EXHIBIT 99.3
MASTER TERMINATION AGREEMENT
MASTER TERMINATION AGREEMENT (this "Agreement") dated as of December 1,
2004 among TCA NETWORK FUNDING, LIMITED PARTNERSHIP (the "Company"), ML LEASING
EQUIPMENT CORP. ("Xxxxxxx Leasing"), TA OPERATING CORPORATION (successor by
merger of TA Operating Corporation and National Auto/Truckstops, Inc.) (the
"Lessee"), TRAVELCENTERS OF AMERICA, INC. (the "Guarantor"), GENERAL ELECTRIC
CAPITAL CORPORATION ("GE"), for itself and as agent (the "Agent") for the
certain financial institutions from time to time parties to the Participation
Agreement (as defined below), GE, CITICAPITAL COMMERCIAL CORPORATION, XXX
CAPITAL FUNDING L.P. and PAMCO CAYMAN LTD (collectively, the "Loan
Participants").
W I T N E S S E T H
WHEREAS, the Company, as owner, and the Lessee, as agent, entered into a
certain Agreement for Lease dated as of September 9, 1999, as amended by
Amendment No. 1 thereto dated as of November 13, 2000, and as further amended by
Amendment No. 2 thereto dated as of December 14, 2001 (as amended, the
"Agreement for Lease");
WHEREAS, the Company, as lessor, and the Lessee, as lessee, entered into a
certain Lease Agreement dated as of September 9, 1999, as amended by Amendment
No. 1 thereto dated as of November 13, 2000 (as amended, the "Lease Agreement");
WHEREAS, the Company and GE, acting for itself and as Agent, entered into
a certain Loan and Security Agreement dated as of September 9, 1999 (as the same
has been amended from time to time, the "Loan and Security Agreement");
WHEREAS, the Company, the Lessee, the Guarantor, GE, acting for itself and
as Agent and the Loan Participants entered into a certain Participation
Agreement dated as of September 9, 1999 (as the same has been amended from time
to time, the "Participation Agreement");
WHEREAS, the Lessee will purchase all of the Company's right, title and
interest in and to the Property and Equipment on the date hereof by the payment
by the Lessee to the Company of the amount set forth in Section 6 hereof;
WHEREAS, in connection with the Agreement for Lease, the Lease Agreement,
the Loan and Security Agreement and the Participation Agreement, the following
agreements, documents and instruments, among others, were executed and
delivered: (i) a certain First Amendment Agreement, dated as of December 14,
2001, among the Lessee, the Company, the Guarantor, GE, acting for itself and as
Agent, and the Loan Participants; (ii) a certain Note, dated September 9, 1999,
made by the Company to the order of GE, acting for itself and as Agent (as the
same has been amended from time to time, the "Note"), in the amount of
$69,620,000; (iii) a certain Pledge Agreement, dated as of September 9, 1999,
between the Lessee and the Company (the "Pledge Agreement"); (iv) a certain
Corporate Guaranty, dated as of September 9, 1999, from the Guarantor to the
Company (the "Guaranty"); (v) a certain Shortfall Agreement, dated
September 9, 1999, as amended by that certain Amendment to Shortfall Letter,
dated as of December 14, 2001, between Xxxxxxx Leasing and GE, as Agent; (vi) a
certain Management Agreement, dated as of September 9, 1999, between the Company
and Xxxxxxx Leasing; and (vii) a certain Reimbursement Agreement, dated as of
September 9, 1999, among the Company, the Lessee and Xxxxxxx Leasing (the
Agreement for Lease, Lease Agreement, Loan and Security Agreement and
Participation Agreement and all of the above-described documents, and all
amendments, modifications, supplements and assignments to any and all of the
foregoing, are collectively referred to herein as the "Documents"); and
WHEREAS, the parties hereto desire to terminate the Documents as provided
herein;
NOW, THEREFORE, in consideration of the agreements set forth below, and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Capitalized Terms. Capitalized terms used but not defined herein shall
have the respective meanings given to them in the Lease Agreement.
2. Waiver and Consent to Purchase of Property and Equipment. The Company
hereby waives the requirements set forth in Section 12 of the Lease Agreement in
order to permit the Lessee to purchase each Parcel of Property and Unit of
Equipment for its Adjusted Acquisition Cost (i) upon less than thirty (30) days'
written notice, and (ii) prior to the next Basic Rent Payment Date following the
expiration of such thirty (30) day notice period. By executing this Agreement,
each of the Agent and the Loan Participants hereby consents to the waiver by the
Company of the aforementioned requirements of Section 12 of the Lease.
3. Termination of the Documents. Subject to the receipt of payment by GE,
as Agent, of the amount set forth in Section 5 hereof, the distribution by GE,
as Agent, of such amount pursuant to said Section 5, and the receipt of payment
by the Company of the amount set forth in Section 6 hereof, each of the parties
hereto agrees that (i) except with respect to those provisions which expressly
survive the termination of the Documents, including, without limitation, the
indemnities contained in Section 12 of the Agreement for Lease and Section 11 of
the Lease Agreement, the Documents to which it is a party are hereby terminated,
such termination to be effective as of the date hereof, (ii) any requirement for
notice (whether written or oral) with respect to the termination of any of the
Documents is hereby waived by the respective parties to the Documents and (iii)
any other requirement or condition precedent to the termination of any of the
Documents is hereby waived or shall be deemed to have been satisfied, as the
case may be.
4. Termination of Security; Delivery of Instruments. Subject to the
receipt of payment by GE, as Agent, of the amount set forth in Section 5 hereof,
GE hereby (a) agrees, at the Lessee's sole cost and expense, to duly execute and
deliver such instruments, documents and assurances, and to take such further
action, as may be necessary or as may be reasonably requested by the Lessee to
effectuate the purpose of this Agreement, including without limitation, (i)
releases of any lien on or mortgage of the Property or Equipment created for the
benefit of GE, as Agent, (ii) authorizing the filing of UCC-3 termination
statements evidencing the release of any lien on or mortgage of the Property or
Equipment created for the benefit of GE, as Agent, and (iii) such other
instruments and documents that the Company or the Lessee may reasonably request
in order to evidence the termination of GE's security interest in the
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property of the Company, including any such interest in the Property or
Equipment, and (b) agrees with the Company to deliver to the Company on the date
hereof Counterpart No. 1 of the Agreement for Lease, Counterpart No. 1 of the
Lease Agreement, and Counterpart No. 1 of any amendment to such documents.
5. Termination of Loan and Security Agreement and Surrender of Notes. Upon
receipt of payment by GE, as Agent, of an aggregate amount equal to
$63,442,720.65, which aggregate amount shall constitute payment in full of the
outstanding balance on the Note owing by the Company to the Agent under the Loan
and Security Agreement, together with accrued interest, expenses and fees
(including the legal fees of counsel to the Agent and the Company) payable
thereunder, (i) GE, in its capacity as Agent, hereby agrees to surrender to the
Company the Note, (ii) GE, in its capacity as Agent, hereby agrees to deliver
such other instruments and documents that the Company may reasonably request in
order to evidence the termination of the Loan and Security Agreement, promptly
upon the Company's request therefor, and (iii) GE, in its capacity as Agent, and
pursuant to the Loan and Security Agreement, hereby agrees to distribute to each
Loan Participant its pro rata portion of the outstanding balance on the Note.
6. Termination of Security. Upon receipt of payment by the Company of an
aggregate amount equal to $65,796,488.72 (of which the Company has directed the
Lessee to pay an aggregate amount equal to $63,241,776.03 directly to GE, as
Agent) the Company hereby agrees with the Lessee to duly execute and deliver, at
the Lessee's sole cost and expense, such instruments, documents and assurances,
and to take such further action, as may be necessary or as may be reasonably
requested by the Lessee to effectuate the purpose of this Agreement, including
without limitation, executed originals, in such form as Lessee shall reasonably
request, of (i) that certain Xxxx of Sale from the Company to the Lessee
sufficient to transfer to the Lessee all of the Company's right, title and
interest in the Equipment, (ii) those several real property documents listed on
Schedule I attached hereto, sufficient to transfer the Company's interest in
each Parcel of Property from the Company to the Lessee free of any liens created
in favor of GE, as Agent, in connection with or arising from the Lease and the
Loan and Security Agreement, and (iii) such other documents and instruments as
Lessee shall reasonably request, to evidence the termination of the Company's
interest in and to the Property, the Equipment and any of the Documents.
7. Transfer Taxes; Expenses. Lessee hereby represents and warrants that
the execution and delivery of the Xxxx of Sale by the Company and the transfer
of the Company's right, title and interest in the Equipment to the Lessee
thereunder will not subject the Company or any of its partners or Affiliates or
any of the Loan Participants to transfer taxes, transfer gains taxes, sales tax,
use tax, or any other similar tax in any jurisdiction in which such Equipment is
located. Notwithstanding the foregoing, the Lessee agrees to pay all taxes,
recording and filing fees and all other reasonable costs and expenses (including
the reasonable fees and disbursements of counsel) incurred by the parties
hereto, in connection with the preparation, execution and delivery of this
Agreement and any other instruments, documents, financing statements and
releases delivered in connection with the transactions contemplated hereby
(including without limitation all such instruments, documents, financing
statements and releases delivered on a date or dates subsequent to the date of
this Agreement).
8. Indemnification. The Lessee and Guarantor hereby agree and confirm that
(A) the indemnity provisions of Section 11 of the Lease Agreement are in full
force and effect on the
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date hereof, (B) each Person who qualifies as an Indemnified Person (which
includes the Loan Participants) as of December 1, 2004 is indemnified on the
date hereof and will continue after the date hereof to be indemnified pursuant
to Section 11 of the Lease Agreement for all matters (including without
limitation federal, state and local transfer and sales taxes) arising out of the
execution, delivery and performance of this Agreement and all the documents
contemplated hereby and (C) the indemnity provisions of Section 11 of the Lease
Agreement and the right of each Person who qualifies as an Indemnified Person as
of December 1, 2004 to continue to be indemnified under Section 11 of the Lease
Agreement after the date hereof shall not be affected by and shall survive the
execution, delivery and performance of this Agreement and the termination of the
Documents.
9. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which counterparts, when executed and delivered, shall be deemed an original and
all of which counterparts, taken together, shall constitute one and the same
Agreement.
10. Miscellaneous. Notwithstanding anything herein to the contrary, this
Agreement shall not affect any other transaction to which GE, the Guarantor or
any related entities are parties.
11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first above written.
TCA NETWORK FUNDING,
LIMITED PARTNERSHIP
By: TCA Network Capital, Inc., its General Partner
By: /s/Xxxxxxx Xxxxxxxx
---------------------------------
Name:
Title: Vice President
ML LEASING EQUIPMENT CORP.
By: /s/Xxxxxx X. Xxxxxxx
---------------------------------
Name:
Title: Vice President
TA OPERATING CORPORATION
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name:
Title: Executive VP & CFO
TRAVELCENTERS OF AMERICA, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name:
Title: Executive VP & CFO
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent
By: /s/ Xxx Xxxxxxx
---------------------------------
Name:
Title: Vice President
Master Termination Agreement
GENERAL ELECTRIC CAPITAL
CORPORATION, as Loan Participant
By: _________________________________
Name:
Title:
XXX CAPITAL FUNDING L.P., as Loan
Participant
By: Highland Capital Management L.P.
as Collateral Manager
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name:
Title: Senior Portfolio Manager
PAMCO CAYMAN LTD, as Loan Participant
By: Highland Capital Management L.P.
as Collateral Manager
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name:
Title: Senior Portfolio Manager
CITICAPITAL COMMERCIAL CORPORATION,
as Loan Participant
By: /s/ Xxxxxx Spegnoli
---------------------------------
Name:
Title: Vice President
Master Termination Agreement
Schedule I
Potter County, Texas
Termination of Memorandum of Lease Agreement
Termination of Ground Lease and Memorandum of Ground Lease Agreement
Release of Lien
Dallas County, Texas
Termination of Memorandum of Lease Agreement
Termination of Ground Lease and Memorandum of Ground Lease Agreement
Release of Lien
Bexar County, Texas
Termination of Memorandum of Lease Agreement
Termination of Ground Lease and Memorandum of Ground Lease Agreement
Release of Xxxx
Xxxxxx County, Georgia
Termination of Memorandum of Lease Agreement
Termination of Ground Lease Agreement and Memorandum of Ground Lease Agreement
Release of Leasehold Deed to Secure Debt, Assignment and Security Agreement
Monroe County, Michigan
Termination of Memorandum of Lease Agreement
Termination of Ground Lease Agreement and Memorandum of Ground Lease Agreement
Discharge of Mortgage
Xxxx Xxx County, New Mexico
Termination of Memorandum of Lease Agreement
Termination of Ground Lease Agreement and Memorandum of Ground Lease Agreement
Release of Leasehold Mortgage, Assignment and Security Agreement
Xxxxxx County, Ohio
Termination of Memorandum of Lease Agreement
Termination of Ground Lease Agreement and Memorandum of Ground Lease Agreement
Release and Satisfaction of Leasehold Mortgage
Hillsborough County, Florida
Termination of Memorandum of Lease Agreement
Termination of Ground Lease Agreement and Memorandum of Ground Lease Agreement
Release and Satisfaction of Leasehold Mortgage, Assignment and Security
Agreement
