EXHIBIT 10.9
WAIVER NO. 1 AND AGREEMENT dated as of March 1, 1998 (this
"Agreement"), to the Credit Agreement dated as of March 21, 1997 (the
"Credit Agreement"), among TravelCenters of America, Inc., a Delaware
corporation (the "Borrower"), the financial institutions from time to
time party thereto (the "Lenders") and The Chase Manhattan Bank, a
New York banking corporation, as agent (in such capacity, the "Agent")
for the Lenders, as swingline lender (in such capacity, the "Swingline
Lender") and as fronting bank (in such capacity, the "Fronting Bank").
A. The Borrower has requested that the Lenders waive compliance by the
Borrower with certain provisions of the Credit Agreement to the extent necessary
to permit the formation by the Borrower of an indirect wholly owned subsidiary
that will engage solely in the business of acquiring, operating and maintaining
an airplane.
B. The Required Lenders are willing to enter into this Agreement on the
terms and subject to the conditions set forth herein.
C. Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein contained and
other good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. WAIVER. The Lenders hereby waive compliance by the Borrower
and the Guarantors with (a) the provisions of Section 7.12 of the Credit
Agreement to the extent, but only to the extent, necessary to permit TA
Operating Corporation, a Delaware corporation ("TA"), to form and maintain as a
subsidiary TA Travel L.L.C., a Delaware limited liability company ("TA Travel"),
and (b) the provisions of Section 7.04 of the Credit Agreement to the extent,
but only to the extent, necessary to permit the Borrower and the Guarantors to
make investments (whether by means of capital contributions or intercompany
loans) in TA Travel from time to time in an aggregate amount not to exceed
$10,000,000 in the aggregate at any time outstanding, which investments are to
be used by TA Travel solely for the purchase, operation and maintenance of an
airplane (or any airplane purchased in replacement thereof) owned by TA Travel
(collectively, the "Airplane"). In connection with the operation of the
Airplane, (a) TA Travel has leased the Airplane to TA and (b) TA Travel and/or
TA may from time to time enter into operating agreements (any such agreement, an
"Operating Agreement") with airplane charter companies (any such charter
company, a "Charter Company") pursuant to which TA Travel and TA will permit the
Charter Company to operate the Airplane for the benefit of the (i) Borrower and
its subsidiaries or (ii) other persons.
1
SECTION 2. AGREEMENT. (a) TA Travel agrees with the Lenders, the Agent,
the Swingline Lender and the Fronting Bank as follows:
(i) TA Travel shall, at all times during the term of the Credit
Agreement, engage solely in the business of acquiring, operating and
maintaining the Airplane, leasing the Airplane to TA and entering into
Operating Agreements with respect to the operation of the Airplane from
time to time;
(ii) by its signature below, TA Travel shall be deemed to be a
Guarantor for purposes of the Credit Agreement and TA Travel hereby agrees
to be bound by all the terms and provisions of, and to perform all the
obligations under, the Credit Agreement applicable to a Guarantor
thereunder (it being understood that, for purposes of the foregoing, any
reference in the Credit Agreement to a "Guarantor" shall be deemed to be a
reference to TA Travel); PROVIDED, HOWEVER, that, notwithstanding anything
to the contrary in the Credit Agreement, TA Travel will not (A) incur,
create, assume or permit to exist any Indebtedness in respect of Capital
Lease Obligations or (B) permit to exist any loans or advances by Borrower
to TA Travel or any investment by Borrower in TA Travel except as expressly
permitted by Section 1(b) hereof;
(iii) by its signature below, TA Travel agrees to become a party to
the Guarantee Agreement attached hereto as Exhibit A (the "TA Travel
Guarantee Agreement"), it being understood that each reference to the
"Guarantee Agreement" in the Credit Agreement shall be deemed to include
the TA Travel Guarantee Agreement;
(iv) by its signature below, TA Travel agrees to become a party to the
Security Agreement attached hereto as Exhibit B (the "TA Travel Security
Agreement"), it being understood that each reference to the "Security
Agreement" in the Credit Agreement shall be deemed to include the TA Travel
Security Agreement;
(v) TA Travel represents and warrants to each of the Lenders, the
Agent, the Swingline Lender and the Fronting Bank that, after giving effect
to this Agreement, all representations and warranties contained in the
Credit Agreement, the TA Travel Guarantee Agreement and the TA Travel
Security Agreement that relate to TA Travel are true and correct in all
material respects on and as of the date hereof with the same effect as
though made on the date hereof, except to the extent such representations
and warranties expressly relate to an earlier date; and
(vi) on or before April 30, 1998, in the case of the original
Airplane, and within thirty days of the purchase thereof, in the case of
any replacement Airplane, TA Travel shall grant to the Collateral Agent a
valid and perfected first priority security interest in the Airplane,
pursuant to documentation in form and substance satisfactory to the
Collateral Agent; and
(b) the Borrower agrees with the Lenders, the Agent, the Swingline
Lender and the Fronting Bank as follows:
(i) the Borrower shall cause TA Travel to engage, at all times during
the term of the Credit Agreement, solely in the business of acquiring,
operating and maintaining the Airplane, leasing the Airplane to TA and
entering into Operating Agreements with respect to the operation of the
Airplane from time to time;
2
(ii) the Borrower will cause TA Travel to comply with its other
obligations pursuant to Section 2(a) hereof, including but not limited to
its obligations under the covenants in Article VI and Article VII of the
Credit Agreement;
(iii) the Borrower will not, and will not cause or permit either
Guarantor to, make any investments in TA Travel; PROVIDED, HOWEVER, the
Borrower or either Guarantor shall be permitted to make investments
(whether by means of capital contributions or intercompany loans) in TA
Travel in an aggregate amount not to exceed $10,000,000 in the aggregate at
any time outstanding, to the extent that such investments are used by TA
Travel solely for the purchase, operation and maintenance of the Airplane;
and
(iv) the representations and warranties made by TA Travel in
Section 2(a)(v) hereof are true and correct in all material respects on and
as of the date hereof.
SECTION 3. REPRESENTATIONS AND WARRANTIES. To induce the other parties
hereto to enter into this Agreement, the Borrower represents and warrants to
each of the Lenders, the Agent, the Swingline Lender and the Fronting Bank that
(a) after giving effect to this Agreement, the representations and warranties
set forth in Article IV of the Credit Agreement are true and correct in all
material respects on and as of the date hereof with the same effect as though
made on and as of the date hereof, except to the extent such representations and
warranties expressly relate to an earlier date, and (b) after giving effect to
this Agreement, no Default or Event of Default has occurred and is continuing.
SECTION 4. CONDITIONS TO EFFECTIVENESS. The waiver set forth in Section 1
shall become effective as of the date first above written on the date that the
Agent shall have received (a) counterparts of this Agreement that, when taken
together, bear the signatures of the Borrower and the Required Lenders, (b) the
TA Travel Guarantee Agreement shall have been duly executed by TA Travel, the
Collateral Agent and the other parties thereto, and shall be in full force and
effect, (c) the TA Travel Security Agreement shall have been duly executed by TA
Travel and the Collateral Agent and the other parties thereto, and shall be in
full force and effect, (d) a duly executed waiver and amendment to the Tranche A
Exchange Note Purchase Agreements in form and substance satisfactory to the
Agent and (e) a supplemental indenture, an officer's certificate and a letter of
counsel each in form and substance satisfactory to the Agent establishing and
confirming that TA Travel is a Subsidiary Guarantor, as such term is defined in
the Subordinated Note Indenture, of the Borrower and that the investments in TA
Travel permitted hereby are permitted pursuant to Section 4.04 of the
Subordinated Note Indenture.
SECTION 5. EFFECT OF AGREEMENT. Except as expressly set forth herein,
this Agreement shall not by implication or otherwise limit, impair, constitute a
waiver of, or otherwise affect the rights and remedies of the Lenders, the
Agent, the Collateral Agent, the Swingline Lender, the Fronting Bank or the
Borrower under the Credit Agreement or any Security Document, and shall not
alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement or any
Security Document, all of which are ratified and affirmed in all respects and
shall continue in full force and effect. Nothing herein shall be deemed to
entitle the Borrower to a consent to, or a waiver, amendment, modification or
other change of, any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any Security Document in similar
or different circumstances. This Agreement shall apply and be effective only
with respect to the provisions of the Credit Agreement specifically referred to
herein. Any default under this Agreement shall constitute an Event of Default
under the Credit Agreement.
3
SECTION 6. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
Delivery of any executed counterpart of a signature page of this Agreement by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 7. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. HEADINGS. The headings of this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 9. EXPENSES. The Company agrees to reimburse the Administrative
Agent for its reasonable out-of-pocket expenses in connection with this
Agreement, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Xxxxx, counsel for the Agent.
4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers, all as of the date and year
first above written.
TRAVELCENTERS OF AMERICA, INC.,
by /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. VP and CFO
TA TRAVEL L.L.C.,
by /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. VP and CFO
TA OPERATING CORPORATION,
by /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. VP and CFO
NATIONAL AUTO/TRUCKSTOPS, INC.,
by /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. VP and CFO
5
THE CHASE MANHATTAN BANK,
individually and as Agent, Swingline Lender and
Fronting Bank,
by /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
6
CREDIT AGRICOLE INDOSUEZ,
by /s/ Xxxxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: First Vice President
by /s/ Xxxx Xxxx
----------------------------
Name: Xxxx Xxxx
Title: First Vice President
7
CRESCENT/MACH I PARTNERS, L.P.,
by TCW ASSET MANAGEMENT COMPANY,
its Investment Manger,
by
------------------------------
Name:
Title:
8
KEYPORT LIFE INSURANCE COMPANY,
by Xxxxx Xxx & Xxxxxxx Inc., as agent
/s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
9
KZH -SOLEIL CORPORATION,
by
-----------------------------
Name:
Title:
10
KZH HOLDING CORPORATION III,
by
----------------------------
Name:
Title:
11
KZH -CRESCENT CORPORATION,
by
----------------------------
Name:
Title:
12
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED,
New York Branch,
by /s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
Title: Deputy General Manager
13
MANUFACTURERS AND TRADERS TRUST COMPANY,
by /s/ C. Xxxxxxx Xxxxxxxxx
---------------------------
Name: C. Xxxxxxx Xxxxxxxxx
Title: Assistant Vice President
14
NATIONAL CITY BANK,
by /s/ Xxxxxxx X. Xxxxxxxx, Xx.
---------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Vice President
15
PAMCO CAYMAN LTD.,
by Protective Asset Management Company as
Collateral Manager
/s/ Xxxx X. Xxxxx
--------------------------
Name: Xxxx X. Xxxxx
Title Executive Vice President
00
XXXXXXX XXXXXXX PRIME RATE TRUST,
by /s/ Xxxxxx X. Xxxx
--------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Portfolio Manager
17
XXXXXX XXXXX PRIME RATE PORTFOLIO,
by
--------------------------
Name:
Title:
18
SENIOR FLOATING RATE FUND, INC.,
by
--------------------------
Name:
Title:
19
SENIOR DEBT PORTFOLIO,
by Boston Management and Research, as Investment
Advisor
/s/ Xxxxx X. Page
-------------------------
Name: Xxxxx X. Page
Title: Vice President
20
SOCIETE GENERALE,
by /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
21
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST,
by /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Sr. Vice President and Director
22
XXX XXXXXX CLO I, LIMITED,
by Xxx Xxxxxx American Capital
Management, Inc., as Collateral
Manager
by /s/ Xxxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and Director
23
