to result
in liability of the Borrower, TAFSI, any Guarantor or any ERISA Affiliate to the
PBGC in an aggregate amount exceeding $5,000,000, a statement of a Financial
Officer of the Borrower setting forth details as to such Reportable Event and
the action proposed to be taken with respect thereto, together with a copy of
the notice, if any, of such Reportable Event given to the PBGC, (ii) promptly
after receipt thereof, a copy of any notice the Borrower, TAFSI or any Guarantor
or any ERISA Affiliate may receive from the PBGC relating to the intention of
the PBGC to terminate any Plan or Plans, (other than a Plan maintained by an
ERISA Affiliate that is considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Section 414 of the Code) or to appoint a trustee to
administer any Plan or Plans, (iii) within 30 days after the due date for filing
with the PBGC pursuant to Section 412(n) of the Code of a notice of failure to
make a required installment or other payment with respect to a Plan, a statement
of a Financial Officer of the Borrower, TAFSI or such Guarantor, as applicable,
setting forth details as to such failure and the action proposed to be taken
with respect thereto, together with a copy of such notice given to the PBGC and
(iv) promptly and in any event within 30 days after receipt thereof by the
Borrower, TAFSI or any Guarantor or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, a copy of each notice received by the Borrower or any ERISA
Affiliate concerning (A) the imposition of Withdrawal Liability or (B) a
determination that a Multi employer Plan is, or is expected to be, terminated or
in reorganization, in each case within the meaning of Title IV of ERISA, where
the liability that would reasonably be expected to result would have a Material
Adverse Effect.
SECTION 6.07. Maintaining Records; Access to Properties and
Inspections. Maintain all financial records in accordance with GAAP and permit
any representatives designated by any Agent, the Fronting Bank, any Swingline
Lender, the Collateral Agent or any Lender to visit and inspect the financial
records, and the properties of the Borrower, TAFSI and each Guarantor at
reasonable times and upon reasonable notice and as often as reasonably requested
and to make extracts from and copies of such financial records, and permit any
representatives designated by any Agent, the Fronting Bank, any Swingline
Lender, the Collateral Agent or any Lender to discuss the affairs, finances and
condition of the Borrower, TAFSI or any Guarantor or any properties of Borrower
or any Guarantor with the officers thereof.
SECTION 6.08. Use of Proceeds. Use the Letters of Credit and
the proceeds of the Revolving Loans, any Swingline Loans and the Term Loans only
for the purposes set forth in Section 4.13.
SECTION 6.09. Fiscal Year. Cause its fiscal year to end on
December 31 of each year.
SECTION 6.10. Further Assurances. (a) Execute any and all
further documents, financing statements, agreements and instruments, and take
all further action (including filing Uniform Commercial Code and other financing
statements, mortgages and deeds of trust) that may be required under applicable
law, or which the Required Lenders, the Administrative Agent or the Collateral
Agent may reasonably request, in order to effectuate the transactions
contemplated by the Transaction
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Documents and in order to grant, preserve, protect and perfect the validity and
first priority of the security interests created or intended to be created by
the Security Documents. In addition, from time to time, each of the Borrower,
TAFSI and the Guarantors will, at its cost and expense, promptly secure the
Obligations by pledging or creating, or causing to be pledged or created,
perfected security interests with respect to such of its assets and properties
as the Administrative Agent or the Required Lenders shall designate (it being
understood that it is the intent of the parties that the Obligations shall be
secured by, among other things, substantially all the assets of the Borrower,
each Guarantor and TAFSI (including real and other properties acquired
subsequent to the Closing Date)); provided that the Borrower, TAFSI and the
Guarantors shall not be required to create, or cause to be created, mortgages
with respect to leasehold interests in real property with a fair market value
not in excess of $1,000,000. Such security interests and Liens, will be created
under the Security Documents and other security agreements, mortgages, deeds of
trust and other instruments and documents, in form and substance satisfactory to
the Required Lenders, and each of the Borrower, TAFSI and the Guarantors shall
deliver or cause to be delivered to the Lenders all such instruments and
documents, (including legal opinions, title insurance policies and lien
searches) as the Required Lenders shall reasonably request to evidence
compliance with this Section 6.10. Each of the Borrower and the Guarantors
agrees to provide such evidence as the Required Lenders shall reasonably request
as to the perfection and priority status of each such security interest and
Lien.
(b) Within 90 days following the Closing Date, enter into
Lockbox Agreements with financial institutions reasonably acceptable to the
Administrative Agent.
(c) If any additional direct or indirect subsidiary of the
Borrower is organized or acquired by the Borrower after the date hereof, (i)
notify the Administrative Agent and the Lenders of such subsidiary's
organization or acquisition, (ii) cause such subsidiary (unless such subsidiary
is a Foreign Subsidiary), simultaneously with its organization or acquisition,
to execute and become a party to the Guarantee Agreement, the Indemnity and
Subrogation Agreement, the Security Agreement and each applicable other Security
Document in favor of the Collateral Agent and (iii) if any shares of capital
stock or other equity interest or Indebtedness of such subsidiary are owned by
or on behalf of the Borrower or any Guarantor, cause such Person, simultaneously
with such subsidiary's organization or acquisition, to pledge to the Collateral
Agent such shares, evidence of such other equity interests and promissory notes
evidencing such Indebtedness pursuant to the Pledge Agreement; provided that the
Borrower and the Guarantors shall not be required to pledge more than 65% of the
outstanding voting equity interests in any Foreign Subsidiary. The Borrower
agrees to provide such evidence as the Collateral Agent shall reasonably request
as to the perfection and priority status of each security interest and Lien
created pursuant to such Security Documents.
SECTION 6.11. Rate Protection Agreements. In the case of the
Borrower, have in effect or enter into within 120 days following the Closing
Date, and maintain at any time prior to the date that is two years following the
Closing Date, Rate Protection Agreements satisfactory to the Administrative
Agent, with respect to the Loans, to the extent necessary to cause not less than
50% of the Indebtedness of the Borrower and its subsidiaries on a consolidated
basis at such date to be
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(a) Indebtedness that accrues interest at a fixed rate and/or (b) Indebtedness
with respect to which such a Rate Protection Agreement is in effect.
SECTION 6.12. Environmental and Safety Laws. (a) Comply with,
and use its reasonable best efforts to ensure compliance by all tenants and
subtenants with, all Environmental and Safety Laws and obtain and comply with
and maintain, and use its reasonable best efforts to ensure that all tenants and
subtenants obtain and comply with and maintain, any and all licenses, approvals,
registrations or permits required by Environmental and Safety Laws, except to
the extent that failure to so comply or to obtain and comply with and maintain
such licenses, approvals, registrations and permits does not have, and would not
reasonably be expected to result in, a Material Adverse Effect.
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions, required under
Environmental and Safety Laws and promptly comply with all lawful orders and
directives of all Governmental Authorities respecting Environmental and Safety
Laws, except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings would not have a
Material Adverse Effect or the failure to conduct and complete the same would
not reasonably be expected to result in a Material Adverse Effect.
(c) Notify the Administrative Agent of any of the following
that is likely to have a Material Adverse Effect:
(i) any Environmental Claim that the Borrower, TAFSI or any
Guarantor receives, including one to take or pay for any remedial,
removal, response or cleanup or other action with respect to any
Hazardous Substance contained on any property owned or leased by the
Borrower, such Guarantor or TAFSI;
(ii) any notice of any alleged violation of or knowledge by
the Borrower, Holdings, TAFSI or any Guarantor of a condition that
might reasonably result in a violation of any Environmental and Safety
Law;
(iii) any commencement or written threat of the commencement
of any judicial or administrative proceeding or investigation alleging
a violation or potential violation of any requirement of any
Environmental and Safety Law by the Borrower, TAFSI or any Guarantor;
and
(iv) any Release or threat of Release of any Hazardous
Substance that would reasonably be expected to result in a Material
Adverse Effect.
(d) Without limiting the generality of Section 10.05(b),
indemnify each Agent, the Fronting Bank, each Swingline Lender, the Collateral
Agent and each Lender and each of their Related Parties (each such Person being
called an "Indemnitee") against, and to hold each Indemnitee harmless from, any
claims, demands, penalties, fines, liabilities, settlements, damages, costs and
expenses (including reasonable counsel fees, expert and consultant fees, charges
and disbursements) of whatever kind or nature arising out of, or in any way
relating to, the violation of, noncompliance with or liability under any
Environmental and Safety Laws applicable to the operations of the
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Borrower or any Guarantor or to the Mortgaged Properties, or any orders,
requirements or demands of Governmental Authorities related thereto, including
reasonable attorneys' and consultants' fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the extent that
any of the foregoing are found by a final and nonappealable decision of a court
of competent jurisdiction to have resulted from the gross negligence or wilful
misconduct of the Indemnitee seeking indemnification therefor. This indemnity
shall continue in full force and effect regardless of the termination of this
Agreement and the other Loan Documents.
SECTION 6.13. Material Contracts. Maintain in full force and
effect (including exercising any available renewal option and without amendment
or modification) all its material contracts (including each operating lease
permitted by Section 7.08) unless the failure so to maintain such contracts (or
the amendments or modifications thereto) individually or in the aggregate, would
not have a Material Adverse Effect, and promptly notify each Lender of each
failure to comply with this Section 6.13.
SECTION 6.14. Estoppel Certificates and Subordination and
Attornment Agreements. After the Closing Date, the Borrower shall use
commercially reasonable efforts (not to include the paying of any consent fee)
to deliver estoppel certificates from all ground lessors of Mortgaged Properties
and subordination and attornment agreements from all Franchisees under leases
affecting the Mortgaged Properties which are not, by their terms, subject and
subordinate to the Lien of the applicable Mortgage or Leasehold Mortgage to the
extent that estoppel certificates or subordination and attornment agreements
from such ground lessors and Franchisees were not delivered prior to the Closing
Date pursuant to Section 5.02.
ARTICLE VII
Negative Covenants
The Borrower covenants and agrees with each Lender, each
Agent, the Fronting Bank and each Swingline Lender that, so long as this
Agreement shall remain in effect or the principal of or interest on any Loan or
Swingline Loan or LC Disbursement, any Fees or any other expenses or amounts
payable under any Loan Document shall be unpaid, unless the Required Lenders
shall otherwise consent in writing, the Borrower will not, and will not cause or
permit any of its subsidiaries to:
SECTION 7.01. Indebtedness. Incur, create, assume or permit to
exist any Indebtedness, except:
(a) Indebtedness existing on the date hereof (including, in
the case of the Existing Synthetic Leases, additional Indebtedness to
be incurred thereunder that does not result in the aggregate principal
amount of all Indebtedness incurred thereunder exceeding $72,000,000),
and set forth on Schedule 7.01 (and any extensions, renewals or
replacements of any such Indebtedness so long as (i) the weighted
average interest rate applicable to such extended,
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renewed or replacement Indebtedness ("Refinancing Indebtedness") must
be less than or equal to the interest rate applicable to the
Indebtedness being extended, renewed or replaced, (ii) no material
terms applicable to such Refinancing Indebtedness (including any
Guarantees and the subordination provisions thereof) shall be more
favorable to the refinancing lenders than the terms contained in the
Indebtedness being extended, renewed or replaced prior to such
refinancing, (iii) the weighted average life to maturity of such
Refinancing Indebtedness shall be greater than or equal to the weighted
average life to maturity of the Indebtedness being extended, renewed or
replaced and the first scheduled principal payment in respect of such
Refinancing Indebtedness shall not be earlier than the next scheduled
principal payment (determined as of the date of such extension, renewal
or replacement) in respect of the Indebtedness being extended, renewed
or replaced, (iv) the principal amount of such Refinancing Indebtedness
shall be less than or equal to the principal amount then outstanding of
the Indebtedness being extended, renewed or replaced and (v) such
Refinancing Indebtedness may not be incurred if at the time of such
refinancing a Default or Event of Default has occurred and is
continuing or would result therefrom);
(b) Indebtedness created under the Loan Documents;
(c) in the case of the Guarantors, Indebtedness consisting of
purchase money Indebtedness incurred after the Closing Date to finance
Capital Expenditures permitted under Section 7.13; provided, however,
that (i) for purposes of Section 7.13, the aggregate principal amount
of any such Indebtedness shall be deemed to be a Capital Expenditure at
the time incurred or assumed, (ii) the aggregate of (A) the aggregate
principal amount of Indebtedness permitted pursuant to this Section
7.01(c) and (B) any Capital Lease Obligations permitted pursuant to
Sections 7.01(d) and 7.11(c) shall not exceed $35,000,000 at any time
outstanding and (iii) such Indebtedness is incurred within 90 days
after the making of the Capital Expenditures financed thereby;
(d) in the case of the Guarantors, Indebtedness in respect of
Capital Lease Obligations permitted under Section 7.11(c);
(e) in the case of the Borrower or any Guarantor, Indebtedness
in respect of fuel- supply, hedging agreements and arrangements,
provided that any such agreements or arrangements shall have been
entered into for bona fide hedging purposes and pursuant to a written
fuel-supply hedging policy approved by the board of directors of the
Borrower;
(f)(i) in the case of the Borrower, Indebtedness in respect of
the Subordinated Notes in an aggregate principal amount at any time
outstanding not in excess of $190,000,000 (minus the amount of any
Subordinated Notes refinanced pursuant to clause (h) below) and (ii) in
the case of the Guarantors, Indebtedness in respect of the Subordinated
Note Guarantees;
(g) in the case of the Borrower, Indebtedness in respect of
any 10 1/4% Subordinated Notes not repurchased by the Borrower pursuant
to the Debt Tender Offer, and, in the case of TA, its existing
subordinated Guarantee in
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respect thereof;
(h) Indebtedness that arises from the refinancing from time to
time by the Borrower of the Subordinated Notes and is subordinate to
the Obligations; provided, however, that (i) such refinancing must be
in whole and not in part, (ii) the weighted average interest rate
applicable to such Indebtedness must be less than or equal to the
interest rate applicable to the Subordinated Notes, (iii) no material
terms applicable to such Indebtedness (including the subordination
provisions thereof) shall be more favorable to the refinancing lenders
than the terms that are applicable under the Subordinated Note
Indenture prior to such refinancing, (iv) the weighted average life to
maturity of such Indebtedness shall be greater than or equal to the
weighted average life to maturity of the Subordinated Notes and the
first scheduled principal payment in respect of such Indebtedness shall
not be earlier than the first scheduled principal payment in respect of
the Subordinated Notes, (v) such Indebtedness shall be Indebtedness of
the Borrower, (vi) such Indebtedness shall be unsecured, (vii) the
guarantees by the Guarantors of such Indebtedness shall be no more
favorable to the refinancing lenders than the Subordinated Note
Guarantees, (viii) the principal amount of such Indebtedness shall be
less than or equal to the principal amount then outstanding of the
Subordinated Notes and (ix) such Indebtedness may not be incurred if at
the time of such refinancing a Default or Event of Default has occurred
and is continuing or would result therefrom;
(i) in the case of TAFSI, Indebtedness to the Borrower or any
Guarantor, provided that the amount of all such Indebtedness does not
exceed $3,000,000 in the aggregate at any time outstanding;
(j) in the case of any Guarantor, Indebtedness to the
Borrower, the other Guarantors or TAFSI;
(k) in the case of the Borrower, Rate Protection Agreements;
(l) in the case of the Guarantors, other unsecured
Indebtedness in an aggregate principal amount at any time outstanding
not in excess of $10,000,000; provided that Indebtedness permitted by
this clause may be secured within the limitations described in Section
7.02(n) or (o);
(m) in the case of the Borrower, Indebtedness to any of its
subsidiaries;
(n) Indebtedness of any subsidiary of the Borrower that
becomes a subsidiary of the Borrower after the date hereof pursuant to
a Permitted Business Acquisition; provided that (i) such Indebtedness
is outstanding at the time such subsidiary becomes a subsidiary of the
Borrower and is not created in contemplation of or in connection with
such subsidiary becoming a subsidiary of the Borrower (and any
extensions, renewals or replacements of any such Indebtedness so long
as (A) the weighted average interest rate applicable to such extended,
renewed, refinanced or replacement Indebtedness ("Refinancing
Indebtedness") must be less than or equal to the interest rate
applicable to the Indebtedness being extended, renewed, refinanced or
replaced, (B) no material
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terms applicable to such Refinancing Indebtedness (including the
subordination provisions thereof) shall be more favorable to the
refinancing lenders than the terms contained in the Indebtedness being
extended, renewed, refinanced or replaced prior to such refinancing,
(C) the weighted average life to maturity of such Refinancing
Indebtedness shall be greater than or equal to the weighted average
life to maturity of the Indebtedness being extended, renewed,
refinanced or replaced and the first scheduled principal payment in
respect of such Refinancing Indebtedness shall not be earlier than the
next scheduled principal payment (determined as of the date of such
extension, refinancing, renewal or replacements) in respect of the
Indebtedness being extended, renewed, refinanced or replaced, (D) the
principal amount of such Refinancing Indebtedness shall be less than or
equal to the principal amount then outstanding of the Indebtedness
being extended, renewed, refinanced or replaced and (E) such
Refinancing Indebtedness may not be incurred if at the time of such
refinancing a Default or Event of Default has occurred and is
continuing or would result therefrom), (ii) such subsidiary shall be a
Guarantor, (iii) such Indebtedness is not Guaranteed by the Borrower or
by any other Guarantor and (iv) the aggregate principal amount of
Indebtedness permitted by this clause (n) shall not exceed $10,000,000
at any time outstanding;
(o) Indebtedness incurred to finance cash consideration
payable in connection with Permitted Business Acquisitions; provided
that (i) any Permitted Business Acquisitions that are to be financed
with any such Indebtedness must be consummated within six months after
the date of issuance of such Indebtedness (and the proceeds of such
Indebtedness shall be deposited with the Collateral Agent until so used
and, to the extent such proceeds are not applied to Permitted Business
Acquisitions within such six-month period, such proceeds shall be
applied to prepay Term Borrowings), (ii) such Indebtedness is
subordinated to the Obligations on terms no less favorable to the
Lenders than the Subordinated Notes and otherwise reasonably
satisfactory to the Administrative Agent, (iii) the stated maturity
thereof shall be on or after the date that is six months after the Term
Loan Maturity Date, and no scheduled or other mandatory payments of
principal shall be required prior to the date that is six months after
the Term Loan Maturity Date, (iv) the other terms and conditions
thereof shall be no less favorable to the Lenders than the terms and
conditions contained in the Subordinated Note Documents and such other
terms and conditions shall be otherwise satisfactory to the
Administrative Agent, (v) such Indebtedness shall be Indebtedness of
the Borrower (but may be Guaranteed by the Guarantors), (vi) such
Indebtedness shall be unsecured, (vii) any Guarantees of such
Indebtedness by the Guarantors shall be on terms and conditions no less
favorable to the Lenders than the Subordinated Note Guarantees, (viii)
the amount of Indebtedness permitted by this clause (o) at any time
outstanding shall not exceed the sum of $100,000,000 plus the aggregate
principal amount of Term Loans prepaid with the proceeds of such
Indebtedness as provided in clause (i) above or in the following
proviso, and (ix) such Indebtedness may not be incurred at any time
that a Default or Event of Default has occurred and is continuing or
would result therefrom; provided further that if the Borrower is
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issuing Indebtedness in the capital markets that is otherwise permitted
by this clause (o) and in order to successfully market such
Indebtedness it is necessary to increase the aggregate principal amount
thereof being issued, then the Borrower may, subject to all the
conditions set forth in the immediately preceding proviso (including
the limitation set forth in clause (viii) above), so increase the
aggregate principal amount of such Indebtedness, but the incremental
proceeds resulting from such increase must be deposited with the
Collateral Agent and, to the extent such proceeds are not used to
finance a Permitted Business Acquisition within six months after the
date of issuance of such Indebtedness, such proceeds shall be applied
to prepay Term Borrowings or, at the Borrower's option, Revolving
Credit Borrowings (provided that the aggregate amount of such proceeds
applied to prepay Revolving Credit Borrowings shall not exceed, on a
cumulative basis during the term of this Agreement, $50,000,000); and
(p) in the case of the Borrower, Guarantees by the Borrower of
obligations of its subsidiaries under the Existing Synthetic Leases.
SECTION 7.02. Liens. Create, incur, assume or permit to exist
any Lien on any property or assets (including stock or other securities of any
Person) now owned or hereafter acquired by it or on any income or revenues or
rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower or any
subsidiary thereof existing on the date hereof and set forth on
Schedule 7.02 (including, to the extent any such Lien is the result of
a lease, any extensions, renewals or replacements of such lease,
provided that the annual lease payment under any such extension,
renewal or replacement shall be no less than the fair market rental
value of the leased property as of the date of such extension, renewal
or replacement), provided that such Liens shall secure only those
obligations that they secure on the date hereof;
(b) in the case of any Guarantor, any Lien existing on any
property or asset prior to the acquisition thereof (by merger,
consolidation, asset purchase or otherwise) by such Guarantor
(including pursuant to a Permitted Business Acquisition) or existing at
the time such Guarantor becomes a subsidiary of the Borrower pursuant
to a Permitted Business Acquisition (including any such Lien securing
Indebtedness permitted under clause (n) of Section 7.01, but excluding
any such Lien securing any other Indebtedness), provided that (i) such
Lien is not created in contemplation of or in connection with such
acquisition, (ii) such Lien does not apply to any other property or
assets of such Guarantor (except for property in the nature of
improvements to property already subject to such Lien), including any
accounts receivable or inventory acquired or created after the date of
such acquisition, and (iii) such Lien does not (A) materially interfere
with the use, occupancy and operation of any property, (B) materially
reduce the fair market value of such property but for such Lien or (C)
result in any material increase in the cost of operating, occupying or
owning (or leasing) such property;
(c) Liens for taxes, assessments or governmental charges not
yet due and payable (or due and payable but not yet delinquent) or
which are being contested in compliance with Section 6.03 or Section
6.12;
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(d) in the case of the Guarantors, carriers', warehousemen's,
mechanics', materialmen's, repairmen's, landlord's or other like Liens
arising in the ordinary course of business and securing obligations
that are not due and payable or which are being contested in compliance
with Section 6.03;
(e) in the case of the Guarantors, pledges and deposits made
in the ordinary course of business in compliance with workmen's
compensation, unemployment insurance and other social security laws or
regulations;
(f) in the case of the Guarantors, pledges and deposits to
secure the performance of bids, trade contracts (other than for
Indebtedness) leases, statutory obligations surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in
the ordinary course of business and (ii) in the case of the Borrower
and the Guarantors, pledges and deposits to secure Indebtedness
permitted under Section 7.01(e);
(g) in the case of the Guarantors, zoning restrictions,
easements, rights-of-way, restrictions on use of real property and
other similar encumbrances that do not materially impair the current
use or the value of the property subject thereto;
(h) in the case of the Guarantors, purchase money security
interests in real property, improvements thereto or equipment hereafter
acquired (or, in the case of improvements, constructed), provided that
(i) such security interests secure Indebtedness permitted by Section
7.01(c), (ii) such security interests are incurred, and the
Indebtedness secured thereby is created, within 90 days after such
acquisition (or construction), (iii) the Indebtedness secured thereby
does not exceed 75% of the lesser of the cost or the fair market value
of such real property, improvements or equipment at the time of such
acquisition (or construction) and (iv) such security interests do not
apply to any Mortgaged Property or any other property or assets;
(i) Liens incurred in connection with Capital Lease
Obligations permitted by Section 7.01(d), provided that such Liens do
not extend to any other property or assets of such Person;
(j) any Lien created under the Loan Documents;
(k) the lease or sublease of retail space, office space or
space for truck weigh stations at any TravelCenter so long as (i) in
the case of retail or office space either (A) the term of the lease or
sublease does not exceed three years or (B) such lease or sublease does
not result in the lease or sublease of real property of the Borrower or
any of its subsidiaries in excess of 3,000 square feet at any one
location to any one lessee or (ii) in the case of space leased or
subleased for truck weigh stations, such lease or sublease does not
result in the lease or sublease of real property of the Borrower or any
of its Subsidiaries in excess of 8,000 square feet at any one location
to any one lessee;
(l) the lease or sublease of retail space and office space at
any
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TravelCenter other than as described in clause (k) above, provided that
(i) the lease with respect thereto shall (A) contain provisions
consistent with and not in conflict with any term, condition, covenant
or agreement contained in any Loan Document, (B) require the lessee to
deliver estoppel certificates to the Collateral Agent in compliance
with clause (iii) below, (C) provide that such lease is subject and
subordinate in all respects to the applicable Mortgage and (D)
constitute an "operating lease" (and not a financing lease) for all
purposes, (ii) in each case, the Borrower shall have delivered to the
Collateral Agent, reasonably in advance of the execution and delivery
thereof, copies of such lease and all other agreements to be entered
into by the Borrower or any of its subsidiaries in connection
therewith, (iii) the Borrower shall have delivered to the Collateral
Agent within 30 days of a request therefor by the Collateral Agent, an
estoppel certificate of any lessee in form and substance satisfactory
to the Collateral Agent, (iv) in each case, the Borrower shall, at its
expense, take such action as shall be necessary or as shall be
reasonably requested by the Collateral Agent to assign to the
Collateral Agent, for the benefit of the Secured Parties, a perfected
security interest in its rights under such lease and other agreements,
(v) after giving effect to the entering into of such lease, no Default
or Event of Default shall have occurred and be continuing, (vi)
promptly after execution of such lease, an executed copy of such lease
and a certificate of an officer of the Borrower certifying that such
lease complies with the provisions of this Section 7.02(l) shall be
delivered to the Administrative Agent and (vii) the lease or sublease
of such space: (A) shall not result in the representations and
warranties contained in the related Mortgage or in this Agreement to be
untrue, (B) shall not result in any material adverse effect on the
value or operations of the related Mortgaged Property as a
TravelCenter, (C) shall have no effect on the Collateral Agent's Lien
on the remaining Land under the related Mortgage, (D) shall not
restrict ingress and egress to, the operation of or in any way
interfere with the business currently conducted on the Mortgaged
Property and (E) shall be done and conducted, as applicable, in all
material respects in accordance with all laws, rules, regulations or
statutes (including any zoning, building, Environmental and Safety
Laws, ordinances, codes or approvals or any building permits) or any
restrictions of record or agreements affecting the Mortgaged Property;
(m) judgment liens in respect of judgments that do not
otherwise constitute an Event of Default;
(n) Liens on any Excepted Property securing any Indebtedness
of a Guarantor issued to a Franchisee to finance the payment by such
Guarantor to such Franchisee of consideration in connection with the
termination of such Franchisee's lease of such Excepted Property;
provided that (i) the aggregate principal amount of all Indebtedness
secured by Liens described in this paragraph (n) shall not exceed
$5,000,000 at anytime outstanding and (ii) all Indebtedness secured by
Liens described in this paragraph (n) must be permitted by Section
7.01(l); and
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(o) Liens on Excepted Properties securing contingent
obligations of any Guarantor to repay to any supplier amounts advanced
by such supplier to such Guarantor pursuant to any arrangement
providing for (i) advances by such supplier to such Guarantor to
improve TravelCenters owned by such Guarantor, (ii) long-term
commercial arrangements between such Guarantor and such supplier for a
specified period and (iii) a contingent obligation by such Guarantor to
repay to such supplier all or any portion of such amounts so advanced
by such supplier to such Guarantor if such Guarantor defaults on, or
terminates prior to the expiration of, its obligations in respect of
such commercial arrangements; provided that, to the extent that any
such contingent obligations constitute Indebtedness, such Indebtedness
must be permitted by Section 7.01(l).
SECTION 7.03. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any Person whereby it shall sell,
lease or transfer any property, real or personal, used or useful in the business
of the Borrower or its subsidiaries, whether now owned or hereafter acquired,
and thereafter rent or lease such property or other property that it intends to
use for substantially the same purpose or purposes as the property being sold,
leased or transferred (any such transaction, a "Sale and Lease-Back
Transaction"), other than any Sale and Lease-Back Transaction with respect to
property acquired by the Borrower or any subsidiary thereof following the
Closing Date, if such Sale and Lease-Back Transaction (i) involves a sale by the
Borrower or any subsidiary thereof for consideration equal to at least the
then-current fair market value of such property and (ii) results in a Capital
Lease Obligation or an operating lease permitted by Section 7.11, in either case
entered into to finance a Capital Expenditure permitted by Section 7.13
consisting of (A) the initial acquisition by the Borrower or such subsidiary of
the property sold or transferred in such Sale and Lease-Back Transaction or (B)
the development of a TravelCenter on such property.
SECTION 7.04. Investments, Loans and Advances. Purchase, hold
or acquire any capital stock, evidences of Indebtedness or other securities of,
make or permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other Person, except:
(a) in the case of the Borrower, investments by the Borrower
in the capital stock of, and loans to, the Guarantors and in promissory
notes described in Section 7.04(e);
(b) Permitted Investments;
(c) in the case of the Guarantors, pledges and deposits
permitted under subsection (f) of Section 7.02;
(d) in the case of the Guarantors, loans or advances to
employees in the ordinary course of business in an aggregate amount
outstanding to any single employee at any time not in excess of $50,000
(or, if and to the extent such loans or advances shall be used by such
employees solely for relocation expenses, $150,000 and in an aggregate
amount outstanding for all employees at any time not in excess of
$1,500,000 (which loans and advances shall not be forgiven);
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(e) in the case of the Borrower, investments by the Borrower
in the capital stock of, and loans to, TAFSI that are consistent with
the limitations on the business of TAFSI set forth in Section 7.08;
(f) in the case of the Borrower and the Guarantors,
investments constituting the purchase price of Permitted Business
Acquisitions; provided that (i) the consideration for each Permitted
Business Acquisition shall consist solely of cash (including cash
proceeds of any Subordinated Acquisition Financing), shares of common
stock of the Borrower, Indebtedness referred to in clause (n) of
Section 7.01 or a combination thereof, (ii) the sum of all cash
consideration in respect of Permitted Business Acquisitions (excluding
cash consideration paid from the proceeds of any Subordinated
Acquisition Financing and excluding cash consideration received as
proceeds of the issuance by the Borrower of additional shares of its
common stock on or within 30 days prior to the date of such Permitted
Business Acquisition for the purpose of financing such Permitted
Business Acquisition) plus the aggregate principal amount of all
Indebtedness referred to in clause (n) of Section 7.01 that results
from Permitted Business Acquisitions, shall not exceed, during any
fiscal year of the Borrower, $55,000,000 in the aggregate, provided
that during any fiscal year such $55,000,000 permitted amount may be
increased by an amount (not exceeding $20,000,000) equal to the unused
amount of Capital Expenditures permitted in such fiscal year pursuant
to Section 7.13, (iii) the Borrower's investments (as opposed to a
Guarantor's investments) permitted pursuant to this Section 7.04(f)
shall be limited to investments in capital stock of, and other equity
ownership interests in, the acquired entities and shall not include any
operating assets and (iv) at the time of, and after giving effect to
the consummation of (including payment of all consideration in respect
of), each Permitted Business Acquisition, the aggregate amount of the
Revolving Credit Commitments shall exceed the sum of the outstanding
principal amount of Revolving Loans and Swingline Loans plus the
aggregate LC Exposure by at least $20,000,000;
(g) in the case of the Borrower, Rate Protection Agreements;
(h) investments not otherwise permitted by this Section 7.04,
including without limitation, in the case of the Guarantors,
investments in any joint venture (any such joint venture, a "Permitted
Joint Venture") and Foreign Subsidiaries, so long as the amount of all
such investments does not exceed $20,000,000 in the aggregate at any
time outstanding and none of such investments is prohibited by the
Subordinated Note Documents or any Subordinated Note Refinancing
Documents or Subordinated Acquisition Financing Documents (except to
the extent waived or consented to by holders of the Subordinated Notes
or Subordinated Note Refinancing Indebtedness or Subordinated
Acquisition Financing in accordance with the Subordinated Notes
Documents or such Subordinated Note Refinancing Documents or
Subordinated Acquisition Financing Documents);
(i) in the case of the Guarantors and TAFSI, intercompany
loans and
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advances to TAFSI and the Guarantors to the extent permitted under
subsections (i), (j) and (m) of Section 7.01;
(j) in the case of any Guarantor, promissory notes evidencing
loans made by such Guarantor to members of such Guarantor's management
or to the Sponsor to enable them to purchase shares of the Borrower's
common stock; provided that (i) the amount loaned to any single member
of management or to the Sponsor shall not exceed 50% of the aggregate
purchase price of the shares so purchased by such member or the
Sponsor, as applicable, with the proceeds of such loan, (ii) all the
shares so purchased with the proceeds of any such loan shall be
retained by the applicable Guarantor for the benefit of the Secured
Parties until such loan has been repaid, (iii) the aggregate amount of
all such loans outstanding at any time shall not exceed $2,500,000,
(iv) such loans shall not be forgiven, (v) any such shares purchased by
the Sponsor with the proceeds of any such loan shall be resold to
members of the Borrower's management as soon as such resale may be
consummated in accordance with applicable State and Federal securities
laws and (vi) any member of management who purchases shares pursuant to
the preceding clause (v) shall assume all obligations in respect of the
loans the proceeds of which were used by the Sponsor to purchase such
shares;
(k) investments received in connection with the bankruptcy or
reorganization of suppliers or customers and in settlement of
delinquent obligations of, and other disputes with, customers, in each
case in the ordinary course of business; and
(l) investments existing on the date hereof, and set forth on
Schedule 7.04(l).
SECTION 7.05. Mergers, Consolidations, Sales of Assets and
Acquisitions. Merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or sell, transfer, assign,
lease, sublease or otherwise dispose of (in one transaction or in a series of
transactions) all or any substantial part of the assets (whether now owned or
hereafter acquired) or any capital stock of any Guarantor or TAFSI, or purchase,
lease or otherwise acquire (in one transaction or a series of transactions) all
or any substantial part of the assets of any other Person; provided, however,
that the foregoing shall not prohibit:
(a) sales of Permitted Investments for cash;
(b) sales, transfers and other dispositions of used or surplus
equipment, vehicles and other assets in the ordinary course of business
(including, without limitation, the sale of surplus land at a
TravelCenter) to the extent that the Borrower shall have complied with
the provisions of Section 2.13(b) and the definition of the term
"Prepayment Event";
(c) sales of inventory in the ordinary course of business;
(d) sales, transfers and other dispositions of TravelCenters
and the related assets for at least the then-current fair market value
of such assets (other
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than any such sales, transfers and other dispositions permitted under
Section 7.05(g)), with the related Net Cash Proceeds being applied in
accordance with the provisions of Section 2.13(b) and the definition of
the term "Prepayment Event", if (i) the aggregate number of
TravelCenters so sold, transferred or disposed of pursuant to this
subsection (d) shall not exceed 15 since the Closing Date, (ii) the
aggregate amount of Net Cash Proceeds received by the Borrower in
respect of such sales, transfers and dispositions shall not exceed
$50,000,000 since the Closing Date, (iii) the consideration received in
any such transaction shall consist of immediately available funds in an
amount equal to at least 75% of the then-current fair market value of
the applicable asset(s) (with any instrument evidencing consideration
other than immediately available funds being pledged to the Collateral
Agent as Collateral pursuant to the Pledge Agreement), (iv) no Default
or Event of Default shall have occurred and be continuing and no such
event shall occur as the result of such proposed transaction and (v)
prior to any such proposed transaction, the Administrative Agent and
the Collateral Agent shall have received a certificate of a Financial
Officer of the Borrower describing the proposed transaction (including
the consideration to be received) and certifying as to the compliance
with the foregoing provisions on a prospective basis;
(e) licenses or sublicenses by the Borrower, any Guarantor or
TAFSI to the Borrower, any Guarantor or TAFSI or to Franchisees, if
any, of the trademarks and servicemarks owned by the Borrower, such
Guarantor or TAFSI;
(f) sales, transfers and other dispositions of any portion of
a Mortgaged Property in connection with the development of such
property as permitted in, and in accordance with, the provisions of
Section 9 of the Guarantee Agreement;
(g) sales, transfers and other dispositions of the parcels of
real estate listed on Schedule 7.05(g) (which Schedule may be amended
by the Borrower from time to time to substitute another parcel of real
estate for any parcel of real estate that is then listed on such
Schedule and has not been sold, transferred or otherwise disposed of on
or prior to the date of such substitution) and the related TravelCenter
assets, with the related Net Cash Proceeds being applied in accordance
with the provisions of Section 2.13(b) and the definition of the term
"Prepayment Event";
(h) in the case of the Guarantors, (i) mergers and
acquisitions constituting Permitted Business Acquisitions that comply
with Section 7.04(f), (ii) acquisitions of equity interests pursuant to
Permitted Joint Ventures in compliance with Section 7.04(h) and (iii)
the merger of one such Guarantor with and into another such Guarantor
(provided that (A) the Borrower provides the Administrative Agent and
the Collateral Agent with at least five Business Days' prior notice,
(B) the Borrower complies with all of its obligations under Section
6.10 and (C) immediately after giving effect thereto no Default or
Event of Default shall have occurred or be continuing or would result
therefrom);
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(i) leases permitted by Section 7.08;
(j) sales, leases or other transfers of assets in connection
with Sale and Lease-Back Transactions permitted by Section 7.03;
(k) in the case of any Guarantor or TAFSI, any sale, transfer
or other disposition of any asset to TAFSI or another Guarantor, as the
case may be, provided that the aggregate fair market value of all
assets transferred to TAFSI by the Guarantors does not exceed
$3,000,000; or
(l) the Existing Synthetic Leases.
SECTION 7.06. Dividends and Distributions. (a) Declare or pay
directly or indirectly, any dividend or make any other distribution (by
reduction of capital or otherwise), whether in cash, property, securities or a
combination thereof, with respect to any shares of its capital stock or directly
or indirectly redeem, purchase, retire or otherwise acquire for value any shares
of any class of its capital stock or set aside any amount for any such purpose;
provided, however, that (i) each of the Guarantors and TAFSI may declare and pay
dividends or make other distributions to the Borrower or another Guarantor, (ii)
so long as no Default or Event of Default shall have occurred and be continuing
or shall be caused thereby, the Borrower may declare and pay dividends or make
other distributions to repurchase or redeem Common Stock of the Borrower from
officers, directors or employees of the Borrower who are no longer employed by
the Borrower, so long as the aggregate amount of such dividends or other
distributions paid during any fiscal year shall not exceed the sum of (A)
$3,000,000, provided that such $3,000,000 permitted amount shall be increased
with respect to any fiscal year ending after January 1, 2001, by the amount of
unused permitted dividends or other distributions under this clause for the
immediately preceding fiscal year (each such amount, a "Carry-Forward Amount")
(it being understood and agreed that (x) no Carry-Forward Amount may be carried
forward beyond the first two fiscal years immediately following the fiscal year
in which it arose and (y) any dividends or other distributions made under this
clause in any fiscal year shall be deemed made, first, in respect of any
Carry-Forward Amount from the earlier of the two immediately preceding fiscal
years, second, in respect of any Carry-Forward Amount from the more recent
immediately preceding fiscal year and, third, in respect of the amount permitted
to be made in such fiscal year (without giving effect to any Carry-Forward
Amount)), plus (B) the proceeds of any resale of such Common Stock or common
stock, as the case may be, to other or new employees, directors or officers of
the Borrower made prior to or within 180 days after such repurchases or
redemptions and (iii) so long as no Default or Event of Default shall have
occurred and be continuing or shall be caused thereby, the Borrower may redeem
in whole or in part any capital stock of the Borrower by issuing, in
consideration for such redemption, any other class of capital stock of the
Borrower or rights to acquire such capital stock; provided that any capital
stock so issued or to be issued shall not provide for any amortization, sinking
fund payment, mandatory cash dividends or redemptions, or any right on the part
of the holder to require redemption, repurchase or repayment thereof, in each
case prior to the date that is six months after the Term Loan Maturity Date, and
shall not have terms, taken as a whole, materially disadvantageous to the
Lenders.
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(b) Permit its subsidiaries to, directly or indirectly, create
or otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such subsidiary to (i) pay any dividends or
make any other distributions on its capital stock or any other interest or (ii)
make or repay any loans or advances to the Borrower other than any (A)
consensual encumbrances or restrictions incurred as a result of the Subordinated
Note Indenture and (B) consensual encumbrances or restrictions that are incurred
in connection with any Subordinated Note Refinancing Indebtedness, provided that
such encumbrances or restrictions are no more onerous than the encumbrances and
restrictions described in clause (A) above.
SECTION 7.07. Transactions with Affiliates. Sell or transfer
any property or assets to, or purchase or acquire any property or assets from,
or otherwise engage in any other transactions with, any of its Affiliates,
except that the Borrower, TAFSI and each Guarantor may engage in any of the
foregoing transactions at prices and on terms and conditions no less favorable
to the Borrower, TAFSI or such Guarantor, as the case may be, than could be
obtained on an arm's-length basis from unrelated third parties; provided that
the foregoing provisions shall not restrict (a) any transaction listed on
Schedule 7.07, (b) any transaction with an Affiliate expressly permitted by this
Agreement (including transactions expressly permitted by Section 7.02, 7.04,
7.05 or 7.06) or (c) the payment of annual management, consulting, monitoring
and advisory fees to the Original Control Group in an aggregate amount in any
fiscal year not to exceed $1,000,000.
SECTION 7.08. Business of Borrower, the Guarantors and TAFSI.
(a) In the case of the Borrower, engage at any time in any business or business
activity other than (A) the ownership of all the outstanding capital stock of
one of more Guarantors and of TAFSI, together with the activities directly
related thereto, (B) the exercise of its rights and the performance of its
obligations under or contemplated by the Transaction Documents and (C) actions
required by law to maintain its status as a corporation.
(b) In the case of each Guarantor, (i) engage in any
activities other than the business conducted by TA and National on the Closing
Date and business activities reasonably incidental thereto (including the
operation of restaurants) or (ii) lease any TravelCenter to a third-party
operator, or engage any third-party operator to operate any TravelCenter, or
otherwise cease to conduct directly the operation of any TravelCenter (other
than in connection with any sale, lease or other transfer of such TravelCenter
in accordance with Section 7.05); provided, however, that (A) the foregoing
clause (ii) shall not be construed to prohibit existing leases set forth on
Schedule 7.08 (and any extensions, renewals or replacements of such leases) and
(B) the Guarantors may lease up to five additional TravelCenters in the
aggregate to third-party operators.
(c) In the case of TAFSI, (i) engage in any activities other
than the franchising of TravelCenters and activities incidental thereto in
accordance with its past practice, (ii) own or acquire any material assets
(other than assets under the Franchise Agreements), (iii) incur any material
liabilities (other than liabilities under the Transaction Documents and
Franchise Agreements) or (iv) have any subsidiaries.
SECTION 7.09. Limitations on Debt Prepayments. (a) Optionally
prepay, repurchase or redeem or otherwise defease or segregate funds with
respect to
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any Indebtedness for borrowed money (including, in the case of the Borrower, the
Subordinated Notes, the 10 1/4% Subordinated Notes, any Subordinated Note
Refinancing Indebtedness and any Subordinated Acquisition Financing); provided,
however, that the foregoing shall not prevent the Borrower from (i) making any
payment pursuant to Section 2.12 or 2.13, (ii) repurchasing 10 1/4% Subordinated
Notes pursuant to the Debt Tender Offer, (iii) refinancing the Subordinated
Notes (or any Subordinated Note Refinancing Indebtedness) pursuant to, and in
accordance with, the provisions of Section 7.01(h) (provided that, from and
after any such refinancing, this Section 7.09 shall apply to the Indebtedness
incurred in connection with such refinancing), (iv) prepaying or otherwise
refinancing any Indebtedness permitted pursuant to clauses (i), (j) or (m) of
Section 7.01 or (v) prepaying the Santa Nella Note.
(b) Permit any amendment or modification to the terms of any
Subordinated Note Document, 10 1/4% Subordinated Note Document, Subordinated
Note Refinancing Document or Subordinated Acquisition Financing Document if the
effect of such amendment or modification is to impose additional or increased
scheduled or mandatory repayment, retirement, repurchase or redemption
obligations in respect of such Indebtedness or to require any scheduled or
mandatory payment to be made in respect of the Subordinated Notes, the 10 1/4%
Subordinated Notes, any Subordinated Note Refinancing Indebtedness and any
Subordinated Acquisition Financing, as the case may be, prior to the date that
such payment would otherwise be due.
SECTION 7.10. Amendment of Certain Documents. Permit any
termination of, or any amendment or modification that in the reasonable judgment
of the Administrative Agent is adverse in any material respect to the Lenders
to, (a) the Certificate of Incorporation (or Certificate of Formation) of the
Borrower, TAFSI or any Guarantor, (b) if applicable, the By-laws of the
Borrower, TAFSI or any Guarantor, (c) any Subordinated Note Document, (d) any
10 1/4% Subordinated Note Document, (e) any Subordinated Note Refinancing
Document, (f) any Subordinated Acquisition Financing Document, (g) either
Environmental Agreement and (h) the Merger Agreement or any related document
thereto, without the prior written consent of the Required Lenders. Without
limiting the generality of the foregoing, with respect to the Subordinated Note
Documents, the 10 1/4% Subordinated Note Documents, any Subordinated Note
Refinancing Document and any Subordinated Acquisition Financing Document, it is
understood that (a) any increase in the interest, fees or other amounts payable
in connection therewith, (b) any amendment that imposes additional covenants or
events of default or makes more restrictive the covenants or events of default
contained therein and (c) any amendment that renders the subordination
provisions contained therein less favorable to the Lenders shall in each case
require the consent of the Required Lenders.
SECTION 7.11. Limitation on Leases. Create or suffer to exist
any obligations on the part of the Borrower or any of its subsidiaries for the
payment of rents for any property under leases or agreements to lease, except,
in the case of any Guarantor:
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(a) leases (other than leases of real property) of such
Guarantor (i) entered into in the ordinary course of business and in
existence on the date hereof having annual lease payments of less than
$250,000 and (ii) in existence on the date hereof and listed on
Schedule 7.11(a) (and, in each case, any extensions, renewals or
replacements of such leases, provided that the annual lease payment
under any such extension, renewal or replacement shall be no greater
than the fair market rental value of the leased property, as of the
date of such extension, renewal or replacement for the term of such
extension, renewal or replacement);
(b) operating leases entered into after the date hereof by
such Guarantor as lessee (i) in the ordinary course of business in a
manner and to an extent consistent with historical practices of the
networks of TravelCenters operated by the Borrower's subsidiaries as of
the date hereof and (ii) in connection with Sale and Lease-Back
Transactions permitted by Section 7.03, provided that the aggregate
annual lease payments under all leases described in this clause (b)
shall not exceed $20,000,000;
(c) Capital Lease Obligations incurred by such Guarantor to
finance the acquisition of equipment and other property, provided that
(i) the aggregate of (A) the aggregate principal amount of all such
Capital Lease Obligations and (B) any purchase money Indebtedness
permitted pursuant to Section 7.01(c) shall not exceed $35,000,000 at
any time outstanding, (ii) each Capital Lease Obligation at the time of
its incurrence shall have an average life to maturity greater than the
average life to maturity of the outstanding Term Loans, (iii) none of
the related leases shall contain financial covenants and (iv) for
purposes of Section 7.13, the amount of such aggregate annual rental
payments shall be deemed to be Capital Expenditures in the year in
which they are incurred;
(d) any fair market value leases entered into by TA in
connection with the relocation of its offices;
(e) leases permitted pursuant to Section 7.03; and
(f) the Existing Synthetic Leases, provided that the aggregate
lease payments paid by the Borrower and its subsidiaries under the
Existing Synthetic Leases in any fiscal year shall not exceed
$9,000,000.
SECTION 7.12. Subsidiaries. After giving effect to the
Transactions, in the case of the Borrower, have any direct or indirect
subsidiaries other than (a) TA, TA Travel, TA Licensing, TC Realty and TC
Properties and TAFSI, (b) any other direct or indirect wholly owned subsidiary
of the Borrower that is organized under the laws of a State within the United
States and that becomes a Guarantor pursuant to Section 6.10, (c) any Permitted
Joint Venture that is a direct or indirect subsidiary of the Borrower and (d)
any Foreign Subsidiaries. Each of the Guarantors and TAFSI shall be and remain a
wholly owned subsidiary of the Borrower, provided that any Guarantor may be
merged into another Guarantor if such merger is permitted by Section
7.05(h)(iii).
SECTION 7.13. Capital Expenditures. In the case of the
Borrower and its consolidated subsidiaries, permit Capital Expenditures during
the period from the
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Closing Date through December 31, 2000, to exceed $20,000,000, or during any
fiscal year thereafter, to exceed $55,000,000; provided, however, that the
amount of permitted Capital Expenditures in any fiscal year (other than the
fiscal years ending December 31, 2000 and December 31, 2001) shall be (a)
increased by (i) an amount equal to 50% of the excess of (A) consolidated EBITDA
(as adjusted pursuant to the next succeeding sentence) for the immediately
preceding fiscal year over (B) $115,000,000 and (ii) the lesser of (A) 25% of
the total amount of permitted Capital Expenditures for the immediately preceding
fiscal year (including amounts permitted as a result of the application of
clause (i) but excluding any unused Capital Expenditures carried forward to such
preceding year) and (B) the total amount of unused permitted Capital
Expenditures for the immediately preceding fiscal year (excluding any unused
Capital Expenditures carried forward to such preceding year) and (b) decreased
by the amount by which permitted consideration for Permitted Business
Acquisitions is increased for such fiscal year as contemplated by the proviso to
clause (ii) of Section 7.04(f). For purposes of determining EBITDA under clause
(a)(i)(A) above, there shall be included in the determination of EBITDA for the
relevant preceding fiscal year, the EBITDA attributable to any Permitted
Business Acquisition during the then current fiscal year, calculated on a pro
forma basis as if such Permitted Business Acquisition had occurred on the first
day of such preceding fiscal year (including giving effect to pro forma
adjustments allowed under Regulation S-X of the Securities Act of 1933, as
amended, provided that the pro forma calculations shall not give effect to such
adjustments unless the Borrower shall have delivered to the Administrative Agent
a certificate of a Financial Officer of the Borrower stating (a) the amount of
such adjustments and (b) that such adjustments are consistent with Regulation
S-X of the Securities Act of 1933, as amended, based on the reasonable good
faith belief of the Financial Officer executing such certificate at the time of
such execution). Notwithstanding the foregoing, the aggregate amount of Capital
Expenditures permitted in any fiscal year shall not exceed $65,000,000 or, for
any fiscal year ending on or after December 31, 2003, $85,000,000.
SECTION 7.14. Interest Expense Coverage Ratios. Permit the
Interest Expense Coverage Ratio for any fiscal quarter ending on a date set
forth below to be less than the ratio set forth opposite such date:
Fiscal Quarter: Ratio:
-------------- -----
March 31, 2001 to December 30, 2001 1.50 to 1.00
December 31, 2001 to December 30, 2002 1.60 to 1.00
December 31, 2002 to December 30, 2003 1.80 to 1.00
December 31, 2003 to December 30, 2004 2.00 to 1.00
December 31, 2004 to December 30, 2005 2.25 to 1.00
December 31, 2005 to December 30, 2006 2.50 to 1.00
December 31, 2006 and thereafter 3.00 to 1.00
SECTION 7.15. Leverage Ratio. Permit the Leverage Ratio on any
date during any fiscal quarter ending on the last day of or during any period
indicated below to be in excess of the ratio set forth opposite such period:
From and Including: To and Including: Ratio:
------------------ ---------------- -----
March 31, 2001 December 30, 2001 5.50 to 1.00
December 31, 2001 December 30, 2002 5.25 to 1.00
December 31, 2002 December 30, 2003 4.65 to 1.00
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December 31, 2003 December 30, 2004 4.15 to 1.00
December 31, 2004 December 30, 2005 3.65 to 1.00
December 31, 2005 December 30, 2006 3.00 to 1.00
December 31, 2006 and thereafter 2.50 to 1.00
SECTION 7.16. Synthetic Repurchases. The Borrower will not,
and will not permit any Subsidiary to, enter into or be party to, or make any
payment under, any Synthetic Purchase Agreement unless (i) in the case of any
Synthetic Purchase Agreement related to any Equity Interest, the payments
required to be made by the Borrower or its subsidiaries are limited to amounts
permitted to be paid under Section 7.06(a), (ii) in the case of any Synthetic
Purchase Agreement related to any Restricted Indebtedness, the payments required
to be made by the Borrower or its Subsidiaries thereunder are limited to the
amount permitted under Section 7.09(a) and (iii) in the case of any Synthetic
Purchase Agreement, the obligations of the Borrower and the subsidiaries
thereunder are subordinated to the Obligations on terms satisfactory to the
Administrative Agent.
SECTION 7.17. Designated Indebtedness. Without the prior
written consent of the Required Lenders, the Borrower will not, and will not
permit any Subsidiary to, designate any Indebtedness other than Indebtedness
created under the Loan Documents as Designated Senior Indebtedness for purposes
of the Subordinated Note Indenture (or as Designated Senior Indebtedness, or any
similar designation having substantially the same effect, under the 10 1/4%
Subordinated Note Indenture, any Subordinated Acquisition Financing Documents or
any Subordinated Note Refinancing Documents).
ARTICLE VIII
Events of Default
In case of the happening of any of the following events
("Events of Default"):
(a) any representation or warranty made or deemed made in any
Loan Document or any amendment or modification thereof or waiver
thereunder, or any representation, warranty, statement or information
contained in any report, certificate, financial statement or other
instrument furnished pursuant to any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been
false or misleading in any material respect when so made, deemed made
or furnished;
(b) default shall be made in the payment of any principal of
any Loan or Swingline Loan or LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or by acceleration thereof or
otherwise;
(c) default shall be made in the payment of any interest on
any Loan or Swingline Loan or any Fee or any other amount (other than
an amount referred to in (b) above) due under any Loan Document, when
and as the same shall become due and payable, and such default shall
continue unremedied for a
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period of three Business Days;
(d) default shall be made in the due observance or performance
by the Borrower of any covenant, condition or agreement contained in
Section 6.01 (with respect to the existence of the Borrower), 6.05 or
6.08 of this Agreement, or in Section 8 or 9 of the Guarantee Agreement
or in Article VII;
(e) default shall be made in the due observance or performance
by the Borrower, any Guarantor or TAFSI of any covenant, condition or
agreement contained in any Loan Document (other than those defaults
specified in (b), (c) or (d) above) and such default shall continue
unremedied for a period of 30 days after notice thereof from the
Administrative Agent or any Lender to the Borrower;
(f) the Borrower or any of its subsidiaries shall (i) fail to
pay any principal or interest, regardless of amount, due in respect of
(A) any Indebtedness in a principal amount in excess of $5,000,000 or
(B) Indebtedness under the Santa Nella Note, in each case when and as
the same shall become due and payable (after giving effect to any
applicable grace period) or (ii) fail to observe or perform any other
term, covenant, condition or agreement contained in any agreement or
instrument evidencing or governing any such Indebtedness (after giving
effect to any applicable grace period) if the effect of any failure
referred to in this clause (ii) is to cause, or to permit the holder or
holders of such Indebtedness or a trustee on its or their behalf (with
or without the giving of notice, the lapse of time or both) to cause,
such Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of the Borrower or any of
its subsidiaries, or of a substantial part of the property or assets of
the Borrower or any of its subsidiaries, under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other
Federal or state bankruptcy, insolvency, receivership or similar law,
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any of its
subsidiaries or for a substantial part of the property or assets of the
Borrower or any of its subsidiaries or (iii) the winding-up or
liquidation of the Borrower or any of its subsidiaries and such
proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be
entered;
(h) the Borrower or any of its subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking relief
under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal or state bankruptcy,
insolvency, receivership or similar law, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner,
any proceeding or the filing of any petition described in paragraph (g)
above, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for
the Borrower or any of its
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subsidiaries or for a substantial part of the property or assets of the
Borrower or any of its subsidiaries, (iv) file an answer admitting the
material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors,
(vi) become unable, admit in writing its inability or fail generally to
pay its debts as they become due or (vii) take any action for the
purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an
aggregate amount in excess of $5,000,000 (to the extent not covered by
insurance) shall be rendered against the Borrower, TAFSI or any
Guarantor or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to levy upon assets or properties of the
Borrower, TAFSI or any Guarantor to enforce any such judgment;
(j) a Reportable Event or Reportable Events, or a failure to
make a required installment or other payment (within the meaning of
Section 412(n)(1) of the Code), shall have occurred with respect to any
Plan or Plans that reasonably could be expected to result in liability
of the Borrower, TAFSI, any Guarantor or any ERISA Affiliate to the
PBGC or to a Plan in an aggregate amount that could reasonably be
expected to have a Material Adverse Effect and, within 30 days after
the reporting of any such Reportable Event to the Administrative Agent
or after the receipt by the Administrative Agent of the statement
required pursuant to Section 6.06(b)(iii), the Administrative Agent
shall have notified the Borrower in writing that (i) the Required
Lenders have reasonably determined that, on the basis of such
Reportable Event or Reportable Events or the failure to make a required
payment, there are reasonable grounds (A) for the termination of such
Plan or Plans by the PBGC, (B) for the appointment by the appropriate
United States District Court of a trustee to administer such Plan or
Plans or (C) for the imposition of a lien in favor of a Plan and (ii)
as a result thereof the liability is reasonably expected to have a
Material Adverse Effect;
(k) (i) the Borrower, any Guarantor, TAFSI or any ERISA
Affiliate shall have been notified by the sponsor of a Multiemployer
Plan that it has incurred Withdrawal Liability to such Multiemployer
Plan, (ii) the Borrower, such Guarantor, TAFSI or such ERISA Affiliate
does not have reasonable grounds for contesting such Withdrawal
Liability or is not in fact contesting such Withdrawal Liability in a
timely and appropriate manner and (iii) the amount of the Withdrawal
Liability specified in such notice, when aggregated with all other
amounts required to be paid to Multiemployer Plans in connection with
Withdrawal Liabilities (determined as of the date or dates of such
notification), either (A) is in an amount that would reasonably be
expected to have a Material Adverse Effect and the Required Lenders
have reasonably determined that the Borrower, such Guarantor, TAFSI or
such ERISA Affiliate will not be able to make the payments required in
connection with such Withdrawal Liability or (B) any payment due as a
result of such liability remains unpaid 30 days after such payment is
due;
(l) the Borrower, any Guarantor, TAFSI or any ERISA Affiliate
shall have been notified by the sponsor of a Multiemployer Plan that
such Multiemployer
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Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, if solely as a result of such reorganization or
termination the aggregate annual contributions of the Borrower, each
Guarantor, TAFSI and each ERISA Affiliate to all Multiemployer Plans
that are then in reorganization or have been or are being terminated
have been or will be increased over the amounts required to be
contributed to such Multiemployer Plans for their most recently
completed plan years by an amount exceeding $5,000,000 and the Required
Lenders have reasonably determined that the Borrower, such Guarantor,
Holdings, TAFSI or such ERISA Affiliate will not be able to make the
payments required in connection with such contribution;
(m) there shall have occurred a Change in Control;
(n) any material security interest purported to be created by
any Security Document shall cease to be, or shall be asserted by the
Borrower, any Guarantor or TAFSI not to be, a valid, perfected, first
priority (except as otherwise expressly provided in this Agreement or
such Security Document) security interest in the securities, assets or
properties covered thereby, except to the extent that any such loss of
perfection or priority results from the failure of the Collateral Agent
to maintain possession of certificates representing securities pledged
under the Pledge Agreement (except to the extent that such loss is
covered by a lender's title insurance policy and the related insurer
promptly after such loss shall have acknowledged in writing that such
loss is covered by such title insurance policy);
(o) any Loan Document shall not be for any reason or shall be
asserted by the Borrower, any Guarantor or TAFSI not to be in full
force and effect and enforceable in all material respects in accordance
with its terms; or
(p) the Obligations and the Guarantees thereof pursuant to the
Guarantee Agreement shall cease to constitute, or shall be asserted by
the Borrower or any Guarantor not to constitute, senior indebtedness
under the subordination provisions of the Subordinated Note Documents
or the 10 1/4% Subordinated Note Documents (or the provisions of the
Subordinated Note Refinancing Indebtedness) or such subordination
provisions shall be invalidated or otherwise cease to be a legal, valid
and binding obligation of the parties thereto, enforceable in
accordance with its terms;
then, and in every such event (other than an event with respect to the Borrower
or any of its subsidiaries described in paragraph (g) or (h) above), and at any
time thereafter during the continuance of such event, the Administrative Agent
may and, at the request of the Required Lenders, shall by notice to the
Borrower, take any of or all the following actions, at the same or different
times: (i) terminate forthwith the Commitments and the LC Commitment, (ii)
declare the Loans and the Swingline Loans then outstanding to be forthwith due
and payable in whole or in part, whereupon the principal of the Loans and the
Swingline Loans so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall become
forthwith due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by the Borrower,
anything contained herein or in any
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other Loan Document to the contrary notwithstanding, (iii) require cash
collateral as contemplated by Section 3.06 and (iv) exercise any remedies
available under any Loan Document or otherwise; and in any event with respect to
the Borrower or any of its subsidiaries described in paragraph (g) or (h) above,
the Commitments and the LC Commitment shall automatically terminate and the
principal of the Loans and the Swingline Loans then outstanding, together with
accrued interest thereon and any unpaid accrued Fees and all other liabilities
of the Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
ARTICLE IX
The Administrative Agent
In order to expedite the transactions contemplated by this
Agreement, The Chase Manhattan Bank is hereby appointed to act as Administrative
Agent (which term for purposes of this Article shall be deemed to refer to the
Administrative Agent and the Collateral Agent) on behalf of the Fronting Bank,
the Swingline Lenders and the Lenders. Each of the Lenders, and each subsequent
holder of any Loan by its acceptance thereof, the Fronting Bank and the
Swingline Lenders hereby irrevocably authorize the Administrative Agent to take
such actions on their behalf and to exercise such powers as are specifically
delegated to the Administrative Agent by the terms and provisions hereof and of
the other Loan Documents, together with such actions and powers as are
reasonably incidental thereto. The Administrative Agent is hereby expressly
authorized by the Lenders, the Fronting Bank and the Swingline Lenders, without
hereby limiting any implied authority, (a) to receive on behalf of the Lenders,
the Fronting Bank and the Swingline Lenders all payments of principal of and
interest on the Loans, the Swingline Loans and LC Disbursements and all other
amounts due to the Lenders, the Fronting Bank and the Swingline Lenders
hereunder, and promptly to distribute to each Lender, the Fronting Bank and each
Swingline Lender its proper share of each payment so received; (b) to give
notice on behalf of each of the Lenders to the Borrower of any Event of Default
specified in this Agreement of which the Administrative Agent has actual
knowledge acquired in connection with its agency hereunder; and (c) to promptly
distribute to each Lender and the Fronting Bank copies of all notices, financial
statements and other materials delivered by the Borrower and the Guarantors
pursuant to this Agreement as received by the Administrative Agent (including
notices of an occurrence of any Event of Default).
Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall be liable as such for any action taken or
omitted by any of them except for its, his or her own gross negligence or wilful
misconduct, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or
observance by the Borrower, TAFSI or any
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Guarantor of any of the terms, conditions, covenants or agreements contained in
any Loan Document. The Administrative Agent shall not be responsible to the
Lenders or the Fronting Bank or the Swingline Lenders for the due execution,
genuineness, validity, enforceability or effectiveness of this Agreement or any
other Loan Documents or other instruments or agreements. The Administrative
Agent shall in all cases be fully protected in acting, or refraining from
acting, in accordance with written instructions signed by the Required Lenders
and, except as otherwise specifically provided herein, such instructions and any
action or inaction pursuant thereto shall be binding on all the Lenders and the
Fronting Bank. The Administrative Agent shall, in the absence of knowledge to
the contrary, be entitled to rely on any instrument or document believed by it
in good faith to be genuine and correct and to have been signed or sent by the
proper Person or Persons. Neither the Administrative Agent nor any of its
directors, officers, employees or agents shall have any responsibility to the
Borrower, any Guarantor or TAFSI on account of the failure of or delay in
performance or breach by any Lender, the Fronting Bank or any Swingline Lender
of any of its obligations hereunder or to any Lender or to the Fronting Bank or
to any Swingline Lender on account of the failure of or delay in performance or
breach by any other Lender or the Fronting Bank or the Borrower, TAFSI or any
Guarantor of any of their respective obligations hereunder or under any other
Loan Document or in connection herewith or therewith. The Administrative Agent
may execute any and all duties hereunder by or through agents or employees and
shall be entitled to rely upon the advice of legal counsel selected by it with
respect to all matters arising hereunder and shall not be liable for any action
taken or suffered in food faith by it in accordance with the advice of such
counsel.
The Lenders, the Fronting Bank and the Swingline Lenders
hereby acknowledge that the Administrative Agent shall be under no duty to take
any discretionary action permitted to be taken by it pursuant to the provisions
of this Agreement unless it shall be requested in writing to do so by the
Required Lenders.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign at
any time by notifying the Lenders, the Fronting Bank, the Swingline Lenders and
the Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor. If no successor shall have been so appointed by
the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders and the Fronting
Bank, appoint a successor Administrative Agent, which shall be a bank with an
office in New York, New York, having a combined capital and surplus of at least
$500,000,000 or an Affiliate of any such bank. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Sections 6.12(d) and 10.05 shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as Administrative Agent.
With respect to the Loans made by it hereunder the
Administrative Agent, in its individual capacity and not as Administrative
Agent, shall have the same rights and powers as any other Lender and may
exercise the same as though it were not the
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Administrative Agent, and the Administrative Agent and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Borrower, any Guarantor, TAFSI or any Affiliate thereof as if the
Administrative Agent were not the Administrative Agent.
Each Lender, the Fronting Bank, and each Swingline Lender
agree (a) to reimburse the Administrative Agent, on demand, in the amount of its
pro rata share (based on its unused Commitments at such time, the Loans and
Swingline Loans owing to it at such time and its share of the LC Exposure at
such time) of any expenses incurred for the benefit of the Lenders, the Fronting
Bank and the Swingline Lenders by the Administrative Agent, including counsel
fees and compensation of agents and employees paid for services rendered on
behalf of the Lenders, the Fronting Bank and the Swingline Lenders, that shall
not have been reimbursed by the Borrower and (b) to indemnify and hold harmless
the Administrative Agent and any of its directors, officers, employees or
agents, on demand, in the amount of such pro rata share, from and against any
and all liabilities, taxes, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by or asserted against it in its
capacity as the Administrative Agent or any of them in any way relating to or
arising out of this Agreement or any other Loan Document or any action taken or
omitted by it or any of them under this Agreement or any other Loan Document, to
the extent the same shall not have been reimbursed by the Borrower, provided
that no Lender shall be liable to the Administrative Agent for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross negligence or
wilful misconduct of the Administrative Agent or any of its directors, officers,
employees or agents.
Each Lender, the Fronting Bank and each Swingline Lender
acknowledge that they have, independently and without reliance upon the
Administrative Agent, any other Lender, the Fronting Bank or any Swingline
Lender and based on such documents and information as they have deemed
appropriate, made their own credit analysis and decision to enter into this
Agreement. Each Lender, the Fronting Bank and each Swingline Lender also
acknowledge that they will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as they shall from time to time deem appropriate, continue to make
their own decisions in taking or not taking action under or based upon this
Agreement or any other Loan Document, any related agreement or any document
furnished hereunder or thereunder.
The Lender identified on the facing page of, or elsewhere in,
this Agreement or in any other Loan Document as "Documentation Agent", shall not
have any right, power, obligation, liability, responsibility or duty under this
Agreement or the other Loan Documents other than those applicable to all of the
Lenders as such. Without limiting the foregoing, the Lender so identified shall
not have or be deemed to have, any fiduciary relationship with any Lender.
The provisions in this Article X shall apply, mutatis
mutandis, to the Syndication Agent hereunder.
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ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed or sent by telecopy, telex, graphic scanning
or other telegraphic communications equipment of the sending party, as follows:
(a) If to the Borrower, TAFSI or any Guarantor, at ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of
▇▇▇▇▇ ▇. ▇▇▇▇, President and CEO (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); with a
copy to Oak Hill Capital Management, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of Rowan ▇.▇. ▇▇▇▇▇▇ (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇); with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇, Esq.
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇).
(b) If to the Administrative Agent, the Collateral Agent or
the Fronting Bank, to The Chase Manhattan Bank, Loan and Agency
Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇),
with a copy to The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(c) If to the Syndication Agent, to Credit Suisse First Boston
at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention
of ▇▇▇▇ ▇'▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(d) If to a Lender, at its address (or telecopy number) set
forth on Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto
in accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by telecopy or other telegraphic communications equipment of the sender,
or on the date five Business Days after dispatch by certified or registered mail
if mailed, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 10.01 or in accordance with the latest
unrevoked direction from such party given in accordance with this Section 10.01.
The Administrative Agent shall deliver a copy of each Administrative
Questionnaire received by it to the Borrower.
SECTION 10.02. Survival of Agreement. All covenants,
agreements, representations and warranties made by the Borrower, each Guarantor
and TAFSI herein and/or in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the Lenders, the
Fronting Bank and the Swingline Lenders and shall survive the making by the
Lenders of the Loans, the making by the Swingline Lenders of the Swingline Loans
and the issuance of Letters of Credit by the Fronting Bank regardless of any
investigation made by the Lenders, the Fronting Bank and the
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Swingline Lenders or on their behalf, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or
Swingline Loan or any Fee or any other amount payable under this Agreement or
any other Loan Document is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments and the LC Commitment have not been
terminated.
SECTION 10.03. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower, the Agents, the
Fronting Bank and the Swingline Lenders and when the Administrative Agent shall
have received copies hereof that, when taken together, bear the signatures of
each Lender, and thereafter shall be binding upon and inure to the benefit of
the Borrower, each Agent, the Fronting Bank, each Swingline Lender and each
Lender and their respective successors and assigns, except that the Borrower
shall not have the right to assign its rights hereunder or any interest herein
without the prior consent of all the Lenders.
SECTION 10.04. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby (including
any Affiliate of the Fronting Bank that issues any Letter of Credit), except
that the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby (including any Affiliate of
the Fronting Bank that issues any Letter of Credit) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Agents, the Fronting
Bank, the Swingline Lenders and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment to a Lender, a Lender Affiliate of any
Lender or any Federal Reserve Bank, each of the Borrower and the Administrative
Agent (and, in the case of an assignment of all or a portion of a Commitment or
any Lender's obligations in respect of any LC Exposure or outstanding Swingline
Loans, the Fronting Bank and the Swingline Lenders) must give their prior
written consent to such assignment (which consent shall not be unreasonably
withheld), (ii) except in the case of an assignment to a Lender, a Lender
Affiliate of any Lender or an assignment of the entire remaining amount of the
assigning Lender's Commitment, the amount of the Commitment of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $1,000,000, in the case of
assignments of Term Loans and Term Loan Commitments, and $5,000,000 otherwise,
unless each of the Borrower and the Administrative Agent otherwise consent,
(iii) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, and (iv) the assignee, if it shall
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not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; and provided further that any consent of the Borrower otherwise
required under this paragraph shall not be required if an Event of Default under
clause (g) or (h) of Article VIII has occurred and is continuing. Subject to
acceptance and recording thereof pursuant to paragraph (d) of this Section, from
and after the effective date specified in each Assignment and Acceptance the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 6.12(d) and
10.05 and, with respect only to liabilities of the Borrower thereunder to such
Lender that have accrued or otherwise arise by reason of circumstances or events
prior to the assignment of its rights and obligations hereunder, Sections 2.14,
2.16 and 2.20, as well as to any Fees accrued for its account and not yet paid).
Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this paragraph shall be treated for purposes
of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (f) of this Section.
Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Bank") may grant to a special purpose funding vehicle (an
"SPC"), identified as such in writing from time to time by the Granting Bank to
the Administrative Agent and the Borrower, the option to provide to the Borrower
all or any part of any Loan that such Granting Bank would otherwise be obligated
to make to the Borrower pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan, (ii) if an SPC
elects not to exercise such option or otherwise fails to provide all or any part
of such Loan, the Granting Bank shall be obligated to make such Loan pursuant to
the terms hereof. The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Bank to the same extent, and as if, such Loan were
made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement (all
liability for which shall remain with the Granting Bank). In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereof. In addition, notwithstanding anything to the
contrary contained in this Section, any SPC may (i) with notice to, but without
the prior written consent of, the Borrower and the Administrative Agent and
without paying any processing fee therefor, assign all or a portion of its
interests in any Loans to the Granting Bank or to any financial institutions
(consented to by the Borrower and Administrative Agent) providing liquidity
and/or credit support to or for the account of such SPC to support the funding
or maintenance of Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider of any surety, guarantee or credit or liquidity enhancement to such
SPC. This paragraph may not be amended without the written
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consent of the SPC.
(c) By executing and delivering an Assignment and Acceptance,
the assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Commitments and LC Commitment, and the outstanding balances of its Term
Loans and Revolving Loans, in each case without giving effect to assignments
thereof that have not become effective, are as set forth in such Assignment and
Acceptance; (ii) except as set forth in clause (i) above, such assigning Lender
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Agreement, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, any other Loan Document or
any other instrument or document furnished pursuant hereto, or the financial
condition of the Borrower, any Guarantor or TAFSI or the performance or
observance by the Borrower, any Guarantor or TAFSI of any of its obligations
under this Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto; (iii) such assignee represents and warrants
that it is legally authorized to enter into such Assignment and Acceptance; (iv)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the most recent financial statements delivered pursuant to
Section 6.04 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Administrative Agent, such assigning Lender or any other
Lender 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 this Agreement; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers as are reasonable incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all the obligations that by the terms of this Agreement are required
to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Agents, the Fronting
Bank and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Fronting Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice. No
assignment pursuant to this Section 10.04 shall be effective unless and until it
has been recorded in the Register as provided in this paragraph.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, an Administrative
Questionnaire
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completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and the written consent of the Administrative Agent to such
assignment, the Administrative Agent shall (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Lenders, the Fronting Bank and the
Swingline Lender.
(f) Each Lender may without the consent of the Borrower, any
Agent, the Fronting Bank or any Swingline Lender, sell participations to one or
more banks or other entities in all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitments and the
Loans owing to it); provided, however, that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participating banks or other entities shall be entitled to the benefit
of the cost protection provisions contained in Sections 2.14, 2.16 and 2.20 to
the same extent as if they were Lenders, provided that the Borrower shall not be
required to reimburse the participating lenders or other entities pursuant to
Section 2.14, 2.16 or 2.20 in an amount that exceeds the amount that would have
been payable thereunder to such Lender had such Lender not sold such
participation and (iv) the Borrower, the Agents, the Fronting Bank, the
Swingline Lenders and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right to
enforce the obligations of the Borrower relating to the Loans or LC
Disbursements and to approve any amendment, modification or waiver of any
provision of this Agreement (provided that the participating bank or other
entity may be provided with the right to approve amendments, modifications or
waivers affecting it with respect to (A) any decrease in the Fees payable
hereunder with respect to Loans or Commitments in which the participating bank
or other entity has purchased a participation, (B) any change in the amount of
principal of, or decrease in the rate at which interest is payable, on the Loans
in which the participating bank or other entity has purchased a participation,
(C) any extension of the dates fixed for scheduled payments of principal of or
interest or for final maturity on the Loans in which the participating bank or
other entity has purchased a participation, (D) any increase in the Commitments
in which the participating bank or other entity has purchased a participation or
(E) any release of all or substantially all the Collateral or Guarantees of the
Obligations).
(g) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 10.04, disclose to the assignee or participant or proposed assignee
or participant any information relating to the Borrower, each Guarantor and
TAFSI furnished to such Lender by or on behalf of the Borrower, any Guarantor or
TAFSI, provided that, prior to any such disclosure of information designated by
the Borrower, any Guarantor or TAFSI as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 10.16.
(h) In the event that Standard & Poor's, ▇▇▇▇▇'▇, and
▇▇▇▇▇▇▇▇'▇ BankWatch shall, after the date that any Lender becomes a Revolving
Lender,
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downgrade the long-term certificate of deposit ratings of such Lender, and the
resulting ratings shall be BBB+ or lower, Baa1 or lower and BBB+ or lower, then
the Fronting Bank shall have the right, but not the obligation, at its own
expense, upon notice to such Lender and the Administrative Agent, to replace (or
to request the Borrower to use its reasonable efforts to replace) such Lender
with an assignee (in accordance with and subject to the restrictions contained
in paragraph (b) above), and such Lender hereby agrees to transfer and assign
without representation, warranty or recourse (in accordance with and subject to
the restrictions contained in paragraph (b) above) all its interests, rights and
obligations in respect of its Revolving Credit Commitment to such assignee;
provided, however, that (i) no such assignment shall conflict with any law, rule
and regulation or order of any Governmental Authority and (ii) the Fronting Bank
or such assignee, as the case may be, shall pay to such Lender in immediately
available funds on the date of such assignment the principal of and interest
accrued to the date of payment on the Loans made by such Lender hereunder and
all other amounts accrued for such Lender's account or owed to it hereunder.
(i) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(j) The Borrower shall not assign or delegate any of its
rights or duties hereunder without the prior written consent of each Agent, the
Fronting Bank, the Swingline Lender and each Lender. Except as provided in
Section 3.09 and Section 2.21, respectively, neither the Fronting Bank nor the
Swingline Lender may assign or delegate any of its respective rights and duties
hereunder without the prior written consent of the Borrower and Administrative
Agent.
SECTION 10.05. Expenses; Indemnity. (a) The Borrower agrees to
pay all out- of-pocket expenses incurred by any Agent, the Fronting Bank, the
Swingline Lenders and the Collateral Agent in connection with the preparation of
this Agreement and the other Loan Documents or in connection with any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions hereby contemplated shall be consummated) or
incurred by any Agent, the Fronting Bank, the Swingline Lenders, the Collateral
Agent or any Lender in connection with the enforcement or protection of their
rights in connection with this Agreement and the other Loan Documents or in
connection with the Loans made or the Letters of Credit issued hereunder,
including the reasonable fees, other charges and disbursements of Cravath,
Swaine & ▇▇▇▇▇, counsel for the Agents, the Collateral Agent, and the Fronting
Bank and of local counsel, and, in connection with any such enforcement or
protection, the reasonable fees, other charges and disbursements of any other
one firm outside counsel for the Lenders (taken as a group) in each jurisdiction
in which the Lenders elect to engage counsel. The Borrower further agrees that
it shall indemnify the Agents, the Fronting Bank, the Swingline Lenders, the
Collateral Agent and the Lenders from and hold them harmless against any
documentary taxes, assessments or charges made by any Governmental Authority by
reason of the execution and delivery and/or recordation of this Agreement or any
of the other Loan Documents.
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(b) The Borrower agrees to indemnify each Agent, the Fronting
Bank, the Swingline Lenders, the Collateral Agent and each Lender and each of
their Related Parties (each such Person being called an "Indemnitee") against,
and to hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees, charges and
disbursements, incurred by or asserted against any Indemnitee arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereby or thereto of their
respective obligations hereunder or thereunder or the consummation of the
Transactions, (ii) the use of the Letters of Credit or the proceeds of the Loans
and the Swingline Loans or (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any Indemnitee is a
party thereto, provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claim, damages, liabilities or related
expenses result from actions or events taking place after any of such
Indemnitees takes possession of the Mortgaged Property at issue by foreclosure
or transfer in lieu of foreclosure or are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 10.05 shall remain
operative and in full force and effect regardless of the expiration of the term
of this Agreement, the consummation of the transaction, contemplated hereby, the
repayment of any of the Loans or the Swingline Loans, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of any Agent, the Fronting
Bank, the Collateral Agent, the Swingline Lenders or any Lender. All amounts due
under this Section 10.05 shall be payable on written demand therefor.
(d) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any other Loan Document, the Transactions, any
Loan, Swingline Loan or Letter of Credit or the use of the proceeds thereof.
SECTION 10.06. Right of Setoff. If an Event of Default shall
have occurred and be continuing, and the Administrative Agent shall have
declared, or the Required Lenders shall have requested the Administrative Agent
to declare, the Loans and the Swingline Loans immediately due and payable
pursuant to Article VIII, each Lender is hereby authorized at any time and from
time to time, to the fullest extent permitted by applicable law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
to or for the credit or the account of the Borrower or any Guarantor against any
of and all the obligations of such entity now, or hereafter existing under this
Agreement and other Loan Documents held by such Lender, irrespective of whether
such Lender shall have made any demand under this Agreement or such other Loan
Document and although such obligations may be unmatured. The rights of each
Lender under this Section 10.06 are in addition to other rights and remedies
(including other rights of setoff) that such Lender may have.
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SECTION 10.07. APPLICABLE LAW. THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS (OTHER THAN THE MORTGAGES) SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 10.08. Waivers; Amendment. (a) No failure or delay on
the part of any Agent, the Fronting Bank, the Swingline Lender, the Collateral
Agent or any Lender in exercising any power or right hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Agents, the Fronting Bank,
the Swingline Lender, the Collateral Agent and the Lenders hereunder and under
the other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this
Agreement or any other Loan Document or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice or demand
on the Borrower in any case shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances.
(b) Neither this Agreement, the Guarantee Agreement or any of
the Security Documents nor any provision hereof or thereof may be waived,
amended or modified except, in the case of this Agreement, pursuant to an
agreement or agreements in writing entered into by the Borrower and the Required
Lenders, or, in the case of the Guarantee Agreement, or any of the Security
Documents, pursuant to an agreement or agreements in writing entered into by the
Borrower, the Collateral Agent (and any of the Guarantors and TAFSI, if they are
parties thereto) and consented to by the Required Lenders; provided, however,
that no such agreement shall (i) reduce the principal amount of, or extend the
scheduled date of payment of, any principal of or interest on, any Loan, or
forgive any such payment or any part thereof, or reduce the rate of interest on
any Loan, without the prior written consent of each Lender adversely affected
thereby, (ii) increase the Commitment or reduce or extend the date for payment
of the fees payable to any Lender without the prior written consent of such
Lender, (iii) amend or modify the provisions of Section 2.17, the provisions of
this Section or the definition of the term "Required Lenders" without the prior
written consent of each Lender, (iv) release all or substantially all of the
Collateral under the Security Documents or release any Guarantor from its
Guarantee under the Guarantee Agreement other than as expressly permitted
hereunder or under such Security Documents or such Guarantee Agreement without
the prior written consent of each Lender, (v) change any provisions of any Loan
Document in a manner that by its terms adversely affects the rights in respect
of payments due to Lenders holding Loans of any Class differently than those
holding Loans of any other Class, without the written consent of Lenders holding
a majority in interest of the outstanding Loans and unused Commitments of each
affected Class, (vi) release any Collateral from the Liens of the Security
Documents, without the prior written consent of Lenders holding Loans, a share
of the used LC Commitment and unused Commitments representing at least 662/3% of
the aggregate of (A) the aggregate principal amount of the Loans and Swingline
Loans at such time, (B) the LC Exposure at such time and (C) the aggregate
unused Commitments at such time
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(except as expressly provided in such Security Documents or the Credit
Agreement) and (vii) amend, modify or waive any condition precedent set forth in
Section 5.01 with respect to the making of Revolving Loans, without the prior
written consent of Revolving Lenders holding a majority in interest of the
Revolving Credit Commitments, and provided further that (A) no such agreement
shall amend, modify, or otherwise affect the rights or duties of any Agent, the
Fronting Bank, or either Swingline Lender hereunder without the prior written
consent of such Agent, the Fronting Bank or such Swingline Lender, as the case
may be, and (B) this Section shall not be construed to require the consent of
any Lender to the release of Liens on Excepted Properties as provided in Section
10.17. In furtherance of clause (vii) of this Section 10.08(b), (x) any
amendment or modification to or waiver of Sections 7.13, 7.14 or 7.15 of this
Agreement, or (y) any amendment or modification to or waiver of any provision of
this Agreement or any other Loan Document at a time when any Default or Event of
Default has occurred and is continuing, and that would have the effect of
eliminating any such Default or Event of Default, shall not be deemed to be
effective for purposes of determining whether the conditions precedent set forth
in Section 5.01 to the making of any Revolving Loan have been satisfied unless
the Revolving Lenders holding a majority in interest of the Revolving Credit
Commitments shall have consented to such amendment, modification or waiver ,
provided that the foregoing shall not be construed to affect any amendment or
modification to any provision of this Agreement or any other Loan Document
(other than any amendment or modification to Sections 7.13, 7.14 or 7.15 of this
Agreement) if no Default or Event of Default has occurred and is continuing at
the time of such amendment or modification.
SECTION 10.09. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the applicable interest rate,
together with all fees and charges that are treated as interest under applicable
law (collectively, the "Charges"), as provided for herein or in any other
document executed in connection herewith, or otherwise contracted for, charged,
received, taken or reserved by any Lender or the Swingline Lender, shall exceed
the maximum lawful rate (the "Maximum Rate") that may be contracted for,
charged, taken, received or reserved by such Lender or the Swingline Lender in
accordance with applicable laws, the rate of interest payable to such Lender or
the Swingline Lender, together with all Charges payable to such Lender or the
Swingline Lender, shall be limited to the Maximum Rate.
SECTION 10.10. Entire Agreement. This Agreement and the other
Loan Documents and the fee letters referred to in Section 2.05(c) constitute the
entire contract between the parties relative to the subject matter hereof. Any
previous agreement among the parties with respect to the subject matter hereof
is superseded by this Agreement and the other Loan Documents. Nothing in this
Agreement or in the other Loan Documents, expressed or implied, is intended to
confer upon any party other than the parties hereto and thereto any rights,
remedies, obligations or liabilities under or by reason of this Agreement or the
other Loan Documents.
SECTION 10.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO
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REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 10.11.
SECTION 10.12. Severability. In the event any one or more of
the provisions contained in this Agreement or in any other Loan Document should
be held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions, the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 10.13. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract, and shall become
effective as provided in Section 10.03.
SECTION 10.14. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.
SECTION 10.15. Jurisdiction; Consent to Service of Process.
(a) The Borrower hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against the Borrower or its properties in
the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this agreement or the other
Loan Documents in any New York State or Federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
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(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 10.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 10.16. Confidentiality. Each of the Agents, the
Fronting Bank, the Swingline Lenders and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to any of its Related Parties, including accountants, legal
counsel and other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority and upon giving the Borrower prior
notice thereto to the extent reasonably practicable and not prohibited by
applicable laws or regulations or by any judicial or administrative order, (c)
to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to the Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any actual or prospective assignee of or
participant in any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (g) or to any direct
or indirect contractual counterparty in swap agreements or such contractual
counterparty's professional advisor (so long as such contractual counterparty or
professional advisor to such contractual counterparty agrees to be bound by the
provisions of this Section 10.16), (h) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating
agency that requires access to information about such Lender's investment
portfolio in connection with ratings issued with respect to such Lender, (i)
with the consent of the Borrower or (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to any Agent, the Fronting Bank, any Swingline Lender or
any Lender on a nonconfidential basis from a source other than the Borrower. For
the purposes of this Section, the term "Information" shall mean all financial
statements, certificates, reports, agreements and information (including all
analyses, compilations and studies prepared by any Agent, the Fronting Bank, the
Swingline Lender or any Lender based on any of the foregoing) that are received
from the Borrower and relate to the Borrower, any Guarantor or TAFSI, any
shareholder of the Borrower or any employee, customer or supplier of the
Borrower, any Guarantor or TAFSI, other than any of the foregoing that were
available to any Agent, the Fronting Bank, the Swingline Lender or any Lender on
a nonconfidential basis prior to its disclosure thereto by the Borrower, and
which are, in the case of Information provided after the date hereof, clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information. The
provisions of this Section 10.16 shall remain operative and in full force and
effect regardless of the expiration and term of this Agreement. Notwithstanding
the foregoing, the parties hereto agree that the filing of any of the Loan
Documents (to the extent necessary in the reasonable judgment of the Collateral
Agent after consulting with the Borrower) to properly assure the validity or
120
115
priority of the Collateral Agent's Lien under any Security Document or to the
extent required by local counsel in order to render an opinion in form and
substance reasonably satisfactory to the Collateral Agent in connection with
such Lien will not result in a violation of the foregoing confidentiality
provisions.
SECTION 10.17. Release of Excepted Properties. The Collateral
Agent may, without the consent of any Lender, release the Lien of any Mortgage
or the Security Agreement upon any Excepted Property; provided that the
Collateral Agent shall have received a certificate from the Borrower, in form
and substance reasonably satisfactory to the Collateral Agent, to the effect
that (a) the assets with respect to which the applicable Lien is to be released
constitute an Excepted Property as provided herein and (b) no Default or Event
of Default has occurred and is continuing.
121
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
TRAVELCENTERS OF AMERICA, INC.,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Chief
Financial Officer and Secretary
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
by /s/ D. ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: D. ▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
CREDIT SUISSE FIRST BOSTON,
individually and as Syndication Agent,
by /s/ ▇▇▇▇ ▇'▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇'▇▇▇▇
Title: Vice President
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FIRSTAR BANK, N.A., individually and as
Documentation Agent,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
MANUFACTURERS AND TRADERS TRUST COMPANY,
by /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
NATIONAL CITY BANK,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
THE HUNTINGTON NATIONAL BANK,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
NATEXIS BANQUE POPULAIRES,
by /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
by /s/ ▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Associate
FIRSTRUST BANK,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Manager
FRANKLIN FLOATING RATE TRUST,
by /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ PRIME INCOME
TRUST,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
THE TRAVELERS INSURANCE COMPANY,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Investment Officer
PINEHURST TRADING, INC.,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
KZH CRESCENT-3 LLC,
by /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Authorized Agent
KZH RIVERSIDE LLC,
by /s/ ▇▇▇▇▇ ▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Agent
OLYMPIC FUNDING TRUST, SERIES 1999-1,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Agent
BOEING CAPITAL CORPORATION,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Documentation Officer
KZH CRESCENT LLC,
by /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Authorized Agent
TRAVELERS CORPORATE LOAN FUND,
BY: Travelers Asset Management International
Company, LLC,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Investment Officer
KZH STERLING LLC,
by /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Authorized Agent
NUVEEN FLOATING RATE FUND,
BY: Nuveen Senior Loan Asset Management
Inc.,
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
KZH CYPRESSTREE-1 LLC,
by /s/ ▇▇▇▇▇ ▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Agent
PILGRIM PRIME RATE TRUST,
By: ING Pilgrim Investments, Inc.
as its investment manager,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
PPM SPYGLASS FUNDING TRUST,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Agent
KZH ING-3 LLC,
by /s/ ▇▇▇▇▇ ▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Agent