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THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT 10.2
AGREEMENT FOR LEASE
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Agreement for Lease dated as of September 9, 1999 (as the same may be
amended, restated, modified or supplemented from time to time, this
"AGREEMENT"), among TCA Network Funding, Limited Partnership, a Delaware
limited partnership ("OWNER") and TA Operating Corporation, a Delaware
corporation and National Auto/Truckstops, Inc., a Delaware corporation, as
agents.
WHEREAS, Owner may from time to time acquire either (i) a fee interest
or (ii) a leasehold interest pursuant to a Ground Lease (hereinafter defined)
in certain Unit Premises (hereinafter defined); and
WHEREAS, on or about the date of this Agreement, Owner and Agent
(hereinafter defined) propose to enter into a Lease (hereinafter defined),
providing for the lease or sublease by Agent of each Unit Premises and the Unit
Improvements and Unit FF&E (each hereinafter defined) which will be constructed
and furnished on each Unit Premises pursuant to the terms of this Agreement;
and
WHEREAS, Owner desires to appoint Agent to act as agent for Owner in
connection with the selection of Owner's fee and/or leasehold interests in Unit
Premises from time to time, and with the construction of Unit Improvements and
the installation of Unit FF&E (hereinafter defined) thereon, if any, and in
connection with all matters related to such construction, and Agent wishes to
accept such appointment.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Owner and Agent hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. For the purposes of this Agreement each of the
following terms shall have the meaning specified with respect thereto:
ACCRUED DEFAULT OBLIGATIONS: Defined in subsection 11.2 hereof.
ACQUISITION CERTIFICATE: The written certification of Agent to be
delivered to Owner in connection with the request for an Initial Advance
hereunder, which contains the information and representations of Agent as
required by Section 4 of this Agreement, and which is substantially in the form
of Exhibit C hereto.
AFFILIATE: Defined pursuant to subsection 1.2 hereof.
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THIS AGREEMENT FOR LEASE IS
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AFL UNIT LEASING RECORD: An instrument, substantially in the form of
Exhibit B hereto, evidencing the sublease of a Unit under the Lease, which Unit
is subject to a Ground Lease, or an instrument evidencing the lease of a Unit
under the Lease.
AGENT: Each of TA Operating Corporation and National Auto/Truckstops,
Inc., in its joint and several capacity. Each of TA Operating Corporation and
National Auto/Truckstops, Inc. are hereinafter sometimes referred to as "Agent"
and as "Agents". TA Operating Corporation will act as agent for each Unit
Premises described on Exhibit K hereto and National Auto/Truckstops, Inc. will
act as agent for each Unit Premises described on Exhibit L hereto; PROVIDED,
HOWEVER, that TA Operating Corporation and National Auto/Truckstops, Inc. will
be jointly and severally liable to Owner for any and all obligations of Agent
or Agents under this Agreement.
AGREEMENT: This Agreement for Lease, as the same may be amended,
restated, modified or supplemented from time to time.
APPLICABLE USURY LAW: Defined in Section 19 hereof.
ASSIGNEE: Each Person to which any part of Owner's interest under this
Agreement or in any Unit Premises, Unit Improvements, Unit FF&E or Unit shall
at the time have been assigned, conditionally or otherwise, by Owner in
accordance with Section 17 of this Agreement. For purposes of subsection 8.4,
subsection 8.5, subsection 8.7, subsection 8.10, subsection 9.3(d), subsection
11.3(i), paragraph (b) of Section 12, clause (iii) of paragraph (a) of Section
16, the last sentence of paragraph (b) of Section 17 and subsection 18.4
hereof, the term "Assignee" shall include each lender to Owner that is a
signatory to a Credit Agreement.
AVAILABLE COMMITMENT: At the time of determination, an amount equal to
the excess of (a) the sum of (i) the aggregate commitment to lend under a
Credit Agreement or Credit Agreements and (ii) Owner's existing equity capital
and additional equity capital contributions which are then available to Owner
over (b) the sum, without duplication, of (i) the aggregate amount of all
advances theretofore made pursuant to Section 3 hereof with respect to Units
subject to this Agreement at such time, (ii) Financing Costs theretofore
incurred by Owner and not reimbursed by Agent with respect to Units subject to
this Agreement at such time and (iii) the aggregate Acquisition Cost (as
defined in the Lease) of all Property and Equipment (as said terms are defined
in the Lease) leased under the Lease at such time and for which the Lease Term
(as defined in the Lease) has commenced with respect thereto.
BP ENVIRONMENTAL AGREEMENT: The Environmental Agreement, dated as of
July 22, 1993, among BP Exploration & Oil Inc., TA Operating Corporation and
certain other parties, as the same may be amended, restated, modified or
supplemented from time to time.
BUSINESS DAY: Defined pursuant to subsection 1.2 hereof.
CERTIFICATE OF INCREASED COST: The certificate delivered by Agent to
Owner pursuant to Section 7 hereof in connection with a request for a
Completion Advance, and which is substantially in the form of Exhibit F hereto.
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THIS AGREEMENT FOR LEASE IS
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CERTIFICATE OF SUBSTANTIAL COMPLETION: The certificate or certificates
delivered by Agent to Owner pursuant to Section 6 hereof in connection with a
request for a Final Advance, and which is substantially in the form of Exhibit
E hereto.
CODE: The Internal Revenue Code of 1986, as amended.
COMPLETION ADVANCE: Any advance made by Owner upon satisfaction of the
conditions set forth in Section 7 hereof.
CONSTRUCTION AGREEMENT: Each agreement between Agent, acting on behalf
of Owner, and a General Contractor, providing for the construction of Unit
Improvements, as the same may be amended, restated, modified or supplemented
from time to time in accordance with this Agreement.
CONSTRUCTION DOCUMENTS: The collective reference to the Construction
Agreement(s), the Unit Plans, the Permits and all other agreements entered into
by Agent with respect to constructing, equipping, furnishing and decorating any
Unit.
CREDIT AGREEMENT: Defined pursuant to subsection 1.2 hereof.
EFFECTIVE DATE: Defined pursuant to subsection 1.2 hereof.
ENVIRONMENTAL APPROVALS: Defined pursuant to subsection 1.2 hereof.
ENVIRONMENTAL DAMAGES: Defined pursuant to subsection 1.2 hereof.
ENVIRONMENTAL DOCUMENTS: Defined in paragraph (v) of Section 4 hereof.
ENVIRONMENTAL LIEN: Defined pursuant to subsection 1.2 hereof.
ENVIRONMENTAL MATTERS: Defined pursuant to subsection 1.2 hereof.
ENVIRONMENTAL REQUIREMENTS: Defined pursuant to subsection 1.2 hereof.
EQUIPMENT: Defined pursuant to subsection 1.2 hereof.
EQUITY CAPITAL: At the time of determination, the aggregate amount of
cash contributions to Owner's capitalization made by Owner's general partner
and limited partners constituting a part of Unit Acquisition Cost with respect
to all Units subject to this Agreement, plus any undistributed Return on Equity
Capital with respect to such Units, less the aggregate amount of any returns of
capital made to such partners at such time with respect to such Units.
ERISA: Defined pursuant to subsection 1.2 hereof.
ERISA AFFILIATE: Defined pursuant to subsection 1.2 hereof.
ERISA PLAN: Defined pursuant to subsection 1.2 hereof.
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THIS AGREEMENT FOR LEASE IS
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EVENT OF DEFAULT: Any of the events specified in subsection 11.1
hereof, provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
EVENT OF UNIT TERMINATION: Any of the events specified in subsection
11.3 hereof, provided that any requirement for the giving of notice, the lapse
of time, or both, or any other condition, has been satisfied.
FF&E SPECIFICATIONS: The master list, if any, of furniture, fixtures
and equipment which will be used in connection with the Unit Improvements
appended hereto as Exhibit G, as the same may be amended, modified, or
supplemented from time to time with Owner's prior written consent, which
consent shall not be unreasonably withheld or delayed.
FINAL ADVANCE: The advance made by Owner upon satisfaction of the
conditions of Section 6 hereof.
FINANCING COSTS: All interest costs (including, without limitation,
interest at a default rate and any interest costs accruing after the
commencement of a bankruptcy or similar proceeding), other costs, fees and
expenses incurred by Owner under a Credit Agreement, the Management Fee and all
costs incurred in connection with obtaining and maintaining equity financing,
including, without limitation, Return on Equity Capital.
FORCE MAJEURE DELAY: Any delay caused by conditions beyond the
reasonable control of Agent, including, without limitation, acts of God or the
elements, fire, strikes, labor disputes and delays in delivery of material and
disruption of shipping, but excluding any event, cause or condition that
results from Agent's financial condition or failure to pay any amount due under
this Agreement, the Lease or any Construction Document or any event, cause or
condition which could have been avoided or which could be remedied through the
exercise of commercially reasonable efforts or the commercially reasonable
expenditure of funds, provided that no such delay or delays shall have the
effect of extending the Unit Completion Date beyond two hundred seventy (270)
days in the aggregate.
GAAP: Defined pursuant to subsection 1.2 hereof.
GENERAL CONTRACTOR: Any contractor or contractors as may be engaged by
Agent from time to time for construction of Unit Improvements.
GENERAL PARTNER: TCA Network Capital, Inc., a Delaware corporation,
and its successors and assigns, as the general partner of Owner.
GOVERNMENTAL ACTION: Defined in subsection 8.5 hereof.
GOVERNMENTAL AUTHORITY: Any nation or government, any state or other
political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
GROUND LEASE: Each ground lease (which must be a Mortgageable Ground
Lease) pursuant to which a leasehold interest in a Unit Premises is being
leased to Owner.
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THIS AGREEMENT FOR LEASE IS
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GUARANTOR: TravelCenters of America, Inc., a Delaware corporation (an
Affiliate of Agent), and its successors.
GUARANTY: The Guaranty, dated as of the date hereof, from the
Guarantor to Owner, as the same may be amended, restated, modified or
supplemented from time to time.
HAZARDOUS SUBSTANCES: Defined pursuant to subsection 1.2 hereof.
INDEBTEDNESS: Defined pursuant to subsection 1.2 hereof.
INDEMNIFIED PERSON: Defined in Section 12 hereof.
INITIAL ADVANCE: The advance made by Owner upon satisfaction of the
conditions set forth in Section 4 hereof.
INSURANCE REQUIREMENTS: All insurance required to be obtained pursuant
to subsection 9.3 hereof and all terms of any such required insurance policy
covering or applicable to any Unit Premises, Unit Improvements, Unit FF&E and
Unit, all requirements of the issuer of any such policy, all statutory
requirements and all orders, rules, regulations and other requirements of any
governmental body related to insurance applicable to any Unit Premises, Unit
Improvements, Unit FF&E and Unit.
INTERIM ADVANCE: Any advance made by Owner upon satisfaction of the
conditions set forth in Section 5 hereof.
INTERIM ADVANCE CERTIFICATE: The certificate delivered by Agent to
Owner pursuant to Section 5 hereof in connection with a request for an Interim
Advance, and which is substantially in the form of Exhibit D hereto.
LEASE: The Lease Agreement, dated as of the date hereof, by and
between Owner, as lessor or sublessor, and Agent, as lessees or sublessees, as
the case may be, as it may be amended, restated, modified or supplemented from
time to time, a copy of which is attached as Exhibit A hereto.
LEGAL REQUIREMENTS: All laws, judgments, decrees, ordinances and
regulations and any other governmental rules, orders and determinations and all
requirements having the force of law, now or hereinafter enacted, made or
issued, whether or not presently contemplated, and all agreements, covenants,
conditions and restrictions, applicable to each Unit and/or the construction,
ownership, operation or use thereof, including, without limitation, compliance
with all requirements of labor laws and environmental statutes, compliance with
which is required at any time from the date hereof through the term of this
Agreement, whether or not such compliance shall require structural, unforeseen
or extraordinary changes to any Unit or the operation, occupancy or use
thereof.
LIBOR RATE: Defined pursuant to subsection 1.2 hereof.
LIEN: Defined pursuant to subsection 1.2 hereof.
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THIS AGREEMENT FOR LEASE IS
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LOSS PAYMENT: At any time, an amount equal to the difference between
(A) 89.9% of (1) where (1) shall equal the sum of (a) all amounts included in
the Unit Acquisition Cost of all Units under this Agreement that are
capitalizable in accordance with GAAP, plus (b) all Unreimbursed Unit Costs
that are capitalizable in accordance with GAAP, plus (2) any other costs and
expenses incurred by Owner in connection with the acquisition of any Unit
Premises (including any rent paid by Owner to Agent under any Ground Lease),
and (B) all Unreimbursed Unit Costs.
MANAGEMENT FEE: For each full quarterly period (or partial quarterly
period) commencing on or after the date hereof and ending on or prior to the
Effective Date with respect to each Unit, an amount computed by multiplying the
following:
(a) the Acquisition Cost of all Units subject to this Agreement at the
end of such quarterly period (or partial quarterly period), multiplied by
(b) a fraction having a numerator equal to the number of days in such
quarterly period (or partial quarterly period) and a denominator of 365, or in
a leap year, 366, multiplied by
(c) .0015.
MAXIMUM RATE: Defined in Section 19 hereof.
▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Money Markets Inc., a Delaware corporation.
▇▇▇▇▇▇▇ LEASING: ML Leasing Equipment Corp., a Delaware corporation.
▇▇▇▇▇▇▇ ▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc., a Delaware corporation.
MORTGAGEABLE GROUND LEASE: Defined pursuant to subsection 1.2 hereof.
MULTIEMPLOYER PLAN: Defined pursuant to subsection 1.2 hereof.
NPL: Defined pursuant to subsection 1.2 hereof.
OPERATIVE DOCUMENTS: Defined pursuant to subsection 1.2 hereof.
OTHER CHARGES: Defined in Section 19 hereof.
OWNER: TCA Network Funding, Limited Partnership or any successor or
successors to all of its rights and obligations as Owner hereunder and, for
purposes of Section 12 hereof, shall include any Person or entity which
computes its liability for income or other taxes on a consolidated basis with
TCA Network Funding, Limited Partnership or the income of which for purposes of
such taxes is, or may be, determined or affected directly or indirectly by the
income of Owner or its successor or successors.
PARTICIPATION AGREEMENT: Defined pursuant to subsection 1.2 hereof.
PBGC: Defined pursuant to subsection 1.2 hereof.
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PCBS: Defined in paragraph (viii) of subsection 8.17 hereof.
PERMITS: All consents, licenses, building and operating permits
required for construction, completion, and operation of any Unit in accordance
with all Legal Requirements affecting such Unit.
PERMITTED CONTEST: Defined in paragraph (a) of Section 16 hereof.
PERMITTED JURISDICTIONS: The States of Georgia, Texas, Michigan, New
Mexico and Ohio and any other State or States which Owner and Assignee may
agree in writing from time to time qualifies as a "Permitted Jurisdiction".
PERMITTED LIENS: Defined pursuant to subsection 1.2 hereof.
PERSON: Defined pursuant to subsection 1.2 hereof.
PLEDGE AGREEMENT: The Pledge Agreement, dated as of the date hereof,
by and among Agent, as pledgor, and Owner, as pledgee, as the same may be
amended, restated, modified or supplemented from time to time.
PLEDGED CONTRACTS: The Unocal Environmental Agreement and the BP
Environmental Agreement, in each case solely as such agreements relate to any
Unit Premises, Unit Improvements, Unit FF&E or Unit under this Agreement or any
Property or Equipment (as said terms are defined in the Lease) leased under the
Lease from time to time, and all such other contracts listed on Schedule A to
the Pledge Agreement.
POTENTIAL DEFAULT: Any event which, but for the lapse of time, or
giving of notice, or both, would constitute an Event of Default.
POTENTIAL EVENT OF UNIT TERMINATION: Any event which, but for the
lapse of time, or giving of notice, or both, would constitute an Event of Unit
Termination.
RELEASE: Defined pursuant to subsection 1.2 hereof.
REMEDIAL ACTION: Defined pursuant to subsection 1.2 hereof.
REPORTABLE EVENT: Defined pursuant to subsection 1.2 hereof.
RESPONSIBLE OFFICER: With respect to a particular Agent, any executive
officer or financial officer of such Agent or, if acting as agent of such
Agent, any employee of the Guarantor primarily responsible for administering
the obligations of such Agent hereunder.
RETURN ON EQUITY CAPITAL: (i) In respect of any full quarterly period
commencing on or after the date hereof and ending on or prior to the Effective
Date with respect to each Unit, an amount computed by multiplying the
following:
(a) the Equity Capital at the end of such quarterly period,
multiplied by
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THIS AGREEMENT FOR LEASE IS
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(b) a fraction having a numerator equal to the number of days in
such quarterly period and a denominator of 360, multiplied by
(c) the decimal equivalent of a percentage equal to the LIBOR
Rate plus 9.5%; and
(ii) in respect of any partial quarterly period commencing on or after
the date hereof and ending on or prior to the Effective Date with respect to
each Unit, an amount computed by multiplying the following:
(a) the Equity Capital at the end of such quarterly period,
multiplied by
(b) a fraction having a numerator equal to the number of days in
such partial quarterly period and a denominator of 360,
multiplied by
(c) the decimal referred to in paragraph (i)(c) above.
STATED RATE: Defined in Section 19 hereof.
SUBSTANTIAL COMPLETION: With respect to any Unit, the satisfaction of
all requirements of Section 6 hereof.
TAKING: Defined in Section 15 hereof.
TITLE COMPANY: First American Title Insurance Company, or such other
title insurance company as may be specifically approved by Owner in writing,
together with such reinsurers or coinsurers of such title company as may be
approved by Owner in writing.
TRANSACTIONS: Defined in Section 19 hereof.
TRANSACTION DOCUMENTS: Defined in Section 19 hereof.
TRAVELCENTERS CREDIT AGREEMENT: The Credit Agreement, dated as of
March 21, 1997, as amended and restated as of November 24, 1998, among the
Guarantor, the lenders parties thereto and The Chase Manhattan Bank, as Agent
for such lenders and as the Fronting Bank and Swingline Lender, as the same may
be amended, restated, modified or supplemented from time to time.
UNIT: Any Unit Premises and the Unit Improvements thereon and related
Unit FF&E.
UNIT ACQUISITION COST: With respect to any Unit the sum, without
duplication, of (a) the aggregate amount of advances made pursuant to this
Agreement with respect to the Unit and (b) all other costs of Owner (including,
without limitation, costs incurred by Agent but reimbursed by Owner) with
respect to the Unit (except costs for which Owner has been reimbursed by Agent,
pursuant to the provisions of subsection 9.5 or Section 12 hereof) arising from
the acquisition, construction, equipping, and financing (including, without
limitation, Financing Costs, Owner's out-of-pocket expenses and fee obligations
in connection therewith
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and payments made by Owner under Section 9 of the Participation Agreement that
are to be capitalized into the Unit Acquisition Cost of a Unit in accordance
with such Section 9), prior to the lease or sublease of the Unit under the
Lease. All costs of Owner related to this Agreement incurred during a calendar
year which were not previously allocated to a Unit and not reimbursed by Agent
shall be allocated among Units and Parcels of Property (as defined in the
Lease) by Owner on or prior to January 10th of the next succeeding year, or the
date of any Event of Unit Termination, on a pro-rata basis based upon the Unit
Acquisition Cost for all Units or Acquisition Cost (as defined in the Lease)
for all Parcels of Property with respect to which an Initial Advance was made
during such previous calendar year, and such allocation by Owner shall be in
Owner's sole judgment and shall be conclusive.
UNIT BUDGET: The itemized budget for each Unit prepared by Agent and
attached hereto as Exhibit J and any other budget to be prepared by Agent and
delivered to Owner prior to the Initial Advance with respect to any Unit (as
the same may be amended or modified from time to time in accordance with the
provisions thereof), which budget may include costs relating to such of the
following as Agent deems to be appropriate: (a) the installation of Unit FF&E,
if any, thereon; (b) all costs, including, without limitation, the purchase
price, survey and survey inspection charges, appraisal, architectural,
engineering, environmental analysis, soil analysis and market analysis fees,
title insurance premiums, brokerage commissions, transfer fees and taxes that
are customarily the responsibility of the purchaser, closing adjustments for
taxes, utilities and the like, escrow and closing fees, recording and filing
fees, the legal fees of Owner and Agent, and all related costs and expenses
incurred in acquiring and maintaining marketable fee or leasehold title to such
Unit and in leasing or subleasing such Unit to Agent; (c) the costs of
completion of the Unit Improvements in conformity with the Unit Plans, the
Construction Agreement or any contracts in replacement thereof, including
without limitation, costs of site preparation, acquiring or granting easements
necessary for completion of the Unit Improvements, making utility connections,
demolition, streets, parking areas, landscaping, development, off-site
improvements, design and related construction of the Unit Improvements and
related facilities and the costs of necessary studies, surveys, plans and
permits, insurance and examination and incidental costs and expenses related
thereto incurred in acquiring and maintaining marketable fee or leasehold title
to such Unit and in leasing or subleasing such Unit and Unit FF&E to Agent; (d)
the costs of architects', attorneys', engineers' and other professionals' fees
and disbursements, in connection with the development, planning, renovation,
construction, and construction financing of the Unit Improvements, including,
without limitation, the fees and disbursements of Owner's counsel in connection
with this Agreement and the duties of Owner hereunder, the Construction
Agreement, and in all other matters involving or reasonably related to this
transaction; (e) costs of all charges and assessments for the construction,
improvement, maintenance, repair and restoration of streets, roads, walks,
sewer, gas, electrical, telephone and water lines and other improvements levied
upon the Unit during the term of this Agreement; (f) the costs of all
insurance, real estate, property and excise tax assessments, sales and use
taxes on materials used in construction, and other operating and carrying costs
paid, accrued, or levied upon the Unit or Owner in connection with the Unit
during the period from acquisition by Owner of the Unit Premises during the
term of this Agreement; (g) costs of Agent's project representatives
(inspectors, consultants, etc.) incurred in its capacity as agent for Owner;
(h) any and all other properly capitalizable (in accordance with GAAP) costs
arising from or in connection with the construction period for such Unit
Improvements until the Effective Date for such Unit; PROVIDED, that any
modification or
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supplement to the Unit Budget shall be made in compliance with the provisions
of subsection 2.2 hereof.
UNIT COMPLETION DATE: With respect to each Unit subject hereto (other
than the Unit Premises located at Seville, Ohio and Laredo, Texas), twenty-four
(24) months from the date of this Agreement and, with respect to the Unit
Premises located at Seville, Ohio and Laredo, Texas (or any two Unit Premises
substituted (by Agent in Agent's sole discretion) for the Unit Premises located
at Seville, Ohio and Laredo, Texas), thirty (30) months from the date of this
Agreement, unless such Unit Completion Date is extended by any Force Majeure
Delay. The right of substitution set forth in the preceding sentence may be
exercised by Agent more than once, in each case upon written notice to Owner
prior to the expiration of such twenty-four (24) month period.
UNIT FF&E: The specific items, if any, from the FF&E Specifications
which are installed or (if such FF&E Specifications have been acquired by Owner
for installation) to be installed in a particular Unit Improvement and for
which advances are made by Owner hereunder.
UNIT FF&E SPECIFICATIONS: The list of specific items chosen from FF&E
Specifications to be installed with the proceeds of advances hereunder in a
particular Unit Improvement.
UNIT IMPROVEMENTS: The improvements to be constructed on an individual
Unit Premises in accordance with the Unit Plans.
UNIT PLANS: The plans and specifications for the construction of
improvements on a Unit Premises, including, without limitation, installation of
curbs, sidewalks, gutters, landscaping, utility connections (whether on or off
the Unit Premises) and all fixtures necessary for construction, operation and
occupancy of the Unit and certain equipment to be used in connection therewith,
prepared or to be prepared by an architect and Agent and approved by Owner and
any Assignee, including such amendments, modifications and supplements thereto
as may from time to time be made by Agent; PROVIDED, that any subsequent
material deviation from the Unit Plans selected for the Unit shall be made only
with Owner's and Assignee's prior written consent, which consent shall not be
unreasonably withheld or delayed. A copy of all Unit Plans that have been
approved by Owner and any Assignee are attached as Exhibit I hereto.
UNIT PREMISES: Each individual parcel of land in which either a fee
interest or a leasehold interest has been or will be acquired by Owner for the
construction of Unit Improvements thereon.
UNOCAL ENVIRONMENTAL AGREEMENT: The Environmental Agreement, dated as
of November 23, 1992, between Union Oil Company of California and National
Auto/Truckstops, Inc., as the same may be amended, restated, modified or
supplemented from time to time.
UNRECOVERED TERMINATION COSTS: At any time, an amount equal to the sum
of (i) any amounts included in the Unit Acquisition Cost of all Units under
this Agreement that are not paid to Owner by Agent in connection with Agent's
payment of the Loss Payment, plus (ii) an
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amount equal to the sum of 10.1% of all of Owner's obligations, costs and
expenses described in clause (i) of the fifth paragraph of subsection 11.2
hereof.
UNREIMBURSED UNIT COSTS: All costs and expenses paid by Agent pursuant
to subsection 9.5 hereof and not reimbursed by Owner and which were not
capitalized by Owner and included as an element of Unit Acquisition Cost of a
Unit, as evidenced by a certificate from Agent reasonably satisfactory to Owner
and Assignee, (i) stating the total amount of such expenditures, the date or
dates on which such expenditures were incurred, the name and address of each
party to whom the expenditures were tendered, and such additional information
as shall be reasonably requested by Owner and Assignee and (ii) attaching true
copies of unreimbursed invoices, receipted bills and other similar supporting
documentation. Owner's good faith determination of the amount of Unreimbursed
Unit Costs shall be conclusive and binding, absent manifest error.
WITHDRAWAL LIABILITY: Defined pursuant to subsection 1.2 hereof.
1.2 OTHER DEFINITIONAL PROVISIONS.
For purposes of this Agreement, the terms "Affiliate", "Business Day", "Credit
Agreement", "Effective Date", "Environmental Approvals", "Environmental
Damages", "Environmental Lien", "Environmental Matters", "Environmental
Requirements", "Equipment", "ERISA", "ERISA Affiliate", "ERISA Plan", "GAAP",
"Hazardous Substances", "Indebtedness", "LIBOR Rate", "Lien", "Mortgageable
Ground Lease", "Multiemployer Plan", "NPL", "Operative Documents",
"Participation Agreement", "PBGC", "Permitted Liens", "Person", "Release",
"Remedial Action", "Reportable Event" and "Withdrawal Liability" shall have the
meanings set forth opposite those terms in the Lease, except that, for purposes
of this Agreement, the terms "the Lessor", "the Lessee" and "this Lease" if
used in those definitions in the Lease shall be deemed to be the terms "Owner",
"Agent" and "this Agreement", respectively, and if used in those definitions in
the Lease, each of the terms "Parcel", "Parcel of Property" and "Property"
shall be deemed to be the phrase "Unit Premises and related Unit Improvements"
and each of the terms "Unit of Equipment" and "Unit", shall be deemed to be an
item of "Unit FF&E".
All terms defined in this Agreement shall have their defined meanings when used
in any certificate or other document made or delivered pursuant hereto.
The words "hereof", "herein" and "hereunder" and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and section, subsection, paragraph,
schedule and exhibit references are to this Agreement unless otherwise
specified.
1.3 INTENT OF THE PARTIES.
It is the intent of Agent and Owner that: (i) the Lease constitutes an
operating lease between Owner, as lessor, and Agent, as lessee, for purposes of
Agent's financial reporting, (ii) notwithstanding any of the provisions of this
Agreement, the Lease or the other Transaction Documents to the contrary, Agent
is and will be the owner of the Unit Premises, Unit Improvements, Unit FF&E and
Units for federal and state income tax purposes, and (iii) the Lease grants to
Owner a Lien on all of Agent's right, title and interest in and to the Unit
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Premises, Unit Improvements, Unit FF&E and Units. Agent and Owner agree that
Owner shall be deemed to have a valid and binding security interest in and Lien
on the Unit Premises, Unit Improvements, Unit FF&E and Units, free and clear of
all Liens, other than Permitted Liens, as security for the obligations of Agent
under the Lease and this Agreement (it being understood and agreed that in
order to secure the payment and performance of the obligations of Agent under
this Agreement and the Lease, Agent does hereby ▇▇▇▇▇ ▇ ▇▇▇▇ on, and convey,
transfer, assign, mortgage and warrant to Owner and its successors, transferees
and assigns, for the benefit of Owner and its successors, transferees and
assigns and as collateral security, the Unit Premises, Unit Improvements, Unit
FF&E and Units and any proceeds or products thereof (subject to Agent retaining
the right, subject to the express provisions of this Agreement and the Lease to
remain in quiet and peaceful possession of each of the foregoing and collect,
receive and retain the rents, revenues, profits, proceeds, income and royalties
therefrom).
SECTION 2. APPOINTMENT OF AGENT
2.1 APPOINTMENT AND DUTIES OF AGENT. Subject to the terms hereof,
including, without limitation, the requirements of Section 4 hereof, Owner
hereby appoints Agent as its agent for selection of Unit Premises in a
Permitted Jurisdiction for acquisition, as well as for the design,
construction, equipping, and installation on each Unit Premises of the Unit
Improvements, and, if and to the extent identified in Exhibit G hereto, the
Unit FF&E, and Agent hereby accepts such appointment. Unit Improvements must be
of a type permitted to be leased under the Lease as set forth in Exhibit A to
the Lease. Agent agrees, all in accordance with its commercially reasonable
business judgment and this Agreement, to select Unit Premises for acquisition
by Owner and to contract for and supervise the good and workmanlike completion
of the Unit Improvements and installation of the Unit FF&E on each Unit
Premises, suitable for its intended use. Agent may execute any of its duties
under the appointment described in this subsection 2.1 by or through its
agents, contractors, employees or attorneys in fact, and Agent may enter into
such agreements with such Persons as Agent deems necessary or desirable for the
design, construction, equipping and installation on each Unit Premises of the
Unit Improvements; PROVIDED, that any such delegation of power and authority by
Agent shall not be deemed to relieve Agent of any of its responsibilities and
obligations hereunder.
2.2 COST AND COMPLETION OF A UNIT. Owner and Agent agree that (a) the
maximum cost for the acquisition of any individual Unit Premises and the
construction of Unit Improvements thereon and the cost (including installation)
of all Unit FF&E therein shall be no more than $13,000,000 and (b) the maximum
aggregate cost for the acquisition of all Units and the construction of Unit
Improvements thereon and the cost (including installation) of all Unit FF&E
therein shall be no more than $68,000,000. Agent agrees to effect Substantial
Completion of any Unit Improvements on or before the applicable Unit Completion
Date in accordance in all material respects with the Unit Plans and all Legal
Requirements and Insurance Requirements. After receiving the Initial Advance
with respect to a Unit, Agent may, to the extent permitted hereunder, from time
to time amend, modify or supplement the Unit Plans, Unit Budget or Unit FF&E
Specifications relating thereto; PROVIDED, that no such amendment, modification
or supplement shall (i) be made without Agent giving at least five (5) Business
Days' prior written notice of such amendment, modification or supplement to
Owner and, if such amendment, modification or supplement shall have the effect
of increasing the real property components of the Unit Budget, Agent shall
provide an endorsement from the Title Company increasing the
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amount of coverage under the title policies delivered pursuant to Section 4
hereof in accordance with the amended Unit Budget, (ii) increase the Unit
Budget or, in the aggregate, all Unit Budgets, to an amount in excess of the
dollar limits set forth in the first sentence of this subsection 2.2 or result
individually or in the aggregate (when combined with all other increases to the
Unit Budget) in a material diminution of the fair market value or usefulness
for its intended purpose of the Unit or result in a breach under subsection
10.1 of this Agreement, (iii) render Agent unable or have a material adverse
effect on its ability to perform all of its obligations under this Agreement or
the Lease, (iv) result in the substantial completion of the construction of any
Unit occurring after the applicable Unit Completion Date or (v) materially
change the purpose of the contemplated Unit or the utility of such Unit for the
purposes contemplated by the parties hereto as of the date hereof. Agent shall
promptly deliver to Owner and any Assignee any such amended, modified or
supplemented Unit Plans, Unit Budget or Unit FF&E Specifications.
Notwithstanding the foregoing, upon the request of Owner, Agent shall furnish
copies of all such revisions, amendments and modifications not otherwise
described above to Owner.
2.3 LEASE OF A UNIT.
(a) Upon Substantial Completion of any Unit Improvements, Agent shall
deliver to Owner and Assignee the Certificate of Substantial Completion in the
form of Exhibit E hereto with respect to such Unit Improvements (including the
AFL Unit Leasing Record), and Agent shall request the Final Advance with
respect to such Unit Improvements. If the conditions set forth in Section 6
hereof have been satisfied in the reasonable judgment of Owner and Assignee,
Owner, within seven (7) Business Days of receipt of the Certificate of
Substantial Completion, a fully completed AFL Unit Leasing Record executed by
Agent and the other documents required in Section 6 hereof, shall execute and
deliver to Agent such AFL Unit Leasing Record. Such AFL Unit Leasing Record
shall have an Effective Date as of the date of execution by Owner of the AFL
Unit Leasing Record. The Final Advance shall be made by Owner on the date of
execution by Owner of the AFL Unit Leasing Record, or, if such date is not a
Business Day, on the next Business Day thereafter. Execution and delivery by
Agent of the AFL Unit Leasing Record shall constitute (i) acknowledgment by
Agent that each Unit included therein is in good condition and has been
accepted for lease or sublease by Agent as of the Effective Date of the AFL
Unit Leasing Record, (ii) acknowledgment by Agent that each such Unit is
subject to all of the covenants, terms and conditions of the Lease, and (iii)
certification by Agent that the representations and warranties contained in
Section 2 of the Lease are true and correct on and as of the Effective Date of
the AFL Unit Leasing Record as though made on and as of such date and that
there exists on such date no (1) Event of Default or, with respect to such
Unit, Event of Unit Termination under this Agreement or Event of Default (as
defined in the Lease) or (2) Potential Default or, with respect to such Unit,
Potential Event of Unit Termination under this Agreement or Potential Default
(as defined in the Lease). Upon execution and delivery of an AFL Unit Leasing
Record by Owner and the making of a Final Advance by Owner, the Unit to which
such AFL Unit Leasing Record shall become a Parcel of Property (as defined in
the Lease) and Owner's and Agent's rights and obligations with respect thereto
shall be governed by the Lease. Such Parcel of Property shall not thereafter be
subject to the terms of this Agreement, except with respect to subsection
2.3(b) hereof and otherwise as expressly provided herein.
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(b) Notwithstanding the foregoing, but subject to the terms of
subsection 3.1 hereof, Agent may, by delivering to Owner a Certificate of
Increased Cost, at any time up to six (6) months after the Final Advance has
been made with respect to a Unit, request one or more Completion Advances in
order to pay to Agent construction or other development costs that were not the
subject of any previous advance. Owner, within seven (7) Business Days of
receipt and upon Owner's approval of a request for the Completion Advance and
the Certificate of Increased Cost, shall execute and deliver to Agent a revised
AFL Unit Leasing Record for such Unit reflecting such increased cost, and
Agent, within five (5) Business Days of receipt of such revised AFL Unit
Leasing Record, shall sign the revised AFL Unit Leasing Record and return it to
Owner. The Completion Advance shall be made by Owner upon receipt of the
revised AFL Unit Leasing Record signed by Agent.
2.4 POWERS OF AGENT. Agent shall have the right to act for and on
behalf of Owner with full and complete authority to perform all obligations, to
exercise all rights under the Construction Documents, to appear before each
applicable Governmental Authority to resolve issues related to the platting,
zoning and use of the Unit Premises, to obtain all Permits, to grant and obtain
minor easements for the benefit of any Unit Premises or which are deemed
reasonably necessary by Agent for the intended use of such Unit Premises,
voluntarily to dedicate or convey portions of any Unit Premises for road,
highway and other public purposes as required in the good faith judgment of
Agent in order to obtain the use of all or part of such Unit Premises for the
purposes intended (provided that no such action shall materially adversely
affect either the market value of such Unit Premises or the use of such Unit
Premises for its intended purpose), appoint, employ and deal with the
architects, engineers, consultants and contractors, purchase and arrange for
delivery of all materials, supplies, furniture, fixtures, and equipment, and to
approve all related vouchers, invoices and statements. No direct payment by
Owner shall be made for any property or services of such architects, engineers,
consultants, or contractors relating to the acquisition, construction and
equipping of any Unit without the prior approval of Agent, and each amount so
approved and paid shall be in accordance with the Unit Budget, and shall be
part of the Unit Acquisition Cost of such Unit. If Agent has unreasonably
delayed or withheld giving the approvals required to make payments to such
Persons that are due, Owner may, on prior written notice to Agent, make
payments to any architects, engineers, consultants, contractors, vendors or
suppliers which are properly due and payable in accordance with the contracts
with said parties, and any such payment so made shall be and become a part of
the Unit Acquisition Cost of the Unit; PROVIDED, HOWEVER, that Owner shall not
make any such payment if it is subject to a Permitted Contest. Agent agrees
that, in any contract entered into pursuant to this Agreement in which Owner is
identified as an obligor rather than, or in addition to, Agent, the substance
of the text of subsection 18.5 hereof shall be included therein. Owner agrees
from time to time to execute and deliver to Agent all such documents and to
cooperate with Agent to do all such other acts and things as Agent may
reasonably request to enable Agent to perform its obligations under this
subsection 2.4, and all costs and expenses incurred by Owner in connection
therewith shall be capitalized and included as part of the Unit Acquisition
Costs of the applicable Unit or Units.
SECTION 3. ADVANCES
3.1 AGREEMENT TO MAKE ADVANCES. Subject to the conditions and upon the
terms herein provided, including, without limitation, that the Available
Commitment not be
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exceeded, Owner agrees to make available to Agent advances from time to time
for each Unit up to an aggregate amount for such Unit determined in accordance
with the Unit Budget for such Unit and not in excess of the maximum amount per
Unit set forth in subsection 2.2 hereof. Subject to the terms of this
Agreement, Owner agrees to make (a) an Initial Advance with respect to a Unit
in accordance with Section 4 of this Agreement, (b) Interim Advances from time
to time in accordance with Section 5 of this Agreement, (c) a Final Advance in
accordance with Section 6 of this Agreement and (d) a Completion Advance in
accordance with Section 7 of this Agreement.
3.2 PROCEDURE FOR ADVANCES. Agent shall give Owner notice in
accordance with Sections 4, 5, 6 and 7 hereof, as the case may be, of its
irrevocable request for an advance pursuant to this Agreement, specifying a
Business Day on which such advance is to be made and the amount of the advance.
Not later than 2:00 P.M. New York time on the date for the advance specified in
such notice, provided all conditions to that advance have been satisfied, Owner
shall provide to Agent, in immediately available funds, the amount of the
advance then requested. Owner shall have no obligation to make advances with
respect to a Unit more often than once every thirty (30) days.
3.3 DETERMINATION OF AMOUNTS OF ADVANCES.
(a) INITIAL ADVANCE. The amount of an Initial Advance with respect to
a Unit shall be made within the limits of the Unit Budget and in accordance
with the Acquisition Certificate, and shall be sufficient to pay in full all
acquisition and closing costs of the respective Unit Premises, including,
without limitation, the purchase price, survey and survey inspection charges,
recording and filing fees, brokerage commissions, appraisal, architectural,
engineering, environmental analysis, soil analysis and market analysis fees,
transfer fees and taxes that are customarily the responsibility of the
purchaser, title insurance premiums, closing adjustments for taxes, utilities,
and the like, escrow fees, if any, construction materials and existing
structures, and the legal fees of Owner and Agent. All such costs for which the
Initial Advance is requested shall be specifically set forth in the Unit Budget
attached to the Acquisition Certificate, and in the request for the Initial
Advance, and Owner shall have no obligation to advance any funds in the Initial
Advance which are not so specifically set forth in such documents.
(b) INTERIM ADVANCES. Disbursements for costs of constructing and
equipping a Unit shall be made as the same are incurred within the limits of
the Unit Budget, based upon the certifications of Agent contained in an Interim
Advance Certificate. All such costs for which the Interim Advance is requested
shall be in accordance with the Unit Budget attached to the Interim Advance
Certificate, and shall be specifically set forth in the request for such
Interim Advance, and Owner shall have no obligation to advance any funds in the
Interim Advance which are not so in accordance and specifically set forth in
such documents.
(c) FINAL ADVANCE. The amount of the Final Advance shall be made
within the limits of the Unit Budget and in accordance with the Certificate of
Substantial Completion, and shall be sufficient, subject to the provisions of
paragraph (d) of this subsection 3.3, for payment in full of all costs of
acquiring, designing, furnishing, constructing, financing, equipping and
installing of the Unit in connection with Substantial Completion of the Unit
(other than Unreimbursed Unit Costs which Agent has not designated to be paid
in the Final Advance
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and those estimated costs that are not yet due in connection with the
acquiring, designing, furnishing, constructing, financing, equipping and
installing of such Unit and which will be included as part of a Completion
Advance, PROVIDED that the Available Commitment remaining after the Final
Advance is equal to or exceeds the aggregate amount of all such estimated
costs), free of all Liens other than Permitted Liens. Owner shall have no
obligation to make the Final Advance unless Owner is satisfied that all such
costs as set forth in the Unit Budget, the Certificate of Substantial
Completion, and the request for the Final Advance have been actually incurred,
or in the case of punch list items will be incurred, in the acquiring,
designing, furnishing, construction, financing, equipping and installing of the
Unit, free of all Liens, except for Permitted Liens and shall not cause the
Unit Acquisition Cost of the Unit to exceed the Unit Budget.
(d) COMPLETION ADVANCE. The amount of a Completion Advance shall be
made in accordance with and shall not exceed the amount set forth in the
Certificate of Increased Cost, shall not cause the Unit Acquisition Cost of the
Unit to exceed the Unit Budget, and shall be sufficient for payment in full of
all costs due that were not the subject of any previous advance with respect to
such Unit. Owner shall have no obligation to make a Completion Advance unless
Owner is satisfied that all such costs are consistent with the Unit Budget and
are adequately set forth in the Certificate of Increased Cost and will be
sufficient for payment in full of all costs due with respect to such Unit.
3.4 PARTIAL ADVANCES. If any or all conditions precedent to any
advance have not been satisfied on the applicable date for a requested advance,
Owner, in its sole discretion, and with the consent of Assignee may, but shall
have no obligation to, disburse a part of the requested advance.
SECTION 4. CONDITIONS PRECEDENT TO THE INITIAL ADVANCE WITH RESPECT TO
A UNIT
Owner's acquisition of any Unit Premises and Owner's obligation to
make the Initial Advance with respect to a Unit shall both be subject to the
satisfaction of the conditions set forth in this Section 4 and to the receipt
by Owner and any Assignee of the documents set forth in this Section 4, in each
case in form and substance reasonably satisfactory to Owner and any Assignee.
Owner shall have not more than seven (7) Business Days to review the
Acquisition Certificate and its attachments prior to making any Initial
Advance.
The following are the documents to be received by Owner and any
Assignee and the conditions to be satisfied:
(a) LEASE AND PLEDGE AGREEMENT. With respect to the first advance only
under this Agreement, a fully executed copy of the Lease and the Pledge
Agreement.
(b) ACQUISITION CERTIFICATE. A duly executed copy of the Acquisition
Certificate certified true and correct as to all matters therein by Agent.
(c) MEMORANDUM OF LEASE AGREEMENT. Two original counterparts of a
memorandum of lease agreement in the appropriate form for recording in the
jurisdiction in
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which the Unit Premises are located, executed by Agent, as lessees, and
otherwise reasonably acceptable to Owner and Assignee.
(d) DEED. Where fee title is being acquired by Owner, an original of
the limited warranty deed (or the equivalent for the jurisdiction in which the
Unit Premises are located) to be executed and delivered at the closing of the
acquisition of Owner's fee interest in such Unit Premises, conveying marketable
title to Owner, and not subject to any Liens other than Permitted Liens.
(e) GROUND LEASE. Where a leasehold interest is being acquired by
Owner, an original of each Ground Lease (which shall be a Mortgageable Ground
Lease), including a true and complete copy of the metes and bounds legal
description of the Unit Premises, intended to be executed and delivered at the
closing of the acquisition of Owner's leasehold interest, in a form approved by
Owner, and complying and certified by Agent as complying in all respects with
this Agreement and with Section 29 of the Lease, and not subject to any Liens
other than Permitted Liens, along with a memorandum of ground lease in
statutory recordable form and any necessary estoppel certificates, recognition
and attornment agreements, confirmations, and subordinations required by
Owner's and any Assignee's counsel regarding the Ground Lease.
(f) TAXES. Certification by Agent that all past and current taxes and
assessments (excluding those which are due and payable but not yet delinquent)
applicable to the Unit Premises have been paid in full or are being contested
by Agent as a Permitted Contest.
(g) TITLE INSURANCE POLICY. Satisfactory evidence that Owner shall
receive at closing either (i) an ALTA owner's policy with a pending
improvements clause and a lender's policy with a pending disbursements clause
for the benefit of any Assignee, or (ii) a construction binder marked at
closing for the benefit of Owner and Assignee, constituting the irrevocable
commitment of the Title Company to issue an owner's and lender's policy of
title insurance upon completion of the Unit Improvements, in each case issued
by the Title Company with respect to the Unit Premises in the amount of the
total Unit Budget for such Unit and including a recharacterization endorsement
(if available under applicable title insurance regulations), acceptable to
Owner and Assignee in all respects (including such additional endorsements as
may be reasonably requested by Owner or Assignee), together with legible
photocopies of all underlying documents of record affecting the Unit Premises.
Owner shall have received evidence satisfactory to it that all premiums in
respect of such policies have been paid at the closing of title, which policy
or binder shall provide the substantive coverage contemplated to be provided
above.
(h) SURVEY. A current survey of the Unit Premises certified to Owner,
Assignee and the Title Company by an independent, licensed registered public
land surveyor, and dated a date within ninety (90) days prior to the date of
the Initial Advance. Such survey shall show the following: (i) lot lines of the
Unit Premises shown in metes and bounds, and the lines of streets abutting the
Unit Premises and the width thereof; (ii) all access and other easements
appurtenant to or used in connection with the Unit Premises; (iii) all
roadways, paths, driveways, easements, set-backs, encroachments and overhanging
projections and similar encumbrances affecting the Unit Premises, whether
recorded, apparent from a physical inspection of the Unit Premises, or
otherwise known to the surveyor; (iv) any encroachments on
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any adjoining property by the building structures and improvements on the Unit
Premises; and (v) if the Unit Premises are described by reference to a filed
map, a legend relating the survey to said map.
(i) SITE PLAN. A site plan prepared on behalf of Agent, showing the
proposed location of the Unit Improvements to be constructed on the Unit
Premises.
(j) AVAILABILITY OF UTILITIES. Certification by Agent that all utility
services and facilities (including, without limitation, gas, electrical, water
and sewage services and facilities) (i) which are necessary and required during
the construction period have been completed or will be available in such a
manner as to assure Owner that construction will not be impeded by a lack
thereof and (ii) which are necessary for operation and occupancy of the Unit
are or will be completed in such a manner and at such a time as will assure the
opening and operation of the Unit on or before the Unit Completion Date.
(k) FLOOD ZONE. A certification by the surveyor or an official of an
appropriate Governmental Authority as to whether the Unit Premises are located
in a flood plain.
(l) GOVERNMENTAL ACTIONS. All Governmental Actions required for the
construction of the Unit Improvements and for the use of the Unit Premises in
accordance with and as contemplated by this Agreement and the Lease have been
or will be issued or obtained in such a manner as to assure Owner that
construction will not be impeded by a lack thereof and all Governmental Actions
required therefor which have been issued or obtained are in full force and
effect.
(m) OPINION OF COUNSEL FOR AGENT. With respect to the first advance
only under this Agreement, an opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for Agent, in form and substance reasonably satisfactory to
Owner and Assignee and, with respect to the Initial Advance with respect to a
Unit Premises in a state in which no Unit Premises has previously been acquired
under this Agreement, an opinion of local counsel for Agent, in form and
substance reasonably satisfactory to Owner and Assignee. With respect to an
Initial Advance for a Unit Premises in a state in which such opinion of local
counsel for Agent has previously been delivered, if Owner and Assignee have
reason to believe that the laws of such state have changed since the date of
the previous local counsel opinion for Agent in such state, then an opinion of
local counsel for Agent shall be delivered, in form and substance reasonably
satisfactory to Owner and Assignee.
(n) OPINION OF COUNSEL FOR GUARANTOR. With respect to the first
advance only under this Agreement, an opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇, counsel for the Guarantor, in form and substance reasonably
satisfactory to Owner and Assignee.
(o) CONSTRUCTION AGREEMENT. A fully executed and complete copy of the
Construction Agreement for the Unit Premises, if any.
(p) UNIT PLANS. A copy of the Unit Plans reasonably satisfactory to
Owner and Assignee.
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(q) UNIT BUDGET. A copy of the Unit Budget and certification by Agent
that such Unit Budget is (i) true, complete and correct, (ii) accurately
representative of all expected costs of the Unit and (iii) within the dollar
limits set forth in the first sentence of subsection 2.2 hereof.
(r) CERTIFICATES OF INSURANCE. Certificates of insurance or other
evidence reasonably acceptable to Owner certifying that the insurance then
carried or maintained on the Unit required by subsection 9.3 hereof complies
with the terms of such subsection.
(s) REQUEST FOR ADVANCE. A duly executed AIA Document G722 (or
substantially similar document) stating the total amount of the Initial Advance
requested, the date on which the advance is to be made, the name, address and,
if applicable, the escrow reference number of the escrow or closing agent or
party to whom the Initial Advance is to be tendered, wiring instructions and an
itemization of the various costs constituting the amount of the Initial Advance
in such detail as will be necessary to provide disbursement instructions to the
escrow or closing agent, including, specifically, an accounting of all
expenditures for costs shown on the Unit Budget for which payment or
reimbursement is being requested with respect to the Unit.
(t) UNIT FF&E SPECIFICATIONS. If applicable, a true and complete copy
of the Unit FF&E Specifications with respect to the Unit.
(u) ENVIRONMENTAL CERTIFICATE. An environmental certificate
substantially in the form of Exhibit H hereto, duly executed by Agent.
(v) ENVIRONMENTAL DOCUMENTS. All and any environmental documents
including any Phase I and II environmental assessments and any submissions to
any Governmental Authority, delivered to Agent with respect to such Unit
Premises, including, without limitation, all such documents delivered to Agent
in accordance with the Unocal Environmental Agreement and the BP Environmental
Agreement, or otherwise prepared by or delivered to Agent in connection with
the environmental remediation being conducted by BP Exploration & Oil Inc. and
Union Oil Company of California at any Unit Premises (collectively, the
"ENVIRONMENTAL DOCUMENTS"). A list of all Environmental Documents delivered to
Owner on or before the date hereof is attached as Exhibit M hereto.
(w) USE OF PROCEEDS, NO LIENS AND REPRESENTATIONS OF AGENT. (i) All
costs and expenses which are the subject of the Initial Advance requested have
been paid in full or will be paid in full out of the proceeds of the Initial
Advance, (ii) there are no Liens on the Unit Premises of which Agent has
knowledge that are not Permitted Liens, (iii) all representations and
warranties made in this Agreement, in the Lease, and in connection with the
Initial Advance, are and remain true and correct in all material respects on
and as of the date of the Initial Advance as if made on and as of the date of
the Initial Advance and (iv) no Event of Default, Potential Default or, with
respect to the Unit for which the Initial Advance is requested, Event of Unit
Termination or Potential Event of Unit Termination, under this Agreement has
occurred and is continuing on the date such Initial Advance is to be made or
will occur by reason of giving effect to such Initial Advance.
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(x) CONTINUING REPRESENTATIONS OF GUARANTOR. All representations and
warranties of the Guarantor made in the Guaranty are and remain true and
correct in all material respects on and as of the date of the Initial Advance
as if made on and as of the date of the Initial Advance and no default under
the Guaranty has occurred and is continuing on the date such Initial Advance is
to be made or will occur by reason of giving effect to such Initial Advance.
(y) PLEDGED CONTRACTS. A fully executed and complete copy of each of
the Pledged Contracts.
(z) MAI APPRAISAL. An MAI appraisal prepared by an independent,
licensed appraiser, which appraisal shall be reasonably satisfactory to Owner
and Assignee in all respects.
(aa) ADDITIONAL MATTERS. Such other documents and legal matters in
connection with a request for an Initial Advance as are reasonably requested by
Owner and Assignee.`
SECTION 5. CONDITIONS PRECEDENT TO OWNER'S OBLIGATION TO MAKE INTERIM
ADVANCES AFTER THE INITIAL ADVANCE WITH RESPECT TO A UNIT
Owner's obligation to make any Interim Advance with respect to a Unit
after the Initial Advance with respect to such Unit shall be subject to the
satisfaction of the conditions set forth in this Section 5 and to the receipt
by Owner and any Assignee of the documents set forth in this Section 5, in each
case in form and substance reasonably satisfactory to Owner and any Assignee.
Owner shall have not more than seven (7) Business Days to review the Interim
Advance Certificate and its attachments prior to making any Interim Advance.
The following are the documents to be received by Owner and any
Assignee and the conditions to be satisfied:
(a) INTERIM ADVANCE CERTIFICATE. A duly executed Interim Advance
Certificate certified true and correct as to all matters therein by Agent.
(b) CONTINUING REPRESENTATIONS OF AGENT. All representations and
warranties made in this Agreement (other than in subsection 8.10 hereof), in
the Lease (other than in paragraph (f) and clause (8) of paragraph (r) of
Section 2 of the Lease), and in connection with the Interim Advance, are and
remain true and correct in all material respects on and as of the date of the
Interim Advance as if made on and as of the date of the Interim Advance and no
Event of Default, Potential Default or, with respect to the Unit for which such
Interim Advance is requested, Event of Unit Termination or Potential Event of
Unit Termination, under this Agreement has occurred and is continuing on the
date such Interim Advance is to be made or will occur by reason of giving
effect to such Interim Advance.
(c) CONTINUING REPRESENTATIONS OF GUARANTOR. All representations and
warranties of the Guarantor made in the Guaranty are and remain true and
correct in all material respects on and as of the date of the Interim Advance
as if made on and as of the date of the Interim Advance and no default under
the Guaranty has occurred and is continuing on the date such Interim Advance is
to be made or will occur by reason of giving effect to such Interim Advance.
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(d) SATISFACTORY TITLE. A notice of title continuation (or nothing
further certificate) or an endorsement in respect of Owner's title policy and
any Assignee's title policy indicating that since the date of the Initial
Advance for such Unit Premises, there have been no changes in the state of
title, except for Permitted Liens and no additional survey exceptions (other
than Permitted Liens) not theretofore specifically approved in writing by Owner
and Assignee, and, if such Unit Premises are subject to a Ground Lease in which
Agent is not the ground lessor thereunder, an estoppel certificate from the
ground lessor confirming that there are no defaults under the Ground Lease, if
any, and such other information relating to title as may be reasonably
requested by Owner or Assignee.
(e) CONSTRUCTION PROGRESS. If reasonably required by Owner, Owner
shall have received and approved (i) an inspection report from an independent
party satisfactory to Owner and any Assignee (and reasonably satisfactory to
Agent), covering substantial conformity of the work to the Unit Plans, quality
of work completed and percentage of work completed, (ii) true copies of paid
and unpaid invoices, receipted bills and Lien waivers, and such other
reasonably available supporting information as Owner or any Assignee may
reasonably request and (iii) a certificate from Agent certifying to Owner and
Assignee the amount of Unreimbursed Unit Costs outstanding on the date of such
Interim Advance.
(f) EVIDENCE OF COMPLIANCE. Agent shall furnish Owner and any Assignee
with such additional or updated documents, reports, certificates, affidavits
and other information, in form and substance satisfactory to Owner and any
Assignee in their reasonable judgment, as Owner and any Assignee may reasonably
require to evidence compliance by Agent with all of the provisions of this
Agreement.
(g) REQUEST FOR ADVANCE. A duly executed AIA Document G722 (or
substantially similar document) stating the total amount of the Interim Advance
requested, the date on which such Interim Advance is to be made, wiring
instructions and a specific breakdown of items and costs for which the Interim
Advance is being made.
(h) NO OTHER SECURITY INTERESTS. All materials and fixtures
incorporated in the construction of the Unit Improvements have been purchased
so that title thereto or a leasehold interest therein, as the case may be,
shall have vested in Owner immediately upon delivery thereof to the Unit
Premises, except for Permitted Liens, and Agent shall have produced and
furnished, if required by Owner, the contracts, bills of sale, statements,
receipted vouchers, or other documents under which title thereto or a leasehold
interest therein is claimed.
(i) STATEMENT OF EXPENDITURES. At Owner's reasonable request, Agent
shall supply Owner and any Assignee with a statement setting forth the names,
addresses and amounts due or to become due as well as the amounts previously
paid to every contractor, subcontractor or Person furnishing materials,
performing labor or entering into the construction of any part of the Unit
Improvements.
(j) MATERIAL ADVERSE CHANGE. Since the date of this Agreement, there
has been no material adverse change in the assets, properties, operations,
prospects, consolidated financial condition, contingent liabilities or business
of the Guarantor, which could reasonably be expected to have a material adverse
effect on (i) the ability of Agent to perform its obligations
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under this Agreement, the Lease or any of the Construction Documents in a
timely manner or the ability of the Guarantor to perform its obligations under
the Guaranty in a timely manner or (ii) the rights or interests of Owner or
Assignee under this Agreement or the Lease.
SECTION 6. CONDITIONS PRECEDENT TO THE FINAL ADVANCE WITH RESPECT TO A
UNIT
Owner's obligation to make the Final Advance with respect to a Unit
shall be subject to the satisfaction of the conditions set forth in this
Section 6 and to the receipt by Owner and any Assignee of the documents set
forth in this Section 6, in each case in form and substance reasonably
satisfactory to Owner and any Assignee. When all of the conditions set forth in
this Section 6 shall have been satisfied to the reasonable satisfaction of
Owner and any Assignee, Substantial Completion of a Unit shall be deemed to
occur. Owner shall have not more than seven (7) Business Days to review the
Certificate of Substantial Completion and its attachments prior to making a
Final Advance.
The following are the documents to be received by Owner and any
Assignee and the conditions to be satisfied:
(a) CERTIFICATE OF SUBSTANTIAL COMPLETION. A duly executed Certificate
of Substantial Completion certified true and correct as to all matters therein
by Agent.
(b) SATISFACTORY TITLE. A notice of title continuation (or nothing
further certificate) or an endorsement issued by the Title Company in respect
of Owner's title policy and any Assignee's title policy indicating that since
the last advance for such Unit Premises, there have been no changes in the
state of title, except for Permitted Liens, and no additional survey exceptions
(other than Permitted Liens) not theretofore specifically approved in writing
by Owner and Assignee and, if such Unit Premises are subject to a Ground Lease
in which Agent is not the ground lessor thereunder, an estoppel certificate
from the ground lessor certifying that there are no defaults under the Ground
Lease, if any, and such other information relating to title as may be
reasonably requested by Owner or Assignee at least three (3) Business Days
prior to the making of a Final Advance.
(c) CONSTRUCTION AND EQUIPPING OF THE UNIT. The Unit Improvements
(including all interior finish work, but exclusive of punch list items) have
been completed within the Unit Budget and in all material respects in
accordance with the Unit Plans and are accepted by Agent and all Unit FF&E for
that Unit has been installed and conforms in all material respects to the Unit
FF&E Specifications and are accepted by Agent. Agent shall deliver to Owner a
specific itemization of all items of Unit FF&E installed in such Unit.
(d) GOVERNMENTAL ACTIONS. All Governmental Actions necessary for the
occupancy and primary use and operation of the Unit have been issued or
obtained.
(e) LIENS. The Unit, including interior finish work, has been
completed as contemplated in paragraph (c) above, free of all Liens except for
Permitted Liens (all of which Permitted Liens are to be itemized as to the
nature, amount, claimant and status) and provided
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that such Permitted Liens shall not include any mechanics' Liens other than
those mechanics' Liens that are (i) to be satisfied or discharged out of the
proceeds of the Final Advance or a Completion Advance or (ii) subject to a
Permitted Contest and bonded or otherwise secured to the reasonable
satisfaction of Owner and Assignee, and there are no current Permitted Contests
with respect to the Unit (or, if any Permitted Contest exists, the nature,
amount, claimant and status thereof).
(f) FINAL SURVEY. A final as-built survey prepared by an independent,
licensed registered public land surveyor (reasonably satisfactory to Owner and
Assignee) and certified to and in form and substance reasonably satisfactory to
Owner and any Assignee, with a metes and bounds description of the perimeter of
the Unit Premises, and showing the completed Unit Improvements, all easements
on the Unit Premises, and indicating the location of access to the Unit
Premises and all utility and water easements directly affecting the Unit
Premises. No encroachments are to exist by the Unit Improvements or on the Unit
Premises other than those that are Permitted Liens or that may have been
consented to by Owner and any Assignee and all set-back requirements have been
complied with. If any discrepancies exist between the legal description set
forth on the survey delivered pursuant to paragraph (h) of Section 4 hereof and
the legal description set forth on the final as-built survey, Owner and Agent
shall cooperate in amending the legal descriptions in all recorded documents
creating or affecting the Unit Premises, including, without limitation, any
easements and any applicable Ground Lease, to reflect the correct as-built
description.
(g) UTILITIES. Direct connection has been made to all appropriate
utility facilities and the Unit Improvements are ready for occupancy and
operation.
(h) FLOOD ZONE. If the Unit Premises are located in a flood plain, a
policy of flood insurance in an amount equal to the lesser of (A) the maximum
limit of coverage available under the National Flood Insurance Act of 1968, as
amended, or (B) the amount of the Unit Acquisition Cost for the Unit.
(i) CONTINUING REPRESENTATIONS OF AGENT. All representations and
warranties made in this Agreement (other than in subsection 8.10 hereof), in
the Lease (other than in paragraph (f) and clause (8) of paragraph (r) of
Section 2 of the Lease), and in connection with the Final Advance are and
remain true and correct in all material respects on and as of the date of the
Final Advance as if made on and as of the date of the Final Advance and no
Event of Default, Potential Default or, with respect to the Unit for which the
Final Advance is requested, Event of Unit Termination or Potential Event of
Unit Termination, under this Agreement has occurred and is continuing on the
date such Final Advance is to be made or will occur by reason of giving effect
to such Final Advance.
(j) CONTINUING REPRESENTATIONS OF GUARANTOR. All representations and
warranties of the Guarantor made in the Guaranty are and remain true and
correct in all material respects on and as of the date of the Final Advance as
if made on and as of the date of the Final Advance and no default under the
Guaranty has occurred and is continuing on the date such Final Advance is to be
made or will occur by reason of giving effect to such Final Advance.
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(k) MATERIAL ADVERSE CHANGE. Since the date of this Agreement, there
has been no material adverse change in the assets, properties, operations,
prospects, consolidated financial condition, contingent liabilities or business
of the Guarantor, which could reasonably be expected to have a material adverse
effect on (i) the ability of Agent to perform its obligations under this
Agreement, the Lease or any of the Construction Documents in a timely manner or
the ability of the Guarantor to perform its obligations under the Guaranty in a
timely manner or (ii) the rights or interests of Owner or Assignee under this
Agreement or the Lease.
(l) AFL UNIT LEASING RECORD. An AFL Unit Leasing Record prepared and
duly executed by Agent.
(m) REQUEST FOR ADVANCE. A duly executed AIA Document G722 (or
substantially similar document) stating the total amount of the Final Advance
requested, the date on which such advance is to be made, wiring instructions
and a specific breakdown of items and costs for which the Final Advance is to
be made.
SECTION 7. CONDITIONS PRECEDENT TO COMPLETION ADVANCES WITH RESPECT TO
A UNIT
Owner's obligation to make a Completion Advance with respect to a Unit
shall be subject to the satisfaction of the conditions set forth in this
Section 7 and to the receipt by Owner and any Assignee of the documents set
forth in this Section 7, in each case in form and substance reasonably
satisfactory to Owner and Assignee. The proceeds of a Completion Advance shall
be used to pay in full all costs then due relating to completion of such Unit
not covered by previous advances under this Agreement. Owner shall have not
more than seven (7) Business Days to review the Certificate of Increased Cost
and its attachments prior to making the Completion Advance.
The following are the documents to be received by Owner and any
Assignee and the conditions to be satisfied:
(a) CERTIFICATE OF INCREASED COST. A duly executed Certificate of
Increased Cost certified true and correct as to all matters therein by Agent.
(b) CONTINUING REPRESENTATIONS OF AGENT. All representations and
warranties made in this Agreement (other than subsection 8.10 hereof), in the
Lease (other than in paragraph (f) and clause (8) of paragraph (r) of Section 2
of the Lease), and in connection with the Completion Advance are and remain
true and correct in all material respects on and as of the date of the
Completion Advance as if made on and as of the date of the Completion Advance
and no Event of Default, Potential Default or, with respect to the Unit for
which the Completion Advance is requested, Event of Unit Termination or
Potential Event of Unit Termination under this Agreement has occurred and is
continuing on the date such Completion Advance is to be made or will occur by
reason of giving effect to such Completion Advance.
(c) CONTINUING REPRESENTATIONS OF GUARANTOR. All representations and
warranties of the Guarantor made in the Guaranty are and remain true and
correct in all material respects on and as of the date of the Completion
Advance as if made on and as of the date of the Completion Advance and no
default under the Guaranty has occurred and is continuing on the
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date such Completion Advance is to be made or will occur by reason of giving
effect to such Completion Advance.
(d) REQUEST FOR ADVANCE. A duly executed AIA Document G722 (or
substantially similar document) stating the total amount of the Completion
Advance requested, the date on which such advance is to be made, wiring
instructions and a specific breakdown of items and costs for which the
Completion Advance is to be made.
(e) REVISED AFL UNIT LEASING RECORD. A revised AFL Unit Leasing Record
prepared by Agent pursuant to subsection 2.3(b) hereof.
(f) SATISFACTORY TITLE. A notice of title continuation (or nothing
further certificate) or an endorsement issued by the Title Company in respect
of Owner's title policy and any Assignee's title policy indicating that since
the last advance for such Unit Premises, there have been no changes in the
state of title, except for Permitted Liens, and no additional survey exceptions
(other than Permitted Liens) not theretofore specifically approved in writing
by Owner and Assignee and, if such Unit Premises are subject to a Ground Lease
in which Agent is not the ground lessor thereunder, an estoppel certificate
from the ground lessor certifying that there are no defaults under the Ground
Lease, if any, and such other information relating to title as may be
reasonably requested by Owner or Assignee at least three (3) Business Days
prior to the making of a Completion Advance.
(g) MATERIAL ADVERSE CHANGE. Since the date of this Agreement, there
has been no material adverse change in the assets, properties, operations,
prospects, consolidated financial condition, contingent liabilities or business
of the Guarantor, which could reasonably be expected to have a material adverse
effect on (i) the ability of Agent to perform its obligations under this
Agreement, the Lease or any of the Construction Documents in a timely manner or
the ability of the Guarantor to perform its obligations under the Guaranty in a
timely manner or (ii) the rights or interests of Owner or Assignee under this
Agreement or the Lease.
SECTION 8. REPRESENTATIONS AND WARRANTIES OF EACH AGENT
Each Agent represents and warrants to Owner now and (except with
respect to subsection 8.10 hereof) on the date of each advance that:
8.1 CORPORATE MATTERS. Agent (i) has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, (ii) has full power, authority and legal right to own and operate
its properties and to conduct its business as presently conducted and to
execute, deliver and perform its obligations under the Operative Documents and
the Construction Documents, and (iii) is duly qualified to do business as a
foreign corporation in good standing in each jurisdiction in which its
ownership or leasing of properties or the conduct of its business requires such
qualification, except where the failure to comply with the foregoing clauses
(ii) and (iii) would not impair the ability of Agent to perform its obligations
under the Operative Documents and the Construction Documents in a timely manner
or the ability of the Guarantor to perform its obligations under the Guaranty
in a timely manner.
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8.2 POWER AND AUTHORITY. The consummation of the transactions herein
contemplated and the performance and observance of Agent's obligations under
the Operative Documents have been, and the Construction Documents have been or
will be, duly authorized by all necessary corporate action on the part of
Agent. The execution, delivery and performance by Agent of the Operative
Documents and the Construction Documents will not result in any violation of
any term of the articles of incorporation or the by-laws of Agent, do not
require stockholder approval or the approval or consent of any trustee or
holders of indebtedness of Agent except such as have been obtained prior to the
date hereof and will not conflict with or result in a breach of any terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any Lien (other than a Permitted Lien) upon any property or
assets of Agent under, any indenture, mortgage or other agreement or instrument
to which Agent is a party or by which it or any of its property is bound, or
any existing applicable law, rule, regulation, license, judgment, order or
decree of any Governmental Authority or court having jurisdiction over Agent or
any of its activities or properties, except for any possible conflict with,
breach of or default under, any indenture, mortgage or other agreement or
instrument, which conflict, breach, default or violation could reasonably be
expected to have a material adverse effect on (i) the construction, use or
value of any Unit Premises, Unit Improvements, Unit FF&E or Unit, (ii) the
ability of Agent to perform its obligations under the Operative Documents and
the Construction Documents in a timely manner or the ability of the Guarantor
to perform its obligations under the Guaranty in a timely manner or (iii) the
rights or interests of Owner or Assignee under this Agreement or the Lease.
8.3 BINDING AGREEMENTS. (i) The Operative Documents have been, and
each of the Construction Documents will be, duly authorized, executed and
delivered by Agent and, assuming the due authorization, execution and delivery
of the Operative Documents by Owner and the Construction Documents by the
parties thereto other than Agent, the Operative Documents are, and each of the
Construction Documents when executed and delivered will be, legal, valid and
binding obligations of Agent, enforceable according to their respective terms.
(ii) The Guaranty has been duly authorized, executed and
delivered by the Guarantor and is a legal, valid and binding obligation of the
Guarantor, enforceable according to its terms.
8.4 NO LITIGATION. There is no action, suit, proceeding or
investigation at law or in equity by or before any court, governmental body,
agency, commission or other tribunal now pending or, to the knowledge of Agent,
threatened against or affecting Agent or the Guarantor or any property or
rights of Agent or the Guarantor with respect to which there exists a
reasonable possibility of a decision or judgment which would (a) question the
validity or enforceability of this Agreement or the Pledged Contracts, (b)
materially adversely affect any Unit Premises, Unit Improvements, Unit FF&E, or
Unit, (c) impair the ability of Agent to perform its obligations under the
Operative Documents, or (in any material respect) under any of the Construction
Documents or the ability of the Guarantor to perform its obligations under the
Guaranty, or (d) the rights or interests of Owner or Assignee under this
Agreement or the Lease.
8.5 CONSENTS, APPROVALS, AUTHORIZATIONS, ETC. There are no consents,
licenses, orders, authorizations, approvals, Environmental Approvals, Permits,
waivers, extensions or variances of, or notices to or registrations or filings
with (each a "GOVERNMENTAL
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ACTION"), any Governmental Authority or public body or authority which are or
will be required in connection with the valid execution, delivery and
performance of the Operative Documents and the Construction Documents, or any
Governmental Action (i) which is or will be required in connection with any
participation by Owner or Assignee in the transactions contemplated by any ▇▇▇▇
of sale, deed, assignment, assumption, ownership agreement, or operating
agreement relating to any Unit Premises, Unit Improvements, Unit FF&E or Unit
or (ii) which is or will be required to be obtained by Owner, Agent, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ Leasing, any Assignee or an Affiliate of the foregoing, during the term
of this Agreement, with respect to any Unit Premises, Unit Improvements, Unit
FF&E or Unit except such Governmental Actions, (A) as have been or will be in a
timely manner duly obtained, given or accomplished, (B) as may be required by
applicable law not now in effect, (C) which may be required as a result of the
business, properties or activities of Owner, any Assignee or any Affiliate of
the foregoing and which are not solely dependent on the nature of any Unit
Premises, Unit Improvements, Unit FF&E or Unit under this Agreement or the
business of Agent, or (D) which, individually or in the aggregate, if not
obtained or effected, (x) will not place Owner or any Assignee in any danger of
civil liability for which Owner or any Assignee is not adequately indemnified
hereunder or subject Owner or any Assignee to any danger of criminal liability
as a result of failure to comply therewith, (y) will not result in a material
diminution in the value of any Unit Premises, Unit Improvements, Unit FF&E or
Unit and (z) will not impair the ability of Agent to perform its obligations
under the Operative Documents, or (in any material respect) any of the
Construction Documents in a timely manner or the ability of the Guarantor to
perform its obligations under the Guaranty in a timely manner.
8.6 COMPLIANCE WITH LEGAL REQUIREMENTS AND INSURANCE REQUIREMENTS. The
construction, operation, use, and physical condition of each Unit Premises, the
Unit Improvements, Unit, and item of Unit FF&E comply with all Legal
Requirements and Insurance Requirements, except any Legal Requirement, the
noncompliance with which, individually or in the aggregate, (a) will not place
Owner or any Assignee in any danger of civil liability for which Owner or any
Assignee is not adequately indemnified hereunder or subject Owner or any
Assignee to any danger of criminal liability as a result of failure to comply
therewith, (b) will not result in a material diminution in the value of any
Unit Premises, Unit Improvements, Unit FF&E or Unit and (c) will not impair the
ability of Agent to perform its obligations under the Operative Documents or
any of the Construction Documents in a timely manner or the ability of the
Guarantor to perform its obligations under the Guaranty in a timely manner.
8.7 NO DEFAULT. Neither Agent nor Guarantor is in violation of or in
default under or with respect to any Legal Requirement in any respect which
could reasonably be expected to have a material adverse effect on (a) the
construction, operation, maintenance, use or value of any Unit Premises, Unit
Improvements, Unit FF&E or Unit, (b) the ability of Agent to perform its
obligations under the Operative Documents in a timely manner or the ability of
the Guarantor to perform its obligations under the Guaranty in a timely manner
or (c) the rights or interests of Owner or Assignee under this Agreement or the
Lease.
8.8 OWNERSHIP; LIENS. No Unit Premises, Unit Improvements, Unit FF&E,
or Unit is subject to any Lien, except for Permitted Liens.
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THIS AGREEMENT FOR LEASE IS
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8.9 FINANCIAL STATEMENTS. Agent has furnished to Owner copies of its
annual unaudited financial statements for the fiscal year ended December 31,
1998 and the Guarantor's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998. The financial statements contained in such documents fairly
present the financial position, results of operations and statements of cash
flows of Agent and the Guarantor as of the dates and for the periods indicated
therein and have been prepared in accordance with GAAP.
8.10 MATERIAL ADVERSE CHANGE. Since December 31, 1998, there has been
no material adverse change in the assets, properties, operations, prospects,
consolidated financial condition, contingent liabilities or business of the
Guarantor, which could reasonably be expected to have a material adverse effect
on (a) the construction, operation, maintenance, use or value of any Unit, (b)
the ability of Agent to perform its obligations under this Agreement, the Lease
or any of the Construction Documents in a timely manner or the ability of the
Guarantor to perform its obligations under the Guaranty in a timely manner or
(c) the rights or interests of Owner or Assignee under this Agreement or the
Lease.
8.11 SUITABILITY OF EACH UNIT PREMISES. Each Unit Premises is suitable
in all material respects (including, without limitation, ground conditions,
utilities, and condition of title) for the construction of the related Unit
Improvements.
8.12 ERISA. Agent and its ERISA Affiliates are in compliance in all
material respects with the applicable provisions of ERISA and the regulations
and published interpretations thereunder. No Reportable Event has occurred,
been waived or exists as to which Agent 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 ERISA Plan (based on those assumptions used to fund such
ERISA Plan) did not, as of the last annual valuation date applicable thereto,
exceed by more than $2,000,000 the value of the assets of such ERISA Plan.
Neither Agent nor any ERISA Affiliate has incurred any Withdrawal Liability
that could result in a material adverse effect on (a) the construction,
operation, maintenance, use or value of any Unit Premises, Unit Improvements,
Unit FF&E or Unit, (b) the ability of Agent to perform its obligations under
the Operative Documents or any of the Construction Documents in a timely manner
or (c) the rights or interests of Owner or Assignee under this Agreement or the
Lease. Neither Agent nor 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 ERISA Plan or
otherwise, in a material adverse effect on (A) the construction, operation,
maintenance, use or value of any Unit Premises, Unit Improvements, Unit FF&E or
Unit, (B) the ability of Agent to perform its obligations under the Operative
Documents or any of the Construction Documents in a timely manner or (C) the
rights or interests of Owner or Assignee under this Agreement or the Lease.
8.13 GROUND LEASE. Each Ground Lease has been duly authorized,
executed and delivered by Agent and is a legal, valid and binding obligation of
Agent enforceable according to its terms. Each Ground Lease is a Mortgageable
Ground Lease except to the extent agreed to in writing by Owner and Assignee
and is in full force and effect.
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8.14 STATUS OF AGENT. On the date hereof, not less than fifty-one
percent (51%) of the common stock of each of TA Operating Corporation and
National Auto/Truckstops, Inc. is owned (directly or indirectly) beneficially
and of record by the Guarantor.
8.15 TAXES. Agent has filed or caused to be filed all tax returns
which are required to be filed by it, and has paid all taxes shown to be due
and payable on said returns or on any assessments made against it or any of its
assets and properties and has paid all other taxes, fees or other charges
imposed on it by any Governmental Authority (except taxes, fees and charges
subject to a Permitted Contest).
8.16 PLEDGE AGREEMENT. The Pledge Agreement has been duly authorized,
executed and delivered by Agent and, assuming the due authorization, execution
and delivery of the Pledge Agreement by Owner, is a legal, valid and binding
obligation of Agent, enforceable according to its terms. The Pledge Agreement
creates a valid security interest in the Collateral (as defined in the Pledge
Agreement) now in existence, securing the payment of the Secured Obligations
(as defined in the Pledge Agreement). All action necessary to perfect the
security interest in the Collateral has been taken and such security interest
has priority over any other Lien on the Collateral, except for Permitted Liens.
8.17 ENVIRONMENTAL DISCLOSURE.
Except as expressly identified in the Pledged Contracts and the
Environmental Documents:
(i) To the best knowledge of Agent, after due inquiry, Agent and
each Unit complies with, and have at all times complied with, all Environmental
Requirements applicable to each Unit, including, without limitation, the use,
maintenance and operation of each Unit, and all activities and conduct of
business related thereto, including, without limitation, the storage, disposal,
removal, transport, treatment and/or remediation of any Hazardous Substance,
except where noncompliance, individually or in the aggregate, (1) will not
place Owner or any Assignee in any danger of civil liability for which Owner or
any Assignee is not adequately indemnified hereunder or subject Owner or any
Assignee to any danger of criminal liability, (2) will not result in a
diminution in the value of any Unit Premises, Unit Improvements, Unit FF&E or
Unit, (3) will not impair the ability of Agent to perform its obligations under
the Operative Documents in a timely manner or the ability of the Guarantor to
perform its obligations under the Guaranty in a timely manner and (4) will not
impair the rights or interests of Owner or Assignee under this Agreement or the
Lease.
(ii) Agent has obtained all Environmental Approvals necessary in
connection with the ownership of and operation at each Unit Premises and any
activities or conduct performed thereon, and all such Environmental Approvals
are in good standing (subject to Permitted Contests), and Agent is currently in
compliance with all terms and conditions of such Environmental Approvals,
except where noncompliance, individually or in the aggregate, (1) will not
place Owner or any Assignee in any danger of civil liability for which Owner or
any Assignee is not adequately indemnified hereunder or subject Owner or any
Assignee to any danger of criminal liability, (2) will not result in a
diminution in the value of any Unit Premises, Unit Improvements, Unit FF&E or
Unit, (3) will not impair the ability of Agent to perform its obligations under
the Operative Documents in a timely manner or the ability of the Guarantor to
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perform its obligations under the Guaranty in a timely manner and (4) will not
impair the rights or interests of Owner or Assignee under this Agreement or the
Lease. There are no proceedings pending or threatened as to which there exists
a reasonable possibility of a decision or judgment which would question the
validity of any such Environmental Approvals.
(iii) Agent has not received, and is not otherwise aware of, any
notice, directive, citation, subpoena, summons, order to show cause, complaint
or other written communication concerning any alleged violation of
Environmental Requirements relating to or affecting any Unit or relating to or
arising out of (1) the Release or threatened Release of Hazardous Substances
at, on, from, beneath or affecting any Unit, or (2) the conditions, ownership,
use, maintenance or operation of a Unit or Equipment by Agent or by any prior
owner or operator of any Unit, except with respect to any such alleged
violations that (a) are subject to a Permitted Contest, (b) have been remedied
or (c)(1) individually or in the aggregate, (i) will not place Owner or any
Assignee in any danger of civil liability for which Owner or any Assignee is
not adequately indemnified hereunder or subject Owner or any Assignee to any
danger of criminal liability, (ii) will not result in a diminution in the value
of any Unit Premises, Unit Improvements, Unit FF&E or Unit, (iii) will not
impair the ability of Agent to perform its obligations under the Operative
Documents in a timely manner or the ability of the Guarantor to perform its
obligations under the Guaranty in a timely manner and (iv) will not impair the
rights or interests of Owner or Assignee under this Agreement or the Lease, and
(2) which violations will be remedied prior to the time that such violations,
individually or in the aggregate, (i) place Owner or any Assignee in any danger
of civil liability for which Owner or any Assignee is not adequately
indemnified hereunder or subject Owner or any Assignee to any danger of
criminal liability, (ii) result in a diminution in the value of any Unit
Premises, Unit Improvements, Unit FF&E or Unit, (iii) impair the ability of
Agent to perform its obligations under the Operative Documents in a timely
manner or the ability of the Guarantor to perform its obligations under the
Guaranty in a timely manner or (iv) impair the rights or interests of Owner or
Assignee under this Agreement or the Lease.
(iv) To the best knowledge of Agent, there has been no material
adverse change in the facts or circumstances reported in or assumed in the
Environmental Reports and the Environmental Documents.
(v) No Environmental Lien is attached to any portion of any Unit
Premises.
(vi) Neither Agent nor, to the knowledge of Agent, any
contractor engaged in connection with any Unit, has engaged in or permitted any
operations or activities upon, or any use or occupancy of, any Unit or any
portion thereof, for the purpose of or in any way involving the Release of any
Hazardous Substance in a manner not in compliance with Environmental
Requirements or the handling, storage, use or disposal of any Hazardous
Substance in a manner not in compliance with Environmental Requirements, except
where noncompliance, individually or in the aggregate, (1) will not place Owner
or any Assignee in any danger of civil liability for which Owner or any
Assignee is not adequately indemnified hereunder or subject Owner or any
Assignee to any danger of criminal liability, (2) will not result in a
diminution in the value of any Unit Premises, Unit Improvements, Unit FF&E or
Unit, (3) will not impair the ability of Agent to perform its obligations under
the Operative Documents
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in a timely manner or the ability of the Guarantor to perform its obligations
under the Guaranty in a timely manner and (4) will not impair the rights or
interests of Owner or Assignee under this Agreement or the Lease, nor has Agent
caused any Hazardous Substance to be Released or otherwise come to be located
on, under, in or about any Unit, nor to the knowledge of Agent has any
Hazardous Substance migrated from any Unit onto or underneath other properties,
in either case in a condition or under circumstances that could reasonably be
expected to (i) place Owner or any Assignee in any danger of civil liability
for which Owner or any Assignee is not adequately indemnified hereunder or
subject Owner or any Assignee to any danger of criminal liability, (ii) result
in a diminution in the value of any Unit Premises, Unit Improvements, Unit FF&E
or Unit, (iii) impair the ability of Agent to perform its obligations under the
Operative Documents in a timely manner or the ability of the Guarantor to
perform its obligations under the Guaranty in a timely manner or (iv) impair
the rights or interests of the Owner or Assignee under this Agreement or the
Lease.
(vii) To the best knowledge of Agent, there is not constructed,
placed, deposited, stored, disposed nor located on any Unit any asbestos in any
form that has become or threatens to become friable.
(viii) To the best knowledge of Agent, there is not constructed,
placed, deposited, released, stored, disposed, leached nor located on any Unit
any polychlorinated biphenyls ("PCBS") or transformers, capacitors, ballasts or
other equipment that contain dielectric fluid containing PCBs in a condition
not in compliance with applicable Environmental Requirements, except where the
noncompliance, individually or in the aggregate, (1) will not place Owner or
any Assignee in any danger of civil liability for which Owner or any Assignee
is not adequately indemnified hereunder or subject Owner or any Assignee to any
danger of criminal liability, (2) will not result in a diminution in the value
of any Unit Premises, Unit Improvements, Unit FF&E or Unit, (3) will not impair
the ability of Agent to perform its obligations under the Operative Documents
in a timely manner or the ability of the Guarantor to perform its obligations
under the Guaranty in a timely manner and (4) will not impair the rights or
interests of Owner or Assignee under this Agreement or the Lease.
8.18 AVAILABILITY OF UTILITIES; EASEMENTS. All utility services,
rights-of-way, easements, licenses and permits necessary for the construction
of each Unit without impediment or delay will be available at the boundaries of
each Unit Premises upon the commencement of construction or will be timely
obtained, and all utility services, rights-of-way, easements, licenses and
permits necessary for the operation of each Unit for its intended purpose will
be available on commercially reasonable terms at or within the boundaries of
each Unit Premises when needed.
8.19 BUDGETS. All Unit Budgets furnished or to be furnished to Owner
and Assignee by or on behalf of Agent at the time so furnished (a) have been
and will be prepared with due care in accordance with prudent business and
engineering practices, (b) fairly present, and will fairly present, Agent's
expectations as to the matters covered thereby as of their date, (c) are based
on, and will be based on, assumptions that are reasonable as to all factual and
legal matters material to the estimates therein and (d) are in all material
respects consistent with, and will be in all material respects consistent with,
the provisions of this Agreement, the Lease and the Construction Documents.
Each Unit Budget includes all costs and expenses that could
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reasonably be expected (at the time furnished) to be incurred in connection
with the construction of the applicable Unit.
8.20 INVESTMENT COMPANY ACT. Neither Agent is an "investment company"
or a company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or an "investment advisor" within
the meaning of the Investment Act of 1940, as amended.
8.21 YEAR 2000 PROBLEM. Agent has reviewed the areas within its
business and operations which could be adversely affected by, and has developed
or is developing a program to address on a timely basis, the "Year 2000
Problem" (that is, the risk that computer applications used by Agent may be
unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and any date on or after December 31, 1999), and has
made related appropriate inquiry of material suppliers and vendors. Based on
such review and program, Agent believes that the "Year 2000 Problem" will not
have a Material Adverse Effect. As used herein "Material Adverse Effect" shall
mean (a) a material adverse effect on the business, condition (financial or
otherwise), operations, performance or properties of Agent, or (b) a material
impairment of the ability of Agent to perform its obligations under or to
remain in compliance with the Operative Documents and the Construction
Documents. From time to time, at the request of Owner or any Assignee, Agent
shall provide to Owner and such Assignee such updated information or
documentation as is requested regarding the status of its efforts to address
the Year 2000 Problem.
SECTION 9. AFFIRMATIVE COVENANTS
Each Agent hereby agrees that, so long as this Agreement remains in
effect, Agent shall keep and perform fully each and all of the following
covenants:
9.1 PERFORMANCE UNDER OTHER AGREEMENTS. Agent shall duly perform and
observe all of the covenants, agreements and conditions on its part to be
performed and observed hereunder and shall duly perform and observe all of the
covenants, agreements and conditions on its part which it is obligated to
perform or observe under the Pledged Contracts and the Construction Documents
related to each Unit, except for any covenants, agreements and conditions under
the Construction Documents, the noncompliance with which, individually or in
the aggregate, (i) will not place Owner or any Assignee in any danger of civil
liability for which Owner or any Assignee is not adequately indemnified
hereunder or subject Owner or any Assignee to any danger of criminal liability,
(ii) will not result in a diminution in the value of any Unit Premises, Unit
Improvements, Unit FF&E or Unit, (iii) will not impair the ability of Agent to
perform its obligations under this Agreement and the Lease in a timely manner
and (iv) will not impair the rights or interests of Owner or Assignee under
this Agreement or the Lease.
9.2 NO ENCROACHMENTS. The Unit Improvements shall be constructed
entirely on the related Unit Premises and shall not encroach upon or overhang
(unless consented to by the affected property owner) any easement or
right-of-way or the land of others (unless such encroachment or overhang is a
Permitted Lien or is insured over by the Title Company in a manner reasonably
satisfactory to Owner), and when erected shall be wholly within any building
restriction lines, however established. Upon the reasonable request of Owner,
Agent shall
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furnish from time to time satisfactory evidence of compliance with the
foregoing covenants, including, without limitation, a survey prepared by a
registered surveyor or engineer. If any discrepancies exist between the legal
description set forth on the survey described in Section 4(h) hereof and the
final as-built survey described in Section 6(f) hereof, Owner and Agent shall
cooperate, at Agent's expense, in amending the legal descriptions in all
recorded documents creating or encumbering or otherwise affecting the Unit
Premises, including, without limitation, any easements and any applicable
Ground Lease, to reflect the correct as-built description.
9.3 INSURANCE.
(a) INSURANCE WITH RESPECT TO EACH UNIT PREMISES, THE UNIT
IMPROVEMENTS, UNIT FF&E AND UNIT. Agent will maintain or cause to be maintained
on each Unit Premises, Unit Improvements, Unit FF&E and Unit insurance of the
same types, in the same amounts and on the same terms and conditions as the
insurance required by Section 10 of the Lease, except that the terms "Owner",
"Agent" and "this Agreement" shall substitute for the terms "the Lessor", "the
Lessee" and "this Lease", respectively, the phrase "Unit Premises, Unit
Improvements, Unit FF&E and Unit" shall substitute for the phrase "Parcel of
Property", and references to "Equipment" or "Unit of Equipment" shall be deemed
deleted, and the phrase "Unit Acquisition Cost" shall substitute for the phrase
"Acquisition Cost"; PROVIDED, that in lieu of the insurance required by
paragraph (c)(i) of Section 10 of the Lease, Agent shall maintain or cause to
be maintained All Risk Builders' Risk Completed Value Non-Reporting Form
Insurance including collapse coverage and fire insurance with extended
coverage, in an amount not less than one hundred one percent (101%) of the
completed insurable value of the respective Unit Improvements and Unit FF&E.
The term "completed insurable value" as used herein means the actual
replacement cost, including the cost of debris removal, but excluding the cost
of constructing foundation and footings. In addition, notwithstanding anything
to the contrary set forth in paragraph (a) above, Agent shall procure at its
own cost and expense and maintain in full force and effect on each Unit
Premises, Unit Improvements, Unit FF&E and Unit insurance coverage for the
events described in clause (1)(A) and (B) of Section 15 hereof in an amount not
less than one hundred one percent (101%) of the completed insurable value of
the respective Unit Improvements and Unit FF&E.
(b) Notwithstanding anything to the contrary set forth in paragraph
(a) above, Agent covenants that it will procure at its own cost and expense and
maintain on each Unit Premises, Unit Improvements, Unit FF&E and Unit at all
times during the term of this Agreement insurance policies with responsible
insurance companies with a Best Insurance Reports rating of "A-" or better and
a financial size category of "VIII" or higher, or if not rated by Best, a
Standard & Poor's claims paying ability rating of BBB+ or higher (or such other
companies acceptable to Owner and Assignee in their sole discretion). Subject
to the immediately preceding sentence, the insurance required by this
subsection 9.3 may be obtained by Agent by endorsement on its (or any
Affiliate's) blanket insurance policies. In addition, the insurance required by
this subsection 9.3 may be maintained with any captive insurance company
approved in writing by Owner and Assignee.
(c) Agent covenants that it will not use, carry on construction with
respect to, or occupy any Unit or permit the use, construction, or occupancy of
any Unit Premises, Unit Improvements, Unit FF&E or Unit at a time when the
insurance required by paragraph (a) of this
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subsection is not in force with respect to such Unit Premises, Unit
Improvements, Unit FF&E or Unit.
(d) Agent hereby waives any and all claims for recovery from Owner,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ Leasing, the General Partner and its
shareholders, officers and directors, the limited partners of Owner and the
Assignee for any and all loss or damage covered by any of the insurance
policies to be maintained under this Agreement to the extent that such loss or
damage is recovered under any such policy. Inasmuch as the foregoing waiver
will preclude the assignment of any such claim to the extent of such recovery,
by subrogation (or otherwise), to an insurance company (or other Person), Agent
shall give written notice of the terms of such waiver to each insurance company
which has issued, or which may issue in the future, any such policy of
insurance (if such notice is required by the insurance policy) and shall cause
each such insurance policy to be properly endorsed by the issuer thereof, or to
otherwise contain one or more provisions that, prevent the invalidation of the
insurance coverage provided thereunder by reason of such waiver.
9.4 INSPECTION OF BOOKS AND RECORDS. Upon reasonable (and in any event
not less than three (3) Business Days') prior notice to Agent and during
reasonable business hours, Owner or Assignee or any authorized representatives
of either of them, shall have the right of entry and free access to each Unit
Premises, the Unit Improvements, Unit FF&E and each Unit and the right to
inspect all work done, labor performed and materials furnished in and about
each Unit Premises, the Unit Improvements, Unit FF&E and each Unit and at
reasonable times the right to inspect all books, contracts and records of Agent
and the Guarantor relating to each Unit Premises, the Unit Improvements, Unit
FF&E and each Unit. Notwithstanding the foregoing, neither Owner nor any
Assignee shall have any duty to make such inspection.
9.5 EXPENSES. Agent shall pay upon demand all obligations, costs and
expenses incurred by Owner with respect to any and all transactions
contemplated herein and the preparation of any document reasonably required
hereunder and the prosecution or defense of any action or proceeding or other
litigation affecting Agent or any Unit Premises, Unit Improvements, Unit FF&E
or Unit, including (without limiting the generality of the foregoing) all
Financing Costs not capitalized by Owner in Unit Acquisition Cost and amounts
required to pay or reimburse Owner for its obligations, costs and expenses
arising in connection with the termination of any Credit Agreement (whether as
a result of a default thereunder or otherwise), all interest, costs incurred in
connection with terminating and obtaining Owner's equity financing, costs
incurred in connection with obligations of Owner under or in respect of any
interest rate swap, cap, collar or other financial hedging arrangement,
including, without limitation, costs incurred by Owner under any such
arrangement to reduce the notional amount thereof by the amount of any
prepayment of any borrowing to which such interest rate swap, cap, collar or
other financial hedging arrangement relates, title and conveyancing charges,
recording and filing fees and taxes, title search fees, rent under the Ground
Leases, mortgage taxes, intangible personal property taxes, escrow fees,
revenue and tax stamp expenses, insurance premiums (including title insurance
premiums), brokerage commissions, finders' fees, placement fees, court costs,
surveyors', photographers', appraisers', architects', engineers', rating
agencies', accountants' and reasonable attorneys' fees and disbursements, and
will reimburse to Owner all expenses paid by Owner of the nature described in
this subsection 9.5 which have been or may be incurred by Owner with respect to
any and all of the transactions contemplated
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herein. In the event Agent shall fail to pay or reimburse Owner within ten (10)
Business Days after presentation of a ▇▇▇▇ and demand for payment therefor,
Owner may pay or deduct from the advances to be made any of such expenses and
any proceeds so applied shall be deemed advances under this Agreement, and
deducted from the total funds available to Agent under this Agreement.
Notwithstanding anything to the contrary contained in the foregoing, Agent
shall not be required to pay or reimburse Owner pursuant to this subsection for
any of the foregoing obligations, costs and expenses which Owner has
capitalized and included as an element of the Unit Acquisition Cost of a Unit.
Expenses incurred by Owner (including, without limitation, Financing Costs) in
financing obligations, costs and expenses pending allocation as a capitalized
cost to a Unit shall be payable by Agent hereunder.
9.6 CERTIFICATES; OTHER INFORMATION. Agent shall furnish to Owner and
each Assignee:
(a) concurrently with the delivery of the financial statements
referred to in subsection 9.6(b) hereof, a certificate of a Responsible Officer
stating that, to the best knowledge of such Responsible Officer after
reasonable inquiry (i) Agent during such period has observed or performed in
all material respects all of its covenants and other agreements, and satisfied
every condition contained in this Agreement and in the Construction Documents
to be observed, performed or satisfied by it, (ii) there exists on the date of
such certificate no Event of Default, Potential Default, Event of Unit
Termination or Potential Event of Unit Termination or default under any Pledged
Contact, or if any such default exists, specifying the nature and period of
existence thereof and what action, if any, Agent has taken, is taking, or
proposes to take with respect thereto, and (iii) setting forth computations in
reasonable detail satisfactory to Owner and Assignee demonstrating compliance
with the covenant contained in subsection 9.15 hereof; and
(b) from time to time, (i) promptly upon their becoming available,
and, in any event, not more than 105 days after the end of each fiscal year of
Agent, copies of Agent's annual unaudited financial statements and the
Guarantor' s Annual Reports on Form 10-K, and, promptly upon their becoming
available, and, in any event, not more than sixty (60) days after the end of
each fiscal quarter of the Agent, copies of Agent's quarterly unaudited
financial statements and the Guarantor's Quarterly Reports on Form 10-Q and,
promptly upon filing, any other reports the Guarantor files with the Securities
and Exchange Commission, (ii) promptly, and in any event within ten (10)
Business Days upon request, such other information with respect to Agent's and
the Guarantor's operations, business, property, assets, financial condition or
litigation as Owner or any Assignee shall reasonably request, (iii) promptly,
and in any event within five (5) Business Days after a Responsible Officer
obtains knowledge of any Event of Default, Potential Default, Event of Unit
Termination or Potential Event of Unit Termination, or any default or alleged
default by any party to a Pledged Contract, a certificate of a Responsible
Officer specifying the nature and period of existence of such Event of Default,
Potential Default, Event of Unit Termination or Potential Event of Unit
Termination, or default under a Pledged Contract, and what action, if any,
Agent has taken, is taking, or proposes to take with respect thereto, (iv)
promptly, and in any event within five (5) Business Days after a Responsible
Officer obtains knowledge of any material adverse change in the financial
condition or business of Agent or the Guarantor of the type described in
subsection 8.10 hereof or of any litigation of the type described in subsection
8.4 hereof, a certificate of a Responsible Officer describing such change or
litigation as the case may be, and (v) promptly, and in any event within five
(5) Business Days
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after a Responsible Officer obtains knowledge of any and all Liens, other than
Permitted Liens, on any Unit Premises, Unit Improvements, Unit FF&E, or Unit, a
detailed statement of a Responsible Officer describing each such Lien.
9.7 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. Agent shall
preserve, renew and keep in full force and effect its corporate existence
(except as otherwise permitted herein), and take all reasonable action to
maintain all rights, privileges and franchises material to the conduct of its
business, and comply with all Legal Requirements; PROVIDED, HOWEVER, that
nothing contained in this subsection 9.7 shall prevent Agent from ceasing or
omitting to exercise any rights, privileges or franchises which in the
reasonable judgment of Agent can no longer be profitably exercised or prevent
Agent from selling, abandoning or otherwise disposing of any property, the
retention of which in the reasonable judgment of Agent is inadvisable to the
business of Agent, or prevent any liquidation of any subsidiary of Agent, or
any merger, consolidation or sale, permitted by the provisions of subsection
10.2 hereof.
9.8 NOTICES. Agent shall give notice to Owner and each Assignee
promptly upon, and in any event not more than five (5) Business Days after
Agent becomes aware of:
(a) any litigation or proceeding affecting any Unit Premises, Unit
Improvements, Unit FF&E, or Unit in which the amount of damages requested
exceeds $250,000 or more and is not covered by insurance or in which injunctive
or similar relief is sought;
(b) any notice given by or to Agent pursuant to any of the Pledged
Contracts or Construction Documents that a default has occurred thereunder;
(c) any condition which results or is reasonably likely to result in a
Force Majeure Delay in completion of the Unit Improvements;
(d) the imposition of any Lien (other than Permitted Liens); and
(e) notices received from any party to any Pledged Contract that (i)
such party is amending, modifying or waiving any term of any Pledged Contract,
(ii) such party is commencing or proposes to commence any dispute resolution
procedure under the terms of any Pledged Contract, (iii) such party is
terminating or has proposed to terminate any Pledged Contract, (iv) a default
has occurred under any Pledged Contract or any Person has alleged that a
default has occurred under any Pledged Contract, or (v) there are claims for
damages existing as a result of the performance or the failure to perform any
obligations under any Pledged Contract.
Each notice pursuant to this subsection 9.8 shall be accompanied by a
statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action, if any, Agent proposes to take
with respect thereto.
9.9 LEGAL REQUIREMENTS AND INSURANCE REQUIREMENTS. Agent shall comply
with every Insurance Requirement, and every Legal Requirement (subject to
Permitted Contests), affecting (a) the execution, delivery and performance of
this Agreement and the Construction Documents and (b) any Unit Premises, Unit
Improvements, item of Unit FF&E or Unit; and Agent will not do or permit any
act or thing which is contrary to any Insurance Requirement or which is
contrary to any Legal Requirement, or which might impair, other than
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in the normal use thereof, the value or usefulness of any Unit Premises, Unit
Improvements, item of Unit FF&E or Unit.
9.10 PAYMENT OF TAXES. With respect to any Unit Premises, Unit
Improvements, Unit FF&E, or Unit, Agent shall make all required reports to the
appropriate taxing authorities and shall pay during the term of this Agreement
the taxes that Agent would be required to pay if such Unit Premises, Unit
Improvements or Unit was a Parcel of Property under paragraph (c) of Section 9
of the Lease. Payment of such taxes shall be on the terms set forth in
paragraph (c) of Section 9 of the Lease. Agent will pay and discharge, or cause
to be paid and discharged, all taxes, assessments and governmental charges or
levies imposed upon it or its income or properties, prior to the date on which
penalties attach thereto, except to the extent that any such tax, assessment,
charge or levy is the subject of a Permitted Contest.
9.11 FILINGS, ETC. Agent shall promptly and duly execute, deliver,
file, and record, at Agent's expense, all such documents, statements, filings,
and registrations, and take such further action as Owner shall from time to
time reasonably request in order to establish, perfect and maintain Owner's
title to and interest in any Unit Premises, Unit Improvements, Unit FF&E and
any Unit and any Assignee's interest in this Agreement, any Unit Premises, Unit
Improvements, Unit FF&E or any Unit as against Agent or any third party in any
applicable jurisdiction.
9.12 USE OF PROCEEDS. The proceeds of each advance shall be used by
Agent for payment of costs specified in the applicable request for the advance
and in accordance with the respective Unit Budget.
9.13 COMPLIANCE WITH OTHER REQUIREMENTS. Agent shall use every
reasonable precaution to prevent loss or damage to any Unit Premises, Unit
Improvements, Unit FF&E, or any Unit and to prevent injury to third Persons or
property of third Persons. Agent shall cooperate fully with Owner and all
insurance companies providing insurance pursuant to subsection 9.3 hereof in
the investigation and defense of any claims or suits arising from the ownership
or operation of equipment or ownership, use, or occupancy of any Unit Premises,
Unit Improvements, Unit FF&E, or any Unit; PROVIDED, that nothing contained in
this subsection shall be construed as imposing on Owner any duty to investigate
or defend any such claims or suits. Agent shall comply and shall use its best
efforts to cause all Persons operating equipment on, using or occupying any
Unit Premises, Unit Improvements, Unit FF&E, or any Unit to comply at Agent's
expense with every Insurance Requirement and Legal Requirement regarding
acquiring, titling, registering, leasing, subleasing, insuring, using,
occupying, operating and disposing of any Unit Premises, Unit Improvements,
Unit FF&E, or any Unit, and, if applicable, the licensing of operators thereof.
9.14 ESTOPPEL CERTIFICATE. If Owner or Assignee shall reasonably
believe an "event of default" or event which, with the giving of notice or
lapse of time, would become an "event of default" under a Ground Lease has
occurred or may have occurred, or if an Event of Default or Potential Default
shall have occurred hereunder, Agent shall, upon request of Owner, request from
the ground lessor of the Unit Premises an estoppel certificate confirming that
there are no defaults under the Ground Lease applicable to such Unit Premises.
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9.15 COMPLIANCE WITH FINANCIAL COVENANTS. Agent shall cause the
Guarantor to comply with the covenants set forth in Sections 7.13, 7.14, 7.15,
7.16 and 7.17 of the TravelCenters Credit Agreement; PROVIDED, that Agent's
obligation to cause the Guarantor to comply with such Sections of the
TravelCenters Credit Agreement shall survive the termination or ceasing to be
in effect for any reason whatsoever of the TravelCenters Credit Agreement and
Agent agrees to comply with such covenants, notwithstanding any such
termination or ceasing to be in effect until such date as this Agreement and
the Lease shall be terminated in accordance with the terms hereof and thereof.
9.16 FURTHER ASSURANCES. Agent shall from time to time, at its own
cost and expense, promptly execute and deliver to Owner all such documents and
instruments and do all such other acts and things as Owner may reasonably
request to obtain the full benefits of this Agreement, to exercise and enforce
its rights and remedies hereunder and to protect Owner's rights and interests
in and to any Unit Premises, Unit Improvements, Unit FF&E or Unit. Agent shall
furnish to Owner upon request the contracts, bills of sale, statements,
receipted vouchers and other agreements and documents under which Owner has
title to any materials, fixtures or articles of personal property used in the
construction or operation of any Unit Premises, Unit Improvements, Unit FF&E or
Unit.
9.17 ENVIRONMENTAL COVENANTS.
(a) Agent and each Unit shall comply, and Agent shall use all
reasonable efforts to cause the compliance by any contractors engaged in
connection with each Unit, with all Environmental Requirements applicable to
each Unit and activities and conduct of business performed thereon, including,
without limitation, the use, maintenance and operation of each Unit and all
activities and conduct performed thereon, including, without limitation, the
use, storage, removal, transport, treatment and/or remediation of any Hazardous
Substance, except where any noncompliance, individually or in the aggregate,
(i) will not place Owner or any Assignee in any danger of civil liability for
which Owner or any Assignee is not adequately indemnified hereunder or subject
Owner or any Assignee to any danger of criminal liability, (ii) will not result
in a diminution in the value of any Unit Premises, Unit Improvements, Unit FF&E
or Unit, (iii) will not impair the ability of Agent to perform its obligations
under this Agreement and the Lease in a timely manner or the ability of the
Guarantor to perform its obligations under the Guaranty in a timely manner and
(iv) will not impair the rights or interests of Owner or Assignee under this
Agreement or the Lease.
(b) Agent shall maintain all Environmental Approvals necessary to
conduct operations at each Unit and shall comply with all such Environmental
Approvals, except where noncompliance, individually or in the aggregate, (i)
will not place Owner or any Assignee in any danger of civil liability for which
Owner or any Assignee is not adequately indemnified hereunder or subject Owner
or any Assignee to any danger of criminal liability, (ii) will not result in a
diminution in the value of any Unit Premises, Unit Improvements, Unit FF&E or
Unit, (iii) will not impair the ability of Agent to perform its obligations
under this Agreement and the Lease in a timely manner or the ability of the
Guarantor to perform its obligations under the Guaranty in a timely manner and
(iv) will not impair the rights or interests of Owner or Assignee under this
Agreement or the Lease.
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(c) Agent shall not cause or suffer or permit the attachment of any
Environmental Lien to any Unit or any portion thereof, except for such
Environmental Liens as Agent is contesting pursuant to a Permitted Contest.
(d) Agent shall not cause, and shall use all reasonable efforts not to
suffer or permit the transportation or arrangement for the transport of any
Hazardous Substance from any Unit to any facility or site for the purpose of
treatment or disposal which (i) is included on the NPL or (ii) is subject to a
Remedial Action requirement (other than routine anticipated regulatory
requirements), except any Remedial Action which (A) will not place Owner or any
Assignee in any danger of civil liability for which Owner or any Assignee is
not adequately indemnified hereunder or subject Owner or any Assignee to any
danger of criminal liability, (B) will not result in a diminution in the value
of any Unit Premises, Unit Improvements, Unit FF&E or Unit, (C) will not impair
the ability of Agent to perform its obligations under this Agreement and the
Lease in a timely manner or the ability of the Guarantor to perform its
obligations under the Guaranty in a timely and (D) will not impair the rights
or interests of Owner or Assignee under this Agreement or the Lease, or (iii)
has not obtained or maintained all Environmental Approvals required pursuant to
Environmental Requirements.
(e) Agent shall not engage in or permit any operations or activities
upon, or any use or occupancy of, any Unit or any portion thereof, for the
purpose of or in any way involving the Release or any Hazardous Substance in a
manner not in compliance with Environmental Requirements or the handling,
storage, use or disposal of any Hazardous Substance in a manner not in
compliance with Environmental Requirements, except where any noncompliance,
individually or in the aggregate, (i) will not place Owner or any Assignee in
any danger of civil liability for which Owner or any Assignee is not adequately
indemnified hereunder or subject Owner or any Assignee to any danger of
criminal liability, (ii) will not result in a diminution in the value of any
Unit Premises, Unit Improvements, Unit FF&E or Unit, (iii) will not impair the
ability of Agent to perform its obligations under this Agreement and the Lease
in a timely manner and (iv) will not impair the rights or interests of Owner or
Assignee under this Agreement or the Lease, and Agent shall not cause any
Hazardous Substance to be released or otherwise come to be located on, under,
in or about any Unit, nor to the knowledge of Agent has any Hazardous Substance
migrated from any Unit onto or underneath other properties, in either case in a
condition or under circumstances that could reasonably be expected to (i) place
Owner or any Assignee in any danger of civil liability for which Owner or any
Assignee is not adequately indemnified hereunder or subject Owner or any
Assignee to any danger of criminal liability, (ii) result in a diminution in
the value of any Unit Premises, Unit Improvements, Unit FF&E or Unit, (iii)
impair the ability of Agent to perform its obligations under this Agreement or
the Lease in a timely manner or the ability of the Guarantor to perform its
obligations under the Guaranty in a timely manner or (iv) impair the rights or
interests of Owner or Assignee under this Agreement or the Lease.
(f) Agent shall not cause or suffer the use or Release of any
asbestos-containing material or any article of PCBs in connection with the
remodeling construction of any Unit.
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9.18 CONSTRUCTION COVENANTS. Agent shall:
(a) take all reasonable and practical steps to minimize the disruption
of the construction process arising from Force Majeure Events; and
(b) cause all liens (including, without limitation, liens or claims
for materials supplied or labor or services performed in connection with the
construction of the Unit Improvements), other than Permitted Liens, to be
discharged within thirty (30) days.
SECTION 10. NEGATIVE COVENANTS
Agent hereby agrees that, so long as this Agreement remains in effect,
Agent shall not directly or indirectly:
10.1 CHANGES IN UNIT PLANS OR UNIT BUDGET. (a) Modify or supplement in
any material respect any Unit Plans, any Unit Budget or any Unit FF&E
Specifications in contravention of the requirements of subsection 2.2 hereof
without the prior written consent of Owner and Assignee (which consent shall
not be unreasonably withheld or delayed) and (if required) of all Governmental
Authorities which previously have approved the matters to be changed, or (b)
receive advances with respect to a Unit which exceed the Unit Budget for such
Unit.
10.2 PROHIBITION OF FUNDAMENTAL CHANGES. Consolidate with or merge
into any other Person except as set forth in Section 26 of the Lease, provided
that the term "Owner" shall substitute for the term "the Lessor" and the term
"Agent" shall substitute for the term "the Lessee".
10.3 NOTIFICATION OF OPENING OF A UNIT. Open or operate a Unit prior
to the delivery to Owner and any Assignee of the Certificate of Substantial
Completion and the AFL Unit Leasing Record for the Unit.
10.4 ACQUIRE FEE OR LEASEHOLD INTEREST. Acquire a fee or leasehold
interest on behalf of Owner in any Unit Premises until Agent has delivered all
documents required by Section 4 hereof and in the reasonable judgment of Owner
satisfied the conditions set forth in such Section 4.
10.5 ASSIGNMENT OF OBLIGATIONS. Assign its obligations hereunder to
any other party other than from one Agent to the other Agent.
10.6 CHANGE IN OWNERSHIP. Permit the Guarantor to own (directly or
indirectly) beneficially and of record less than fifty-one percent (51%) of the
common stock of TA Operating Corporation or National Auto/Truckstops, Inc. (the
"Applicable Agent"), unless at the time the Guarantor also owns (directly or
indirectly) beneficially and of record less than 51% of the common stock of the
Agent that is not the Applicable Agent.
10.7 PLEDGED CONTRACTS. (a) Create, incur, assume or permit to exist
any Lien (other than the Lien of the Pledge Agreement) upon Agent's rights with
respect to any Pledged Contract, or sell or assign Agent's interest in any
Pledged Contract, other than as permitted
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pursuant to the Pledge Agreement, or (b) without the prior written consent of
Owner, terminate any Pledged Contract (other than as a result of a default by a
party other than Agent to such Pledged Contract) or amend, modify, supplement,
restate, replace, grant any consent under, or grant or request any waiver
pursuant to any Pledged Contract.
SECTION 11. EVENTS OF DEFAULT AND EVENTS OF UNIT TERMINATION
11.1 EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an Event of Default:
(a) FAILURE TO MAKE PAYMENTS. Failure to pay the purchase price of a
Unit when due in the event of a required purchase by Agent hereunder, or
failure by Agent to pay any other amount due hereunder within ten (10) Business
Days from demand for such payment.
(b) UNAUTHORIZED ASSIGNMENTS, ETC. Assignment by Agent of any interest
in this Agreement or any advance to be made hereunder or any interest in
either.
(c) MISREPRESENTATIONS. Any representation or warranty made herein or
which is contained in any certificate, document or financial or other statement
furnished under or in connection with this Agreement shall prove to have been
false or inaccurate in any material respect on or as of the date made or deemed
made.
(d) INVOLUNTARY BANKRUPTCY, ETC. 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 Agent or the Guarantor, or of a
substantial part of the property or assets of Agent or the Guarantor, 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 Agent or the Guarantor or for a substantial
part of the property or assets of Agent or the Guarantor or (iii) the
winding-up or liquidation of Agent or the Guarantor and such proceeding or
petition shall continue undismissed for thirty (30) days or an order or decree
approving or ordering any of the foregoing shall be entered.
(e) VOLUNTARY BANKRUPTCY, ETC. Agent or the Guarantor 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 (but within thirty (30) days in any event), any proceeding
or the filing of any petition described in paragraph (d) above, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Agent or the Guarantor or for a substantial
part of the property or assets of Agent or the Guarantor, (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.
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(f) NEGATIVE COVENANTS. Agent shall default in the performance or
observance of any agreement, covenant or condition contained in Section 10
hereof, and in the case of a default arising under subsection 10.1 or 10.7(a)
hereof, such default shall continue for thirty (30) days after written notice
shall have been given to Agent by Owner specifying such default and requiring
such default to be remedied.
(g) OTHER DEFAULTS. Agent shall default in the performance or
observance of any other term, covenant, condition or obligation contained in
this Agreement and (other than in the case of a default arising under
subsection 9.3 or subsection 9.15 hereof), such default shall continue for
thirty (30) days after written notice shall have been given to Agent by Owner
specifying such default and requiring such default to be remedied; PROVIDED,
that if such default is of a nature that is not capable of being cured within
such thirty (30) day period and Agent shall have diligently commenced curing
such default and proceeds diligently and in good faith thereafter to complete
curing such default, such thirty (30) day period shall be extended to such
period as should be necessary to cure such default, not to exceed one hundred
twenty (120) days; PROVIDED, FURTHER, that an Event of Unit Termination shall
not constitute an Event of Default hereunder.
(h) DEFAULT UNDER LEASE. An Event of Default (as defined in the Lease)
shall occur under the Lease.
(i) PAYMENT OF OBLIGATIONS. A default or event of default, the effect
of which is to permit the holder or holders of any Indebtedness, or a trustee
or agent on behalf of such holder or holders, to cause such Indebtedness to
become due prior to its stated maturity, shall occur under the provisions of
any agreement pursuant to which such Indebtedness was created or instrument
evidencing such Indebtedness of Agent or the Guarantor in excess of $2,000,000
in the aggregate or any obligation of Agent or the Guarantor for the payment of
such Indebtedness shall become or be declared to be due and payable prior to
its stated maturity, or shall not be paid when due; PROVIDED, that the
provisions of this paragraph (i) shall not be deemed to apply to any default or
event of default or obligation for the payment of Indebtedness arising solely
as a result of a reduction in the rating of the Guarantor's senior unsecured
debt to less than BBB by Standard & Poor's Ratings Group or less than Baa2 by
▇▇▇▇▇'▇ Investors Service, Inc.
(j) JUDGMENT DEFAULTS. Any final non-appealable judgment or judgments
for the payment of money in excess of $2,000,000 in the aggregate shall be
rendered against Agent or the Guarantor by any court of competent jurisdiction
and the same shall remain undischarged for a period of sixty (60) days during
which execution of such judgment or judgments shall not be effectively stayed.
(k) OWNERSHIP OF AGENT. The Guarantor shall fail to own (directly or
indirectly) beneficially and of record fifty-one percent (51%) or more of the
common stock of TA Operating Corporation or National Auto/Truckstops, Inc. (the
"Applicable Agent"), unless at the time the Guarantor also owns (directly or
indirectly) beneficially and of record less than 51% of the common stock of the
Agent that is not the Applicable Agent.
(l) EVENT OF UNIT TERMINATION RELATED TO CONSTRUCTION COMPLETION. (i)
(A) An Event of Unit Termination shall occur under paragraphs (c) or (g) of
subsection 11.3 hereof
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and such Event of Unit Termination does not arise as a result of the fraudulent
act, illegal act, misapplication of funds or willful misconduct of Agent or (B)
an Event of Unit Termination shall occur under paragraphs (a) or (h) of
subsection 11.3 hereof and such Event of Unit Termination does not arise as a
result of Agent's actions, failure to act, fraudulent act, illegal act,
misapplication of funds or willful misconduct, and (ii) Agent shall not
purchase the applicable Unit from Owner pursuant to the provisions of
subsection 11.4 hereof.
(m) OTHER EVENTS OF UNIT TERMINATION. (i) (A) An Event of Unit
Termination shall occur under paragraphs (b), (d), (e), (f), (i), (j), (k) and
(l) of subsection 11.3 hereof, (B) an Event of Unit Termination shall occur
under paragraphs (a) or (h) of subsection 11.3 hereof and such Event of Unit
Termination arises as a result of Agent's actions, failure to act, fraudulent
act, illegal act, misapplication of funds or willful misconduct, or (C) an
Event of Unit Termination shall occur under paragraphs (c) or (g) of subsection
11.3 hereof and such Event of Unit Termination arises as a result of the
fraudulent act, illegal act, misapplication of funds or willful misconduct of
Agent, and (ii) Agent shall not purchase the applicable Unit from Owner
pursuant to the provisions of subsection 11.4 hereof.
(n) INSURANCE. Agent shall default in the performance or observance of
any agreement, covenant or condition contained in subsection 9.3 hereof.
(o) PLEDGE AGREEMENT. The Pledge Agreement ceases to be in full force
and effect, Agent defaults in the performance of any obligation or covenant
contained in the Pledge Agreement, or the representation contained in the third
sentence of subsection 8.17 hereof shall at any time become untrue in any
material respect.
(p) THE GUARANTY. (i) The Guaranty ceases to be in full force and
effect or (ii) the Guarantor defaults in the performance of any obligation or
covenant contained in the Guaranty or any other document contemplated thereby,
any required notice of such default shall have been given, and any applicable
grace period shall have expired.
(q) GUARANTOR REPRESENTATIONS. Any representation or warranty made by
the Guarantor in the Guaranty or any document contemplated hereby or thereby
proves to be false, misleading or inaccurate in any material respect.
11.2 OWNER'S RIGHTS UPON AN EVENT OF DEFAULT. Upon the occurrence and
continuation of any Event of Default Owner may in its discretion declare this
Agreement to be in default and do any one or more of the following:
(a) Terminate this Agreement and/or Owner's obligations to make any
further advances hereunder by written notice to Agent;
(b) Take immediate possession of any Unit Premises, Unit Improvements,
Unit FF&E, and Unit and remove any equipment or property of Owner in the
possession of Agent, wherever situated, and for such purpose, enter upon any
Unit Premises, Unit Improvements or Unit without liability to Agent for so
doing;
(c) Whether or not any action has been taken under paragraph (a) or
(b) above, sell any Unit Premises, Unit Improvements, Unit FF&E or Unit (with
or without the
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concurrence or request of Agent) at public or private sale (judicially or
nonjudicially pursuant to such notices and procedures as may be required by
law, to the extent such requirements are not effectively waived by Agent
hereunder, provided that the disposition of any Unit Premises, Unit
Improvements, Unit FF&E or Unit shall take place in a commercially reasonable
manner;
(d) Hold, use, occupy, operate, repair, remove, lease, sublease or
keep idle any Unit Premises, Unit Improvements, Unit FF&E, or Unit as Owner in
its sole discretion may determine, without any duty to account to Agent with
respect to any such action or inaction or for any proceeds thereof; and
(e) Exercise any other right or remedy which may be available under
applicable law and in general proceed by appropriate judicial proceedings,
either at law or in equity, to enforce the terms hereof or to recover damages
for the breach hereof.
Suit or suits for the recovery of any default in the payment of any
sum due hereunder or for damages may be brought by Owner from time to time at
Owner's election, and nothing herein contained shall be deemed to require Owner
to await the date whereon this Agreement or the term hereof would have expired
by limitation had there been no such default by Agent or no such termination or
cancellation.
The receipt of any payments under this Agreement by Owner with
knowledge of any breach of this Agreement by Agent or of any default by Agent
in the performance of any of the terms, covenants or conditions of this
Agreement, shall not be deemed to be a waiver of any provision of this
Agreement.
No receipt of moneys by Owner from Agent after the termination or
cancellation hereof in any lawful manner shall reinstate or continue this
Agreement, or operate as a waiver of the right of Owner to recover possession
of any Unit Premises, Unit Improvements, Unit FF&E, or Unit by proper suit,
action, proceedings or remedy or operate as a waiver of the right to receive
any and all amounts owing by Agent to or on behalf of Owner hereunder; it being
agreed that, after the service of notice to terminate or cancel this Agreement,
and the expiration of the time therein specified, if the default has not been
cured in the meantime, or after the commencement of suit, action or summary
proceedings or of any other remedy, or after a final order, warrant or judgment
for the possession of any Unit Premises, Unit Improvements, Unit FF&E, or Unit,
Owner may demand, receive and collect any moneys payable hereunder, without in
any manner affecting such notice, proceedings, suit, action, order, warrant or
judgment; and any and all such moneys so collected shall be deemed to be
payments on account of Agent's liability hereunder.
After any Event of Default, Agent shall be liable for, and Owner may
recover from Agent, (i) in the case of an Event of Default pursuant to
paragraph (l) of subsection 11.1 hereof, an amount equal to 89.9% of the sum of
all of Owner's obligations, costs and expenses incurred in connection with its
obligations under this Agreement and for which Owner may demand payment or
reimbursement pursuant to subsection 9.5 hereof, (ii) in the case of any other
Event of Default pursuant to subsection 11.1 hereof or in the event Agent
converts any Unit Premises, Unit Improvements, Unit FF&E or Unit after an Event
of Default, or in the event such Unit Premises, Unit Improvements, Unit FF&E or
Units is lost or destroyed by Agent, all of
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Owner's obligations, costs and expenses incurred in connection with its
obligations under this Agreement and for which Owner may demand payment or
reimbursement pursuant to subsection 9.5 hereof, (iii) all amounts payable
pursuant to Section 12 hereof and (iv) all of the losses, damages (provided,
such losses and damages shall not include (a) the Unit Acquisition Cost or any
portion thereof and (b) any losses or damages arising during Agent's
construction of any Unit Improvements, Unit FF&E or Unit prior to such Event of
Default), costs and expenses (including, without limitation, attorneys' fees
and expenses, commissions, filing fees and sales or transfer taxes) sustained
by Owner by reason of such Event of Default and the exercise of Owner's
remedies with respect thereto, including, in the event of a sale by Owner of
any Unit Premises, Unit Improvements, Unit FF&E or Unit pursuant to this
subsection 11.2, all costs and expenses associated with such sale. The amounts
payable in clauses (i) through (iv) above are hereinafter sometimes referred to
as the "ACCRUED DEFAULT OBLIGATIONS".
After an Event of Default, Owner may sell its interest in any Unit
Premises, Unit Improvements, Unit FF&E, and Unit upon any terms that Owner
deems satisfactory, free of any rights of Agent or any Person claiming through
or under Agent (including, without limitation, any rights hereunder or under
the Lease or the Pledged Contracts). In the event of any such sale, in addition
to the Accrued Default Obligations, Owner shall be entitled to recover from
Agent, as liquidated damages and not as a penalty, an amount equal to (i) in
the case of an Event of Default pursuant to paragraph (l) of subsection 11.1
hereof, an amount equal to the Loss Payment of all Unit Premises, Unit
Improvements, Unit FF&E and Units under this Agreement or (ii) in the case of
all other Events of Default pursuant to subsection 11.1 hereof, an amount equal
to the Unit Acquisition Cost of all Unit Premises, Unit Improvements, Unit FF&E
and Units under this Agreement. Proceeds of any such sale received by Owner
that when combined with the Loss Payment or Unit Acquisition Cost received by
Owner exceed the Unit Acquisition Cost of such Unit Premises, Unit
Improvements, Unit FF&E or Unit shall be credited against the Accrued Default
Obligations Agent is required to pay under this subsection 11.2. If such excess
proceeds exceed the Accrued Default Obligations plus (in the case of clause (i)
of the first sentence of this paragraph) the Unrecovered Termination Costs, and
if Agent has paid all amounts required to be paid under this subsection 11.2,
such excess shall be paid by Owner to Agent. As an alternative to any such
sale, in addition to the Accrued Default Obligations, Owner may cause Agent to
pay to Owner, and Agent shall pay to Owner, as liquidated damages and not as a
penalty, an amount equal to (i) in the case of an Event of Default pursuant to
paragraph (l) of subsection 11.1 hereof, an amount equal to the Loss Payment of
all Unit Premises, Unit Improvements, Unit FF&E and Units under this Agreement,
or (ii) in the case of all other Events of Default pursuant to subsection 11.1
hereof, an amount equal to the Unit Acquisition Cost of all Unit Premises, Unit
Improvements, Unit FF&E and Units under this Agreement. If Agent converts any
Unit Premises, Unit Improvements, Unit FF&E or Unit after any Event of Default,
or if such Unit Premises, Unit Improvements, Unit FF&E or Unit is lost or
destroyed by Agent, in addition to the Accrued Default Obligations, Owner may
cause Agent to pay to Owner, and Agent shall pay to Owner, as liquidated
damages and not as a penalty, an amount equal to the Unit Acquisition Cost of
such Unit Premises, Unit Improvements, Unit FF&E or Unit.
In the event of a sale pursuant to this subsection 11.2, upon receipt
by Owner of the amounts payable hereunder, Owner shall transfer all of Owner's
right, title and interest in and to the Unit Premises, Unit Improvements, Unit
FF&E and Unit to Agent or a purchaser other than Agent, as the case may be.
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In the event Agent does not pay Owner an amount equal to the Unit
Acquisition Cost of all Unit Premises, Unit Improvements, Unit FF&E and Units
plus the Accrued Default Obligations, then, in addition to its other rights in
this subsection 11.2, Owner may require Agent to assign to Owner (or to a
foreclosure purchaser designated by Owner or Assignee), at no cost, all right,
title and interest of Agent in, to and under the Pledged Contracts, and in the
event any additional consent of any party to a Pledged Contract is required as
a precondition thereunder to an assignment to any other third party assignee
designated by Owner or Assignee, to use diligent efforts to obtain any such
required consent to such proposed non-foreclosure assignment and assumption of
the Pledged Contracts. No remedy referred to in this subsection 11.2 is
intended to be exclusive, but each shall be cumulative and in addition to any
other remedy referred to above or otherwise available to Owner at law or in
equity, and the exercise in whole or in part by Owner of any one or more of
such remedies shall not preclude the simultaneous or later exercise by Owner of
any or all such other remedies. No waiver by Owner of any Event of Default
hereunder shall in any way be, or be construed to be, a waiver of any future or
subsequent Event of Default.
With respect to the termination of this Agreement as to any Unit
Premises, Unit Improvements, Unit FF&E, or Unit as a result of an Event of
Default, Agent hereby waives service of any notice of intention to reenter.
Agent hereby waives any and all rights to recover or regain possession of any
Unit Premises, Unit Improvements, Unit FF&E, or Unit or to reinstate this
Agreement as permitted or provided by or under any statute, law or decision now
or hereafter in force and effect.
The foregoing provisions of this subsection 11.2 are subject to the
provisions of subsection 11.4 and 18.11 hereof.
11.3 EVENTS OF UNIT TERMINATION. The occurrence of any of the
following shall constitute an Event of Unit Termination with respect to a Unit:
(a) NO LIENS. If at any time Agent shall create or permit to exist any
Lien against any Unit Premises, Unit Improvements or Unit (even though the same
may have existed at the time of any prior advance), except for Permitted Liens,
and such Lien is not removed, bonded or otherwise secured to the reasonable
satisfaction of Owner and Assignee within sixty (60) days after notice to Agent
by Owner.
(b) DAMAGE OR DESTRUCTION. If any Unit Improvements are partially or
totally damaged or destroyed by fire or any other cause arising as a result of
Agent's actions or the failure of Agent to act and the restoration thereof
cannot reasonably be expected to be completed so that the Unit Improvements
will be completed on or before the applicable Unit Completion Date.
(c) CESSATION OF CONSTRUCTION. If there is any cessation of
construction of the Unit Improvements for any period after the date
construction shall commence in excess of sixty (60) successive calendar days,
unless the conditions of each of subparagraphs (1), (2), (3) and (4) hereof
shall have been satisfied:
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(1) the cessation of construction shall have been
caused by Force Majeure Delay;
(2) Agent shall have made adequate provision,
reasonably acceptable to Owner, for the protection of materials
stored on site and for the protection of the Unit Improvements,
to the extent then constructed, against deterioration and
against other loss or damage and theft;
(3) Agent shall have furnished to Owner
reasonably satisfactory evidence that such cessation of
construction will not (i) adversely affect or jeopardize the
rights of Agent under material agreements relating to the
construction or operation of the Unit Improvements or (ii) cause
the Unit Acquisition Cost for all Units under this Agreement to
exceed the sum of the Available Commitment; and
(4) from time to time upon Owner's reasonable
request therefor during any such cessation of construction,
Agent shall furnish to Owner reasonably satisfactory evidence
that (notwithstanding such cessation of construction) the
completion of the Unit Improvements can be accomplished on or
before the respective Unit Completion Date and within the Unit
Budget.
(d) NONCONFORMING WORK. If the construction of the Unit Improvements,
or any part thereof, is made in a manner other than in substantial conformance
with the Unit Plans and Agent fails to correct such nonconforming work in a
reasonably prompt and satisfactory fashion after notice and demand by Owner, or
if Agent shall fail to correct promptly any structural defect in the Unit
Improvements upon demand of Owner.
(e) SECURITY AGREEMENTS. If (i) Agent executes any chattel mortgage or
other security agreement on any materials, fixtures or articles of personal
property used in the construction or operation of the Unit Improvements or if
any such materials, fixtures or articles are purchased pursuant to any
conditional sales contract or other security agreement or otherwise so that the
title thereto will not vest in Owner free from encumbrance or (ii) any such
materials, fixtures or articles are not in accordance with the Unit Plans or
(iii) Agent does not furnish to Owner upon request the contracts, bills of
sale, statements, receipted vouchers and other agreements and documents, or any
of them, under which Owner claims title to such materials, fixtures or
articles.
(f) NON-COMPLIANCE WITH LEGAL REQUIREMENTS. If Agent fails (subject to
Permitted Contests) to comply with any Legal Requirement relating solely to
such Unit, except any Legal Requirement, the noncompliance with which,
individually or in the aggregate (i) will not place Owner or any Assignee in
any danger of civil liability for which Owner or any Assignee is not adequately
indemnified hereunder or subject Owner or any Assignee to any danger of
criminal liability as a result of failure to comply therewith, (ii) will not
result in a material diminution in the value or utility of any Unit and (iii)
will not impair Agent's ability to perform its obligations under this Agreement
or the Lease in a timely manner.
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(g) FAILURE TO COMPLETE. If (i) as of the close of business on a Unit
Completion Date, Substantial Completion of the applicable Unit has not been
achieved or (ii) the Certificate of Substantial Completion and AFL Unit Leasing
Record have not been executed and delivered by the applicable Unit Completion
Date.
(h) PERMITS. If Agent shall fail to obtain or be unable to obtain any
material Permit, or if any material Permit shall be revoked or otherwise cease
to be in full force and effect unless Agent shall have obtained reinstatement
or reissuance of such Permit within thirty (30) days after the revocation or
expiration thereof, or if such reinstatement or reissuance is of a nature that
it cannot be completely effected within thirty (30) days, Agent shall have
diligently commenced application for such reinstatement or reissuance and shall
thereafter be diligently proceeding to complete said reinstatement or
reissuance.
(i) ENVIRONMENTAL MATTERS. The occurrence of any event or circumstance
relating to Environmental Matters with respect to a Unit that has a material
adverse effect on (i) the construction, operation, maintenance, leasing,
ownership, use or value of the Unit, (ii) the ability of Agent to observe and
perform its obligations under this Agreement or the Lease in a timely manner or
(iii) the rights or interests of Owner or Assignee under this Agreement or the
Lease.
(j) TAKING. If the Taking of all or a substantial portion of a Unit
occurs as a result of Agent's actions or Agent's failure to act. Upon receipt
of proceeds from any award or sale made in connection with such Taking, so long
as no Event of Default or Potential Default has occurred and is continuing, and
so long as Agent has made all payments to Owner required under subsection 11.4
hereof, Owner shall remit to Agent the net amount of such proceeds remaining
after reimbursement for all costs and expenses (including, without limitation,
reasonable attorneys' fees) incurred by Owner in connection with the
negotiation and settlement of any proceedings related to such Taking. If such
proceeds are received prior to Agent making the payments required under
subsection 11.4 hereof, the net proceeds shall be applied to the amount payable
thereunder. A Taking shall be deemed to affect a "substantial portion" of a
Unit if after such Taking such Unit has suffered a material diminution in value
and is, or will be, unusable for Agent's ordinary business purposes.
(k) DEFAULTS UNDER CONSTRUCTION DOCUMENTS. Any default by Agent shall
occur under any of the Construction Documents which could reasonably be
expected to have a material adverse effect on (i) the construction, operation,
maintenance, use or value of any Unit, (ii) the ability of Agent to perform its
obligations under this Agreement or the Lease in a timely manner or (iii) the
rights or interests of Owner or Assignee under this Agreement or the Lease, any
required notice shall have been given and/or any applicable grace period shall
have expired and such default shall not have been cured by Agent or waived by
the other party to such Construction Document in writing prior to the
expiration of such grace period.
(l) OTHER COVENANTS. Agent shall default in the performance or
observance of any other term, covenant, condition or obligation contained in
this Agreement (other than in the case of a default arising under subsection
9.3, subsection 9.15, subsection 10.2, subsection 10.3, subsection 10.4,
subsection 10.5, subsection 10.6 or subsection 10.7 hereof) relating solely to
such Unit, and such default shall continue for thirty (30) days after written
notice shall have been
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given to Agent by Owner specifying such default and requiring such default to
be remedied; PROVIDED, that if such default is of a nature that is not capable
of being cured within such thirty (30) day period and Agent shall have
diligently commenced curing such default and proceeds diligently and in good
faith thereafter to complete curing such default, such thirty (30) day period
shall be extended to one hundred twenty (120) days.
11.4 AGENT'S RIGHTS UPON AN EVENT OF UNIT TERMINATION. If any Event of
Unit Termination with respect to a Unit shall occur, Owner shall have no
further obligation to make advances to Agent with respect to such Unit, and
Agent shall have the right, but not the obligation, to purchase such Unit
(including Owner's interest under any applicable Ground Lease) within thirty
(30) days after notice by Owner at a price equal to the Unit Acquisition Cost
for such Unit. At the time of such purchase, Agent shall pay to Owner, Owner's
obligations, costs, losses, damages, and expenses (including, without
limitation, reasonable attorneys' fees and expenses) sustained by Owner by
reason of such Event of Unit Termination. Upon the payment by Agent to Owner of
the Unit Acquisition Cost for such Unit and all other amounts owing under this
subsection 11.4, Owner shall remit to Agent any insurance proceeds received by
Owner as a result of such Event of Unit Termination.
SECTION 12. INDEMNITIES
(a) Agent shall indemnify, defend, protect and hold harmless Owner and
any successor or successors (each of the foregoing an "INDEMNIFIED PERSON")
from and against all liabilities, taxes, losses, obligations, claims, damages,
penalties, causes of action, suits, costs and expenses (including, without
limitation, reasonable attorneys', experts', consultants' and accountants' fees
and expenses) or judgments of any nature relating to or in any way arising out
of:
(i) the ordering, delivery, acquisition, purchase agreement for
the acquisition, construction, title on acquisition, rejection, installation,
possession, titling, retitling, registration, reregistration, custody by Agent
of title and registration documents, ownership, use, non-use, misuse, lease
under the Ground Lease, financing (including without limitation all obligations
of Owner under or in respect of any interest rate swap, cap, collar or other
financial hedging arrangement and any amounts payable by Owner under any such
arrangement to reduce the notional amount thereof by the amount of any
prepayment of any borrowing to which such interest rate swap, cap, collar or
other financial hedging arrangement relates), lease, sublease, operation,
transportation, repair, control or disposition of any Unit Premises, Unit
Improvements, item of Unit FF&E, or Unit; and
(ii) any of the claims, liabilities, demands, fees, taxes,
violations of contract, or any other matter or situation described in or
contemplated by the indemnification provisions of subparagraphs (b), (c), and
(d) of Section 11 of the Lease, except that this Agreement shall substitute the
terms "Owner" for "the Lessor", "Agent" for "the Lessee", "this Agreement" for
"this Lease", and shall substitute the phrase "Unit Premises, Unit
Improvements, Unit FF&E or Unit" for the phrase "Property or Equipment".
(b) Agent shall indemnify, defend, protect and hold harmless Owner,
any Assignee and any successor or successors of Owner and Assignee from and
against all
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Environmental Damages relating to or in any way arising out of any Unit,
including, without limitation, Environmental Damages relating to or in any way
arising out of Environmental Matters, Environmental Requirements or the use,
storage, handling, disposal of, import, Release, remediation, treatment,
recycling, generation or transportation of Hazardous Substances at, on, under,
to or from, any Unit Premises, Unit Improvements, Unit FF&E, or Unit.
(c) The indemnification required under this Section 12 shall be upon
the terms provided in the paragraphs of Section 11 of the Lease following
paragraph (d) thereof, except that this Agreement shall substitute the terms in
the same manner as described in subparagraph (a)(ii) above. This Section 12 is
intended to expressly provide indemnification for the negligence (but not the
gross negligence or bad faith) of Indemnified Persons.
SECTION 13. LEASEHOLD INTERESTS
The provisions of Section 29 of the Lease shall govern each Ground
Lease hereunder, except this Agreement shall substitute the terms "Owner" for
"the Lessor", "Agent" for "the Lessee", "Unit Premises, Unit Improvements, Unit
FF&E and Unit" for "Parcel of Property" and "Section 13" for "Section 29".
SECTION 14. PURCHASES
In connection with, and as a condition to, the purchase of any Unit
Premises, Unit Improvements, Unit FF&E, or Unit pursuant to subsections 11.2,
11.4 or 18.11 hereof, Agent shall pay at the time of purchase, in addition to
the Unit Acquisition Cost and all other amounts payable by Agent under this
Agreement, all transfer taxes, transfer gains taxes, mortgage recording tax, if
any, recording and filing fees and all other similar taxes, fees (including,
without limitation, brokerage fees), expenses and closing costs (including
reasonable attorneys' fees) in connection with the conveyance of such Unit
Premises, Unit Improvements, Unit FF&E, or Unit to Agent and all other amounts
owing hereunder. Upon receipt of such amount, Owner shall deliver to Agent a
▇▇▇▇ of sale and assignment agreement assigning and conveying to Agent all of
Owner's right, title and interest in and to such Unit Premises, Unit
Improvements, Unit FF&E and Unit relating thereto and shall execute and deliver
to Agent a quitclaim deed or an assignment of any applicable Ground Lease. When
Owner transfers title, such transfer shall be on an as-is, non-installment sale
basis, without warranty by, or recourse to, Owner, except that such title shall
be free of any Liens resulting from Owner's willful or knowing act or omission
and of any Lien created pursuant to a Credit Agreement.
SECTION 15. TERMINATION OF CERTAIN UNITS
If (1)(A) any Unit Improvements are partially or totally damaged or
destroyed by fire or any other cause and the restoration thereof cannot
reasonably be expected to be completed so that the Unit Improvements will
achieve Substantial Completion on or before the applicable Unit Completion
Date, or (B) the use, occupancy or title to any Unit is taken, requisitioned or
sold in, by or on account of actual or threatened eminent domain proceedings or
other action by any Person or authority having the power of eminent domain
(such events collectively referred to as a "TAKING"), and such Taking relates
to the entire Unit or such portion thereof that renders the Unit unsuitable for
continued use by Agent for the type of use which immediately preceded such
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Taking, and (2) such damage or destruction or Taking, as the case may be, does
not arise as a result of Agent's actions or the failure of Agent to act, then
in any such event, (i) Agent shall promptly notify Owner in writing of such
event, (ii) Owner shall have no further obligation to make advances to Agent
with respect to such Unit, and (iii) Agent shall pay to Owner all amounts, if
any, owing hereunder with respect to such Unit. Insurance and condemnation
proceeds, if any, received by Owner in excess of the Unit Acquisition Cost of
the affected Unit, so long as no Event of Default or Event of Unit Termination
has occurred and is continuing, shall be paid by Owner to Agent upon the
payment by Agent of amounts owing, if any, pursuant to the preceding sentence.
SECTION 16. PERMITTED CONTESTS
(a) Agent shall not be required, nor shall Owner have the right, to
pay, discharge or remove any tax, assessment, levy, fee, rent, charge, Lien or
encumbrance, or to comply or cause any Unit Premises, Unit Improvements, item
of Unit FF&E, or Unit to comply with any Legal Requirement applicable to any
Unit Premises, Unit Improvements, item of Unit FF&E, or Unit or the occupancy,
use or operation thereof, so long as no Event of Default or Event of Unit
Termination exists under this Agreement, and, in the judgment of Agent's
counsel, Agent shall have reasonable grounds to contest the existence, amount,
applicability or validity thereof by appropriate proceedings, which proceedings
in the reasonable judgment of Owner and Assignee, (i) shall not involve any
material danger that any Unit Premises, Unit Improvements, item of Unit FF&E,
or Unit or any portion thereof would be subject to sale, forfeiture or loss, as
a result of failure to comply therewith, (ii) shall not affect the payment of
any sums due and payable hereunder or result in any such sums being payable to
any Person other than Owner or any Assignee, (iii) will not place Owner or any
Assignee in any danger of civil liability which is not adequately indemnified
(for purposes of this Section 16(a), Agent's obligations under Section 12 of
this Agreement shall be deemed to be adequate indemnification if no Event of
Default or Event of Unit Termination exists and if such civil liability is
reasonably likely to be less than $250,000 per Unit or $1,000,000 with respect
to all Units) or to any criminal liability, (iv) if involving taxes, shall
suspend the collection of the taxes, and (v) shall be permitted under and be
conducted in accordance with the provisions of any other instrument to which
Agent or any Unit Premises, Unit Improvements, item of Unit FF&E, or Unit is
subject and shall not constitute a default thereunder (the "PERMITTED
CONTEST"). Agent shall conduct all Permitted Contests in good faith and with
due diligence and shall promptly after the final determination (including
appeals) of any Permitted Contest pay and discharge all amounts which shall be
determined to be payable therein. Owner shall cooperate in good faith with
Agent with respect to all Permitted Contests conducted by Agent pursuant to
this Section 16.
(b) In the event Owner or any Assignee deems, in its reasonable
discretion, that its interests under this Agreement or in any Unit Premises,
Unit Improvements, item of Unit FF&E or Unit are not adequately protected in
connection with a Permitted Contest brought by Agent under this Section 16,
Agent shall provide reasonable security to Owner, which security, upon Owner's
prior consent, which consent shall not be unreasonably withheld or delayed, can
be in the form of a reserve funded out of the proceeds of any advance made
hereunder, or provide such other security as may be demanded by Owner or any
Assignee to ensure payment of such tax, assessment, levy, fee, rent, charge or
Lien and compliance with any Legal Requirement and to prevent any sale or
forfeiture of any Unit Premises, Unit Improvements, item
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of Unit FF&E, or Unit or any other amount due by reason of such nonpayment or
noncompliance. Agent hereby agrees that Owner may assign such security provided
by Agent to any Assignee.
(c) At least ten (10) Business Days prior to the commencement of any
Permitted Contest, Agent shall notify Owner and any Assignee in writing thereof
if the amount in contest exceeds $250,000, and shall describe such proceeding
in reasonable detail. In the event that a taxing authority or subdivision
thereof proposes an additional assessment or levy of any tax for which Agent is
obligated to reimburse Owner under this Agreement, or in the event that Owner
is notified of the commencement of an audit or similar proceeding which could
result in such an additional assessment, then Owner shall in a timely manner
notify Agent in writing of such proposed levy or proceeding.
SECTION 17. SALE OR ASSIGNMENT BY OWNER
(a) Subject to paragraph (b) of this Section 17, Owner shall have the
right to obtain equity and debt financing for the acquisition and ownership of
any Unit Premises, Unit Improvements, Unit FF&E, and Unit by selling or
assigning its right, title and interest in any or all amounts due from Agent or
any third Person under this Agreement and granting a security interest in this
Agreement to a lender or lenders under a Credit Agreement; PROVIDED, that any
such sale or assignment shall be subject to the rights and interests of Agent
under this Agreement and the Lease.
(b) Any Assignee shall, except as otherwise agreed by Owner and such
Assignee, have all the rights, powers, privileges and remedies of Owner
hereunder, provided that Agent's obligations as between itself and such
Assignee hereunder shall be subject to any claims or defenses that Agent may
have against Owner. Upon written notice to Agent of any such assignment, Agent
shall thereafter make payments of any and all sums due hereunder to Assignee,
to the extent specified in such notice, and such payments shall discharge the
obligation of Agent to Owner hereunder to the extent of such payments. Anything
contained herein to the contrary notwithstanding, no Assignee shall be
obligated to perform any duty, covenant or condition required to be performed
by Owner hereunder, and any such duty, covenant or condition shall be and
remain the sole obligation of Owner.
(c) The provisions of this Section 17 are subject to the terms and
conditions of the Participation Agreement.
SECTION 18. GENERAL CONDITIONS
The following conditions shall be applicable throughout the term of
this Agreement:
18.1 SURVIVAL. Except as otherwise provided in the Lease, all
agreements, indemnities, representations and warranties set forth herein and
the obligation set forth herein to pay Additional Rent (as defined in the
Lease) shall survive until the expiration or other termination hereof, provided
that (a) any monetary obligation under this Agreement accrued at the time of or
related to periods prior to such expiration or other termination shall survive
such expiration or other termination to the extent that such obligations have
not yet been satisfied, and
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THIS AGREEMENT FOR LEASE IS
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(b) any non-monetary obligation under this Agreement which is expressly
provided to be performed after or to survive the expiration or termination of
this Agreement shall survive the expiration or other termination hereof.
18.2 NO WAIVERS; CONSENTS AND APPROVALS. (a) No advance hereunder shall
constitute a waiver of any of the conditions of Owner's obligation to make
further advances nor, in the event Agent is unable to satisfy any such
condition, shall any waiver of such condition have the effect of precluding
Owner from thereafter declaring such inability to be an Event of Default or
Event of Unit Termination as herein provided. Any advance made by Owner and any
sums expended by Owner pursuant to this Agreement shall be deemed to have been
made pursuant to this Agreement, notwithstanding the existence of an uncured
Event of Default or Event of Unit Termination. No advance shall constitute a
waiver of the right of Owner to require compliance with the covenant contained
in subsection 10.1 hereof with respect to any such defects or material
departures from any Unit Plans not theretofore called to the attention of Owner
and approved by Owner and Assignee. No advance at a time when an Event of
Default or Event of Unit Termination exists shall constitute a waiver of any
right or remedy of Owner existing by reason of such Event of Default or Event of
Unit Termination, including, without limitation, the right to refuse to make
further advances.
All consents or approvals required to be given by Owner pursuant to the
provisions of this Agreement shall be deemed given if not otherwise
specifically granted or denied within ten (10) Business Days of receipt by
Owner of written request from Agent.
18.3 OWNER AND ASSIGNEE SOLE BENEFICIARIES. All conditions of the
obligation of Owner to make advances hereunder are imposed solely and
exclusively for the benefit of Owner and any Assignee and their assigns, and no
other Person shall have standing to require satisfaction of such conditions in
accordance with their terms or be entitled to assume that Owner will refuse to
make advances in the absence of strict compliance with any or all thereof and
no other Person shall, under any circumstances, be deemed to be a beneficiary
of such conditions, any or all of which may be freely waived in whole or in
part by Owner, with the consent of Assignee, at any time if in its sole
discretion it deems it advisable to do so. Inspections and approvals of any
Unit Plans, Unit Premises, Unit Improvements, Unit FF&E, and Unit and the
workmanship and materials used therein impose no responsibility or liability of
any nature whatsoever on Owner or any Assignee, and no Person shall, under any
circumstances, be entitled to rely upon such inspections and approvals by Owner
or any Assignee for any reason.
18.4 NO OFFSETS, ETC. The obligations of Agent to pay all amounts
payable pursuant to this Agreement and to purchase a Unit hereunder shall be
absolute and unconditional under any and all circumstances of any character,
and such amounts shall be paid without notice, demand, defense, setoff,
deduction or counterclaim and without abatement, suspension, deferment,
diminution or reduction of any kind whatsoever, except as herein expressly
otherwise provided. The obligation of Agent to lease or sublease and pay Basic
Rent (as defined in the Lease) for a Unit upon Substantial Completion with
respect to such Unit is without any warranty or representation, express or
implied, as to any matter whatsoever on the part of Owner or any Assignee or
any Affiliate of either, or anyone acting on behalf of any of them.
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AGENT HAS SELECTED AND SHALL SELECT ALL UNIT PREMISES, UNIT
IMPROVEMENTS, UNITS AND ITEMS OF UNIT FF&E CONSTRUCTED, ACQUIRED OR ORDERED ON
THE BASIS OF ITS OWN JUDGMENT. NEITHER OWNER NOR ANY ASSIGNEE NOR ANY AFFILIATE
OF EITHER, NOR ANYONE ACTING ON BEHALF OF ANY OF THEM, MAKES ANY REPRESENTATION
OR WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, AS TO THE SAFETY, TITLE, CONDITION, QUALITY, QUANTITY, FITNESS FOR
USE, MERCHANTABILITY, CONFORMITY TO SPECIFICATION, OR ANY OTHER CHARACTERISTIC,
OF ANY UNIT PREMISES, UNIT IMPROVEMENTS, UNIT, OR ITEM OF UNIT FF&E, OR AS TO
WHETHER ANY UNIT PREMISES, UNIT IMPROVEMENTS, UNIT, OR ITEM OF UNIT FF&E, OR
THE OWNERSHIP, USE, OCCUPANCY OR POSSESSION THEREOF COMPLIES WITH ANY LAWS,
RULES, REGULATIONS OR REQUIREMENTS OF ANY KIND.
AS BETWEEN OWNER AND AGENT, ANY ASSIGNEE OR ANY INDEMNIFIED PERSON,
AGENT ASSUMES ALL RISKS AND WAIVES ANY AND ALL DEFENSES, SET-OFFS, DEDUCTIONS,
COUNTERCLAIMS (OR OTHER RIGHTS), EXISTING OR FUTURE, TO ITS OBLIGATION TO PAY
ALL AMOUNTS PAYABLE HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY RELATING TO:
(A) THE SAFETY, TITLE, CONDITION, QUALITY, QUANTITY, FITNESS FOR USE,
MERCHANTABILITY, CONFORMITY TO SPECIFICATION, OR ANY OTHER QUALITY OR
CHARACTERISTIC OF ANY UNIT PREMISES, UNIT IMPROVEMENTS, UNIT, OR ITEM OF UNIT
FF&E, LATENT OR NOT;
(B) ANY SET-OFF, COUNTERCLAIM, RECOUPMENT, ABATEMENT, DEFENSE OR OTHER
RIGHT WHICH AGENT MAY HAVE AGAINST OWNER, ANY ASSIGNEE, OR ANY INDEMNIFIED
PERSON FOR ANY REASON WHATSOEVER ARISING OUT OF THIS OR ANY OTHER TRANSACTION
OR MATTER;
(C) ANY DEFECT IN TITLE OR OWNERSHIP OF ANY UNIT PREMISES, UNIT
IMPROVEMENTS, OR UNIT OR ANY TITLE ENCUMBRANCE NOW OR HEREAFTER EXISTING WITH
RESPECT TO THE UNIT PREMISES, UNIT IMPROVEMENTS, UNIT, OR ITEMS OF UNIT FF&E;
(D) ANY FAILURE OR DELAY IN DELIVERY OR ANY LOSS, THEFT OR DESTRUCTION
OF, OR DAMAGE TO, ANY UNIT PREMISES, UNIT IMPROVEMENTS, UNIT, OR ITEM OF UNIT
FF&E IN WHOLE OR IN PART, OR CESSATION OF THE USE OR POSSESSION OF ANY UNIT
PREMISES, UNIT IMPROVEMENTS, UNIT, OR ITEM OF UNIT FF&E BY AGENT FOR ANY REASON
WHATSOEVER AND OF WHATEVER DURATION, OR ANY CONDEMNATION, CONFISCATION,
REQUISITION, SEIZURE, PURCHASE, TAKING OR FORFEITURE OF ANY UNIT PREMISES, UNIT
IMPROVEMENTS, ITEM OF UNIT FF&E OR UNIT, IN WHOLE OR IN PART;
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THIS AGREEMENT FOR LEASE IS
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(E) ANY INABILITY OR ILLEGALITY WITH RESPECT TO THE USE, OWNERSHIP,
OCCUPANCY OR POSSESSION OF THE UNIT PREMISES, UNIT IMPROVEMENTS, UNIT, OR ITEMS
OF UNIT FF&E BY AGENT;
(F) ANY INSOLVENCY, BANKRUPTCY, REORGANIZATION OR SIMILAR PROCEEDING
BY OR AGAINST AGENT OR OWNER OR ANY ASSIGNEE;
(G) ANY FAILURE TO OBTAIN, OR EXPIRATION, SUSPENSION OR OTHER
TERMINATION OF, OR INTERRUPTION TO, ANY REQUIRED LICENSES, PERMITS, CONSENTS,
AUTHORIZATIONS, APPROVALS OR OTHER LEGAL REQUIREMENTS;
(H) THE INVALIDITY OR UNENFORCEABILITY OF THIS AGREEMENT OR ANY OTHER
INFIRMITY HEREIN OR ANY LACK OF POWER OR AUTHORITY OF OWNER OR AGENT TO ENTER
INTO THIS AGREEMENT; OR
(I) ANY OTHER CIRCUMSTANCES OR HAPPENING WHATSOEVER, WHETHER OR NOT
SIMILAR TO ANY OF THE FOREGOING.
AGENT HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY
AND ALL RIGHTS WHICH IT MAY NOW HAVE OR WHICH AT ANY TIME HEREAFTER MAY BE
CONFERRED UPON IT, BY STATUTE OR OTHERWISE, TO TERMINATE, CANCEL, QUIT, RESCIND
OR SURRENDER THIS AGREEMENT EXCEPT IN ACCORDANCE WITH THE EXPRESS TERMS HEREOF.
Notwithstanding anything contained herein to the contrary, the making
of payments under this Agreement by Agent shall not be deemed to be a waiver of
any claim or claims that Agent may assert against Owner or any other Person.
Owner agrees to repay Agent amounts paid to Owner to the extent such payments
were in error and are not required by any of the terms and provisions of this
Agreement.
18.5 NO RECOURSE. Owner's obligations hereunder are intended to be the
obligations of the limited partnership and of the corporation which is the
general partner thereof only and no recourse for the payment of any amount due
under this Agreement, the Lease, the Construction Documents or any other
agreement contemplated hereby, or for any claim based thereon or otherwise in
respect thereof, shall be had against any limited partner of Owner or any
incorporator, shareholder, officer, director or Affiliate, as such, past,
present or future, of such corporate general partner or of any corporate
limited partner or of any successor corporation to such corporate general
partner or any corporate limited partner of Owner, or against any direct or
indirect parent corporation of such corporate general partner or any limited
partner of Owner or any other subsidiary or Affiliate or any such direct or
indirect parent corporation or any incorporator, shareholder, officer or
director, as such, past, present or future, of any such parent or other
subsidiary or Affiliate. Nothing contained in this subsection 18.5 shall be
construed to limit the exercise or enforcement, in accordance with the terms of
this Agreement, the Lease and the Construction Documents and any other
documents referred to herein, of rights and remedies against the limited
partnership or the corporate general partner of Owner or the assets of the
limited partnership or the corporate general partner of Owner.
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THIS AGREEMENT FOR LEASE IS
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18.6 NOTICES.
All notices, offers, acceptances, approvals, waivers, requests, demands and
other communications hereunder or under any other instrument, certificate or
other document delivered in connection with the transactions described herein
shall be in writing, shall be addressed as provided below and shall be
considered as properly given (i) if delivered in person, (ii) if sent by
reputable express courier service (including, without limitation, Federal
Express, ▇▇▇▇▇, DHL, Airborne Express, and other similar express delivery
services), (iii) if mailed through the United States Postal Service, postage
prepaid, registered or certified with return receipt requested, or (iv) if sent
by telecopy and confirmed; PROVIDED, that in the case of a notice by telecopy,
the sender shall in addition confirm such notice by writing sent in the manner
specified in clauses (i), (ii) or (iii) of paragraph (a) of this subsection
18.6. All notices shall be effective upon receipt by the addressee; PROVIDED,
HOWEVER, that if any notice is tendered to an addressee and the delivery
thereof is refused by such addressee, such notice shall be effective upon such
tender. For the purposes of notice, the addresses of the parties shall be as
set forth below; PROVIDED, HOWEVER, that any party shall have the right to
change its address for notice hereunder to any other location by giving written
notice to the other party in the manner set forth herein. The initial addresses
of the parties hereto are as follows:
If to Owner:
TCA Network Funding, Limited Partnership
c/o ML Leasing Equipment Corp.
North Tower
World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy of all notices under this subsection 18.6 to be simultaneously
given, delivered, or served to ▇▇▇▇ ▇▇▇▇▇ at the following address:
ML Leasing Equipment Corp.
Controller's Office
World Financial Center
South Tower - 14th Floor
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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THIS AGREEMENT FOR LEASE IS
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If to any Agent:
c/o TravelCenters of America, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy of all notices under this subsection 18.6 to any Assignee at such
address as such Assignee may specify by written notice to Owner and Agent.
Owner shall within five (5) Business Days give to Agent a copy of all notices
received by Owner pursuant to any Credit Agreement and any other notices
received with respect to any Unit Premises, Unit Improvements, item of Unit
FF&E, or Unit.
18.7 MODIFICATIONS. Neither this Agreement nor any provision hereof
may be changed, waived or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver or
termination is sought.
18.8 RIGHTS CUMULATIVE. All rights, powers and remedies herein given
to Owner are cumulative and not alternative, and are in addition to all
statutes or rules of law; any forbearance or delay by Owner in exercising the
same shall not be deemed to be a waiver thereof, and the exercise of any right
or partial exercise thereof shall not preclude the further exercise thereof,
and the same shall continue in full force and effect until specifically waived
by an instrument in writing executed by Owner. All representations and
covenants by Agent shall survive the making of the advances, and the provisions
hereof shall be binding upon and inure to the benefit of the respective
successors and permitted assigns, if any, of the parties hereto. Agent may not,
however, assign its rights or obligations as agent hereunder.
18.9 GOVERNING LAW. THIS AGREEMENT HAS BEEN EXECUTED AND DELIVERED IN
THE STATE OF NEW YORK. AGENT AND OWNER AGREE THAT, TO THE MAXIMUM EXTENT
PERMITTED BY THE LAWS OF THE STATE OF NEW YORK, THIS AGREEMENT, AND THE RIGHTS
AND DUTIES OF AGENT AND OWNER HEREUNDER, SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW)
IN ALL RESPECTS, INCLUDING WITHOUT LIMITATION IN RESPECT OF ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE. AGENT HEREBY IRREVOCABLY SUBMITS, FOR
ITSELF AND ITS PROPERTIES, TO THE JURISDICTION OF THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND THE SUPREME COURT OF THE STATE
OF NEW YORK IN THE COUNTY OF NEW YORK IN ANY ACTION, SUIT OR PROCEEDING BROUGHT
AGAINST IT AND RELATED TO OR IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, AND TO THE EXTENT PERMITTED
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THIS AGREEMENT FOR LEASE IS
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BY APPLICABLE LAW, AGENT HEREBY WAIVES AND AGREES NOT TO ASSERT BY WAY OF
MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY
CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURT, THAT
THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE
VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT THIS AGREEMENT OR
ANY DOCUMENT OR ANY INSTRUMENT REFERRED TO HEREIN OR THE SUBJECT MATTER HEREOF
MAY NOT BE LITIGATED IN OR BY SUCH COURT. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, AGENT AGREES NOT TO SEEK AND HEREBY WAIVES THE RIGHT TO ANY REVIEW OF THE
JUDGMENT OF ANY SUCH COURT BY ANY COURT OF ANY OTHER NATION OR JURISDICTION
WHICH MAY BE CALLED UPON TO GRANT AN ENFORCEMENT OF SUCH JUDGMENT. AGENT AGREES
THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY CERTIFIED OR REGISTERED MAIL TO
THE ADDRESS FOR NOTICES SET FORTH IN THIS AGREEMENT OR ANY METHOD AUTHORIZED BY
THE LAWS OF NEW YORK. OWNER AND AGENT EXPRESSLY WAIVE ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. OWNER AND AGENT ACKNOWLEDGE THAT THE
PROVISIONS OF THIS SUBSECTION 18.9 HAVE BEEN BARGAINED FOR AND THAT THEY HAVE
BEEN REPRESENTED BY COUNSEL IN CONNECTION THEREWITH.
18.10 CAPTIONS. The captions in this Agreement are for convenience of
reference only, and shall not be deemed to affect the meaning or construction
of any of the provisions hereof.
18.11 PURCHASE BY AGENT. Upon the occurrence of an Event of Default
and upon the written request of Agent, which shall be received not later than
fifteen (15) Business Days subsequent to receipt of notice from Owner or any
Assignee pursuant to this Agreement that such Event of Default has occurred,
Agent shall have the right, not later than thirty (30) Business Days after
Owner's receipt of such request, to purchase all Unit Premises, Unit
Improvements, Unit FF&E and Units under this Agreement at a price equal to
their Unit Acquisition Cost. In connection with, and as a condition to, the
purchase of such Unit Premises, Unit Improvements, Unit FF&E and Units pursuant
hereto, Agent shall pay at the time of purchase, in addition to the Unit
Acquisition Cost, all other amounts payable by Agent under Section 14 of this
Agreement.
18.12 OWNER COOPERATION. Owner shall from time to time promptly
execute and deliver to Agent all such documents and instruments and do all such
other acts and things as Agent may reasonably request to obtain the full
benefits of this Agreement, to enable Agent to perform its obligations and to
protect Agent's rights and interests in and to any Unit Premises, Unit
Improvements, Unit FF&E or Unit and all costs and expenses incurred by Owner.
18.13 SALE OF UNDEVELOPED PROPERTY. Agent shall have the right, upon
fifteen (15) days' notice to Owner, to terminate this Agreement with respect to
any portion of any Unit Premises constituting undeveloped land acquired
pursuant to this Agreement (the "UNDEVELOPED PREMISES"), at any time, by
arranging, at its own cost and expense, for the sale of such
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59
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
Undeveloped Premises in an arms' length transaction on the date of termination
and the receipt by Agent of the proceeds of such sale; PROVIDED, that as a
condition to any such sale Agent shall determine, in its reasonable business
judgment, that such Undeveloped Premises shall not be necessary for the use,
maintenance or operation of any Unit, and (ii) Agent shall provide to Owner,
upon Owner's request, evidence reasonably satisfactory to Owner that such sale
will not materially impair the value, utility or condition of any Unit. The
proceeds of any sale pursuant to this subsection 18.13 shall be remitted to and
retained by Agent. Upon receipt by Agent of the proceeds of sale, Owner shall
transfer title to such Undeveloped Premises to the purchaser at the sale
designated by Agent. In connection with any sale pursuant to this subsection
18.13, (1) when Owner transfers title, such transfer shall be on an as-is,
non-installment sale basis, without warranty by, or recourse to, Owner, but
free of any Liens resulting from Owner's willful or knowing act or omission,
(2) the purchase price for any such sale shall be paid entirely in cash and in
immediately available funds and (3) Agent shall pay or shall cause the
purchaser to pay, in addition to the purchase price, all mortgage recording
taxes, if any, recording and filing fees and all other similar taxes, fees,
expenses and closing costs (including reasonable attorneys' fees) in connection
with the conveyance to any purchaser. Agent hereby acknowledges and agrees that
any sale by Owner of Undeveloped Premises pursuant to this subsection 18.13
shall be subject to the provisions of subsection 9.5 and Section 12 of this
Agreement.
SECTION 19. CERTAIN LIMITATIONS
It is the intention of the parties hereto to conform strictly to all
usury laws that are applicable to each such party, this Agreement and to each
of the transactions contemplated by this Agreement (collectively, the
"TRANSACTIONS"). Accordingly, notwithstanding anything to the contrary in this
Agreement, or any other document, certificate, instrument or agreement entered
in connection with the Transactions (collectively the "TRANSACTION DOCUMENTS"),
it is agreed as follows: (i) the aggregate of all consideration which
constitutes interest under Applicable Usury Law (hereinafter defined) that is
contracted for, taken, reserved, charged or received by any party under the
Transaction Documents or otherwise in connection with the Transactions shall
under no circumstances exceed the maximum amount of interest that would
lawfully be charged by such party under Applicable Usury Law, (ii) in the event
that maturity of any indebtedness evidenced by or payable pursuant to the
Transaction Documents is accelerated for any reason, or in the event of any
required or permitted payment or prepayment of all or any part of such
indebtedness (including, without limitation, and if applicable, any required or
permitted purchase of any Unit Premises, Unit Improvements, Unit FF&E or Unit,
or any required or permitted payment of the Unit Acquisition Cost), then such
consideration that constitutes interest as to any such indebtedness under
Applicable Usury Law may never include more than the maximum amount allowed by
such Applicable Usury Law, and (iii) excess interest, if any, provided for in
the Transaction Documents or otherwise in connection with the Transactions
shall be, in accordance with the following provisions of this Section 19,
cancelled automatically and, if theretofore paid, shall be credited by the
recipient on the principal or stated amount of the affected indebtedness (or,
to the extent that the principal or stated amount of such indebtedness shall
have been or would thereby be paid in full, refunded by such recipient to the
party entitled thereto). If at any time the rate of interest (denominated as
such) contractually called for in any Transaction Document (as the same may
vary from time to time pursuant to the terms of such Transaction Document, the
"STATED RATE"), exceeds the maximum non-usurious rate of interest permitted by
Applicable Usury Law (the "MAXIMUM RATE") in respect of the indebtedness
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60
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
evidenced by such Transaction Document, taking into account all other amounts
paid or payable pursuant to the Transaction Documents which constitute interest
with respect to such indebtedness under Applicable Usury Law regardless of
whether denominated as interest (collectively, the "OTHER CHARGES"), then the
rate of interest to accrue on such indebtedness shall be limited to such
Maximum Rate (taking into account the Other Charges), but any subsequent
reduction in the Stated Rate applicable to such indebtedness shall not reduce
the rate of interest or yield to accrue on such indebtedness to a rate that is
less than such Maximum Rate (taking into account the Other Charges) until such
time as the total amount of interest or yield on such indebtedness equals the
amount of interest or yield which would have accrued if the Stated Rate
applicable to such indebtedness had at all times been in effect. If at the
maturity or final payment of any indebtedness the total amount of interest or
yield paid or accrued on such indebtedness under the preceding sentence is less
than the total amount of interest or yield which would have accrued if the
Stated Rate applicable to such indebtedness had at all times been in effect,
then to the fullest extent permitted by Applicable Usury Law there shall be due
and payable with respect to such indebtedness an amount equal to the excess, if
any, of (a) the lesser of (i) the amount of interest which would have accrued
on such indebtedness if such Maximum Rate in respect of such indebtedness had
at all times been in effect and been chosen as the rate of interest or yield to
be applicable throughout the term of such indebtedness (taking into account the
Other Charges) and (ii) the amount of interest which would have accrued on such
indebtedness if the Stated Rate applicable to such indebtedness had at all
times been in effect, over (b) the amount of interest accrued in accordance
with the provisions of the Transaction Document evidencing such indebtedness
after giving effect to the preceding sentence. All amounts paid or agreed to be
paid for the forbearance or detention of sums pursuant to or in connection with
the Transaction Documents shall, to the extent permitted by Applicable Usury
Law, be amortized, prorated, allocated and spread throughout the full term
thereof so that the rate or amount of interest paid or payable with respect to
any amount of indebtedness evidenced or payable pursuant to the Transaction
Documents does not exceed the applicable usury ceiling, if any. As used herein,
the term "APPLICABLE USURY LAW" means that law, if any, that is applicable to
any particular Transaction and that limits the maximum non-usurious rate of
interest that may be taken, contracted for, charged, reserved or received with
the respect to such Transaction, including the Federal laws of the United
States of America, the laws of the State of New York, the laws of the State of
Texas, and the laws of any other jurisdiction that may be mandatorily
applicable to such Transaction notwithstanding other provisions of this
Agreement and the other Transaction Documents. As used herein, the term
"interest" means interest as determined under Applicable Usury Law, regardless
of whether denominated as interest in the Transaction Documents (except to the
extent that this Section 19 specifically refers to interest denominated as
interest). The right to accelerate maturity of any indebtedness evidenced by
any Transaction Document, and the right to demand payment of the Unit
Acquisition Cost does not include the right to accelerate any interest, or to
receive any other amounts, which would cause the Transactions to be usurious
under Applicable Usury Law. To the extent (if any) that Texas law determines
the Maximum Rate, such Maximum Rate shall be determined by utilizing the
indicated rate (weekly) ceiling from time to time in effect pursuant to Texas
Revised Civil Statutes Annotated Article 5069-1.04, as amended. In no event
will the provisions of Texas Revised Civil Statues Annotated Articles 5069-2.01
through 5069-8.06 or 5069-15.01 through 5069-15.11 be applicable to the
Transactions. All computations of the maximum amount allowed under Applicable
Usury Law will be made on the basis of the actual number of days
-60-
61
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
elapsed over a 365 or 366 day year, whichever is applicable pursuant to such
Applicable Usury Law. The provisions of this Section 19 shall prevail over any
contrary provisions of this Agreement or any of the other Transaction
Documents.
-61-
62
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
TCA Network Funding, Limited Partnership
By: TCA Network Capital, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
TA Operating Corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
National Auto/Truckstops, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
-62-
63
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT A
THE LEASE
See Tab 6.1.
A-1
64
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT B
FORM OF AFL UNIT LEASING RECORD
AFL UNIT LEASING RECORD to Lessor: TCA Network Funding, Limited
the Lease Agreement, Partnership
dated as of September __, 1999 Lessee: TA Operating Corporation and
between TCA Network, National Auto/Truckstops, Inc.
Limited Partnership, as lessor,
and TA Operating Corporation and
National Auto/Truckstops, Inc.
as lessee (the "LEASE AGREEMENT").
A. Unit Premises No.: ___
Effective Date of this AFL
Unit Leasing Record ("AFL ULR")_______ __.
B. PLEASE COMPLETE THE FOLLOWING STATEMENTS, IF APPLICABLE:
This AFL ULR relates to [Deed/Ground Lease] dated ____________ ___.
C. UNIT PREMISES DESCRIPTION AND RENTAL INFORMATION.
Type of Property (use category specified in Exhibit A to the Lease
Agreement)
D. Specific Description: (See Schedule A hereto if more space needed)
_____________________________________________________________________
_____________________________________________________________________
E. Location of
Unit Premises _____________________________________________________
State County City
F. Unit Acquisition Cost under the Agreement for Lease is $ _____________.
G. The Lease Term for the Unit Premises placed under lease pursuant to
this AFL ULR will be in accordance with Exhibit A to the Lease
Agreement.
H. The Basic Rent is as defined in the Lease Agreement. The Quarterly
Rent Component will be as set forth on Schedule I hereto.
I. Termination of the lease of the Equipment leased pursuant to this AFL
ULR will be in accordance with the Lease Agreement.
B-1
65
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
J. ACKNOWLEDGMENT AND EXECUTION
-----------------------------
The undersigned Lessor hereby leases to the undersigned Lessee, and
the Lessee acknowledges delivery to it in good condition of the Unit
Premises described on this AFL ULR. The Lessee agrees to pay the Basic
Rent, Additional Rent and additional payments set forth in the Lease
Agreement. The covenants, terms and conditions of this lease are those
appearing in the Lease Agreement, as it may from time to time be
amended, which covenants, terms and conditions are hereby incorporated
by reference. The terms used herein have the meaning assigned to them
in the Lease Agreement.
TA Operating Corporation, TCA Network Funding, Limited
Partnership, Lessor
Lessee By TCA Network Capital, Inc.,
is General Partner
By:_______________________ By:_______________________
Name: Name:
Title: Title:
National Auto/Truckstops, Inc.,
Lessee
By:________________________
Name:
Title:
B-2
66
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT C
FORM OF ACQUISITION CERTIFICATE
WITH RESPECT TO UNIT PREMISES LOCATED AT ______________*
TA Operating Corporation and National Auto/Truckstops, Inc.,
as agents (collectively, "AGENT"), under a certain Agreement for Lease (the
"AGREEMENT") dated as of September __, 1999 entered into between TCA Network
Funding, Limited Partnership ("OWNER") and Agent, each hereby certifies to
Owner and Assignee as follows:
1. MEMORANDUM OF LEASE. Attached hereto at TAB 1 is a
copy of a memorandum of lease agreement with respect
to the Lease in the appropriate form for recording
in the jurisdiction in which the Unit Premises are
located, two (2) originals of which are being
delivered simultaneously with this Certificate.
2. [GROUND LEASE/DEED]. Attached hereto at TAB 2 is an
original of the Ground Lease (which Ground Lease is
not subject to any Liens other than Permitted
Liens), including a true and complete copy of the
metes and bounds legal description of the Unit
Premises, together with a memorandum of ground lease
(two (2) originals of which are being delivered
simultaneously with this Certificate) for the Unit
Premises, in each case in the appropriate form for
recording and any necessary estoppel certificates,
recognition and attornment agreements, confirmations
and subordinations required by Owner's and any
Assignee's counsel regarding the Ground Lease. [OR]
Attached hereto at TAB 2 is an original of the
limited warranty deed (or the equivalent for the
jurisdiction in which the Unit Premises are located)
conveying marketable title in such Unit Premises to
Owner, and not subject to any Liens other than
Permitted Liens.
3. TAXES. All past and current taxes and assessments
(excluding those which are due and payable but not
yet delinquent) applicable to the Unit Premises have
been paid in full or are being contested by Agent as
a Permitted Contest.
4. TITLE INSURANCE POLICY AND PREMIUMS. Attached hereto
at TAB 3 is a title insurance commitment or ALTA
owner's policy with a pending improvements clause
and a lender's policy with a pending disbursements
clause for the benefit of Assignee and including a
recharacterization endorsement (if available under
applicable title insurance regulations), each in the
amount of the Unit Budget for such Unit Premises,
for the benefit of Owner and Assignee, issued by the
Title Company with respect
_______________________
* All capitalized terms used in this Certificate shall have the meanings
given to such terms in the Agreement for Lease.
C-1
67
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
to the Unit Premises and acceptable to Owner and
Assignee in all respects, together with legible
copies of all underlying documents of record
affecting such Unit Premises, and evidence that all
premiums in respect of such policies will be paid at
the closing of title.
5. SURVEY. Attached hereto at TAB 4 is the current
survey of the Unit Premises, certified to Owner,
Assignee and the Title Company by the surveyor, and
satisfying the requirements of paragraph (h) of
Section 4 of the Agreement.
6. SITE PLAN. Attached hereto at TAB 5 is a site plan
prepared on behalf of Agent, showing the proposed
location of the Unit Improvements to be constructed
on the Unit Premises.
7. UTILITIES. All utility services and facilities
(including, without limitation, gas, electrical,
water and sewage services and facilities) (a) which
are necessary and required during the construction
period [HAVE BEEN COMPLETED [OR] WILL BE AVAILABLE
IN SUCH A MANNER THAT CONSTRUCTION WILL NOT BE
IMPEDED BY A LACK THEREOF] and (b) which are
necessary for operation and occupancy of the Unit
will be completed in such a manner and at such a
time as will assure the opening and operation of the
Unit on or before the Unit Completion Date.
8. FLOOD ZONE. Attached hereto at TAB 6 is a
certification by the surveyor or an official of an
appropriate Governmental Authority as to whether the
Unit Premises are located in a flood plain.
9. GOVERNMENTAL ACTIONS. All Governmental Actions
required for the construction of the Unit
Improvements and for the use of the Unit Premises in
accordance with and as contemplated by the Agreement
and the Lease have been or will be issued or
obtained in such a manner that construction will not
be impeded by a lack thereof and all Governmental
Actions required therefor which have been issued or
obtained are in full force and effect.
10. OPINION OF COUNSEL FOR AGENT. Attached hereto at TAB
7 are opinions of counsel for Agent.
11. OPINION OF COUNSEL FOR GUARANTOR. Attached hereto at
TAB 8 are opinions of counsel for the Guarantor.
12. UNIT PLANS. Attached hereto at TAB 9 is a copy of
the Unit Plans for the Unit Premises.
C-2
68
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
13. CONSTRUCTION AGREEMENT. Attached hereto at TAB 10 is
a fully executed and complete copy of the
Construction Agreement for the Unit Premises, if
any.
14. UNIT BUDGET. Attached hereto at TAB 11 is a copy of
the Unit Budget for such Unit, which Unit Budget is
(a) true, complete and correct, (b) accurately
representative of all expected costs of the Unit and
(c) within the dollar limits set forth in the first
sentence of subsection 2.2 of the Agreement.
15. CERTIFICATES OF INSURANCE. Attached hereto at TAB 12
are certificates of insurance or other evidence
certifying that the insurance carried or maintained
on the Unit required by subsection 9.3 of the
Agreement complies with the terms of such subsection
9.3.
16. REQUEST FOR ADVANCE. Attached hereto at TAB 13 is a
duly executed AIA Document G722 (or substantially
similar document), complying with the requirements
of paragraph (r) of Section 4 of the Agreement.
17. UNIT FF&E SPECIFICATIONS. Attached hereto at TAB 14
is a true and complete copy of the Unit FF&E
Specifications with respect to the Unit Premises,
initialed to show Agent's approval. [IF NO UNIT FF&E
ARE CONTEMPLATED, PLEASE INDICATE THIS.]
18. ENVIRONMENTAL CERTIFICATE AND REPORT. Attached
hereto at TAB 15 are the environmental certificate
and report or reports complying with paragraphs (u)
and (v) of Section 4 of the Agreement.
19. USE OF PROCEEDS, NO LIENS AND REPRESENTATIONS OF
AGENTS. (a) All costs and expenses which are the
subject of this Initial Advance have been paid in
full or will be paid in full out of the proceeds of
this Initial Advance, (b) there are no Liens on the
Unit Premises of which Agent has knowledge that are
not Permitted Liens, (c) all representations and
warranties made by Agent in the Agreement, in the
Lease, and in connection with this Initial Advance,
are and remain true and correct in all material
respects on and as of the date of this Initial
Advance as if made on and as of the date of this
Initial Advance, and (d) no Event of Default,
Potential Default or, with respect to the Unit for
which this Initial Advance is requested, Event of
Unit Termination or Potential Event of Unit
Termination, under the Agreement has occurred and is
continuing on the date this Initial Advance is to be
made or will occur by reason of giving effect to
this Initial Advance.
20. CONTINUING REPRESENTATIONS OF GUARANTOR. All
representations and warranties of the Guarantor made
in the Guaranty are and remain true and correct in
all material respects on and as of the date of this
Initial Advance as if made on and as of the date of
this Initial Advance and no default
C-3
69
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
under the Guaranty has occurred and is continuing on
the date this Initial Advance is to be made or will
occur by reason of giving effect to this Initial
Advance.
21. PLEDGED CONTRACTS. Attached hereto at TAB 16 is a
fully executed and complete copy of each of the
Pledged Contracts.
22. MAI APPRAISAL. Attached hereto at TAB 17 is an MAI
appraisal prepared by an independent, licensed
appraiser, with respect to the Unit Premises.
23. ADDITIONAL MATTERS. If applicable, attached hereto
at TAB 18 are such other documents and legal matters
in connection with the request for this Initial
Advance as may be reasonably requested by Owner and
any Assignee.
Dated: ___________
TA Operating Corporation
By:________________________________
Name:
Title:
National Auto/Truckstops, Inc.
By:_________________________________
Name:
Title:
(to be filled in by Owner)
Unit Completion Date: _________________
C-4
70
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT D
FORM OF INTERIM ADVANCE CERTIFICATE
WITH RESPECT TO UNIT PREMISES LOCATED AT _____________
IN CONNECTION WITH A REQUEST FOR AN INTERIM ADVANCE
TA Operating Corporation and National Auto/Truckstops, Inc., as agents
(collectively, "AGENT"), under a certain Agreement for Lease (the "AGREEMENT")
dated as of September __, 1999, entered into with TCA Network Funding, Limited
Partnership ("OWNER"), delivers this Interim Advance Certificate pursuant to
Section 5 of the Agreement with respect to the above noted Unit Premises. All
terms used in this Certificate shall have the meanings given to such terms in
the Agreement. Each Agent hereby certifies to Owner and Assignee as follows:
1. CONTINUING REPRESENTATIONS OF AGENTS. All
representations and warranties made by Agent in the
Agreement (other than in subsection 8.10 thereof),
in the Lease (other than in paragraph (f) and clause
(8) of paragraph (r) of Section 2 of the Lease), and
in connection with this Interim Advance, are and
remain true and correct in all material respects on
and as of the date of this Interim Advance as if
made on and as of the date of this Interim Advance
and no Event of Default, Potential Default or, with
respect to the Unit for which the Interim Advance is
requested, Event of Unit Termination or Potential
Event of Unit Termination under the Agreement has
occurred and is continuing on the date this Interim
Advance is to be made or will occur by reason of
giving effect to this Interim Advance.
2. CONTINUING REPRESENTATIONS OF GUARANTOR. All
representations and warranties of the Guarantor made
in the Guaranty are and remain true and correct in
all material respects on and as of the date of this
Interim Advance as if made on and as of the date of
this Interim Advance and no default under the
Guaranty has occurred and is continuing on the date
this Interim Advance is to be made or will occur by
reason of giving effect to this Interim Advance.
3. MATERIAL ADVERSE CHANGE. Since the date of the
Agreement, there has been no material adverse change
in the assets, properties, operations, prospects,
consolidated financial condition, contingent
liabilities or business of the Guarantor, which
could reasonably be expected to have a material
adverse effect on (a) the ability of Agent to
perform its obligations under this Agreement, the
Lease or any of the Construction Documents in a
timely manner or the ability of the Guarantor to
perform its obligations under the Guaranty in a
timely manner or (b) the rights or interests of
Owner or Assignee under this Agreement or the Lease.
4. SATISFACTORY TITLE. Attached hereto at TAB 1 is a
notice of title continuation (or nothing further
certificate) or an endorsement issued by the Title
Company in respect of owner's title policy and
Assignee's title policy indicating that since the
date of the Initial Advance for such Unit Premises,
there have been no changes in the state of title,
except for Permitted Liens, and no additional survey
D-1
71
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
exceptions (other than Permitted Liens) not
theretofore specifically approved in writing by
Owner and Assignee and, if such Unit Premises are
subject to a Ground Lease in which Agent is not the
ground lessor thereunder, attached hereto at TAB 1
is an estoppel certificate confirming that there are
no defaults under the Ground Lease, and such other
information as may be reasonably requested by Owner
or Assignee.
5. CONSTRUCTION PROGRESS. If reasonably requested by
Owner, attached hereto at TAB 2 is (a) an inspection
report from an independent party satisfactory to
Owner and Assignee, covering substantial conformity
of the work to the Unit Plans, quality of work
completed and percentage of work completed, (b) true
copies of paid and unpaid invoices, receipted bills
and Lien waivers and such other reasonably available
supporting information as may be reasonably
requested by Owner or Assignee and (c) a certificate
of the amount of Unreimbursed Unit Costs outstanding
on the date of this Interim Advance.
6. EVIDENCE OF COMPLIANCE. Attached hereto at TAB 3 are
such additional or updated documents, reports,
certificates, affidavits and other information as
required by Owner and Assignee in their reasonable
judgment to evidence compliance by Agent with all of
the provisions of the Agreement.
7. NO OTHER SECURITY INTERESTS. All materials and
fixtures incorporated in the construction of the
Unit Improvements have been purchased so that title
thereto or a leasehold interest therein, as the case
may be, shall have vested in Owner immediately upon
delivery thereof to the Unit Premises, except for
Permitted Liens, and if requested by Owner, attached
hereto at TAB 4 are copies of the contracts, bills
of sale, statements, receipted vouchers, or other
documents under which title thereto is claimed.
8. STATEMENTS OF EXPENDITURES. If reasonably requested
by Owner, attached hereto at TAB 5 is a statement
setting forth the names, addresses and amounts due
or to become due as well as the amounts previously
paid to every contractor, subcontractor or Person
furnishing materials, performing labor or entering
into the construction of any part of the Unit
Improvements.
9. REQUEST FOR ADVANCE. Attached hereto at TAB 6 is a
duly executed AIA Document G722 (or substantially
similar document), complying with the requirements
of paragraph (f) of Section 5 of the Agreement.
D-2
72
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
10. EVIDENCE OF COMPLIANCE. If requested, attached
hereto at TAB 7 are such documents, reports,
certificates, affidavits and other information as
required by Owner and any Assignee to evidence
compliance by Agents with all of the provisions of
the Agreement.
Dated:__________________ TA Operating Corporation
By:_____________________________
Name:
Title:
National Auto/Truckstops, Inc.
By:_____________________________
Name:
Title:
D-3
73
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT E
FORM OF CERTIFICATE OF SUBSTANTIAL COMPLETION
WITH RESPECT TO UNIT PREMISES LOCATED AT __________
IN CONNECTION WITH A REQUEST FOR A FINAL ADVANCE
TA Operating Corporation and National Auto/Truckstops, Inc., as agents
(collectively, "AGENT"), under a certain Agreement for Lease (the "AGREEMENT")
dated as of September __, 1999, entered into with TCA Network Funding, Limited
Partnership ("OWNER"), delivers this Certificate of Substantial Completion
pursuant to Section 6 of the Agreement with respect to the above noted Unit
Premises. All terms used in this Certificate shall have the meanings given to
such terms in the Agreement. Each Agent hereby certifies to Owner and Assignee
as follows:
1. SATISFACTORY TITLE. Attached hereto at TAB 1 is [a
notice of title continuation (or nothing further
certificate)/an endorsement] issued by the Title
Company in respect of Owner's title policy and
Assignee's title policy indicating that since the
last advance for such Unit Premises, there have been
no changes in the state of title, except for
Permitted Liens, and no additional survey exceptions
(other than Permitted Liens) not theretofore
specifically approved in writing by Owner and
Assignee and, if such Unit Premises are subject to a
Ground Lease in which Agent is not the ground lessor
thereunder, attached hereto at TAB 1 is an estoppel
certificate confirming that ----- there are no
defaults under the Ground Lease, and such other
information as may be reasonably requested by Owner
or Assignee.
2. CONSTRUCTION AND EQUIPPING OF THE UNIT. The Unit
Improvements (including all interior finish work,
but exclusive of punch list items) with respect to
such Unit have been completed within the Unit Budget
and in all material respects in accordance with the
Unit Plans and are accepted by Agent and all Unit
FF&E for such Unit has been installed and conforms
in all material respects to the Unit FF&E
Specifications and are accepted by Agent. Attached
hereto at TAB 2 is a specific itemization of all
items of Unit FF&E installed in such Unit.
3. GOVERNMENTAL ACTIONS. All Governmental Actions
necessary for the occupancy and primary use and
operation of the Unit have been issued or obtained.
4. LIENS. The Unit, including interior finish work, has
been completed as contemplated in paragraph (c) of
Section 6 of the Agreement, free of all Liens except
for Permitted Liens (all of which Permitted Liens
are itemized on TAB 3 attached hereto as to the
nature, amount, claimant and status) and such
Permitted Liens do not include any mechanics' Liens
other than those mechanics' Liens that are (i) to be
satisfied or discharged out of the proceeds of this
Final Advance or a Completion Advance or (ii)
E-1
74
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
subject to a Permitted Contest and bonded or
otherwise secured to the reasonable satisfaction of
Owner and Assignee, and there are no current
Permitted Contests with respect to such Unit [OR] if
any Permitted Contest exists, attached hereto at TAB
4 is a specific itemization of the nature, amount,
claimant and status of each Permitted Contest.
5. FINAL SURVEY. Attached hereto at TAB 5 is a final
as-built survey prepared by an independent, licensed
registered public land surveyor and certified to and
in form and substance reasonably satisfactory to
Owner and Assignee, with a metes and bounds
description of the perimeter of the Unit Premises,
and showing the completed Unit Improvements, all
easements on the Unit Premises, and indicating the
location of access to the Unit Premises and all
utility and water easements directly affecting the
Unit Premises. No encroachments exist by the Unit
Improvements or on the Unit Premises other than
those that are Permitted Liens or that may have been
consented to by Owner and any Assignee and all
set-back requirements have been complied with.
6. UTILITIES. Direct connection has been made to all
appropriate utility facilities and the Unit
Improvements are ready for occupancy and operation.
7. FLOOD INSURANCE. If the Unit Premises are located in
a flood plain, attached hereto at TAB 6 is a policy
of flood insurance in an amount equal to the lesser
of (a) the maximum limit of coverage available under
the National Flood Insurance Act of 1968, as
amended, or (b) the amount of the Unit Acquisition
Cost for the Unit.
8. CONTINUING REPRESENTATIONS OF AGENTS. All
representations and warranties made by Agent in the
Agreement (other than in subsection 8.10 thereof),
in the Lease (other than in paragraph (f) and clause
(8) of paragraph (r) of Section 2 of the Lease), and
in connection with this Final Advance are and remain
true and correct in all material respects on and as
of the date of this Final Advance as if made on and
as of the date of this Final Advance and no Event of
Default, Potential Default or, with respect to the
Unit for which the Final Advance is requested, Event
of Unit Termination or Potential Event of Unit
Termination, under the Agreement has occurred and is
continuing on the date this Final Advance is to be
made or will occur by reason of giving effect to
this Final Advance.
9. CONTINUING REPRESENTATIONS OF GUARANTOR. All
representations and warranties of the Guarantor made
in the Guaranty are and remain true and correct in
all material respects on and as of the date of this
Final Advance as if made on and as of the date of
this Final Advance and no default under the Guaranty
has occurred and is continuing on the date this
Final
E-2
75
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
Advance is to be made or will occur by reason of
giving effect to this Final Advance.
10. MATERIAL ADVERSE CHANGE. Since the date of the
Agreement, there has been no material adverse change
in the assets, properties, operations, prospects,
consolidated financial condition, contingent
liabilities or business of the Guarantor, which
could reasonably be expected to have a material
adverse effect on (a) the ability of Agent to
perform its obligations under this Agreement, the
Lease or any of the Construction Documents in a
timely manner or the ability of the Guarantor to
perform its obligations under the Guaranty in a
timely manner or (b) the rights or interests of
Owner or Assignee under this Agreement or the Lease.
11. AFL UNIT LEASING RECORD. Attached hereto at TAB 7 is
a duly executed AFL Unit Leasing Record with respect
to such Unit.
12. REQUEST FOR ADVANCE. Attached hereto at TAB 8 is a
duly executed AIA Document G722 (or substantially
similar document), complying with the requirements
of paragraph (k) of Section 6 of the Agreement.
Dated:____________________
TA Operating Corporation
By:__________________________
Name:
Title:
National Auto/Truckstops, Inc.
By:__________________________
Name:
Title:
E-3
76
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT F
FORM OF CERTIFICATE OF INCREASED COST
WITH RESPECT TO UNIT PREMISES LOCATED AT _________________
IN CONNECTION WITH A REQUEST FOR A COMPLETION ADVANCE
TA Operating Corporation and National Auto/Truckstops, Inc., as agents
(collectively, "AGENT"), under a certain Agreement for Lease (the "AGREEMENT")
dated as of September __, 1999, entered into with TCA Network Funding, Limited
Partnership ("OWNER"), delivers this Certificate of Increased Cost pursuant to
Section 7 of the Agreement with respect to the above noted Unit Premises. All
terms used in this Certificate shall have the meanings given to such terms in
the Agreement. Each Agent hereby certifies to Owner and Assignee as follows:
1. CONTINUING REPRESENTATIONS OF AGENTS. All
representations and warranties made by Agent in the
Agreement (other than subsection 8.10 thereof), in
the Lease (other than in paragraph (f) and clause
(8) of paragraph (r) of Section 2 of the Lease), and
in connection with this Completion Advance are and
remain true and correct in all material respects on
and as of the date of this Completion Advance as if
made on and as of the date of this Completion
Advance and no Event of Default, Potential Default
or, with respect to the Unit for which this
Completion Advance is requested, Event of Unit
Termination or Potential Event of Unit Termination
under the Agreement has occurred and is continuing
on the date this Completion Advance is to be made or
will occur by reason of giving effect to this
Completion Advance.
2. CONTINUING REPRESENTATIONS OF GUARANTOR. All
representations and warranties of the Guarantor made
in the Guaranty are and remain true and correct in
all material respects on and as of the date of this
Completion Advance as if made on and as of the date
of this Completion Advance and no default under the
Guaranty has occurred and is continuing on the date
this Completion Advance is to be made or will occur
by reason of giving effect to this Completion
Advance.
3. MATERIAL ADVERSE CHANGE. Since the date of the
Agreement, there has been no material adverse change
in the assets, properties, operations, prospects,
consolidated financial condition, contingent
liabilities or business of the Guarantor, which
could reasonably be expected to have a material
adverse effect on (a) the ability of Agent to
perform its obligations this Agreement, the Lease or
any of the Construction Documents in a timely manner
or the ability of the Guarantor to perform its
obligations under the Guaranty in a timely manner or
(b) the rights or interests of Owner or Assignee
under this Agreement or the Lease.
4. SATISFACTORY TITLE. Attached hereto at TAB 1 is [a
notice of title continuation (or nothing further
certificate)/an endorsement] issued by the Title
Company in respect of Owner's title policy and
Assignee's title policy
F-1
77
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
indicating that since the last advance for such Unit
Premises, there have been no changes in the state of
title, except for Permitted Liens, and no additional
survey exceptions (other than Permitted Liens) not
theretofore specifically approved in writing by
Owner and Assignee and, if such Unit Premises are
subject to a Ground Lease in which Agent is not the
ground lessor thereunder, an estoppel certificate
from the ground lessor certifying that there are no
defaults under the Ground Lease, if any, and such
other information relating to title as may be
reasonably requested by Owner or Assignee.
5. REVISED AFL UNIT LEASING RECORD. Attached hereto at
TAB 2 is a revised AFL Unit Leasing Record with
respect to such Unit, prepared by Agent pursuant to
subsection 2.3(b) of the Agreement.
6. REQUEST FOR ADVANCE. Attached hereto at TAB 3 is a
duly executed AIA Document G722 (or substantially
similar document), complying with the requirements
of paragraph (c) of Section 7 of the Agreement.
Dated:________________
TA Operating Corporation
By:_____________________________
Name:
Title:
National Auto/Truckstops, Inc.
By:_______________________________
Name:
Title:
F-2
78
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT G
FF&E SPECIFICATIONS
[Intentionally left blank at this time.]
G-1
79
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT H
ENVIRONMENTAL CERTIFICATE
WITH RESPECT TO UNIT PREMISES LOCATED AT _________*
1. TA Operating Corporation and National Auto/Truckstops, Inc., as
agents (collectively, "AGENT"), the agents under a certain Agreement for Lease,
dated as of September __, 1999 (the "AGREEMENT FOR LEASE"), entered into with
TCA Network Funding, Limited Partnership ("OWNER"). This certificate is made by
Agent to induce Owner to accept the Unit Premises under the Agreement for
Lease. Capitalized terms used herein and not otherwise defined shall have the
meaning given such terms in the Agreement for Lease.
2. Except as described in the Environmental Reports (hereinafter
defined), Agent has no knowledge and has not given or received any notice
indicating, and has no reason to believe, that (a) any prior or present owner,
operator, tenant, occupant, or licensee of any portion of the Unit Premises has
used, handled, treated, generated, imported, processed, produced, stored,
spilled, released, transported, disposed of, or discharged (collectively
"MANAGED") any Hazardous Substances (hereinafter defined) on, from, beneath or
affecting the Unit Premises or any portion thereof, except in material
compliance with all applicable Environmental Requirements (hereinafter
defined); (b) there has been a Release or threatened Release of any Hazardous
Substances (i) at, on, from, beneath or affecting the Unit Premises, or (ii) at
any location where any Hazardous Substances managed on or in connection with
the Unit Premises have been transported, treated, stored, handled, disposed,
transferred, recycled or received, whether by Agent or any other Person for
whose conduct Agent is or may be held responsible under applicable
Environmental Requirements and which in either case will result in material
costs pursuant to Environmental Laws; (c) any prior or present owner, operator,
tenant, occupant, or licensee of any portion of the Unit Premises or any other
Person for whose conduct any of the foregoing is or may be held responsible
under applicable Environmental Requirements, has received any material notice,
directive, citation, subpoena, summons, order to show cause, complaint or other
written communication from any Governmental Authority or Person with respect to
the management of any Hazardous Substances on, from, beneath or affecting the
Unit Premises or any portion thereof; (d) there are currently no agreements,
consent orders, decrees or other directives (other than Environmental
Requirements) of any applicable court or governmental or quasi-governmental
agency requiring any tests, studies, inspections, work, monitoring or other
removal or remedial activities with respect to the management of any Hazardous
Substances on, from, beneath or affecting the Unit Premises or any portion
thereof, or any threatened proceeding concerning the Unit Premises or any
portion thereof which is related to Environmental Requirements; (e) there are
currently any claims, actions, injunctions, decrees, writs, orders, judgments,
proceedings, or investigations filed, pending or threatened against Agent or
the Unit Premises with respect to the management of any Hazardous Substances
on, from or beneath the Unit Premises or in any way affecting the Unit Premises
or any portion
___________________
* All capitalized terms used in this Certificate shall have the meanings
given to such terms in the Agreement for Lease.
H-1
80
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
thereof; (f) there are or have ever been any underground or above ground
storage tanks (whether or not currently in use) located on the Unit Premises in
a condition not in material compliance with Environmental Requirements; (g)
there are any dams, ▇▇▇▇▇, discharges, reservoirs, wetlands or watercourses at
the Unit Premises that are not registered and/or permitted under and in
material compliance with Environmental Requirements to the extent required by
such Environmental Requirements; and (i) except as described in the
Environmental Reports, there are any facts or circumstances related to
Environmental Matters concerning the Unit Premises that are reasonably likely
to lead to the assertion of material environmental claims against Owner, Agent,
or any Affiliate of Owner or of Agent.
3. Agent or any Affiliate of Agent has not given notice to any
insurance broker or insurance carrier that there has been an occurrence
relating to the management or release of Hazardous Substances on, from,
beneath, or affecting the Unit Premises or any portion thereof.
4. Agent has obtained or will obtain in a timely manner, and will
maintain and materially comply with all material permits, licenses,
registration and authorizations which are required under applicable
Environmental Requirements with respect to the intended construction and
operation of the Unit Premises.
5. Agent has not, by contract, agreement, or otherwise, arranged for
disposal or treatment, or arranged with a transporter for transport for
disposal or treatment, of any Hazardous Substances from the Unit Premises to
any location which is listed on the National Priorities List under CERCLA (as
hereinafter defined) or which is listed for possible inclusion on the National
Priorities List, or which is the subject of any regulatory action which may
lead to claims under CERCLA.
6. For purposes of this document, the following terms shall have the
following meanings: (i) "ENVIRONMENTAL REQUIREMENTS" shall mean each and every
applicable federal, state or local law, statute, ordinance, code, rule, order,
regulation, or other requirement (including but not limited to, consent decrees
and administrative orders), regulating, relating or imposing obligations,
liabilities or standards of conduct with respect to human health or safety, to
the environment, or to Hazardous Substances, including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act, as
amended ("CERCLA") (42 U.S.C. sec. 9601, ET SEQ.), as amended by the Superfund
Amendments and Reauthorization Act of 1986 (42 U.S.C. secs. 9601-9675), the
Resource Conservation and Recovery Act, as amended (42 U.S.C. sec. 6901, ET
SEQ.), the Emergency Planning and Community Right-To-Know Act, as amended (42
U.S.C. sec. 11001, ET SEQ.) the Water Pollution Control Act, as amended (33
U.S.C. sec. 1251, ET SEQ.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. sec. 1801, ET SEQ.), the Toxic Substances Control Act, as
amended (15 U.S.C. sec. 2601, ET SEQ.), and any so called "Superfund" or
"Superlien" law, (ii) "ENVIRONMENTAL REPORTS" shall mean the environmental
documents delivered pursuant to paragraph (v) of Section 4 of the Agreement for
Lease to and accepted by Owner and the Assignee in connection with the
acquisition of the Unit Premises, and (iii) "HAZARDOUS SUBSTANCES" shall mean,
without limitation, any solid, liquid or gaseous wastes, substances or
materials containing or constituting urea formaldehyde, polychlorinated
biphenyls, petroleum products, methane, radioactive
H-2
81
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
materials, hazardous wastes, hazardous or toxic substances, or related
materials, asbestos or any material containing asbestos, pollutants, or any
other substance, material, chemical compound, waste or item defined as or
determined by a governmental authority having jurisdiction to be hazardous or
toxic pursuant to any Environmental Requirements applicable to the Unit
Premises or the business operations conducted thereon.
7. It is hereby acknowledged and confirmed that the indemnification
obligation of Agent set forth in Section 12 of the Agreement for Lease and in
Section 11 of the Lease (referred to therein) to the parties therein named
shall include, without limitation, all liabilities, taxes, losses, obligations,
claims, damages, penalties, causes of action, suits, costs and expenses
(including, without limitation, reasonable attorneys' and accountants' fees and
expenses) or judgments of any nature relating to or in any way arising out of
the noncompliance with any applicable Environmental Requirements by Agent or
with respect to the Unit Premises and/or any improvements now or hereafter
situated on the Unit Premises.
Dated:____________________
TA Operating Corporation
By:_______________________
Name:
Title:
National Auto/Truckstops, Inc.
By:_________________________
Name:
Title:
H-3
82
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT I
APPROVED UNIT PLANS
I-1
83
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT J
UNIT BUDGET FOR EACH UNIT
J-1
84
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT K
TA OPERATING CORPORATION UNIT PREMISES
1. The Property located at San Antonio, Texas.
2. The Property located at Cartersville, Georgia.
3. The Property located at Monroe, Michigan.
K-1
85
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT L
NATIONAL AUTO/TRUCKSTOPS, INC. UNIT PREMISES
1. The Property located at Amarillo, Texas.
L-1
86
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT M
ENVIRONMENTAL DOCUMENTS PROVIDED
TO OWNER PURSUANT TO SECTION 4(U) NATIONAL AUTO/TRUCKSTOPS, INC.
MONROE, MICHIGAN FACILITY
1. Subsurface Investigation, Truckstops of America, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (BP Site No: 04001/TA 69),
prepared by ▇▇▇▇▇▇ Inc., November 1992;
2. Phase I Environmental Audit of the Truckstops of America
Facility at Interstate 75 and State Route 50, Monroe,
Michigan, prepared by ENSR, September 1993 (Document Number
1005-040-370);
3. Phase 2 Environmental Audit, Truckstops of America, Inc.,
Site No. 04001, Interstate 75 and Route 50, prepared by Dames
& ▇▇▇▇▇, October 1993 (Job No. 02335-060-121);
4. Data Report, Schedule A Assessment Activities, Truckstops of
America, Inc., Site #4001, Interstate ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, prepared by Dames & ▇▇▇▇▇, July
12, 1994 (Job No 02335-008-121);
5. Final Assessment Report, former Hop-In Sunoco, ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇, ▇▇, prepared by ▇▇▇▇▇▇▇▇ Industrial Group, Inc.
for ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Gallup Properties, Inc., September 27,
1996 (Project No. 65110);
6. Testing Agreement among ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Galcorp, Hop-In
Michigan Inc., Hop-In Food Stores Inc. and Silcorp Ltd.,
January 17, 1992;
7. Sales & Purchase Agreement between ▇▇▇▇▇ Refining &
Marketing, Inc., Seller, and TA Operating Group, Purchaser,
March 23 1998;
8. Letter to Ms. ▇▇▇▇▇ F/ ▇▇▇▇▇▇▇▇▇, TravelCenters of America,
from TolTast, Inc. re: Groundwater Sampling Results, Former
Hop-In #608, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
April 27, 1998;
9. Baseline Environmental Assessment Conducted Pursuant to
Section 20126(1)(c) of 1994 PA, Part 201, As Amended,
submitted by TravelCenters of America for property at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, prepared by TolTest
Inc., June 9, 1998; and
10. Leaking Underground Storage Tank Supplemental Report (Status
Letter), former BP Station #4001 (TravelCenters of America),
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Michigan, Facility #3233,
submitted to the Michigan Department of Environmental Quality
by ▇▇▇▇ ▇▇▇▇, Environmental Science and Technology, 3/5/99.
M-1
87
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
11. Letter to Michigan Department of Environmental Quality from
TravelCenters of America re: reported release from diesel
USTS, July 28, 1999.
12. Letter to TravelCenters of America from Michigan Department
of Environmental Quality re: confirmed release from UST,
August 3, 1999.
13. Letter to TravelCenters of America from Tolest, Inc. re:
status of well abandonment and UST closure activities, August
20, 1999.
B. AMARILLO, TEXAS FACILITY
1. Phase I Environmental Liability Assessment of the Unocal
Auto/Truckstop Facility Located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇, prepared by ENSR, October 1992 (Document No.
1713-002-107);
2. Asset Purchase Agreement Phase II Environmental Audit, Unocal
Amarillo 76 Auto/Truckstop, Amarillo, Texas, prepared by
EMCON for Unocal Asset Management Group, April 1997 (Project
61900-002-001);
3. Underground Storage Tank Closure Assessment Report, Amarillo
Auto/Truck Plaza, ▇▇▇▇ ▇-▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, prepared
by AGRA Earth & Environmental, Inc. November 24, 1998;
4. Lead Based Paint Inspection Report of Union 76 in Amarillo,
Texas, prepared by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇▇▇, March 20, 1998;
5. Asbestos Survey Union 76 Truckstop, Amarillo, Texas, prepared
by APEX Technical Services, Inc., March 18, 1998; and
6. Asbestos Assessment Management, Union 76 Truckstop, Amarillo
Texas, Ecosystems Environmental, August 12, 1998.
C. DALLAS (▇▇▇▇▇▇ VIEW BOULEVARD), TEXAS FACILITY
1. Memo from ▇.▇. ▇▇▇▇▇▇▇ of BP to ▇▇▇▇▇ ▇▇▇▇▇▇▇ of BP re: Real
Estate Site Assessment, proposed TA/BP Site No. 02483, I-20
and ▇-▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, dated 10/9/91.
2. ▇▇▇▇▇▇ ▇. ▇▇▇▇ Associates, Inc. report, "Level II
Environmental Site Assessment, Proposed TA/BP Site No. 02483,
Southeast Corner of ▇-▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇,"
October 1991.
3. H2W Environmental Consultants, Inc. report "Environmental
Site Assessment, 21.8 Acre Parcel of Land, Dallas, Texas,"
May 1991.
4. Letter from ENSR to BP Oil Company re Phase I Environmental
Assessment of Truckstops of America Property Located at
Southwest Corner of ▇▇▇▇▇▇ View Blvd and Interstate ▇▇▇▇▇▇▇
▇▇/▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, dated 10/8/93,
M-2
88
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
with attached "Exhibit A" "Supporting Documentation for Phase
I Environmental Assessment", (1005-040-300); and
5. Phase 2 Environmental Audit, Truckstops of America, Inc. Site
#0999, Southwest Corner of ▇▇▇▇▇▇ View Boulevard and
Interstate Highway 20/Interstate highway 635, prepared by
Dames & ▇▇▇▇▇, October 1993 (Job No. 02335-060-121).
D. SAN ANTONIO, TEXAS FACILITY
1. Phase I Environmental Site Assessment and a Limited Phase II
Environmental Investigation, Truckstops of America, IH-10
East & ▇▇▇▇▇▇ Road, prepared by ▇▇▇▇-▇▇▇▇▇▇ Consulting
Engineers, Inc, February 1997;
2. Wetland Delineation of remainder of 98-acre tract at
Interstate 10 and ▇▇▇▇▇▇ Road, Horizonal Environmental
Services, Inc., October 8, 1998;
3. Letter notification - Pre-Construction Notification to US
Corp of Engineers re 98 Acre tract at Interstate 10 and
▇▇▇▇▇▇ Road, San Antonio, Texas, Horizon Environmental
Services, October 20, 1998; and
4. Horizon Environmental Services, Section 404 Corp. of
Engineers Permit, San Antonio, Texas, November 19, 1998.
E. CARTERSVILLE, GEORGIA FACILITY
1. Environmental Site Assessment - Preliminary Summary, 73 Acre
Tract I-75 and Cassville White Road, Cartersville, Georgia,
prepared by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Associates, Inc., June 20,
1996;
2. Phase I Environmental Site Assessment, 73 Acre Tract I-75 and
Cassville White Road, Cartersville, Georgia, prepared by
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Associates, Inc., June 25, 1996, (Job
Number 96807);
3. Report of Preliminary Subsurface Exploration, proposed site
for Truckstops of America, Cartersville, Georgia, prepared by
Geo-Hydro Engineers for ▇▇▇▇▇▇ Engineering Services, Inc.,
March 25, 1997, (Project Number ▇▇▇-▇▇-▇▇-▇▇▇);
4. Report of Preliminary Subsurface Exploration, proposed
Truckstops of America, Cartersville, Georgia, prepared by
Geo-Hydro Engineers, Inc., April 30, 1997 (Project Number
▇▇▇-▇▇-▇▇-▇▇▇); and
5. Report of Jurisdictional Wetlands Delineation, Truckstops of
America, Cartersville, Georgia, prepared by Geo-Hydro
Engineers, April 30, 1997 (Project Number 116-97-37162).
M-3
89
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
F. SEVILLE (LODI), OHIO FACILITY
1. Phase I Environmental Audit of the Truckstops of America
Facility located at the Intersection of ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ (▇▇▇▇ Facility), prepared by ENSR for
BP Oil Company, July 14, 1993 (Document Number 1005-040-380);
2. Phase I Environmental Audit of the Truckstops of America
Facility Located at the Intersection of ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ (▇▇▇▇ Facility), prepared by ENSR ,
October 1993 (Document Number 1005-040-380);
3. Report Phase 2 Environmental Audit, Truckstops of America,
Inc., Site #01033, Intersection of ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇, prepared by Dames & ▇▇▇▇▇, October 1993
(Job Number 02335-060-121);
4. UST System Closure Assessment, BP Oil Site #01033/TA15, Post
Office Box 125, I-71 and ▇-▇▇ ▇▇ ▇.▇. ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, BUSTR Incident #5221690, prepared by Engineering
Science, February 1994;
5. Data Report, Schedule A Assessment Activities, Truckstops of
America, Inc., Site #01033, Intersection of ▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇, prepared by Dames & ▇▇▇▇▇,
July 11, 1994 (Job Number 02335-098-121);
6. Site Assessment Report, Truckstops of America Site #01033,
Seville Ohio, Incident #5221690, prepared by Groundwater
Technology, Inc., September 8, 1994; and
7. Site Assessment Activities, BP Oil Site #01083/TA15, I-77 and
I-76 (On State Route 24), Lodi, Ohio, prepared by ▇▇▇▇▇▇▇
Engineering Science, Inc., January 1995.
G. LAS CRUCES, NEW MEXICO FACILITY
1. Site Assessment Report, Truckstops of America, Inc., I-10 and
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, prepared by ENCON
International, October 1989 (Project #114);
2. Plan of Action Report, Truckstops of America, Inc., I-10 and
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, prepared by ENCON
International, November 15, 1989 (Project #114);
3. Remediation Status Report, Truckstops of America, Inc., I-10
and ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, prepared by ENCON
International, March 8, 1990 (Project #114);
4. Remediation Status Report, Truckstops of America, Inc., I-10
and ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, prepared by ENCON
International, April 13, 1990;
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THIS AGREEMENT FOR LEASE IS
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5. Letter to ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, New Mexico Environmental
Improvement Division ("EID"), from ▇▇▇▇ ▇▇▇▇▇▇▇, ENCON
International, dated July 17, 1990, re: Truckstops of America
Project Status, Las Cruces, New Mexico;
6. Discharge Plan Application - Part A, New Mexico EID, prepared
by ENCON International, August 1990 (Project #114);
7. Remediation Status Report, Truckstops of America, Inc., ▇-▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, prepared by ENCON
International, January 7, 1991 (Project #114);
8. Letter to ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, BP Oil Company, from ▇▇▇▇▇
▇▇▇▇, New Mexico EID, dated February 5, 1991 re:
Characterization and Remediation of Hydrocarbon Contamination
at Truckstops of America, Las Cruces, New Mexico;
9. Letter to ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, BP Oil Company, from ▇▇▇▇
▇▇▇▇▇▇▇, ENCON International dated February 26, 1991, re Las
Cruces Truckstops Status;
10. Letter to ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, BP Oil Company, from ▇▇▇ ▇▇▇▇▇,
ENCON International, dated February 26, 1991, re ECON
Groundwater Lab Results for February 1991;
11. Letter to BP Oil Company from ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ ("SHB"), April 24, 1991, re Truckstops of America
I-10 and ▇▇▇▇▇▇, Las Cruces, New Mexico;
12. Draft Report Summarizing Investigative & Remedial Activities,
prepared by SHB, December 31, 1991 (Job No E91-4015);
13. Tier Two Emergency & Hazardous Chemical Inventory of BP Oil
Company 01052, PO Box 1600, Las Cruces facility, 2/8/92;
14. Letter to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, BP Oil Company from ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, New Mexico Underground Storage Tank Bureau dated
10/9/92 re Release of Diesel fuel from underground storage
tank at Truckstops of America, Las Cruces, New Mexico;
15. Letter to State of New Mexico Environmental Department, from
▇▇▇▇▇ ▇▇▇▇▇▇, BP Oil Company, dated October 20, 1992, re BP
Oil Site No. 01052, Truckstops of America, Las Cruces, New
Mexico;
16. Letter to ▇▇▇▇▇ ▇▇▇▇▇▇, BP Oil Company, from State of New
Mexico Environmental Department, dated 12/17/92, re Request
for Extension, Truckstops of America, Las Cruces, New Mexico;
17. Underground Storage Tank Removal Report, Truckstops of
America, Las Cruces, New Mexico, BP Facility Id. No.
TSA-010-52, prepared by SHB AGRA, Inc., July 23, 1993 (Job
No. E92-4103A);
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THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
18. Phase I Environmental Audit of the Truckstops of America
Facility located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. in Las Cruces, New
Mexico, prepared by ENSR for BP Oil Company, September 1993
(Document Number 1005-040-490);
19. Letter to ▇▇▇▇ ▇▇▇▇▇▇▇▇, BP Oil Company, from ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, New Mexico Environmental Department, dated
9/30/93, re Confirmed Petroleum Hydrocarbon Release At
Truckstops of America Site, Las Cruces, New Mexico;
20. Phase 2 Environmental Audit, Truckstops of America, Inc. Site
#01052, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇,
prepared by Dames & ▇▇▇▇▇, October 1993 (Job No.
02335-060-121);
21. Remedial Action Plan, Truckstops of America, Las Cruces, New
Mexico, BP Facility ID No TSA-01052, prepared by SHB AGRA,
November 22, 1993, (Job No. E92-4008);
22. Letter to New Mexico Underground Storage Tank Bureau from BP
Oil Company, dated 3/1/94, re Remedial Action Plan;
23. Data Report, Schedule A Assessment Activities, Truckstops of
America, Inc., Site No. 01052, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, prepared by Dames & ▇▇▇▇▇, ▇▇▇▇ 9, 1994
(Job No. 02335-098-121);
24. Gas Station Quarterly Monitoring & Product Recovery Report,
Truckstops of America, Las Cruces, New Mexico, BP Facility ID
No. TSA-01052, prepared by AGRA, March 1994 (Job No.
E92-4008C);
25. Tracer Tightness Test of 6 Underground Storage Tanks,
Truckstops of America #01052 Site, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, prepared by US Tank Management, Inc.,
and Tracer Research Corp., May 16, 1994;
26. BP Oil - Letter Reports on, Free Product Recovery, submitted
to New Mexico UST Bureau, Las Cruces Facility #01052, dated
December 14, 1994, November 17, 1995, October 10, 1994,
September 20, 1994, August 22, 1994 and March 6, 1995;
27. BP Oil Letter Report - Data from bench - top pilot study as
described in SHB AGRA Remedial Action Plan, submitted to the
New Mexico UST Bureau, dated February 3, 1995;
28. Dames & ▇▇▇▇▇ Letter Report - Diesel Line Inspection,
Truckstops of America Site 1052, July 22, 1994;
29. Gas Station Quarterly Monitoring & Product Recovery Report,
Truckstops of America, Las Cruces, New Mexico, BP Facility ID
No, TSA-010-52, prepared by AGRA, July through September,
1994 (Job No. E92-4008C);
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THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
30. Quarterly Groundwater Monitoring & Sampling Report,
Truckstops of America, Inc., Site #01052, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, prepared by Dames & ▇▇▇▇▇,
May 8, 1995;
31. Quarterly Groundwater Monitoring & Sampling Report,
Truckstops of America, Inc., Site #01052, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, prepared by Dames & ▇▇▇▇▇,
July 31, 1995;
32. Quarterly Groundwater Monitoring & Sampling Report,
Truckstops of America, Inc., Site #01052, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, prepared by Dames & ▇▇▇▇▇,
October 16, 1995;
33. Quarterly Groundwater Monitoring & Sampling Report,
Truckstops of America, Inc., Site #01052, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, prepared by Dames & ▇▇▇▇▇,
January 15, 1996;
34. Sparging Investigation Report, Truckstops of America, Inc.,
Site #01052, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇, prepared by AGRA, September 16, 1996; and
35. Groundwater Monitoring Report, April 1998 Event, Truckstops
of America facility #01052, Las Cruces, New Mexico, AGRA,
June 24, 1998.
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THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
SCHEDULE 1
UNDERGROUND STORAGE TANKS
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
SITE SIZE MATERIAL CONTENTS STATUS
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
Amarillo 10,000 gallon steel gasoline temporarily closed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
20,000 gallon steel gasoline temporarily closed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
30,000 gallon fiberglass diesel to be installed*
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
30,000 gallon fiberglass diesel to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
8,000 gallon fiberglass oil to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
4,000 gallon fiberglass used oil to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
Cartersville 30,000 gallon fiberglass diesel to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
30,000 gallon fiberglass diesel to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
15,000 gallon fiberglass gasoline to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
8,000 gallon fiberglass gasoline to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
8,000 gallon fiberglass oil to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
4,000 gallon fiberglass used oil to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
San Antonio 30,000 gallon fiberglass diesel to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
30,000 gallon fiberglass diesel to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
15,000 gallon fiberglass gasoline to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
8,000 gallon fiberglass gasoline to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
8,000 gallon fiberglass oil to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
4,000 gallon fiberglass used oil to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
Monroe 10,000 gallon plastic-coated steel diesel removed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
10,000 gallon plastic-coated steel diesel removed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
10,000 gallon plastic-coated steel diesel removed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
10,000 gallon fiberglass diesel inactive
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
10,000 gallon plastic-coated steel gasoline inactive
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
* This list reflects TravelCenters' current plans for these sites. the number, size, material and contents
of the underground storage tanks to be installed could change.
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THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
SITE SIZE MATERIAL CONTENTS STATUS
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
10,000 gallon plastic-coated steel gasoline inactive
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
10,000 gallon plastic-coated steel gasoline inactive
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
20,000 gallon fiberglass diesel to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
20,000 gallon fiberglass diesel to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
20,000 gallon fiberglass diesel to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
20,000 gallon fiberglass diesel to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
8,000 gallon fiberglass oil to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
4,000 gallon fiberglass used oil to be installed
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
Las Cruces 20,000 gallon fiberglass diesel active
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
20,000 gallon fiberglass diesel active
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
20,000 gallon fiberglass diesel active
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
20,000 gallon fiberglass diesel active
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
20,000 gallon fiberglass diesel active
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
20,000 gallon fiberglass diesel active
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
10,000 gallon fiberglass diesel active
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
10,000 gallon fiberglass gasoline active
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
10,000 gallon fiberglass gasoline active
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
10,000 gallon fiberglass gasoline active
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
8,000 gallon fiberglass oil active
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
8,000 gallon fiberglass used oil active
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
Lodi 20,000 gallon fiberglass diesel active
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
20,000 gallon fiberglass diesel active
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
20,000 gallon fiberglass diesel active
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
20,000 gallon fiberglass diesel active
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
10,000 gallon fiberglass oil active
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
1,000 gallon fiberglass used oil active
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
Bonnieview No Tanks**
------------------------- ---------------------- -------------------------- -------------------- ----------------------------
** There are currently no underground storage tanks at Bonnieview. This
list will be supplemented with a list of the underground storage tanks
planned to be installed at Bonnieview.
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