EXHIBIT 99.1
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AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of
December 1, 2004
among
TRAVELCENTERS OF AMERICA, INC.,
The Lenders Party Hereto,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
and
XXXXXX COMMERCIAL PAPER INC.,
as Syndication Agent
--------------------------
X.X. XXXXXX SECURITIES INC.
and
XXXXXX BROTHERS INC.,
as Co-Lead Arrangers
X.X. XXXXXX SECURITIES INC.,
as Sole Bookrunner
NATIONAL CITY BANK,
US BANK
and
XXXXX FARGO BANK, N.A.
as Documentation Agents
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[CS&M No. 6701-078]
TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Defined Terms..................................................... 1
SECTION 1.02. Terms Generally................................................... 28
ARTICLE II
The Credits
SECTION 2.01. Commitments....................................................... 28
SECTION 2.02. Loans............................................................. 30
SECTION 2.03. Notice of Borrowings.............................................. 32
SECTION 2.04. Evidence of Debt; Repayment of Loans.............................. 33
SECTION 2.05. Fees.............................................................. 33
SECTION 2.06. Interest on Loans................................................. 34
SECTION 2.07. Default Interest.................................................. 34
SECTION 2.08. Alternate Rate of Interest........................................ 35
SECTION 2.09. Termination and Reduction of Commitments.......................... 35
SECTION 2.10. Conversion and Continuation of Term Borrowings.................... 36
SECTION 2.11. Repayment of Term Borrowings...................................... 37
SECTION 2.12. Optional Prepayment............................................... 38
SECTION 2.13. Mandatory Prepayments............................................. 39
SECTION 2.14. Reserve Requirements; Change in Circumstances..................... 41
SECTION 2.15. Change in Legality................................................ 43
SECTION 2.16. Indemnity......................................................... 43
Contents, page 2
SECTION 2.17. Pro Rata Treatment................................................ 44
SECTION 2.18. Sharing of Setoffs................................................ 45
SECTION 2.19. Payments.......................................................... 45
SECTION 2.20. Taxes............................................................. 46
SECTION 2.21. Swingline Loans................................................... 49
SECTION 2.22. Replacement of Lenders............................................ 50
SECTION 2.23. Incremental Extensions of Credit.................................. 51
ARTICLE III
Letters of Credit
SECTION 3.01. Issuance of Letters of Credit..................................... 53
SECTION 3.02. Participations; Unconditional Obligations......................... 53
SECTION 3.03. LC Fee............................................................ 54
SECTION 3.04. Agreement To Repay LC Disbursements............................... 54
SECTION 3.05. Letter of Credit Operations....................................... 56
SECTION 3.06. Cash Collateralization............................................ 56
SECTION 3.07. Termination of LC Commitment...................................... 56
SECTION 3.08. Fronting Bank Fees................................................ 57
SECTION 3.09. Resignation or Removal of Fronting Bank........................... 57
SECTION 3.10. Existing Letters of Credit........................................ 58
ARTICLE IV
Representations and Warranties
SECTION 4.01. Organization; Powers.............................................. 58
SECTION 4.02. Authorization..................................................... 58
Contents, page 3
SECTION 4.03. Enforceability.................................................... 59
SECTION 4.04. Governmental Approvals............................................ 59
SECTION 4.05. Financial Statements.............................................. 59
SECTION 4.06. No Material Adverse Change........................................ 60
SECTION 4.07. Title to Properties; Possession Under Leases...................... 60
SECTION 4.08. Subsidiaries...................................................... 60
SECTION 4.09. Litigation; Compliance with Laws.................................. 60
SECTION 4.10. Agreements........................................................ 61
SECTION 4.11. Federal Reserve Regulations....................................... 61
SECTION 4.12. Investment Company Act; Public Utility Holding Company Act........ 61
SECTION 4.13. Use of Proceeds................................................... 62
SECTION 4.14. Tax Returns....................................................... 62
SECTION 4.15. No Material Misstatements......................................... 62
SECTION 4.16. Employee Benefit Plans............................................ 62
SECTION 4.17. Environmental and Safety Matters.................................. 63
SECTION 4.18. Solvency.......................................................... 64
SECTION 4.19. Employment and Management Agreements.............................. 64
SECTION 4.20. Capitalization.................................................... 65
SECTION 4.21. Security Documents................................................ 65
SECTION 4.22. Labor Matters..................................................... 66
SECTION 4.23. Location of Real Property and Leased Premises..................... 67
SECTION 4.24. Insurance......................................................... 67
SECTION 4.25. Delivery of Documents............................................. 67
SECTION 4.26. Fees and Expenses................................................. 67
SECTION 4.27. Senior Indebtedness; Designated Senior Indebtedness............... 67
Contents, page 4
ARTICLE V
Conditions of Restatement, Lending and Issuance of Letters of Credit
SECTION 5.01. All Credit Events................................................. 68
SECTION 5.02. Restatement and Initial Borrowing................................. 68
ARTICLE VI
Affirmative Covenants
SECTION 6.01. Existence; Businesses and Properties.............................. 73
SECTION 6.02. Insurance......................................................... 74
SECTION 6.03. Obligations and Taxes............................................. 76
SECTION 6.04. Financial Statements, Reports, etc................................ 76
SECTION 6.05. Litigation and Other Notices...................................... 78
SECTION 6.06. ERISA............................................................. 79
SECTION 6.07. Maintaining Records; Access to Properties and Inspections......... 79
SECTION 6.08. Use of Proceeds................................................... 80
SECTION 6.09. Fiscal Year....................................................... 80
SECTION 6.10. Further Assurances................................................ 80
SECTION 6.11. Environmental and Safety Laws..................................... 81
SECTION 6.12. Material Contracts................................................ 82
SECTION 6.13. Lender Deposit Accounts........................................... 82
ARTICLE VII
Negative Covenants
SECTION 7.01. Indebtedness...................................................... 83
SECTION 7.02. Liens............................................................. 86
Contents, page 5
SECTION 7.03. Sale and Lease-Back Transactions.................................. 89
SECTION 7.04. Investments, Loans and Advances................................... 90
SECTION 7.05. Mergers, Consolidations, Sales of Assets and Acquisitions......... 92
SECTION 7.06. Dividends and Distributions....................................... 93
SECTION 7.07. Transactions with Affiliates...................................... 94
SECTION 7.08. Business of Borrower, the Guarantors and TAFSI.................... 95
SECTION 7.09. Limitations on Debt Prepayments................................... 95
SECTION 7.10. Amendment of Certain Documents.................................... 96
SECTION 7.11. Limitation on Leases.............................................. 96
SECTION 7.12. Subsidiaries...................................................... 97
SECTION 7.13. Capital Expenditures.............................................. 97
SECTION 7.14. Interest Expense Coverage Ratios.................................. 98
SECTION 7.15. Leverage Ratio.................................................... 98
SECTION 7.16. Synthetic Repurchases............................................. 98
SECTION 7.17. Designated Indebtedness........................................... 98
ARTICLE VIII
Events of Default
ARTICLE IX
The Administrative Agent
ARTICLE X
Miscellaneous
SECTION 10.01. Notices........................................................... 105
Contents, page 6
SECTION 10.02. Survival of Agreement............................................. 106
SECTION 10.03. Binding Effect.................................................... 106
SECTION 10.04. Successors and Assigns............................................ 106
SECTION 10.05. Expenses; Indemnity............................................... 110
SECTION 10.06. Right of Setoff................................................... 112
SECTION 10.07. APPLICABLE LAW.................................................... 112
SECTION 10.08. Waivers; Amendment................................................ 112
SECTION 10.09. Interest Rate Limitation.......................................... 114
SECTION 10.10. Entire Agreement.................................................. 114
SECTION 10.11. WAIVER OF JURY TRIAL.............................................. 114
SECTION 10.12. Severability...................................................... 115
SECTION 10.13. Counterparts...................................................... 115
SECTION 10.14. Headings.......................................................... 115
SECTION 10.15. Jurisdiction; Consent to Service of Process....................... 115
SECTION 10.16. Confidentiality................................................... 116
SECTION 10.17. Release of Excepted Properties.................................... 117
SECTION 10.18. USA Patriot Act................................................... 117
Exhibits
Exhibit A Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Guarantee Agreement
Exhibit D Form of Indemnity and Subrogation Agreement
Exhibit E-1 Form of Mortgage
Exhibit E-2 Form of Leasehold Mortgage
Exhibit F Form of Pledge Agreement
Exhibit G Form of Security Agreement
Exhibit H-1 Form of Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
Exhibit H-2 Form of Opinion of General Counsel of the Borrower
Exhibit H-3 Form of Opinion of Local Counsel
Contents, page 7
Schedules
Schedule 1.01(a) Mortgaged Properties
Schedule 1.01(c) Mortgage Filing Offices
Schedule 1.01(d) Existing Synthetic Leases
Schedule 1.01(e) Adjusted EBITDA
Schedule 2.01 Commitments and Lenders
Schedule 4.07(b) Lease Exceptions
Schedule 4.07(c) Notices of Condemnation
Schedule 4.07(d) Dispositions
Schedule 4.08 Subsidiaries
Schedule 4.09 Litigation
Schedule 4.19 Employment and Management Agreements
Schedule 4.20(a)(i) Stockholders
Schedule 4.20(f) Agreements Relating to Capital Stock
Schedule 4.21 UCC Filing Offices
Schedule 4.22 Labor Matters
Schedule 4.23(a) Owned Real Property
Schedule 4.23(b) Leased Real Property
Schedule 5.02(a) Local Counsel Listing
Schedule 7.01 Indebtedness
Schedule 7.02 Liens
Schedule 7.04(l) Investments
Schedule 7.05(g) Permitted TravelCenters Dispositions
Schedule 7.07 Permitted Affiliate Transactions
Schedule 7.08(b) Existing Leases
Schedule 7.11(a) Leases
AMENDED AND RESTATED CREDIT AGREEMENT dated as of
December 1, 2004, among the Borrower, the Lenders and the
Agents (each such term used but not defined in this preamble
having the meaning assigned thereto in Article I).
The parties hereto desire to amend and restate the Existing Credit
Agreement (as defined in Article I) pursuant to and in accordance with this
Agreement. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Term Loan or ABR Revolving Loan.
"ABR Revolving Loan" shall mean any Revolving Loan bearing interest
at a rate determined by reference to the Alternate Base Rate in accordance with
the provisions of Article II.
"ABR Spread" shall mean (a) in the case of Term Loans, 0.75% per
annum and (b) in the case of Revolving Loans and Swingline Loans, the applicable
rate per annum set forth below under the caption "Revolving Loan ABR Spread",
based upon the Leverage Ratio as of the most recent determination date, provided
that until the delivery to the Administrative Agent, pursuant to Section 6.04,
of the Borrower's consolidated and consolidating financial information for the
Borrower's first four fiscal quarters ending after the Closing Date, the "ABR
Spread" for purposes of clause (b) above shall be the applicable rate per annum
set forth below in Category 1:
Revolving Loan
Leverage Ratio: ABR Spread
--------------- ----------
Category 1
Equal to or greater than 4.00 to 1.00 1.25%
Category 2
Less than 4.00 to 1.00 but equal to or greater than
3.50 to 1.00 1.00%
Category 3
Less than 3.50 to 1.00 0.75%
"ABR Term Loan" shall mean any Term Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Adjusted EBITDA" for any period shall mean the EBITDA for such
period, as adjusted pursuant to the adjustments set forth on Schedule 1.01(e).
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1%) equal to the product of (a) the LIBO Rate
in effect for such Interest Period and (b) the Statutory Reserve Rate.
"Administrative Agent" shall mean JPMorgan Chase Bank, N.A., in its
capacity as administrative agent for the Lenders.
"Administrative Fees" shall have the meaning assigned to such term
in Section 2.05(a).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A.
"Affiliate" shall mean, when used with respect to a specified
Person, another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the
Person specified.
"Agents" shall mean the Administrative Agent and the Syndication
Agent.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/100 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. For purposes hereof, the term "Prime
Rate" shall mean the rate of interest per annum publicly announced from time to
time by the Administrative Agent as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be effective on the
date such change is publicly announced as being effective. The term "Federal
Funds Effective Rate" shall mean, for any day, the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of quotations for the
day of such transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined without regard to
clause (b) of the first sentence of this definition until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective on the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"Applicable Percentage" of any Participating Lender shall mean the
percentage of the aggregate Revolving Credit Commitments represented by such
Participating Lender's Revolving Credit Commitment. If the Revolving Commitments
have terminated or expired, the Applicable Percentages shall be determined based
upon the Revolving Commitments most recently in effect, giving effect to any
assignments in accordance with Section 10.04.
"Assigned Indebtedness" shall mean the principal amount of any
Indebtedness outstanding under the Existing Credit Agreement on the Closing Date
immediately prior to consummation of the transactions contemplated hereby, to
the extent that such Indebtedness is held at such time by a lender under the
Existing Credit Agreement that is not a party to this Agreement as a Lender (it
being understood that such assignment shall be deemed to have occurred on the
Closing Date upon receipt of all amounts owed with respect to the Existing
Credit Agreement).
"Assignment Agreement" shall mean an agreement entered into by one
or more holders of Assigned Indebtedness with the Administrative Agent and the
Borrower, pursuant to which such holder or holders of Assigned Indebtedness
shall have agreed to assign the principal amount of such Assigned Indebtedness
to the Lenders on the Closing Date in consideration of the payment to such
holder or holders (a) by the Lenders, of an amount equal to the principal amount
of the Assigned Indebtedness so assigned to them and (b) by the Borrower, of all
other amounts accrued and owing to such holder or holders under the Existing
Credit Agreement as of the Closing Date.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Borrower" shall mean TravelCenters of America, Inc., a Delaware
corporation.
"Borrowing" shall mean a group of Loans of a single Type made by the
applicable Lenders on a single date and as to which a single Interest Period is
in effect.
"Business Day" shall mean any day (other than a Saturday, Sunday or
legal holiday in the State of New York) on which banks are open for business in
New York City; provided, however, that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Expenditures" shall mean, for any period, the sum of all
amounts that would, in accordance with GAAP, be included as additions to
property, plant and equipment and other capital expenditures on a consolidated
statement of cash flows for the Borrower and its subsidiaries during such period
(including the amount of assets leased under any Capital Lease Obligation).
Notwithstanding the foregoing, the term "Capital Expenditures" shall not include
(a) capital expenditures in respect of the
reinvestment of sales proceeds, insurance proceeds and condemnation proceeds
received by the Borrower or its subsidiaries in connection with the sale,
transfer or other disposition of the Borrower's or its subsidiaries' business
units, assets or properties, if (as contemplated in the definition of the term
"Prepayment Event") such reinvestment (including, in the case of insurance
proceeds, reinvestment in the form of restoration or replacement of damaged
property) shall have resulted in the event giving rise to the receipt of such
amounts not being considered a "Prepayment Event" as contemplated in the
definition of such term or (b) the purchase price with respect to any Permitted
Business Acquisition.
"Capital Lease Obligations" of any Person shall mean the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Cash Interest Expense" shall mean, for any period, the net interest
expense of the Borrower and its subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, excluding, to the extent included
therein (a) noncash amounts attributable to amortization of financing costs paid
in a previous period and (b) noncash amounts attributable to amortization of
debt discounts or accrued interest payable in kind for such period. For purposes
of the foregoing, net interest expense shall be determined after giving effect
to any net payments made or received by the Borrower with respect to Rate
Protection Agreements.
"Casualty" shall have the meaning assigned to such term in Section 9
of the Guarantee Agreement.
"CERCLA" shall have the meaning assigned to such term in the
definition of the term "Environmental and Safety Laws".
A "Change in Control" shall be deemed to have occurred if:
(a) any Person or group (within the meaning of Rule 13d-5 of the SEC
as in effect on the date hereof), other than the Sponsor or any of its
Affiliates, shall directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise, have the ability to elect a
majority of the board of directors of the Borrower;
(b) the Sponsor and its Affiliates shall cease to own and control in
the aggregate, directly or indirectly, beneficially and of record, shares
representing at least 45.0% (or, after an IPO, 35%) of the aggregate
ordinary voting power represented by the issued and outstanding capital
stock of the Borrower;
(c) prior to an IPO, the Original Control Group shall cease to
beneficially own and control in the aggregate, directly or indirectly,
beneficially and of record,
shares representing at least 50.1% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Borrower;
(d) any Person or group (within the meaning of Rule 13d-5 of the SEC
as in effect on the date hereof), other than the Sponsor and its
Affiliates, shall own directly or indirectly, beneficially or of record,
shares of capital stock of the Borrower representing more than the
percentage of the aggregate ordinary voting power represented by the
shares of capital stock of the Borrower beneficially owned and controlled,
directly or indirectly, by the Sponsor and its Affiliates at such time;
(e) prior to an IPO, a majority of the seats (other than vacant
seats) on the board of directors of the Borrower shall at any time be
occupied by Persons who were neither (i) nominated by the Sponsor and its
Affiliates nor (ii) elected by directors so nominated;
(f) after an IPO, a majority of the seats (other than vacant seats)
on the board of directors of the Borrower shall at any time be occupied by
Persons who were neither (i) nominated by the board of directors of the
Borrower nor (ii) appointed by directors so nominated;
(g) any "Change in Control" (however denominated) shall have
occurred under the Subordinated Note Indenture;
(h) the Borrower shall cease to beneficially own and control
directly or indirectly (other than as a result of a merger of one
Guarantor into another Guarantor permitted pursuant to Section
7.05(h)(iii)), 100% of each class of outstanding capital stock of each
Guarantor and TAFSI free and clear of all Liens (other than any Liens
created under the Pledge Agreement); or
(i) any Guarantor or TAFSI shall issue any class of capital stock
(or security convertible into any of its capital stock) that is not
pledged to the Collateral Agent for the ratable benefit of the Secured
Parties.
"Class" (a) when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are Revolving
Loans, Term Loans or Swingline Loans, (b) when used in reference to any
Commitment, refers to whether such Commitment is a Revolving Credit Commitment
or a Term Loan Commitment and (c) when used in reference to any Lender, refers
to whether such Lender is a Term Lender, a Revolving Lender or a Swingline
Lender.
"Closing Date" shall mean the date on which the conditions set forth
in Section 5.02 are satisfied (or waived in accordance with this Agreement).
"Code" shall mean the Internal Revenue Code of 1986, or any
successor statute thereto, as the same may be amended from time to time.
"Collateral" shall mean all the "Collateral" as defined in any
Security Document and shall also include the Mortgaged Properties.
"Collateral Agent" shall mean JPMorgan Chase Bank, N.A., as
Collateral Agent under the Security Documents and the Guarantee Agreement.
"Commitment" shall mean, with respect to each Lender, such Lender's
Term Loan Commitment, Revolving Credit Commitment and commitment in respect of
an Incremental Extension of Credit.
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.05(a).
"Common Stock" shall have the meaning assigned to such term in
Section 4.20.
"Condemnation Proceeds" shall have the meaning assigned to such term
in Section 9 of the Guarantee Agreement.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated October 2004.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Converted Term Loans" shall have the meaning assigned to such term
in Section 2.01(b).
"Credit Event" shall have the meaning assigned to such term in
Article V.
"Default" shall mean any event or condition that upon notice, lapse
of time or both would constitute an Event of Default.
"Default Rate" shall have the meaning assigned to such term in
Section 2.07.
"Designated Senior Indebtedness" shall have the meaning assigned to
such term in the Subordinated Note Indenture.
"Documentation Agents" shall mean National City Bank, US Bank and
Xxxxx Fargo National Association, in their capacities as documentation agents
for the Lenders hereunder.
"dollars" or "$" shall mean lawful money of the United States.
"EBITDA" with respect to the Borrower and its subsidiaries for any
period shall mean the sum of (a) Net Income for such period, (b) all Federal,
state, local
and foreign income taxes deducted in determining such Net Income, (c) interest
expense deducted in determining such Net Income, (d) depreciation, amortization
and other noncash fees, expenses or charges deducted in determining such Net
Income, (e) any non-recurring cash fees, expenses or charges deducted in
determining such Net Income related to any issuance of capital stock by the
Borrower, any investment or acquisition, or any incurrence of Indebtedness
permitted under this Agreement (in each case, whether or not successful),
including any such fees, expenses or charges related to the Transactions, in
each case not exceeding $10,000,000 in the aggregate for all such non-recurring
cash fees, expenses and charges attributable to the same transaction or event
(or group of related transactions or events), (f) any extraordinary, one time or
non-recurring cash charges deducted in determining such Net Income related to
one-time severance and relocation costs incurred in connection with the
transactions or acquisitions consummated after the Closing Date, in each case
not exceeding $5,000,000 in the aggregate for all such charges attributable to
the same transaction or acquisition (or group of related transactions or
acquisitions), and (g) Transition Expenses deducted in determining such Net
Income not exceeding 3% of the value of any related acquisition or disposition
and not exceeding, on a cumulative basis during the term of this Agreement,
$20,000,000 in the aggregate. For the purposes of calculating the Interest
Expense Coverage Ratio, the term "EBITDA" shall not include the gain on the
initial sale of assets to any lessee in connection with the leasing of any
TravelCenter in accordance with Section 7.08. For the purposes of calculating
EBITDA for any period of four consecutive fiscal quarters (each, a "Reference
Period") pursuant to any determination of the Leverage Ratio or the Senior
Leverage Ratio, (i) if at any time since the commencement of such Reference
Period the Borrower or any subsidiary shall have made any Material Disposition,
the EBITDA for such Reference Period shall be reduced by an amount equal to the
EBITDA (if positive) attributable to the property that is the subject of such
Material Disposition for such Reference Period or increased by an amount equal
to the EBITDA (if negative) attributable thereto for such Reference Period and
(ii) if at any time since the commencement of such Reference Period the Borrower
or any subsidiary shall have made a Material Acquisition, EBITDA for such
Reference Period shall be calculated after giving pro forma effect thereto as if
such Material Acquisition occurred on the first day of such Reference Period,
provided that any such pro forma calculations may include cost savings
reductions for such period resulting directly from the Material Acquisition
which is being given pro forma effect that (A) are permitted by Regulation S-X
of the Securities Act of 1933, as amended, or (B) have been realized or for
which the steps necessary for realization have been taken or are reasonably
expected to be taken within 90 days following such Material Acquisition;
provided, however, that such pro forma calculations shall not give effect to
such cost savings reductions unless the Borrower shall have delivered to the
Administrative Agent a certificate of a Financial Officer of the Borrower
stating (a) the amount of such cost savings reductions and (b) that such cost
savings reductions are based on the reasonable good faith belief of the
Financial Officer executing such certificate at the time of such execution, and
provided further that if such pro forma calculations give effect to any cost
savings reductions for which the steps necessary for realization have not been
taken at the time of the applicable Material Acquisition but are expected to be
taken within 90 days thereafter, then, for purposes of determining the Leverage
Ratio or the Senior Leverage Ratio on and after the date that is 90 days after
the date of consummation of such Material Acquisition, such pro forma
calculations shall not give effect to such cost savings reductions to the extent
that the steps necessary for realization thereof were not actually taken during
such 90-day period. As used in this definition, the term "Material Acquisition"
means any acquisition of property or series of related acquisitions of property
that involves the payment of consideration by the Borrower and its subsidiaries
in excess of $10,000,000; and the term "Material Disposition" means any
disposition of property or series of related dispositions of property that
yields gross proceeds to the Borrower or any of its subsidiaries in excess of
$10,000,000. Each certificate delivered pursuant to Section 6.04(c) shall
include in the calculations of the Leverage Ratio set forth in such certificate
a reasonably detailed calculation of all pro forma adjustments made for purposes
of calculating EBITDA to give effect to Material Acquisitions and Material
Dispositions, including any pro forma cost savings reductions. For purposes of
calculating the Leverage Ratio and the Senior Leverage Ratio, (i) EBITDA shall
be deemed to be $42,274,000 and $44,848,000 for the fiscal quarters ended June
30, 2004 and September 30, 2004, respectively, and (ii) to the extent any such
amounts are not otherwise included in the calculation of EBITDA for such period,
EBITDA for the fiscal quarter ended December 31, 2004 shall be increased by up
to $4,400,000 to give pro forma effect to the Rip Xxxxxxx Acquisition and the
Synthetic Lease Repurchases.
"Environmental and Safety Laws" shall mean any and all applicable
current and future treaties, laws, regulations, enforceable requirements,
binding determinations, orders, decrees, judgments, injunctions, permits,
approvals, authorizations, licenses, permissions, notices or binding agreements
issued, promulgated or entered by any Governmental Authority, relating to the
environment, to employee health or safety as it pertains to the use or handling
of, or exposure to, Hazardous Substances, to preservation or reclamation of
natural resources or to the management, release or threatened release of
contaminants or noxious odors, including the Hazardous Materials Transportation
Act, the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act of 1976 and the Hazardous and Solid Waste
Amendments of 1984, the Federal Water Pollution Control Act, as amended by the
Clean Water Act of 1977, the Clean Air Act of 1970, as amended, the Toxic
Substances Control Act of 1976, the Occupational Safety and Health Act of 1970,
as amended, the Emergency Planning and Community Right-to-Know Act of 1986, the
Safe Drinking Water Act of 1974, as amended, and any similar or implementing
state or local laws and all amendments or regulations promulgated thereunder.
"Environmental Claim" shall mean any written notice of any
Governmental Authority alleging potential liability for damage to the
environment or by any Person alleging potential liability for personal injury
(including sickness, disease or death), in either case, resulting from or based
upon (a) the presence or Release (including intentional and unintentional,
negligent and nonnegligent, sudden or nonsudden, accidental or nonaccidental
leaks or spills) of any Hazardous Substance at, in or from the property, whether
or not owned or leased by the Borrower or a Guarantor or (b) any other
circumstances forming the basis of any violation, or alleged violation, of any
Environmental and Safety Law.
"Equity Interests" shall mean shares of the capital stock,
partnership interests, membership interest in a limited liability company,
beneficial interests in a trust or other equity interests in the Borrower or any
of its subsidiaries or any warrants, options or other rights to acquire such
interests.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, or any successor statute as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that is, was or hereafter becomes a member of a group of which the
Borrower is a member and which is treated as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of
the Code.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Loan" shall mean any Eurodollar Term Loan or Eurodollar
Revolving Loan.
"Eurodollar Revolving Loan" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Term Loan" shall mean any Term Loan bearing interest at
a rate determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in
Article VIII.
"Excepted Properties" shall mean real properties constituting
TravelCenters with respect to which Liens are granted for the purposes described
in Section 7.02(o) or (p), provided that (i) the total number of properties that
constitute "Excepted Properties" during the term of this Agreement shall not
exceed five and (ii) the aggregate fair market value of all properties that
constitute "Excepted Properties" during the term of this Agreement shall not
exceed $25,000,000.
"Excess Cash Flow" shall mean, for any period, the consolidated Net
Income of the Borrower and its subsidiaries during such period plus, without
duplication, (a) (i) the aggregate amounts deducted in determining such Net
Income in respect of all deferred charges and depreciation, amortization and
other noncash charges (including any interest expense other than Cash Interest
Expense), (ii) all noncash losses deducted in determining such Net Income, (iii)
to the extent not included in such Net Income, the aggregate amount of all
income tax refunds received during such period, (iv) the principal amount of any
Indebtedness incurred or assumed pursuant to Section 7.01(c) during such period,
(v) the aggregate amount of Indebtedness with respect to Capital Lease
Obligations incurred pursuant to Sections 7.01(d) and 7.11(c) during such
period, (vi) the
net negative change, if any, in Net Working Capital during such period and (vii)
the cash received in respect of investments made under Sections 7.04(c), (d),
(h) (other than cash received in respect of investments in a consolidated
subsidiary of the Borrower) and (j), to the extent such cash receipts were not
included in Net Income for such period minus, without duplication, (b) (i) all
noncash gains and credits included in such Net Income, (ii) scheduled payments
during such period of the principal of Term Loans, (iii) scheduled payments
during such period of the principal of Indebtedness permitted under Section 7.01
other than the Loans (including the Subordinated Notes), but only to the extent
that such payments cannot by their terms be reborrowed or redrawn, (iv)
prepayments during such period of Term Loans pursuant to Section 2.12, (v) the
aggregate amount of prepayments during such period of Revolving Loans and
Swingline Loans, but only to the extent accompanied by permanent reductions of
the Revolving Credit Commitments, (vi) the aggregate amount of repayments of the
Revolving Loans during such period, provided that the amount deducted pursuant
to this clause (vi) shall not exceed $25,000,000 in the aggregate during the
term of this Agreement, (vii) the aggregate amount of Capital Expenditures of
the Borrower and its subsidiaries made and permitted hereunder during such
period, (viii) repayments during such period of the portion of Capital Lease
Obligations of the Borrower and its subsidiaries not allocable to Cash Interest
Expense, (ix) the net positive change, if any, in Net Working Capital during
such period, in each case determined in accordance with GAAP and (x) the amount
of cash investments made during such period under Sections 7.04(c), (d), (h) (to
the extent such investment is not in a consolidated subsidiary of the Borrower)
and (j), to the extent that such investments were financed with internally
generated cash flow of the Borrower and its subsidiaries.
"Existing Credit Agreement" shall mean the Credit Agreement dated as
of March 21, 1997, as amended and restated as of November 24, 1998, and as
further amended and restated as of November 14, 2000, among the Borrower, the
lenders party thereto, and JPMorgan Chase Bank, N.A. (f/k/a The Chase Manhattan
Bank), as administrative agent, fronting bank and swingline lender, as in effect
on the Closing Date.
"Existing Letters of Credit" shall mean all letters of credit that
are issued and outstanding under the Existing Credit Agreement as of the Closing
Date.
"Existing Synthetic Leases" shall mean the leases described on
Schedule 1.01(d).
"Existing Term Loans" shall have the meaning assigned to such term
in Section 2.01(b).
"Fees" shall mean the Administrative Fees, the Commitment Fees, the
LC Fees and the fees specified in Section 3.08.
"Financial Officer" of any corporation shall mean the chief
financial officer, principal accounting officer, Treasurer or Controller of such
corporation.
"Foreign Subsidiary" shall mean any subsidiary of the Borrower that
is organized under the laws of any jurisdiction other than the United States of
America or any State thereof or the District of Columbia.
"Franchise Agreements" shall mean the Franchise Agreements pursuant
to which the Franchisees have or shall become franchisees of any Guarantor or
TAFSI.
"Franchisee" shall mean each party who has executed, or will
execute, a Franchise Agreement with any Guarantor or TAFSI.
"Fronting Bank" shall mean JPMorgan Chase Bank, N.A., in its
capacity as fronting bank for Letters of Credit.
"GAAP" shall mean generally accepted accounting principles in the
United States.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Granting Bank" shall have the meaning assigned to such term in
Section 10.04(e).
"Guarantee" of or by any Person shall mean any obligation,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including any
obligation of such Person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (b) to purchase property, securities or
services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness or (c) to maintain working capital, equity capital
or other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness; provided, however, that
the term "Guarantee" shall not include endorsements for collection or deposit,
in either case in the ordinary course of business.
"Guarantee Agreement" shall mean the Guarantee Agreement, as amended
and restated as of the Closing Date and substantially in the form of Exhibit C,
between each of the Guarantors and the Collateral Agent.
"Guarantors" shall mean TA, TA Licensing, TA Travel and each other
Person that is or becomes a party to the Guarantee Agreement, as a guarantor,
and the permitted successors and assigns of each such Person.
"Hazardous Substances" shall mean any toxic, radioactive or
otherwise hazardous substance, material or waste, including petroleum, its
derivatives, by-products and other similar hydrocarbons, or any substance
displaying any of the foregoing characteristics, including polychlorinated
biphenyls ("PCBs"), asbestos or asbestos-
containing material, and any substance, waste or material regulated under
Environmental and Safety Laws.
"Incremental Extensions of Credit" shall have the meaning assigned
to such term in Section 2.23.
"Incremental Facility Amendment" shall have the meaning assigned to
such term in Section 2.23.
"Incremental Facility Closing Date" shall have the meaning assigned
to such term in Section 2.23.
"Indebtedness" of any Person shall mean, without duplication, (a)
all obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
assets purchased by such Person, (e) all obligations of such Person issued or
assumed as the deferred purchase price of property or services (excluding trade
accounts payable and accrued expenses arising in the ordinary course of business
in accordance with customary trade terms), (f) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the obligations secured thereby have
been assumed by such Person, (g) all Guarantees by such Person of Indebtedness
of others, (h) all Capital Lease Obligations of such Person, (i) all obligations
of such Person in respect of interest rate protection agreements, foreign
currency exchange agreements or other interest or exchange rate hedging
arrangements, (j) all obligations of such Person as an account party to
reimburse any bank or any other Person in respect of letters of credit and
bankers' acceptances and (k) all obligations of such Person in respect of
fuel-supply hedging agreements and arrangements, provided that (i) the
obligations described in clauses (i) and (k) above shall not be considered as
"Indebtedness" for purposes of determining the Leverage Ratio or the Senior
Leverage Ratio and (ii) the amount of any "Indebtedness" that constitutes
"Indebtedness" solely by reason of clause (f) above, and which has not been
assumed, shall be limited to the value of the property subject to the relevant
Lien. The Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture in which such Person is a general partner or
member, other than to the extent that the instrument or agreement evidencing
such Indebtedness expressly limits the liability of such Person in respect
thereof pursuant to provisions and terms reasonably satisfactory to the
Administrative Agent.
"Indemnity and Subrogation Agreement" shall mean the Indemnity,
Subrogation and Contribution Agreement, as amended and restated as of the
Closing Date and substantially in the form of Exhibit D, between the Borrower,
the Guarantors and the Collateral Agent.
"Insurance Proceeds" shall have the meaning assigned to such term in
Section 8 of the Guarantee Agreement.
"Interest Expense Coverage Ratio" shall mean with respect to the
Borrower and its subsidiaries on a consolidated basis, for any period, the ratio
of (a) EBITDA for such period to (b) Cash Interest Expense for such period.
"Interest Payment Date" shall mean, with respect to any Loan, the
last day of the Interest Period applicable to the Borrowing of which such Loan
is a part and, in the case of a Eurodollar Borrowing with an Interest Period of
more than three months' duration, each day that would have been an Interest
Payment Date had successive Interest Periods of three months' duration been
applicable to such Borrowing and, in addition, the date of any refinancing or
conversion of such Borrowing with or to a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case
may be, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2, 3 or 6 months thereafter (or 9 or 12 months thereafter if, at the time
requested for the relevant Eurodollar Borrowing, all Lenders participating
therein agree to make an interest period of such duration available), as the
Borrower may elect, and (b) as to any ABR Borrowing, the period commencing on
the date of such Borrowing or on the last day of the immediately preceding
Interest Period applicable to such Borrowing, as the case may be and ending on
the earliest of (i) the next succeeding March 31, June 30, September 30 or
December 31, (ii) the Revolving Credit Maturity Date then in effect or the Term
Loan Maturity Date then in effect, as applicable, and (iii) the date such
Borrowing is converted to a Borrowing of a different Type in accordance with
Section 2.10 or repaid or prepaid in accordance with Section 2.11, 2.12 or 2.13;
provided, however, that, if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Interest Rate Spreads" shall mean the ABR Spread and LIBOR Spread.
"IPO" shall mean a bona fide underwritten public offering by the
Borrower of shares of its voting common stock that is consummated after the
Closing Date, resulting in the receipt by the Borrower of at least $25,000,000
of gross cash proceeds.
"LC Commitment" shall mean $90,000,000, as the same may be reduced
from time to time pursuant to Section 3.07. The LC Commitment shall
automatically and permanently terminate on LC Maturity Date.
"LC Disbursement" shall mean any payment or disbursement made by the
Fronting Bank under or pursuant to a Letter of Credit.
"LC Exposure" shall mean, at any time of determination, the sum of
(a) the aggregate undrawn amount of all Letters of Credit outstanding at such
time and (b) the aggregate amount that has been drawn under such Letters of
Credit but for which the Fronting Bank or the Lenders, as the case may be, have
not been reimbursed by the Borrower at such time.
"LC Fee" shall have the meaning assigned to such term in Section
3.03.
"LC Maturity Date" shall mean the fifth Business Day prior to the
Revolving Credit Maturity Date. In the event of any extension of the Revolving
Credit Maturity Date pursuant to the terms of the definition thereof, the LC
Maturity Date shall be automatically extended to the fifth Business Day prior to
such new Revolving Credit Maturity Date
"Leasehold Mortgage" shall mean an amended and restated leasehold or
subleasehold mortgage, deed of trust or deed to secure debt substantially in the
form of Exhibit E-2, provided that any newly-granted Leasehold Mortgages shall
not be captioned or described as "amended and restated".
"Lenders" shall mean the financial institutions party hereto.
"Letters of Credit" shall mean letters of credit issued by the
Fronting Bank for the account of the Borrower pursuant to Section 3.01(a).
"Leverage Ratio" shall mean, as of any date, the ratio of (a) Total
Debt of the Borrower and its subsidiaries determined on a consolidated basis as
of such date to (b) EBITDA of the Borrower and its subsidiaries determined on a
consolidated basis for the period of four consecutive fiscal quarters most
recently ended as of such date.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, the rate appearing on Page 3750 of the Dow Xxxxx Market
Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO Rate"
with respect to such Eurodollar Borrowing for such Interest Period shall be the
rate at which dollar deposits of $5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIBOR Spread" shall mean (a) in the case of Term Loans, 1.75% per
annum and (b) in the case of Revolving Loans, the applicable rate per annum set
forth below under the caption "Revolving Loan LIBOR Spread", based upon the
Leverage
Ratio as of the most recent determination date, provided that until the delivery
to the Administrative Agent, pursuant to Section 6.04, of the Borrower's
consolidated financial information for the Borrower's first four fiscal quarters
ending after the Closing Date, the "LIBOR Spread" for purposes of clause (b)
above shall be the applicable rate per annum set forth below in Category 1:
Revolving Loan
Leverage Ratio: Eurodollar Spread
--------------- -----------------
Category 1
Equal to or greater than 4.00 to 1.00 2.25%
Category 2
Less than 4.00 to 1.00 but equal to or greater than
3.50 to 1.00 2.00%
Category 3
Less than 3.50 to 1.00 1.75%
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, assignment for security (whether collateral or
otherwise), hypothecation, encumbrance, easement, restriction, covenant, lease,
sublease, charge or security interest in or on such asset, (b) the interest of a
vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement or financing lease having substantially the same economic
effect as any of the foregoing relating to such asset, (c) in the case of
securities, any purchase option, call or similar right of a third party with
respect to such securities and (d) zoning or land use restrictions.
"Loan Documents" shall mean this Agreement, the Security Documents,
the Guarantee Agreement, the Indemnity and Subrogation Agreement and any
Incremental Facility Amendment.
"Loans" shall mean the Revolving Loans, the Term Loans, the
Incremental Extensions of Credit and (unless the context requires otherwise) the
Swingline Loans.
"Margin Stock" shall have the meaning assigned to such term under
Regulation U.
"Material Adverse Effect" shall mean (a) a materially adverse effect
on the business, assets, operations or condition, financial or otherwise, of the
Borrower and its subsidiaries, taken as a whole, or (b) a material impairment of
the rights of or benefits available to the Agents, the Fronting Bank, the
Swingline Lender, the Collateral Agent or the Lenders under any Loan Document.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Mortgaged Properties" shall mean the owned real properties and
leasehold and subleasehold interests of the Guarantors specified on Schedule
1.01(a) and includes each other parcel of real property and improvements thereto
with respect to which a Mortgage is granted pursuant to Section 6.10.
"Mortgages" shall mean the amended and restated mortgages, deeds of
trust, deeds to secure debt, leasehold mortgages, assignments of leases and
rents and other security documents, delivered pursuant to clause (i) of Section
5.02(k) or pursuant to Section 6.10, each substantially in the form of Exhibit
E-1 or E-2, as applicable, provided that any newly-granted Mortgages shall not
be captioned or described as "amended and restated".
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate (other
than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Section 414 of the Code) is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"Net Cash Proceeds" shall mean, with respect to any Prepayment Event
or any issuance of equity of the Borrower or its subsidiaries, (a) the gross
cash proceeds (including insurance proceeds, condemnation awards and payments
from time to time in respect of installment obligations, if applicable) received
by or on behalf of the Borrower or any subsidiary thereof in respect of such
Prepayment Event or equity issuance, less (b) the sum of (i) in the case of a
Prepayment Event, the amount, if any, of all taxes (other than income taxes)
payable by the Borrower or any subsidiary thereof in connection with such
Prepayment Event and the Borrower's good-faith best estimate of the amount of
all income taxes payable in connection with such Prepayment Event (to the extent
that such amount shall have been set aside for the purpose of paying such income
taxes), (ii) in the case of a Prepayment Event that is an asset sale or
disposition, (A) the amount of any reasonable reserve established in accordance
with GAAP against any liabilities associated with the assets sold or disposed of
and retained by the Borrower or any subsidiary thereof, provided that the amount
of any subsequent reduction of such reserve (other than in connection with a
payment in respect of any such liability) shall be deemed to be Net Cash
Proceeds of a Prepayment Event occurring on the date of such reduction, and (B)
the amount applied to repay any Indebtedness (other than the Term Loans) to the
extent such Indebtedness is required by its terms to be repaid as a result of
such Prepayment Event and (iii) reasonable and customary fees, commissions and
expenses and other costs paid by the Borrower or any subsidiary thereof in
connection with such Prepayment Event or equity issuance (other than those
payable to the Borrower or any Affiliate of the Borrower (other than customary
financial advisory fees payable to the Sponsor or its Affiliates in connection
therewith to the extent that such fees are no greater than the financial
advisory fees that a third party could have obtained for the same services after
negotiation at arm's-length)), in each case only to the extent not already
deducted in arriving at the amount referred to in clause (a).
"Net Income" shall mean, for any period, the aggregate net income
(or net deficit) of the Borrower and its subsidiaries determined on a
consolidated basis for such period, which shall be equal to gross revenues for
the Borrower and its subsidiaries determined on a consolidated basis during such
period less the aggregate for the Borrower and its subsidiaries determined on a
consolidated basis during such period of, without duplication, (a) cost of goods
sold, (b) interest expense, (c) operating expenses, (d) selling, general and
administrative expenses, (e) taxes, (f) depreciation, depletion and
amortization of properties and (g) any other items that are treated as expense
under GAAP, all computed in accordance with GAAP; provided, however, that the
term "Net Income" shall exclude (i) extraordinary gains or losses from the sale
of assets other than in the ordinary course of business, (ii) one-time charges
taken in connection with the Transactions and (iii) any write-up in the value of
any asset.
"Net Working Capital" shall mean, with respect to any Person and its
subsidiaries on a consolidated basis at any date, (a) the sum of inventory,
current receivables (including trade receivables and current rent receivables)
and prepaid expenses minus (b) the sum of accrued expenses payable and trade
payables, as each of such items would appear on a consolidated balance sheet of
such Person and its subsidiaries as of the date of determination in accordance
with GAAP.
"NSC Holdings" shall mean 3073000 Nova Scotia Company, a Nova Scotia
unlimited liability corporation that is a direct wholly owned subsidiary of TA.
"Obligations" shall mean all obligations defined as "Obligations" in
the Guarantee Agreement and the Security Documents.
"Original Control Group" shall mean the Sponsor, Oak Hill Capital
Management Partners, L.P., Olympus Executive Fund, L.P., Olympus Growth Fund
III, L.P., TA Private Client Investment, LLC, TCW/Crescent Mezzanine Partners
II, L.P., TCW/Crescent Mezzanine Trust II, TCW Leveraged Income Trust, L.P., TCW
Leveraged Income Trust II, L.P., TCW Leveraged Income Trust IV, L.P., UBS
Capital Americas II, LLC and Credit Suisse First Boston LFG Holdings 2000, LLC,
their respective Affiliates and members of management of the Borrower.
"Other Transactions" shall mean the series of transactions in which
(a) the Borrower will repay all amounts outstanding under the Existing Credit
Agreement (other than the principal amount of any loans outstanding thereunder
on the Closing Date that are held by, or assigned to, the Lenders hereunder and
are to remain outstanding hereunder as provided in Section 2.01(b)) and the
Existing Credit Agreement will be amended and restated as provided in this
Agreement; (b) the Borrower will borrow Loans hereunder; (c) the Borrower will
consummate the Synthetic Lease Repurchases; and (d) the Transaction Costs will
be paid.
"Outstanding Letters of Credit" shall mean at any time the Letters
of Credit outstanding at such time.
"Participating Lender" shall mean at any time any Lender with a
Revolving Credit Commitment at such time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and defined in ERISA or any successor thereto.
"Perfection Certificate" shall mean the Perfection Certificate,
substantially in the form of Annex 2 to the Security Agreement, prepared by the
Borrower.
"Permitted Business Acquisition" shall mean any acquisition of
assets from, or shares or other equity interests in, any Person if (a)
immediately after giving effect thereto, no Default or Event of Default shall
have occurred and be continuing or would result therefrom, (b) all transactions
related thereto shall be consummated in accordance with applicable laws, (c) in
the case of any acquisition of shares or other equity interests in any Person,
such acquisition is an acquisition of 100% of the shares or other equity
interests of such Person and, simultaneously with or immediately following such
acquisition, such acquired Person (and each of its subsidiaries, if any) shall
become a Guarantor and (d) neither the Borrower nor any of its subsidiaries
shall assume or otherwise become liable for any Indebtedness in connection with
such acquisition (except for Indebtedness permitted by clauses (m) and (n) of
Section 7.01).
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in
each case maturing within three months from the date of acquisition
thereof;
(b) without limiting the provisions of paragraph (d) below,
investments in commercial paper maturing within three months from the date
of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from Standard & Poor's and from Xxxxx'x;
(c) investments in certificates of deposit, banker's acceptances and
time deposits (including Eurodollar time deposits) maturing within three
months from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, (i)
any domestic office of the Administrative Agent or (ii) any domestic
office of any other commercial bank of recognized standing organized under
the laws of the United States of America or any state thereof that has a
combined capital and surplus and undivided profits of not less than
$500,000,000 and which is rated (or the senior debt securities of the
holding company of such commercial bank are rated) A or better by Standard
& Poor's or A2 by Xxxxx'x, or carrying an equivalent rating by another
nationally recognized rating agency if neither of the two named rating
agencies shall rate such commercial bank (or the holding company of such
commercial bank);
(d) investments in commercial paper maturing within three months
from the date of acquisition thereof and issued by (i) the holding company
of the Administrative Agent or (ii) the holding company of any other
commercial bank of recognized standing organized under the laws of the
United States of America or any state thereof that has (A) a combined
capital and surplus in excess of $500,000,000 and (B) commercial paper
rated at least A-1 or the equivalent thereof by Standard & Poor's or at
least P-1 or the equivalent thereof by Xxxxx'x, or carrying an equivalent
rating by another nationally recognized rating agency, if both of the two
named rating agencies cease publishing ratings of investments;
(e) repurchase agreements having a term of seven days or less with
(i) any domestic office of the Administrative Agent or (ii) any domestic
office of any other commercial bank of recognized standing organized under
the laws of the United States of America or any state thereof that has
combined capital and surplus and undivided profits of not less than
$500,000,000 and which is rated (or the senior debt securities of the
holding company of such commercial bank are rated) A or better by Standard
& Poor's or A2 by Xxxxx'x, or carrying an equivalent rating by another
nationally recognized rating agency if neither of the two named rating
agencies shall rate such bank relating to marketable direct obligations
issued or unconditionally guaranteed by the United States but only if the
securities collateralizing such repurchase agreements are delivered to or
to the order of the Collateral Agent;
(f) other investment instruments approved in writing by the Required
Lenders and offered by financial institutions that have a combined capital
and surplus and undivided profits of not less than $500,000,000; and
(g) investments consisting of Rate Protection Agreements.
"Permitted Joint Venture" shall have the meaning assigned to such
term in Section 7.04(h).
"Person" shall mean any natural person, corporation, business trust,
joint venture, association, company, limited liability company, partnership or
government, or any agency or political subdivision thereof.
"Plan" shall mean any pension plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code that
is maintained for employees of the Borrower or any ERISA Affiliate.
"Pledge Agreement" shall mean the Pledge Agreement, as amended and
restated as of the Closing Date and substantially in the form of Exhibit F,
among the Borrower, each of the Guarantors, TAFSI and the Collateral Agent.
"Prepayment Account" shall have the meaning assigned to such term in
Section 2.13(f).
"Prepayment Event" shall mean (a) any sale, transfer or other
disposition of any business units, assets or other properties of the Borrower or
any subsidiary thereof (including dispositions in the nature of casualties (to
the extent covered by insurance) or condemnations (including any Casualty or
Condemnation in respect of a Mortgaged Property as contemplated in Section 9 of
the Guarantee Agreement), (b) any sale and leaseback of any asset or the
mortgaging of any real property other than (i) any Sale and Lease-Back
Transaction permitted by Section 7.03 or (ii) pursuant to a Mortgage (or a
modification thereof) by the Borrower or any subsidiary thereof or (c) the
issuance or incurrence by the Borrower or any subsidiary thereof of any
Indebtedness (excluding any Indebtedness permitted under Section 7.01), or the
issuance or sale by the Borrower or any subsidiary thereof of any debt
securities or any obligations convertible into or
exchangeable for, or giving any Person or entity any right, option or warrant to
acquire from the Borrower or any subsidiary thereof any Indebtedness or any such
debt securities or any such convertible or exchangeable obligations (excluding
any Indebtedness permitted under Section 7.01). Notwithstanding the foregoing,
the term "Prepayment Event" shall not include:
(i) sales, transfers and other dispositions of used or surplus
equipment, vehicles and other assets in the ordinary course of business
permitted pursuant to Section 7.05(b) not exceeding in the aggregate
$5,000,000 in any fiscal year, provided that (A) at any time when such
sales, transfers and other dispositions in the ordinary course of business
shall exceed $5,000,000 in any fiscal year, the resultant Prepayment Event
shall include the entire amount of such sales, transfers and dispositions
since the date of such most recent payment, if any, with respect to such
fiscal year and not just amounts above such dollar threshold and (B) to
the extent that the Borrower or any of its subsidiaries shall have
reinvested on the date of such Prepayment Event (or certified to the
Administrative Agent that it intends to reinvest within 360 days of such
Prepayment Event) any of the proceeds of such sales, transfers and
dispositions in equipment, vehicles or other assets used in the principal
lines of business of the Borrower's subsidiaries, the resultant Prepayment
Event shall be reduced by the amount so reinvested or to be reinvested;
(ii) sales of inventory in the ordinary course of business;
(iii) sales, transfers and other dispositions of TravelCenters and
the related assets permitted pursuant to Section 7.05(d) or 7.05(g)
resulting in Net Cash Proceeds in an aggregate amount not exceeding
$20,000,000 during any fiscal year, provided that (1) within 360 days
after receipt of any such Net Cash Proceeds, such Net Cash Proceeds are
either (x) used to repay or voluntarily prepay Loans, in accordance with
this Agreement, on such date as may be elected by the Borrower or (y)
reinvested in other TravelCenter properties and related assets, and (2) in
connection with any such reinvestment, the Borrower (x) provides the
Agents and the Collateral Agent with such opinions, documents,
certificates, title insurance policies (as required by Section 5.02(k)),
surveys and other insurance policies as they may reasonably request and
(y) takes such other actions as the Agents and the Collateral Agent may
reasonably deem necessary or appropriate (including actions with respect
to the delivery to the Collateral Agent of a first priority Mortgage as
required by Section 5.02(k) and assignment with respect to the related
real property for the ratable benefit of the Secured Parties);
(iv) the receipt of insurance or condemnation proceeds (other than
Condemnation Proceeds and Insurance Proceeds in respect of Mortgaged
Properties), provided that such proceeds are reinvested in equipment,
vehicles or other assets used in the principal lines of business of the
Borrower's subsidiaries within 360 days after the receipt thereof;
(v) the receipt of Condemnation Proceeds and Insurance Proceeds in
respect of Mortgaged Properties to the extent that (A) such Condemnation
Proceeds or Insurance Proceeds are used to restore, repair or locate,
acquire and replace the related Mortgaged Property in accordance with
Section 8 of the Guarantee Agreement, (B) such Condemnation Proceeds or
Insurance Proceeds, pursuant to Section 8 of the Guarantee Agreement, are
not otherwise required to be applied as a mandatory prepayment pursuant to
Section 2.13(b), (C) to the extent permitted by Section 8 of the Guarantee
Agreement, any Condemnation Proceeds or Insurance Proceeds are reinvested
in equipment, vehicles or other assets used in the principal lines of
business of the Borrower's subsidiaries within 360 days after the receipt
thereof or (D) such Condemnation Proceeds and Insurance Proceeds do not
exceed $3,000,000 in the aggregate during any fiscal year of the Borrower;
(vi) except as otherwise specified in Section 9 of the Guarantee
Agreement, any sale, transfer and other disposition of any portion of a
Mortgaged Property in connection with the development of such property as
permitted in, and in accordance with, the provisions of Section 9 of the
Guarantee Agreement; and
(vii) in respect of any Mortgaged Property, sales, transfers and
other dispositions of any portion of the Land (as defined in the related
Mortgage) on which there are no significant improvements that are
permitted pursuant to Section 7.05(f) in an aggregate amount not exceeding
$3,000,000 in any fiscal year or $15,000,000 since the Closing Date,
provided that the proceeds of each such sale are reinvested in equipment,
vehicles or other assets used in the principal lines of business of the
Borrower's subsidiaries within 360 days of the date of such sale.
Notwithstanding the foregoing, if an event would otherwise
constitute a "Prepayment Event", but does not constitute a "Prepayment Event" by
reason of any of the foregoing exclusions, then such event will constitute a
"Prepayment Event" as and to the extent necessary to require the prepayment of
Loans immediately prior to the expiry of any period that (if the Loans were not
prepaid) would result in the Borrower or any Guarantor being required to prepay,
redeem or repurchase (or offer to prepay, redeem or repurchase) any Subordinated
Notes, Subordinated Note Refinancing Indebtedness or Subordinated Acquisition
Financing.
"Pro Forma Balance Sheet" shall have the meaning assigned to such
term in Section 4.05(a).
"Qualified Franchisee Guarantee" means any Guarantee by the Borrower
with respect to any Indebtedness of a Franchisee to the extent such Indebtedness
was incurred by such Franchisee to make capital improvements or other upgrades
to the TravelCenter operated by such Franchisee.
"Rate Protection Agreements" shall mean (a) interest rate cap
agreements, (b) interest rate swap agreements, (c) interest rate collar
agreements or (d) similar agreements, in each case entered into by Borrower to
provide protection to the Borrower against fluctuations in interest rates. Each
Rate Protection Agreement shall be on terms
reasonably satisfactory to the Administrative Agent with a counterparty
satisfactory to the Administrative Agent.
"Register" shall have the meaning assigned to such term in Section
10.04(b)(iv).
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Related Parties" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents, trustees and advisors of such Person and such Person's Affiliates.
"Release" shall mean any discharge, emission, release, or threat
thereof, including a "Release" as defined in CERCLA at 42 U.S.C. Section
9601(22), and the term "Released" has a meaning correlative thereto.
"Reportable Event" shall mean any reportable event as defined in
Section 4043(c) of ERISA or the regulations issued thereunder (other than an
event as to which the 30-day notice period is waived) with respect to a Plan
(other than a Plan maintained by an ERISA Affiliate that is considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Code).
"Required Lenders" shall mean, at any time, Lenders holding Loans, a
share of the used LC Commitment and unused Commitments representing more than
50% of the aggregate of (a) the aggregate principal amount of the Loans and
Swingline Loans at such time, (b) the LC Exposure at such time and (c) the
aggregate unused Commitments at such time.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Restricted Indebtedness" shall mean Indebtedness of the Borrower or
any subsidiaries, the optional payment, prepayment, redemption, repurchase or
defeasance of which is restricted under Section 7.09(a).
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each
Lender, the commitment of such Lender to make Revolving Loans hereunder as set
forth in clause (ii) of Section 2.01(a), as the same may be reduced from time to
time pursuant to Section 2.09.
"Revolving Credit Maturity Date" shall mean October 1, 2008,
provided that if the Subordinated Notes Refinancing is consummated on or prior
to October 1, 2008, the Revolving Credit Maturity Date shall be automatically
extended to December 1, 2009.
"Revolving Credit Utilization" shall mean, at any time of
determination, the sum of (a) the aggregate principal amount of Revolving Loans
outstanding at such time, (b) the aggregate principal amount of Swingline Loans
outstanding at such time and (c) the LC Exposure at such time.
"Revolving Facility" shall mean the aggregate of the Lenders'
Revolving Credit Commitments.
"Revolving Lender" shall mean any Lender that has a Revolving Credit
Commitment.
"Revolving Loans" shall mean the revolving loans made by the Lenders
to the Borrower pursuant to clause (ii) of Section 2.01(a). Each Revolving Loan
shall be a Eurodollar Revolving Loan or an ABR Revolving Loan.
"Rip Xxxxxxx" shall mean Rip Xxxxxxx Truck Service Center, Inc., a
Texas corporation.
"Rip Xxxxxxx Acquisition" shall mean the acquisition of
substantially all the travel center assets of Rip Xxxxxxx pursuant to the terms
of the Rip Xxxxxxx Acquisition Agreement.
"Rip Xxxxxxx Acquisition Agreement" shall mean the Asset Purchase
Agreement dated as of October 1, 2004, by and among B.R.G., Inc., Rip Xxxxxxx,
the Borrower and TA.
"Rip Xxxxxxx Acquisition Documents" shall mean the Rip Xxxxxxx
Acquisition Agreement, the other material agreements, side letters and
instruments to be entered into in connection with the Rip Xxxxxxx Acquisition
and all schedules, exhibits and annexes to each of the foregoing.
"Rip Xxxxxxx Purchase Price" shall mean the "Purchase Price", as
such term is defined in the Rip Xxxxxxx Acquisition Agreement, in an amount
equal to $120,000,000.
"Rip Xxxxxxx Working Capital Payments" shall mean the sum of (a) the
"Price of Inventory" and (b) the "Cash on Hand Amount", as each such term is
defined in the Rip Xxxxxxx Acquisition Agreement.
"Sale and Lease-Back Transaction" shall have the meaning assigned to
such term in Section 7.03.
"Santa Nella Note" shall mean the promissory note dated September 1,
1998, issued by National Auto/Truckstops, Inc. in favor of Mid California
Auto/Truck Plaza, Inc.
"SEC" shall mean the Securities and Exchange Commission or any
Governmental Authority succeeding to any of its principal functions.
"Secured Parties" shall have the meaning assigned to such term in
the Security Agreement.
"Security Agreement" shall mean the Security Agreement, as amended
and restated as of the Closing Date and substantially in the form of Exhibit G,
among the Borrower, each of the Guarantors, TAFSI and the Collateral Agent.
"Security Documents" shall mean the Mortgages, the Security
Agreement, the Pledge Agreement, the Trademark Security Agreement and each of
the security agreements, mortgages and other instruments and documents executed
and delivered pursuant to any of the foregoing or pursuant to Section 6.10.
"Senior Facilities" shall mean, collectively, the Term Facility and
the Revolving Facility.
"Senior Leverage Ratio" shall mean, as of any date, the ratio of (a)
Total Senior Debt of the Borrower and its subsidiaries determined on a
consolidated basis as of such date to (b) EBITDA of the Borrower and its
subsidiaries determined on a consolidated basis for the period of four
consecutive fiscal quarters of the Borrower most recently ended as of such date.
"SPC" shall have the meaning assigned to such term in Section
10.04(e).
"Sponsor" shall mean Oak Hill Capital Partners, L.P., a Delaware
limited partnership.
"Standard & Poor's" shall mean Standard & Poor's Rating Group.
"Statutory Reserve Rate" shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum applicable reserve
percentages, including any marginal, special, emergency or supplemental reserves
(expressed as a decimal), established by the Board and any other banking
authority to which the Administrative Agent is subject, with respect to the
Adjusted LIBO Rate, for Eurocurrency Liabilities (as defined in Regulation D of
the Board). Such reserve percentages shall include those imposed pursuant to
Regulation D of the Board. Eurodollar Loans shall be deemed to constitute
Eurocurrency Liabilities and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offset that may be available
from time to time to any Lender under such Regulation D. The Statutory Reserve
Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
"Subordinated Acquisition Financing" shall mean any Indebtedness
incurred by the Borrower pursuant to Section 7.01(n).
"Subordinated Acquisition Financing Documents" shall mean any
agreements (or comparable documents, such as loan agreements or indentures)
entered into by the Borrower or any of its subsidiaries in connection with the
incurrence of Subordinated Acquisition Financing and any ancillary documents
related thereto.
"Subordinated Notes" shall mean the 12 3/4% Senior Subordinated
Notes due 2009 issued by the Borrower pursuant to the Subordinated Note
Indenture.
"Subordinated Note Documents" shall mean the Subordinated Note
Guarantees, the Subordinated Note Indenture and the Subordinated Notes.
"Subordinated Note Guarantees" shall mean, collectively, the
Guarantees of the Guarantors guaranteeing repayment of the Subordinated Notes.
"Subordinated Note Indenture" shall mean the Indenture dated as of
November 14, 2000, among the Borrower, the Guarantors and State Street Bank and
Trust Company, as trustee, as amended from time to time in accordance with the
terms hereof and thereof.
"Subordinated Notes Refinancing" shall mean the refinancing of all
outstanding Subordinated Notes with the proceeds of any issuance of Subordinated
Notes Refinancing Indebtedness.
"Subordinated Note Refinancing Documents" shall mean any agreements
(or comparable documents, such as loan agreements or indentures) entered into by
the Borrower or any of its subsidiaries in connection with the sale or issuance
of Subordinated Note Refinancing Indebtedness and any ancillary documents
related thereto.
"Subordinated Note Refinancing Indebtedness" shall mean any
Indebtedness incurred by the Borrower pursuant to Section 7.01(g).
"subsidiary" shall mean, with respect to any Person (herein referred
to as the "parent"), any corporation, partnership, limited liability company,
association or other business entity (a) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power or more than 50% of the general partnership interests are,
at the time any determination is being made, owned, controlled or held or (b)
that is, at the time any determination is made, otherwise Controlled by the
parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.
"Swingline Lender" shall mean JPMorgan Chase Bank, N.A., in its
capacity as a lender of Swingline Loans hereunder.
"Swingline Loans" shall mean the swingline loans made by the
Swingline Lender pursuant to Section 2.21.
"Syndication Agent" shall mean Xxxxxx Commercial Paper Inc., in its
capacity as syndication agent for the Lenders.
"Synthetic Lease Repurchase Documents" shall mean any agreements or
instruments entered into or executed by the Borrower or any of its subsidiaries
in connection with the Synthetic Lease Repurchases.
"Synthetic Lease Repurchases" shall mean the payment by the Borrower
of all remaining lease or other payments required to be made under the Existing
Synthetic Leases and the purchase by the Borrower of all property subject to
each such Existing Synthetic Lease pursuant to the terms thereof.
"Synthetic Purchase Agreement" shall mean any swap, derivative or
other agreement or combination of agreements pursuant to which the Borrower or
any of its subsidiaries is or may become obligated to make (i) any payment in
connection with a purchase by any third party from a Person other than the
Borrower or any of its subsidiaries of any Equity Interest or Restricted
Indebtedness or (ii) any payment (other than on account of a permitted purchase
by it of any Equity Interest or any Restricted Indebtedness) the amount of which
is determined by reference to the price or value at any time of any Equity
Interest or Restricted Indebtedness, provided that no phantom stock or similar
plan providing for payments only to current or former directors, officers or
employees of the Borrower or its subsidiaries (or to their heirs or estates)
shall be deemed to be a Synthetic Purchase Agreement.
"TA" shall mean TA Operating Corporation, a Delaware corporation
that is a direct wholly owned subsidiary of the Borrower and a Guarantor.
"TA Licensing" shall mean TA Licensing, Inc., a Delaware corporation
that is a direct wholly owned subsidiary of TA and a Guarantor.
"TA Travel" shall mean TA Travel, L.L.C., a Delaware limited
liability company that is 100% held by TA and a Guarantor.
"TAFSI" shall mean TA Franchise Systems Inc., a Delaware corporation
that is a direct wholly owned subsidiary of the Borrower.
"TC Properties" shall mean TravelCenters Properties, L.P., a
Delaware limited partnership.
"TC Realty" shall mean TravelCenters Realty, L.L.C., a Delaware
limited liability company.
"Term Borrowing" shall mean a Borrowing comprised of Term Loans.
"Term Facility" shall mean the aggregate amount of the Lenders' Term
Loan Commitments.
"Term Lender" shall mean any Lender that has a Term Loan Commitment
or holds any Term Loans.
"Term Loan Commitments" shall mean, with respect to each Lender, the
commitment of such Lender to make Term Loans hereunder (or to purchase Existing
Term Loans and Assigned Indebtedness or to convert Existing Term Loans, in each
case that become Term Loans hereunder) as set forth in clause (i) of Section
2.01(a).
"Term Loan Maturity Date" shall mean October 1, 2008, provided that
if the Subordinated Notes Refinancing is consummated on or prior to October 1,
2008, the Term Loan Maturity Date shall be automatically extended to December 1,
2011.
"Term Loan Repayment Amount" shall have the meaning assigned to such
term in Section 2.11(a).
"Term Loan Repayment Date" shall have the meaning assigned to such
term in Section 2.11(a).
"Term Loans" shall mean the term loans made by the Lenders to the
Borrower (and Existing Term Loans and Assigned Indebtedness purchased by the
Lenders and Existing Term Loans converted by the Lenders) pursuant to clause (i)
of Section 2.01(a). Each Term Loan shall be a Eurodollar Term Loan or an ABR
Term Loan.
"Total Debt" shall mean, with respect to the Borrower and its
subsidiaries on a consolidated basis at any time, all Capital Lease Obligations,
Indebtedness for borrowed money and Indebtedness in respect of deferred purchase
price of property or services of the Borrower and its subsidiaries at such time
and all preferred stock at such time mandatorily redeemable on or prior to the
first anniversary of the Term Loan Maturity Date (assuming for this purpose only
that the Term Loan Maturity Date has been extended pursuant to the terms of the
definition thereof), less the amount of cash and cash equivalents set forth on
the Borrower's consolidated balance sheet at such time (including all amounts on
deposit in the Collateral Account at such time) in excess of $2,500,000.
"Total Senior Debt" shall mean, as of any date, (a) Total Debt as of
such date minus (b) the portion of Total Debt as of such date that is expressly
subordinated to the Obligations.
"Transactions" shall mean the Rip Xxxxxxx Acquisition and the Other
Transactions and the execution and delivery of the Loan Documents and the
borrowing of Loans on the Closing Date.
"Transaction Costs" shall have the meaning assigned to such term in
Section 4.26.
"Transition Expenses" shall mean, for any period, costs incurred in
connection with (i) the Borrower's conversion of acquired TravelCenters into the
Borrower's network of TravelCenters and (ii) the disposition of TravelCenters to
the extent such disposition is in connection with a Permitted Business
Acquisition permitted by Section 7.05(h).
"TravelCenter" shall mean a facility owned, operated, leased or
franchised by the Borrower or any of its subsidiaries that provides fuel and
nonfuel products, services and amenities primarily to the trucking industry.
"Type" when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, the term "Rate" shall include
the Adjusted LIBO Rate and the Alternate Base Rate.
"USA Patriot Act" shall mean the USA Patriot Act (Title III of Pub.
L. 107-56 (signed into law October 26, 2001)).
"Withdrawal Liability" shall mean liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed to be references to Articles and Sections of, and Exhibits and Schedules
to, this Agreement unless the context shall otherwise require. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP as
in effect from time to time, applied on a basis consistent with the application
used in the financial statements referred to in Section 4.05(b), provided that,
if the Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) On the terms and subject to the
conditions and relying upon the representations and warranties herein set forth,
each Lender agrees, severally and not jointly, (i) to make Terms Loans to the
Borrower (or to purchase Existing Term Loans or Assigned Indebtedness as set
forth in clause (ii) of paragraph (b) below or to convert Existing Term Loans as
set forth in clause (iii) of paragraph (b) below that, in each case, shall
thereupon be deemed to constitute Term
Loans) on the Closing Date in an aggregate principal amount not to exceed the
Term Loan Commitment set forth opposite such Lender's name on Schedule 2.01, and
(ii) to make Revolving Loans to the Borrower, at any time and from time to time
on or after the Closing Date and prior to the earlier of the Revolving Credit
Maturity Date and the termination of the Revolving Credit Commitment of such
Lender in accordance with the terms hereof, in an aggregate principal amount at
any time outstanding not to exceed (after giving effect to all Revolving Loans
repaid, and all reimbursements of LC Disbursements made, concurrently with the
making of any Revolving Loans) an amount equal to the difference between (A) the
Revolving Credit Commitment set forth opposite such Lender's name on Schedule
2.01, as the same may be reduced from time to time pursuant to Section 2.09, and
(B) such Lender's Applicable Percentage of the sum of (1) the aggregate
principal amount of Swingline Loans outstanding at such time and (2) the LC
Exposure at such time. Within the limits set forth in clause (ii) of the
preceding sentence, the Borrower may borrow, pay or prepay and reborrow
Revolving Loans on or after the Closing Date and prior to the Revolving Credit
Maturity Date, on the terms and subject to the conditions and limitations set
forth herein. Amounts paid or prepaid in respect of Term Loans may not be
reborrowed.
(b) It is the purpose and intent of this Agreement that, after
giving effect to the amendment and restatement of the Existing Credit Agreement
and the fundings hereunder on the Closing Date, each Term Lender will hold
outstanding Term Loans equal to its Term Loan Commitment set forth opposite its
name on Schedule 2.01 and each Revolving Lender will have a Revolving Credit
Commitment as set forth opposite its name on Schedule 2.01 (and any extensions
of credit hereunder will be made ratably in accordance with the applicable
Commitments). In order to give effect to the foregoing, on and as of the Closing
Date (i) each Lender that holds any "Term Loans" then outstanding under and as
defined in the Existing Credit Agreement ("Existing Term Loans") shall be deemed
to have assigned (and hereby assigns, effective on the Closing Date) the
outstanding principal of its Existing Term Loans (other than any Existing Terms
Loans that become Converted Term Loans) to the Term Lenders hereunder, (ii) each
Term Lender shall fund to the Administrative Agent, in accordance with this
Agreement, the full amount of its Term Loan Commitment (minus the aggregate
principal amount of any Existing Term Loans held by such Term Lender that become
Converted Term Loans pursuant to clause (iii) below), with such funding being
treated as the purchase of Existing Term Loans under clause (i) above, the
purchase of Assigned Indebtedness and/or the advance of additional Term Loans,
as appropriate, (iii) each Lender that holds Existing Term Loans may elect, by
three Business Days' notice to the Administrative Agent, to convert its Existing
Term Loans into Term Loans hereunder (any such Existing Term Loans so converted
into Term Loans being referred to herein as "Converted Term Loans") in lieu of
assigning such Existing Term Loans pursuant to clause (i) above, (iv) Existing
Term Loans and Assigned Indebtedness purchased as provided above and additional
Term Loans made hereunder shall be allocated among the Term Lenders to achieve
the result specified in the first sentence of this paragraph, (v) the
Administrative Agent will apply the proceeds of the fundings described in clause
(ii) above, first, to pay the purchase price of the Existing Term Loans
(excluding any Existing Term Loans that become Converted Term Loans) and
Assigned Indebtedness (in an amount equal to 100% of the principal amount
thereof) and, second,
as specified by the Borrower in accordance with the applicable provisions of
this Agreement, (vi) the Borrower will pay all accrued interest and other
amounts owing in respect of the Existing Term Loans (including any Existing Term
Loans that become Converted Term Loans) and Assigned Indebtedness (other than
outstanding principal so assigned, converted and purchased, with such
assignments, in the case of assignments of Indebtedness under the Existing
Credit Agreement, being treated as prepayments for purposes of Section 2.16 of
the Existing Credit Agreement), (vii) the Borrower will pay all other amounts
then outstanding or accrued and owing under the Existing Credit Agreement
(including outstanding "Revolving Loans" and "Swingline Loans", as defined in
the Existing Credit Agreement, but without prejudice to the Borrower's right to
borrow Revolving Loans and Swingline Loans hereunder in accordance with this
Agreement), (viii) all "Commitments", as defined in the Existing Credit
Agreement, shall be reallocated as provided in Schedule 2.01 and, to the extent
inconsistent with such Schedule, shall be terminated, (ix) the "Interest
Period", as defined in the Existing Credit Agreement, of all Existing Term Loans
and Assigned Indebtedness shall terminate and the initial Interest Period of the
Term Loans hereunder resulting from the purchase of such Existing Term Loans and
Assigned Indebtedness or the conversion of such Existing Term Loans shall be
determined based upon the Borrower's initial notice under Section 2.03 and (x)
the Existing Credit Agreement shall be amended and restated in its entirety in
the form of this Agreement. On the Closing Date, the Existing Credit Agreement
shall be deemed amended and restated in its entirety as set forth herein and all
Existing Term Loans (including any Existing Term Loans that become Converted
Term Loans) and Assigned Indebtedness shall continue to remain outstanding as
Term Loans hereunder, without extinguishing such Indebtedness. The amendment and
restatement of the Existing Credit Agreement shall not affect the Borrower's
liability in respect of its obligations accrued thereunder. However, unless and
until the Closing Date occurs as provided herein, the Existing Credit Agreement
shall remain in effect and shall not be affected by this Agreement.
SECTION 2.02. Loans. (a) Each Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their respective Term Loan Commitments or Revolving Credit Commitments, as the
case may be; provided, however, that the failure of any Lender to make any Loan
shall not in itself relieve any other Lender of its obligation to lend hereunder
(it being understood, however, that no Lender shall be responsible for the
failure of any other Lender to make any Loan required to be made by such other
Lender). The Loans comprising each Borrowing shall be in an aggregate principal
amount that is an integral multiple of $500,000 and not less than $3,000,000 (or
in the case of the Revolving Credit Commitments, the lesser of $3,000,000 and an
aggregate principal amount equal to the remaining balance of the Revolving
Credit Commitments).
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans, as the Borrower may request
pursuant to Section 2.03, provided that each Term Loan made on the Closing Date
shall be comprised of a Eurodollar Borrowing that has an Interest Period of one
month. Each Lender may at its option fulfill its Commitment with respect to any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan, provided that
any exercise of such option shall not (i) affect the obligation of the Borrower
to repay such Loan in accordance with the terms of this Agreement or (ii) impose
any additional obligation on the part of the Borrower pursuant to Section 2.14.
Borrowings of more than one Type may be outstanding at the same time; provided,
however, that the Borrower shall not be entitled to request any Borrowing that,
if made, would result in an aggregate of more than eight separate Eurodollar
Loans of any Lender being outstanding hereunder at any one time. For purposes of
the foregoing, Loans having different Interest Periods, regardless of whether
they commence on the same date, shall be considered separate Loans.
(c) Subject to paragraph (e) below and except with respect to Loans
made pursuant to paragraph (f) below, each Lender shall make a Loan in the
amount of its pro rata portion, as determined under Section 2.17, of each
Borrowing hereunder on the proposed date thereof by wire transfer of immediately
available funds to such account in New York City as the Administrative Agent may
designate not later than 12:00 noon, New York City time, and the Administrative
Agent shall by 3:00 p.m., New York City time, credit the amounts so received to
the general deposit account of the Borrower maintained with the Administrative
Agent or, if a Borrowing shall not occur on such date because any condition
precedent herein specified shall not have been met, return the amounts so
received to the respective Lenders. Unless the Administrative Agent shall have
received notice from a Lender prior to the date of any Borrowing that such
Lender will not make available to the Administrative Agent such Lender's portion
of such Borrowing, the Administrative Agent may assume that such Lender has made
such portion available to the Administrative Agent on the date of such Borrowing
in accordance with this paragraph (c) and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have made
such portion available to the Administrative Agent, such Lender and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, for the first such day, the Federal Funds
Effective Rate, and thereafter, the Alternate Base Rate. If such Lender shall
repay to the Administrative Agent such corresponding amount, such amount shall
constitute such Lender's Loan as part of such Borrowing for purposes of this
Agreement.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Revolving Credit Borrowing if the
Interest Period requested with respect thereto would end after the Revolving
Credit Maturity Date then in effect.
(e) The Borrower may refinance all or any part of any Revolving
Credit Borrowing with a Revolving Credit Borrowing of the same or a different
Type, subject to the conditions and limitations set forth in this Agreement. Any
Revolving Credit Borrowing or part thereof so refinanced shall be deemed to be
repaid or prepaid in accordance with Section 2.04 or 2.12, as applicable, with
the proceeds of a new
Revolving Credit Borrowing, and the proceeds of the new Revolving Credit
Borrowing, to the extent they do not exceed the principal amount of the
Revolving Credit Borrowing being refinanced, shall not be paid by the Lenders to
the Administrative Agent or by the Administrative Agent to the Borrower pursuant
to paragraph (c) above.
(f) If the Administrative Agent has not received from the Borrower
the payment required by Section 3.04(a) by 11:00 a.m., New York City time, on
the date on which the Fronting Bank has notified the Borrower that payment of a
draft presented under any Letter of Credit will be made (or such later time as
is not later than three hours after the Borrower shall have received such notice
or, if the Borrower shall have received such notice later than 2:00 p.m., New
York City time, on such Business Day, not later than 10:00 a.m., New York City
time, on the immediately following Business Day), as provided in Section
3.04(a), the Administrative Agent will notify not later than 12:00 noon, New
York City time, the Fronting Bank and each Participating Lender of the LC
Disbursement and, in the case of each Participating Lender, its Applicable
Percentage of such LC Disbursement. Each Participating Lender will pay by wire
transfer of immediately available funds to the Administrative Agent not later
than 4:00 p.m., New York City time, on such date an amount equal to such
Participating Lender's Applicable Percentage of such LC Disbursement (it being
understood that such amount shall constitute an ABR Revolving Loan of such
Lender and such payment shall be deemed to have reduced the LC Exposure), and
the Administrative Agent will promptly pay such amount to the Fronting Bank. The
Administrative Agent will promptly remit to each Participating Lender its
Applicable Percentage of any amounts subsequently received by the Administrative
Agent from the Borrower in respect of such LC Disbursement. If any Lender shall
not have made its Applicable Percentage of such LC Disbursement available to the
Fronting Bank as provided above, such Lender agrees to pay interest on such
amount, for each day from and including the date such amount is required to be
paid in accordance with this paragraph (f) to but excluding the date an amount
equal to such amount is paid to the Administrative Agent for prompt payment to
the Fronting Bank at, for the first such day, the Federal Funds Effective Rate,
and thereafter, the Alternate Base Rate.
SECTION 2.03. Notice of Borrowings. The Borrower shall give the
Administrative Agent written or telecopy notice (or telephone notice promptly
confirmed in writing or by telecopy) (a) in the case of a Eurodollar Borrowing,
not later than 12:00 noon, New York City time, three Business Days before a
proposed borrowing and (b) in the case of an ABR Borrowing, not later than 12:00
noon, New York City time, one Business Day before a proposed borrowing. Such
notice shall be irrevocable and shall in each case refer to this Agreement and
specify (i) whether the Borrowing then being requested is to be a Term Borrowing
or a Revolving Credit Borrowing, and whether such Borrowing is to be a
Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which
shall be a Business Day) and the amount thereof; and (iii) if such Borrowing is
to be a Eurodollar Borrowing, the Interest Period with respect thereto. If no
election as to the Type of Borrowing is specified in any such notice, then the
requested Borrowing shall be an ABR Borrowing. If no Interest Period with
respect to any Eurodollar Borrowing is specified in any such notice, then the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. If the Borrower shall not
have given notice in accordance with this Section 2.03 of its election to
refinance a Revolving Credit Borrowing prior to the end of the Interest Period
in effect for such Borrowing, then the Borrower shall (unless such Borrowing is
repaid at the end of such Interest Period) be deemed to have given notice of an
election to refinance such Borrowing with an ABR Borrowing. The Administrative
Agent shall promptly advise the Lenders of any notice given pursuant to this
Section 2.03 and of each Lender's portion of the requested Borrowing and shall
promptly notify each Lender of the determination of the Adjusted LIBO Rate
applicable to any Eurodollar Loan.
The Borrower shall include in its initial notice under this Section
all information with respect to amounts to be funded to purchase Existing Term
Loans and Assigned Indebtedness, as provided in Section 2.01.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The
outstanding principal balance of each Loan shall be payable (i) in the case of a
Revolving Loan or a Swingline Loan, on the Revolving Credit Maturity Date and
(ii) in the case of a Term Loan, as provided in Section 2.11.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender from time to time, including
the amounts of principal and interest payable and paid to such Lender from time
to time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it
will record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder from the Borrower or any Guarantor and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) above shall be prima facie evidence of the existence and
amounts of the obligations therein recorded; provided, however, that the failure
of any Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of the Borrower to repay
the Loans in accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in the
event any Lender shall request and receive a promissory note payable to such
Lender and its registered assigns, the interests represented by such note shall
at all times (including after any assignment of all or part of such interests
pursuant to Section 10.04) be represented by one or more promissory notes
payable to the payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Lender,
through the Administrative Agent, the following fees (each, a "Commitment Fee")
on the last day of March, June, September and December in each year and on each
date on
which any of the Revolving Credit Commitments of such Lender shall expire or be
terminated as provided herein, a commitment fee of 0.50% per annum on the
average daily unused amount of the Revolving Credit Commitment (without giving
effect to any deemed reduction thereto in connection with the issuance of
Swingline Loans) of such Lender during the preceding quarter (or other period
commencing with the Closing Date or ending with the date on which the Revolving
Credit Commitment of such Lender shall expire or be terminated). The Commitment
Fee due to each Lender in respect of its Revolving Credit Commitment pursuant to
the immediately preceding sentence shall accrue from and including the Closing
Date. For purposes of calculating Commitment Fees in respect of Revolving Credit
Commitments, any portion of such Revolving Credit Commitments unavailable due to
Outstanding Letters of Credit shall be deemed to be used amounts. All Commitment
Fees shall be computed on the basis of the actual number of days elapsed in a
year of 360 days. The Borrower agrees to pay to the Administrative Agent, for
its own account, fees (the "Administrative Fees") payable in the amounts and at
the times separately agreed upon between the Borrower and the Administrative
Agent.
(b) The Borrower agrees to pay to the Fronting Bank, for its own
account, the fees specified in Section 3.08.
(c) All Fees (other than the fees payable to the Fronting Bank under
Section 3.08) shall be paid on the dates due, in immediately available funds, to
the Administrative Agent for distribution, if and as appropriate, among the
Lenders. Once paid, none of the Fees shall be refundable under any circumstances
(other than corrections of error in payment).
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
Section 2.07, the Loans comprising each ABR Borrowing (including any Borrowing
of Swingline Loans) shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may be, when
the Alternate Base Rate is determined by reference to the Prime Rate and over a
year of 360 days at all other times) at a rate per annum equal to the Alternate
Base Rate plus the ABR Spread.
(b) Subject to the provisions of Section 2.07, the Loans comprising
each Eurodollar Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum equal
to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the LIBOR Spread.
(c) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest
Period or day within an Interest Period, as the case may be, shall be determined
in accordance with this Agreement by the Administrative Agent, and such
determination shall be presumptively correct absent manifest error.
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or Swingline Loan or any
other amount becoming due hereunder or under any Security Document, by
acceleration or
otherwise, the Borrower shall on demand from time to time pay interest, to the
extent permitted by law, on such defaulted amount up to (but not including) the
date of actual payment (after as well as before judgment) at a rate per annum
(the "Default Rate") (computed on the basis of the actual number of days elapsed
over a year of 360 days) equal to (a) in the case of any Loan or Swingline Loan,
the rate applicable to such Loan under Section 2.06 plus 2% per annum and (b) in
the case of any other amount, the rate that would be applicable to an ABR
Revolving Loan under Section 2.06 plus 2% per annum.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined that dollar deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the London interbank market, or
that the rates at which such dollar deposits are being offered will not
adequately and fairly reflect the cost to any Lender of making or maintaining
its Eurodollar Loan during such Interest Period, or that reasonable means do not
exist for ascertaining the Adjusted LIBO Rate, the Administrative Agent shall,
as soon as practicable thereafter, give written or telecopy notice of such
determination to the Borrower and the Lenders. In the event of any such
determination, any request by the Borrower for a Eurodollar Borrowing pursuant
to Section 2.03 or 2.10 shall, until the Administrative Agent shall have advised
the Borrower and the Lenders that the circumstances giving rise to such notice
no longer exist, be deemed to be a request for an ABR Borrowing. Each
determination by the Administrative Agent hereunder shall be conclusive absent
manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The Term
Loan Commitments shall be automatically terminated at 5:00 p.m., New York City
time, on the Closing Date. The Revolving Credit Commitments and the LC
Commitment shall be automatically terminated at 5:00 p.m., New York City time,
on the Revolving Credit Maturity Date and the LC Maturity Date, respectively, in
each case as then in effect. Notwithstanding the foregoing, all the Commitments
and the LC Commitment shall be automatically terminated at 5:00 p.m., New York
City time, on December 2, 2004, if the Closing Date has not occurred by such
time.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Revolving Credit Commitments; provided, however, that (i) each partial
reduction of such Commitments shall be in an integral multiple of $500,000 and
in a minimum principal amount of $3,000,000 and (ii) the Borrower shall not be
permitted to terminate or reduce the Revolving Credit Commitments if, as the
result of such termination or reduction, (A) the LC Commitment would exceed the
aggregate remaining amount of the Revolving Credit Commitments or (B) the
Revolving Credit Utilization would exceed the aggregate remaining Revolving
Credit Commitments. The LC Commitments may be voluntarily terminated or reduced
by the Borrower as provided in Section 3.07.
(c) Each reduction in the Revolving Credit Commitments hereunder
shall be made ratably among the applicable Lenders in accordance with their
respective
Revolving Credit Commitments. The Borrower shall pay to the Administrative Agent
for the account of the applicable Lenders, on the date of each termination or
reduction, the Commitment Fees on the amount of the Revolving Credit Commitments
so terminated or reduced accrued to but excluding the date of such termination
or reduction.
(d) Nothing in this Section 2.09 shall prejudice any rights that the
Borrower may have against any Lender that fails to lend as required hereunder
prior to the date of termination of any Commitment.
SECTION 2.10. Conversion and Continuation of Term Borrowings. The
Borrower shall have the right at any time (subject to Section 2.08) upon prior
irrevocable notice to the Administrative Agent (i) not later than 12:00 noon,
New York City time, one Business Day prior to conversion, to convert any
Eurodollar Term Borrowing into an ABR Term Borrowing, (ii) not later than 11:00
a.m., New York City time, three Business Days prior to conversion or
continuation, to convert any ABR Term Borrowing into a Eurodollar Term Borrowing
or to continue any Eurodollar Term Borrowing as a Eurodollar Term Borrowing for
an additional Interest Period and (iii) not later than 11:00 a.m., New York City
time, three Business Days prior to conversion, to convert the Interest Period
with respect to any Eurodollar Term Borrowing to another permissible Interest
Period, subject in each case to the following:
(a) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Term Borrowings;
(b) if less than all the outstanding principal amount of any Term
Borrowing shall be converted or continued, then each resulting Borrowing shall
satisfy the limitations specified in Sections 2.02(a) and 2.02(b) regarding the
principal amount and maximum number of Borrowings of the relevant Type;
(c) each conversion shall be effected by each Lender by applying the
proceeds of the new Term Loan of such Lender resulting from such conversion to
the Term Loan (or portion thereof) of such Lender being converted, and accrued
interest on a Term Loan (or portion thereof) being converted shall be paid by
the Borrower at the time of conversion;
(d) if any Eurodollar Term Borrowing is converted at a time other
than the end of the Interest Period applicable thereto, the Borrower shall pay,
upon demand, any amounts due to the Lenders pursuant to Section 2.16;
(e) no Interest Period may be selected for any Eurodollar Term
Borrowing that would end later than the Term Loan Maturity Date then in effect;
and
(f) during the 30-day period following the Closing Date, the
Borrower may not change the Interest Period for any Term Borrowing.
Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Term Borrowing
that the Borrower requests be converted or continued, (ii) whether such Term
Borrowing is to be converted to or continued as a Eurodollar Term Borrowing or
an ABR Term Borrowing, (iii) if such notice requests a conversion, the date of
such conversion (which shall be a Business Day) and (iv) if such Term Borrowing
is to be converted to or continued as a Eurodollar Term Borrowing, the Interest
Period with respect thereto. If no Interest Period is specified in any such
notice with respect to any conversion to or continuation as a Eurodollar Term
Borrowing, the Borrower shall be deemed to have selected an Interest Period of
one month's duration. The Administrative Agent shall advise the other Lenders of
any notice given pursuant to this Section 2.10, of the Administrative Agent's
determination, if applicable, of the Adjusted LIBO Rate of any Eurodollar Loan
and of each Lender's portion of any converted or continued Term Borrowing. If
the Borrower shall not have given notice in accordance with this Section 2.10 to
continue any Term Borrowing into a subsequent Interest Period (and shall not
otherwise have given notice in accordance with this Section 2.10 to convert such
Term Borrowing), such Term Borrowing shall, at the end of the Interest Period
applicable thereto (unless repaid pursuant to the terms hereof), automatically
be continued into a new Interest Period as an ABR Term Borrowing.
SECTION 2.11. Repayment of Term Borrowings. (a) The Borrower shall
pay to the Administrative Agent, for the account of the Lenders, on each date
set forth below (each such date being a "Term Loan Repayment Date") a principal
amount of the Term Loans (such amount, as adjusted from time to time pursuant to
Sections 2.12(b) and 2.13(d), being called the "Term Loan Repayment Amount")
equal to the amount set forth opposite such date, together in each case with
accrued and unpaid interest on the principal amount to be paid to but excluding
the date of such payment:
Date Amount
---- ------
March 31, 2006 $ 1,187,500
June 30, 2006 $ 1,187,500
September 29, 2006 $ 1,187,500
December 29, 2006 $ 1,187,500
March 30, 2007 $ 1,187,500
June 29, 2007 $ 1,187,500
September 28, 2007 $ 1,187,500
December 31, 2007 $ 1,187,500
March 31, 2008 $ 1,187,500
June 30, 2008 $ 1,187,500
September 30, 2008 $ 1,187,500
December 31, 2008 $ 1,187,500
March 31, 2009 $ 1,187,500
June 30, 2009 $ 1,187,500
September 30, 2009 $ 1,187,500
December 31, 2009 $ 1,187,500
March 31, 2010 $ 1,187,500
June 30, 2010 $ 1,187,500
September 30, 2010 $ 1,187,500
Date Amount
---- ------
December 31, 2010 $ 1,187,500
March 31, 2011 $ 1,187,500
June 30, 2011 $ 1,187,500
September 30, 2011 $ 1,187,500
December 1, 2011 $447,687,500
On each Term Loan Repayment Date, the Administrative Agent shall apply the Term
Loan Repayment Amount paid to the Administrative Agent to pay the Term
Borrowings.
(b) To the extent not previously paid, all Term Borrowings shall be
due and payable on the Term Loan Maturity Date, together with accrued and unpaid
interest on the principal amount to be paid to but excluding the date of
payment. For the avoidance of doubt, and notwithstanding anything to the
contrary set forth in Section 2.11(a) (and the amortization schedule set forth
therein), in the event the Subordinated Notes Refinancing is not consummated on
or prior to October 1, 2008, the Term Loan Maturity Date shall be October 1,
2008 and all Term Borrowings shall be due and payable on such date as provided
in this clause (b).
(c) All repayments pursuant to this Section 2.11 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.12. Optional Prepayment. (a) The Borrower shall have the
right at any time and from time to time to prepay (i) Revolving Credit
Borrowings, (ii) Term Borrowings or (iii) Swingline Borrowings, in each case in
whole or in part, upon at least three Business Days' (in the case of a
Eurodollar Borrowing), or one Business Day's (in the case of an ABR Borrowing),
prior written or telecopy notice (or telephone notice promptly confirmed by
written or telecopy notice) to the Administrative Agent; provided, however, that
each partial prepayment shall be in an amount that is an integral multiple of
$500,000.
(b) Each prepayment of principal of the Term Borrowings pursuant to
paragraph (a) above shall be applied to reduce the remaining scheduled payments
of principal due under Section 2.11(a) as directed by the Borrower.
(c) Each notice of prepayment shall specify (i) the amount to be
prepaid, (ii) the prepayment date, (iii) whether the prepayment relates to
Revolving Credit Borrowings, Term Borrowings or Swingline Borrowings and (iv)
the principal amount to be prepaid of (A) Revolving Credit Borrowings (or
portion thereof), (B) Term Borrowings (or portion thereof) or (C) Swingline
Borrowings (or portion thereof). Each such notice shall be irrevocable and shall
commit the Borrower to prepay such obligations by the amount specified therein
on the date specified therein. All prepayments of Borrowings under this Section
2.12 shall be subject to Section 2.16 but otherwise without premium or penalty.
All prepayments under this Section 2.12 shall be accompanied by accrued interest
on the principal amount being prepaid to but excluding the date of payment.
(d) Except as contemplated in the definition of the term "Excess
Cash Flow", no optional prepayment of Term Borrowings made by the Borrower
pursuant to this Section 2.12 shall reduce the Borrower's obligation to make
mandatory prepayments pursuant to Section 2.13.
SECTION 2.13. Mandatory Prepayments. (a) On the date of any
termination or reduction of the Revolving Credit Commitments pursuant to Section
2.09, the Borrower shall pay or prepay so much of the Swingline Loans and
Revolving Credit Borrowings as shall be necessary in order that (i) the
aggregate principal amount of Swingline Loans and Revolving Loans outstanding at
such time will not exceed (ii) the aggregate Revolving Credit Commitments (after
giving effect to such termination or reduction and after giving effect to each
deemed reduction to the Revolving Credit Commitments in connection with the
making of a Swingline Loan) less the aggregate LC Exposure at such time.
(b) Substantially simultaneously with (and in any event not later
than two Business Days after) the occurrence of a Prepayment Event, the Borrower
shall apply an amount equal to 100% of the Net Cash Proceeds therefrom to prepay
Term Loans outstanding under this Agreement.
(c) No later than the earlier of (i) 105 days after the end of each
fiscal year, commencing with the fiscal year ending on December 31, 2005, and
(ii) the date on which the financial statements with respect to such fiscal year
are delivered pursuant to Section 6.04(a), the Borrower shall prepay Term Loans
outstanding under this Agreement in an aggregate amount equal to (A) with
respect to any fiscal year for which the Leverage Ratio as of the end of such
fiscal year was greater than or equal to 3.50 to 1.00, 50% of Excess Cash Flow
for such fiscal year, (B) with respect to any fiscal year for which the Leverage
Ratio as of the end of such fiscal year was less than 3.50 to 1.00 and greater
than or equal to 3.00 to 1.00, 25% of Excess Cash Flow for such fiscal year and
(C) with respect to any fiscal year for which the Leverage Ratio as of the end
of such fiscal year was less than 3.00 to 1.00, 0% of such Excess Cash Flow for
such fiscal year.
(d) Each mandatory prepayment of principal of the Term Borrowings
pursuant to paragraph (b) or (c) above shall be applied, at the option of the
Borrower, either (i) to reduce the scheduled payments of principal due under
Section 2.11(a) after the date of such prepayment pro rata or (ii) (A) first, to
reduce, in direct order of maturity, the scheduled payments of principal due
under Section 2.11(a) on the four consecutive scheduled payment dates next
following the date of such prepayment unless and until each such scheduled
payment has been eliminated as a result of reductions hereunder and (B) second,
to reduce the remaining scheduled payments of principal due under Section
2.11(a) pro rata.
(e) The Borrower shall deliver to the Administrative Agent, (i) at
the time of each prepayment required under paragraph (b) or paragraph (c), a
certificate signed by a Financial Officer of the Borrower setting forth in
reasonable detail the calculation of the amount of such prepayment and (ii) at
least three Business Days prior to the time of each prepayment required under
this Section 2.13 (if known at such time), a notice of such prepayment. Each
required notice of prepayment (i) shall specify the prepayment date,
the Type of each Borrowing being prepaid and the principal amount of each
Borrowing (or portion thereof) to be prepaid, (ii) shall be irrevocable and
(iii) shall commit the Borrower to prepay such obligations by the amount stated
therein on the date stated therein. All prepayments of Borrowings and Swingline
Loans under this Section 2.13 shall be subject to Section 2.16, but shall
otherwise be without premium or penalty. All prepayments of Borrowings and
Swingline Loans under this Section 2.13 (other than prepayments pursuant to
paragraph (c) above) shall be accompanied by accrued interest on the principal
amount being prepaid to but excluding the date of payment. All prepayments of
Borrowings and Swingline Loans pursuant to paragraph (c) of this Section 2.13
shall be applied first to the payment of accrued interest on the principal
amount being prepaid and then to the payment of such principal.
(f) Net Cash Proceeds and such other amounts to be applied pursuant
to this Section 2.13 to the prepayment of Term Borrowings and Revolving Credit
Borrowings shall be applied, as applicable, first to reduce outstanding ABR Term
Borrowings and ABR Revolving Credit Borrowings. Any amounts remaining after each
such application shall, at the option of the Borrower, be applied to prepay
Eurodollar Term Borrowings or Eurodollar Revolving Credit Borrowings, as the
case may be, immediately or shall be deposited in the Prepayment Account (as
defined below). The Administrative Agent shall apply any cash deposited in the
Prepayment Account (i) allocable to Term Borrowings to prepay Eurodollar Term
Borrowings and (ii) allocable to Revolving Credit Borrowings to prepay
Eurodollar Revolving Credit Borrowings, in each case on the last day of their
respective Interest Periods (or, at the direction of the Borrower, on any
earlier date) until all outstanding Term Borrowings or Revolving Credit
Borrowings, as the case may be, have been prepaid or until all the allocable
cash on deposit with respect to such Borrowings has been exhausted. For purposes
of this Agreement, the term "Prepayment Account" shall mean an account
established by the Borrower with the Administrative Agent and over which the
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal for application in accordance with this paragraph
(g). The Administrative Agent will, at the request of the Borrower, invest
amounts on deposit in the Prepayment Account in Permitted Investments maturing
prior to the last day of the applicable Interest Periods of the Eurodollar Term
Borrowings or Eurodollar Revolving Credit Borrowings to be prepaid, as the case
may be; provided, however, that (i) the Administrative Agent shall not be
required to make any investment that, in its sole judgment, would require or
cause the Administrative Agent to be in, or would result in any, violation of
any law, statute, rule or regulation and (ii) the Administrative Agent shall
have no obligation to invest amounts on deposit in the Prepayment Account if a
Default or Event of Default shall have occurred and be continuing. The Borrower
shall indemnify the Administrative Agent for any losses relating to the
investments so that the amount available to prepay Eurodollar Borrowings on the
last day of the applicable Interest Periods is not less than the amount that
would have been available had no investments been made pursuant thereto. Other
than any interest earned on such investments, the Prepayment Account shall not
bear interest. Interest or profits, if any, on such investments shall be
deposited in the Prepayment Account and reinvested as specified above. If the
maturity of the Loans has been accelerated pursuant to Article VIII, the
Administrative Agent may, in its sole discretion, apply all amounts on
deposit in the Prepayment Account to satisfy any of the Obligations. The
Borrower hereby grants to the Administrative Agent, for its benefit and the
benefit of the Syndication Agent, the Fronting Bank, the Swingline Lender and
the Lenders, a security interest in the Prepayment Account.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, if after the date of this Agreement,
any change in applicable law or regulation or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender of the
principal of or interest on any Eurodollar Loan made by such Lender or any
Letter of Credit reimbursement obligations, Fees or other amount payable
hereunder (other than changes in respect of income and franchise taxes imposed
on such Lender by the jurisdiction in which such Lender is organized or has its
principal office or by any political subdivision or taxing authority thereof or
therein), or shall impose, modify, or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of or credit extended by such Lender (except any such reserve
requirement that is reflected in the Adjusted LIBO Rate or in the Alternate Base
Rate) or shall impose on such Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender or
any Letter of Credit issued hereunder, and the result of any of the foregoing
shall be to increase the cost to such Lender of making or maintaining any
Eurodollar Loan or increase the cost to any Lender of issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable by
such Lender hereunder (whether of principal, interest or otherwise) by an amount
deemed by such Lender to be material, then the Borrower will pay to such Lender
following receipt of a certificate of such Lender to such effect in accordance
with Section 2.14(c) such additional amount or amounts as will compensate such
Lender for such additional costs incurred or reduction suffered.
(b) If any Lender, the Swingline Lender or the Fronting Bank shall
have determined that the adoption after the date of this Agreement of any law,
rule, regulation, agreement or guideline regarding capital adequacy, or any
change in any of the foregoing or in the interpretation or administration of any
of the foregoing by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or any lending office of such Lender), the Swingline Lender or
the Fronting Bank or any Lender's, the Swingline Lender's or the Fronting Bank's
holding company with any request or directive regarding capital adequacy issued
under any law, rule, regulation or guideline (whether or not having the force of
law) of any such authority, central bank or comparable agency, has or would have
the effect of reducing the rate of return on such Lender's, the Swingline
Lender's or the Fronting Bank's capital or on the capital of such Lender's, the
Swingline Lender's or the Fronting Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by such Lender, the Swingline
Loans made by the Swingline Lender or the Letters of Credit issued by the
Fronting Bank pursuant hereto to a level below that which such Lender, the
Swingline Lender or the Fronting Bank or such Lender's, the Swingline Lender's
or the Fronting Bank's holding company could have achieved but for such
applicability, adoption, change or compliance (taking into
consideration such Lender's, the Swingline Lender's or the Fronting Bank's
policies and the policies of such Lender's, the Swingline Lender's or the
Fronting Bank's holding company with respect to capital adequacy) by an amount
deemed by such Lender, the Swingline Lender or the Fronting Bank to be material,
then from time to time the Borrower shall pay to such Lender, the Swingline
Lender or the Fronting Bank following receipt of a certificate of such Lender,
the Swingline Lender or the Fronting Bank to such effect in accordance with
Section 2.14(c) such additional amount or amounts as will compensate such
Lender, the Swingline Lender or the Fronting Bank or such Lender's, the
Swingline Lender's or the Fronting Bank's holding company for any such reduction
suffered. Notwithstanding any other provision in this paragraph (b), none of any
Lender, the Swingline Lender or the Fronting Bank shall be entitled to demand
compensation pursuant to this paragraph (b) if it shall not be the general
practice of such Lender, the Swingline Lender or the Fronting Bank, as
applicable, to demand such compensation in similar circumstances under
comparable provisions of other comparable credit agreements.
(c) A certificate of each Lender, the Swingline Lender or the
Fronting Bank setting forth such amount or amounts as shall be necessary to
compensate such Lender, the Swingline Lender or the Fronting Bank or its holding
company as specified in paragraph (a) or (b) above, as the case may be, and
setting forth in reasonable detail an explanation of the basis of requesting
such compensation in accordance with paragraph (a) or (b) above, shall be
delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay each Lender, the Swingline Lender or the Fronting Bank the
amount shown as due on any such certificate delivered by it within 10 days after
its receipt of the same.
(d) Failure or delay on the part of any Lender, the Swingline Lender
or the Fronting Bank to demand compensation for any increased costs or reduction
in amounts received or receivable or reduction in return on capital with respect
to any period shall not constitute a waiver of such Lender's, the Swingline
Lender's or the Fronting Bank's right to demand compensation with respect to
such period or any other period, except that none of any Lender, the Swingline
Lender or the Fronting Bank shall be entitled to compensation under this Section
2.14 for any costs incurred or reductions suffered with respect to any date
unless such Lender, the Swingline Lender or the Fronting Bank, as applicable,
shall have notified the Borrower that it will demand compensation for such costs
or reductions under paragraph (c) above not more than six months after the later
of (i) such date and (ii) the date on which such Lender, the Swingline Lender or
the Fronting Bank, as applicable, shall have become aware of such costs or
reductions. The protection of this Section 2.14 shall be available to each
Lender, the Swingline Lender or the Fronting Bank regardless of any possible
contention of the invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition that shall have occurred or been imposed.
(e) Each Lender will, at the written request of the Borrower,
designate a different lending office if such designation (i) will avoid the need
for, or minimize the amount of, any compensation to which such Lender is
entitled pursuant to this Section 2.14 and (ii) will not, in the sole judgment
of such Lender, be otherwise
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(f) With respect to any Lender that is entitled to any compensation
pursuant to paragraph (a) above, the Borrower shall have the right to elect by
notice to such Lender that all outstanding Eurodollar Loans made by such Lender
be automatically converted to ABR Loans as of the effective date of such notice
and that any requests thereafter by the Borrower for a Eurodollar Borrowing
shall, as to such Lender only, be deemed a request for an ABR Loan.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other
provision herein, if after the date of this Agreement any change in any law or
regulation or in the interpretation thereof by any governmental authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made by such
Lender hereunder, whereupon any request by the Borrower for a Eurodollar
Borrowing shall, as to such Lender only, be deemed a request for an ABR
Loan unless such declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be
automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by
any Lender shall be effective as to each Eurodollar Loan, if lawful, on
the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the
date of receipt by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender
against any loss or expense that such Lender may sustain or incur as a
consequence of (a) any failure by the Borrower to fulfill on the date of any
borrowing hereunder the applicable conditions set forth in Article V, (b) any
failure by the Borrower to borrow or to refinance, convert or continue any Loan
hereunder after irrevocable notice of such borrowing, refinancing, conversion or
continuation has been given pursuant to Section 2.03 or 2.10, (c) any payment,
prepayment or conversion of a Eurodollar Loan required by any other provision of
this Agreement or otherwise made or deemed made on
a date other than the last day of the Interest Period applicable thereto, (d)
any default in payment or prepayment of the principal amount of any Loan or any
part thereof or interest accrued thereon, as and when due and payable (at the
due date thereof, whether by scheduled maturity, acceleration, irrevocable
notice of prepayment or otherwise) or (e) the occurrence of any Event of
Default, including, in each such case, any loss or reasonable expense sustained
or incurred or to be sustained or incurred in liquidating or employing deposits
from third parties acquired to effect or maintain such Loan or any part thereof
as a Eurodollar Loan. Such loss or reasonable expense shall be equal to the sum
of (a) such Lender's actual costs and expenses incurred (other than any lost
profits) in connection with, or by reason of, any of the foregoing events and
(b) an amount equal to the excess, if any, as reasonably determined by such
Lender of (i) its cost of obtaining the funds for the Loan being paid, prepaid,
converted or not borrowed, converted or continued (assumed to be the Adjusted
LIBO Rate applicable thereto) for the period from and including the date of such
payment, prepayment, conversion or failure to borrow, convert or continue to but
excluding the last day of the Interest Period for such Loan (or, in the case of
a failure to borrow, convert or continue, the Interest Period for such Loan that
would have commenced on the date of such failure) over (ii) the amount of
interest (as reasonably determined by such Lender) that would be realized by
such Lender in reemploying the funds so paid, prepaid, converted or not
borrowed, converted or continued for such period or Interest Period, as the case
may be. A certificate of any Lender setting forth in reasonable detail any
amount or amounts that such Lender is entitled to receive pursuant to this
Section 2.16 shall be delivered to the Borrower and shall be conclusive absent
manifest error.
SECTION 2.17. Pro Rata Treatment. (a) Except as required under
Section 2.15, each Borrowing, each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans, each payment of the Commitment
Fees, each payment of the LC Fees, each reduction of the Revolving Credit
Commitments and each refinancing of any Borrowing with, conversion of any
Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall
be allocated pro rata among the Lenders in accordance with their respective
applicable Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
applicable outstanding Loans). Each Lender agrees that in computing such
Lender's portion of any Borrowing to be made hereunder, the Administrative Agent
may, in its discretion, round each Lender's percentage of such Borrowing,
computed in accordance with Section 2.01, to the next higher or lower whole
dollar amount.
(b) If any Lender shall obtain any payment of or recovery with
respect to any Obligations with proceeds of any sale of or other realization on
any Collateral (including any Mortgaged Property) in which the Lenders as a
whole do not have a pro rata Lien, and such payment or recovery is in excess of
its pro rata share of payments or recovery with respect to all Obligations then
outstanding, such Lender shall purchase from the other Lenders such
participations in Obligations held by such other Lenders as shall be necessary
to cause such purchasing Lender to share the excess payment or other recovery
ratably with each of such other Lenders; provided, however, that if all or any
portion of the excess payment or other recovery is thereafter recovered from
such
purchasing Lender, the purchase shall be rescinded and each Lender which has
sold a participation to the purchasing Lender shall repay to the purchasing
Lender the purchase price to the ratable extent of such recovery together with
an amount equal to such selling Lender's ratable share (according to the
proportion of (a) the amount of such selling Lender's required repayment to the
purchasing Lender to (b) the total amount so recovered from the purchasing
Lender) of any interest or other amount paid or payable by the purchasing Lender
in respect of the total amount so recovered. The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section applies, such Lender
shall, to the extent practicable, exercise its rights in respect of such secured
claim in a manner consistent with the rights of the Lenders entitled under this
Section to share in the benefits of any recovery on such secured claim.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it
shall, through the exercise of a right of banker's lien, setoff, counterclaim or
otherwise, obtain payment (voluntary or involuntary) in respect of any Loan or
Loans or LC Exposure as a result of which the unpaid principal portion of its
Loans or its LC Exposure shall be proportionately less than the unpaid principal
portion of the Loans of any other Lender or any other Lender's LC Exposure, such
Lender shall be deemed simultaneously to have purchased from such other Lender
at face value, and shall promptly pay to such other Lender the purchase price
for, a participation in the Loans of such other Lender or the LC Exposure of
such other Lender, so that the aggregate unpaid principal amount of the Loans,
LC Exposures and participations in Loans and LC Exposures held by each Lender
shall be in the same proportion to the aggregate unpaid principal amount of all
Loans and LC Exposures then outstanding as the principal amount of such Lender's
Loans and LC Exposures prior to such exercise of banker's lien, setoff or
counterclaim or other event was to the principal amount of all Loans and LC
Exposures outstanding prior to such exercise of banker's lien, setoff or
counterclaim or other event; provided, however, that, if any such purchase or
purchases or adjustments shall be made pursuant to this Section 2.18 and the
payment giving rise thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without interest. The
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in a Loan or LC Exposure deemed to have been so
purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the Borrower to such
Lender by reason thereof as fully as if such Lender had made a Loan directly to
the Borrower in the amount of such participation.
SECTION 2.19. Payments. (a) Except as provided in Sections 2.05(b),
the Borrower shall make each payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder and under any other Loan
Document not later than 12:00 noon, New York City time, on the date when due in
dollars to the Administrative Agent (for the account of the Agents, the Fronting
Bank, the Swingline Lender or the Lenders, as the case may be), at its offices
at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, in immediately available funds. The Administrative Agent shall
promptly remit in dollars to any Agent, the Fronting Bank, the Swingline Lender
or the Lenders, as the case may be, its share of such payments received by the
Administrative Agent.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by or on behalf of the
Borrower hereunder shall be made, in accordance with Section 2.19, free and
clear of and without deduction for any and all current or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding (i) taxes imposed on the net income of any Agent, the
Fronting Bank, the Swingline Lender or any Lender (or any transferee or assignee
thereof, including a participation holder (any such entity being called a
"Transferee")) and (ii) franchise taxes imposed on any Agent, the Fronting Bank,
the Swingline Lender or any Lender (or Transferee) by the United States or any
jurisdiction under the laws of which any Agent, the Fronting Bank, the Swingline
Lender or any such Lender (or Transferee) is organized or has its principal
office or lending office or any political subdivision or taxing authority
thereof or therein (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If any Taxes are required to be deducted from or in respect of any sum payable
hereunder to any Lender (or any Transferee), any Agent, the Swingline Lender or
the Fronting Bank, (i) the sum payable shall be increased by the amount
necessary so that after making all required deductions (including deductions for
Taxes applicable to additional sums payable under this Section 2.20) such Lender
(or Transferee), such Agent, the Swingline Lender or the Fronting Bank (as the
case may be) shall receive an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower shall make such deduction, and
(iii) the Borrower shall pay the full amount deducted to the relevant taxing
authority or other Governmental Authority in accordance with applicable law;
provided, however, that the Borrower shall not be required to increase any such
amounts payable to any Lender (or any Transferee), any Agent, the Swingline
Lender or the Fronting Bank (other than an assignee pursuant to a request by the
Borrower under Section 2.22) with respect to any Taxes that are United States
withholding taxes that are in effect and would be imposed on amounts payable to
such Lender (or Transferee), Agent, Swingline Lender or the Fronting Bank at the
time such Lender (or Transferee), Agent, Swingline Lender or Fronting Bank
becomes a party to this Agreement, except to the extent that such Lender (or its
assignor, if any, or any Transferee), any Agent, the Swingline Lender or the
Fronting Bank would be entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to any withholding tax pursuant to this Section 2.20, and provided
further that no Transferee of any Lender shall be entitled to receive any
greater payment under this paragraph (a) than such Lender would have been
entitled to receive with respect to the rights assigned, participated or
otherwise transferred unless such assignment, participation or transfer shall
have been made at a time when the circumstances giving rise to such greater
payment did not exist.
(b) In addition, the Borrower agrees to pay any current or future
stamp, intangible or documentary taxes or any other excise, transfer, sales or
property taxes, charges or similar levies (including mortgage recording taxes
and similar fees), together with interest, penalties and fees, that arise from
any payment made hereunder or from the execution, delivery, enforcement or
registration of, or otherwise with respect to, this Agreement, any Assignment
and Acceptance entered into at the request of the Borrower or any other Loan
Document (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender (or Transferee), each
Agent, the Swingline Lender and the Fronting Bank for the full amount of Taxes
and Other Taxes paid by such Lender (or Transferee), such Agent, the Swingline
Lender or the Fronting Bank, as the case may be, including Taxes and Other Taxes
imposed or asserted on or attributable to amounts payable under this Section
2.20(a), and any liability (including penalties, interest and expenses
(including reasonable attorney's fees and expenses)) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted by the relevant taxing authority or other Governmental
Authority. A certificate as to the amount of such payment or liability prepared
by any Agent, Lender, Swingline Lender or Fronting Bank, as applicable, shall be
conclusive absent manifest error. Such indemnification shall be made within 30
days after the date any Lender (or Transferee), any Agent, the Swingline Lender
or the Fronting Bank, as the case may be, makes written demand therefore. If a
Lender (or Transferee), an Agent, the Swingline Lender or the Fronting Bank
shall become aware that it is entitled to receive a refund in respect of Taxes
or Other Taxes as to which it has been indemnified by the Borrower pursuant to
this Section 2.20, it shall promptly notify the Borrower of the availability of
such refund and shall, within 30 days after receipt of a request by the
Borrower, apply for such refund at the Borrower's expense. If any Lender (or
Transferee), any Agent, the Swingline Lender or the Fronting Bank receives a
refund in respect of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower pursuant to this Section 2.20, it shall promptly
notify the Borrower of such refund and shall, within 15 days of receipt, repay
such refund to the Borrower, net of all out-of-pocket expenses of such Lender,
such Agent, the Swingline Lender or the Fronting Bank and without any interest
(other than the interest, if any, included in such refund); provided, however,
that the Borrower, upon the request of such Lender (or Transferee), such Agent,
the Swingline Lender or the Fronting Bank, agrees to return such refund (plus
penalties, interest or other charges) to such Lender (or Transferee), such
Agent, the Swingline Lender or the Fronting Bank in the event such Lender (or
Transferee), such Agent, the Swingline Lender or the Fronting Bank is required
to repay such refund. Nothing contained in this paragraph (c) shall require any
Lender (or Transferee), any Agent, the Swingline Lender or the Fronting Bank to
make available any of its tax returns (or any other information relating to its
taxes that it deems to be confidential).
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by the Borrower in respect of any payment to any Lender (or
Transferee), any Agent, the Swingline Lender or the Fronting Bank, the Borrower
will furnish to the Administrative Agent, at its address referred to in Section
10.01, the original or a certified copy of a receipt evidencing payment thereof
or other evidence reasonably
satisfactory to such Lender (or Transferee), such Agent, the Swingline Lender or
the Fronting Bank, as the case may be.
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.20
shall survive the payment in full of the principal of and interest hereunder or
any Loan Document.
(f) Each Lender (or Transferee) or successor Fronting Bank that is
organized under the laws of a jurisdiction other than the United States, any
State thereof or the District of Columbia (a "Non-U.S. Lender") shall deliver to
the Borrower and the Administrative Agent (or, in the case of a Participant, to
the Lender from which the related participation was purchased) two copies of
either United States Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in
the case of a Non-U.S. Lender claiming exemption from U.S. Federal withholding
tax under Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest", a Form W-8BEN, or any subsequent versions thereof or
successors thereto (and, if such Non-U.S. lender delivers a Form W-8BEN, a
certificate representing that such Non-U.S. Lender is not a bank for purposes of
Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning
of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled
foreign corporation related to the Borrower (within the meaning of Section
864(d)(4) of the Code)), properly completed and duly executed by such Non-U.S.
Lender claiming complete exemption from, or reduced rate of, U.S. Federal
withholding tax on payments of interest by the Borrower under this Agreement and
the other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender,
on or before the date it becomes a party to this Agreement, upon the written
request of the Borrower and after being supplied with all applicable
documentation by the Borrower. In addition, each Non-U.S. Lender shall deliver
substitute forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Non-U.S. Lender, provided that the Borrower
notifies such Lender of such obsolescence or invalidity and supplies all
substitute forms. Each Non-U.S. Lender shall notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose and previously delivered
to the Borrower). Notwithstanding any provision of Section 2.20(a) to the
contrary, the Borrower shall not have any obligation to pay any additional
amounts, any Taxes or Other Taxes (except to the extent required by law)
pursuant to Section 2.20 to the extent that such Taxes or Other Taxes result
from (i) the failure of any Lender (or Transferee), any Agent, the Fronting Bank
or the Swingline Bank to comply with its obligations pursuant to this Section
2.20(f), unless as a result of any change in any law or regulation or in the
interpretation thereof by any governmental authority charged with the
administration or interpretation thereof such compliance is no longer necessary,
or (ii) any representation made on Form W-8BEN or W-8ECI or successor applicable
form or certification by the Lender (or Transferee), the Agent, the Fronting
Bank, or the Swingline Lender incurring such Taxes or Other Taxes proving to
have been incorrect, false or misleading in any material respect when so made or
deemed to be made.
(g) Any of the Fronting Bank, the Swingline Lender, any Lender (or
Transferee) or any Agent claiming any additional amounts payable pursuant to
this
Section 2.20 shall use reasonable efforts, consistent with legal and regulatory
restrictions (including reasonable efforts to change the jurisdiction of its
applicable lending office), to avoid the need for or reduce the amount of any
such additional amounts that may thereafter accrue, provided that such efforts
would not, in the sole determination of such Lender (or Transferee), Agent,
Fronting Bank, or Swingline Lender, as the case may be, be otherwise
disadvantageous to such Lender (or Transferee), such Agent, the Fronting Bank,
or the Swingline Lender. The Borrower hereby agrees to pay all reasonable costs
and expenses incurred by any Agent, Lender, Fronting Bank or Swingline Lender in
connection with such efforts.
(h) Nothing in this Section 2.20 shall be construed to require the
Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes that it deems confidential) to the
Borrower or any other Person.
SECTION 2.21. Swingline Loans. (a) On the terms and subject to the
conditions and relying upon the representations and warranties herein set forth,
the Swingline Lender agrees, at any time and from time to time from and
including the Closing Date to but excluding the earlier of the Revolving Credit
Maturity Date and the termination of the Revolving Credit Commitments, in
accordance with the terms hereof, to make Swingline Loans (which shall be ABR
Borrowings) to the Borrower in an aggregate principal amount at any time
outstanding not to exceed the lesser of (i) $15,000,000 and (ii) the difference
between (A) the aggregate Revolving Credit Commitments, as the same may be
reduced from time to time pursuant to Section 2.09, at such time and (B) the sum
of the aggregate principal amount of Revolving Loans outstanding at such time
and the LC Exposure at such time. Each Lender's Revolving Credit Commitment
shall be deemed utilized by an amount equal to such Lender's pro rata share
(based upon the percentage that such Lender's Revolving Credit Commitment bears
to the aggregate amount of the Revolving Loan Commitments on such date) of each
Swingline Loan. Immediately upon the making of each Swingline Loan, the
Swingline Lender shall be deemed to have sold and transferred to each such
Lender, and each such Lender shall be deemed to have purchased and received from
the Swingline Lender, in each case irrevocably and without any further action by
any party, an undivided interest and participation in such Swingline Loan and
the Obligations of the Borrower under this Agreement in respect thereof in an
amount equal to such Lender's pro rata share (determined as aforesaid) of such
Swingline Loan. Each borrowing of Swingline Loans shall be in a principal amount
that is an integral multiple of $500,000. Within the limits set forth in the
first sentence of this paragraph, the Borrower may borrow, pay or prepay and
reborrow Swingline Loans on or after the Closing Date and prior to the Revolving
Credit Maturity Date on the terms and subject to the conditions and limitations
set forth herein.
(b) The Borrower shall give the Administrative Agent telephonic,
written or telecopy notice (in the case of telephonic notice, such notice shall
be promptly confirmed in writing or by telecopy) not later than 1:00 p.m., New
York City time, on the day of a proposed Swingline Loan borrowing. Such notice
shall be delivered on a Business Day, shall be irrevocable and shall refer to
this Agreement and shall specify the
requested date (which shall be a Business Day) and amount of such Swingline
Loan. Upon receipt of such notice, the Administrative Agent shall promptly
notify the Swingline Lender of the contents thereof. The Swingline Lender shall
make each Swingline Loan hereunder on the proposed date thereof by wire transfer
of immediately available funds by 2:00 p.m., New York City time, to such account
as the Administrative Agent may designate. The Administrative Agent shall make
the funds so received from the Swingline Lender available to the Borrower by
means of a credit to the general deposit account of the Borrower by 4:00 p.m. on
the date such Swingline Loan is requested to be made pursuant to such notice.
(c) Forthwith upon demand by the Swingline Lender, each Revolving
Lender shall pay to the Administrative Agent, as payment for its participation,
such Revolving Lender's pro rata percentage (as determined in paragraph (a)
above) of each outstanding Swingline Loan (but without any requirement for
compliance with the provisions of Sections 2.01, 2.02 and 2.03 or the applicable
conditions set forth in Article V) and shall make available to the
Administrative Agent for the account of the Swingline Lender, in the same day
funds if the Swingline Lender makes such demand prior to 11:00 a.m., New York
City time, and otherwise in funds available on the next Business Day, the amount
of its participation, and the proceeds of such participations shall be
distributed by the Administrative Agent to the Swingline Lender. If any
Revolving Lender shall not have made such amount available to the Administrative
Agent, such Revolving Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date of demand by the Swingline Lender until the
date such amount is paid to the Administrative Agent at (i) in the case of the
Borrower, the interest rate applicable at such time under Section 2.06 to an ABR
Revolving Loan and (ii) in the case of such Revolving Lender, the Federal Funds
Effective Rate. If such Revolving Lender shall pay to the Administrative Agent
such amount, such amount so paid shall constitute such Lender's Revolving Loan
for purposes of this Agreement and the aggregate amount of Swingline Loans
outstanding shall be reduced by the amount of each such Revolving Loan (it being
understood that (i) each Revolving Lender's obligation to make such payment is
absolute and unconditional and shall not be affected by any event or
circumstance whatsoever, including the occurrence of any Default or Event of
Default hereunder or the failure of any condition precedent set forth in Article
V to be satisfied, or any delay on the Swingline Lender's part in demanding
payment, and (ii) each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever).
SECTION 2.22. Replacement of Lenders. If any Lender requests
compensation under Section 2.14, or if the Borrower is required to pay any
additional amount to any Lender or any governmental authority for the account of
any Lender pursuant to Section 2.20, or if any Lender defaults in its obligation
to fund Loans hereunder, then the Borrower may, at its sole expense and effort
(including the payment by the Borrower of any processing and recordation fee as
may be applicable pursuant to Section 10.04(b)(ii)(C)), upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained
in Section 10.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Commitment is
being assigned, the Fronting Bank and the Swingline Lender), which consent shall
not unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in LC
Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.14 or payments required
to be made pursuant to Section 2.20, such assignment will result in a material
reduction in such compensation or payments. A Lender shall not be required to
make any such assignment and delegation if, prior thereto, as a result of a
waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
SECTION 2.23. Incremental Extensions of Credit. At any time prior to
the Term Loan Maturity Date, subject to the terms and conditions set forth
herein, the Borrower may, on up to two occasions, by notice to the
Administrative Agent (whereupon the Administrative Agent shall promptly deliver
a copy of such notice to each of the Lenders), request to add additional term
loans (the "Incremental Extensions of Credit") in minimum principal amounts of
$25,000,000, provided that immediately prior to and after giving effect to any
Incremental Facility Amendment (as defined below), (a) no Default or Event of
Default has occurred and is continuing or shall result therefrom and (b) as of
the last day of the most recently ended fiscal quarter of the Borrower for which
financial statements are available (such date, the "Test Date"), (i) the
Borrower shall be in compliance with the covenant contained in Section 7.15 and
(ii) the Senior Leverage Ratio shall be less than or equal to 3.50 to 1.00, and
provided further that, (A) for purposes of determining compliance with Section
7.15 pursuant to this Section 2.23, the covenant levels for each period set
forth in Section 7.15 shall be reduced by 0.25, (B) for purposes of calculating
the Leverage Ratio and Senior Leverage Ratio to determine compliance with this
Section 2.23, each of the Leverage Ratio and the Senior Leverage Ratio shall be
calculated on a pro forma basis to give effect to the applicable Incremental
Extension of Credit as if it had occurred at the beginning of the period of four
consecutive fiscal quarters most recently ended prior to the date of such
Incremental Extension of Credit and (C) for purposes of determining compliance
with clause (b)(i) above, if the applicable Test Date is prior to March 31,
2005, such compliance will be determined by reference to the covenant levels
under Section 7.15 for the period from and including March 31, 2005 to and
including December 30, 2005 (as reduced by 0.25 as required by clause (A) of
this proviso). The Incremental Extensions of Credit (a) shall be in an aggregate
principal amount not exceeding $100,000,000, (b) shall rank pari passu or junior
in right of payment and right of security in respect of the Collateral with the
Term Loans and (c) other than with respect to amortization, pricing and maturity
date, shall have the same terms as the Term Loans as in effect immediately prior
to the effectiveness of the applicable Incremental Facility Amendment, provided
that (i) if the ABR Spread or LIBOR Spread (which, for such purposes only, shall
be deemed to include all upfront or similar fees or original issue discount
payable to
all Lenders providing such Incremental Extensions of Credit) relating to the
Incremental Extensions of Credit exceeds the ABR Spread or LIBOR Spread (which,
for such purposes only, shall be deemed to include all upfront or similar fees
or original issue discount payable to all Term Lenders), as applicable, relating
to the Term Loans by more than 0.50%, the ABR Spread or LIBOR Spread, as
applicable, relating to the Term Loans shall be automatically adjusted to be
equal to the ABR Spread or LIBOR Spread (which, for such purposes only, shall be
deemed to include all upfront or similar fees or original issue discount payable
to all Lenders providing such Incremental Extensions of Credit), as applicable,
relating to the relevant Incremental Extension of Credit minus 0.50%, (ii) the
Incremental Extensions of Credit shall not have a final maturity date earlier
than the date that is six months after the Term Loan Maturity Date (assuming for
this purpose that the Term Loan Maturity Date has been extended pursuant to the
terms of the definition thereof), provided that such Incremental Extension of
Credit may provide for an acceleration of the maturity date to October 1, 2008,
in the event the Subordinated Notes Refinancing does not occur on or prior to
such date, and (iii) the Incremental Extensions of Credit shall not have a
weighted average life that is shorter than that of the then-remaining weighted
average life of the Term Loans (assuming for this purpose that the Term Loan
Maturity Date has been extended pursuant to the terms of the definition
thereof). The Borrower shall offer each Term Lender the opportunity to provide
any requested Incremental Extension of Credit, provided that no Term Lender
shall be obligated to provide any Incremental Extension of Credit unless it so
agrees. Any additional bank, financial institution, Term Lender or other Person
that elects to extend Incremental Extensions of Credit shall be reasonably
satisfactory to the Borrower and the Administrative Agent (any such bank,
financial institution, Term Lender or other Person being called an "Additional
Lender") and shall become a Lender under this Agreement, pursuant to an
amendment (an "Incremental Facility Amendment") to this Agreement, giving effect
to the modifications permitted by this Section 2.23 and, as appropriate, the
other Loan Documents, executed by the Borrower, each Additional Lender and the
Administrative Agent. Commitments in respect of Incremental Extensions of Credit
shall be Commitments under this Agreement. An Incremental Facility Amendment
may, without the consent of any other Lenders, effect such amendments to this
Agreement and the other Loan Documents as may be necessary or appropriate, in
the opinion of the Administrative Agent, to effect the provisions of this
Section 2.23 (including voting provisions applicable to the Additional Lenders
comparable to the provisions of clause (v) of the first proviso of Section
10.08(b)). The effectiveness of any Incremental Facility Amendment shall be
subject to the satisfaction on the date thereof (each, an "Incremental Facility
Closing Date") of each of the conditions set forth in Section 5.01 (it being
understood that all references to "the date of such Credit Event" in such
Section 5.01 shall be deemed to refer to the Incremental Facility Closing Date).
The proceeds of the Incremental Extensions of Credit shall be used to make
Permitted Business Acquisitions, to pay fees and expenses in connection with any
Permitted Business Acquisition and for general corporate purposes of the
Borrower and its subsidiaries.
ARTICLE III
Letters of Credit
SECTION 3.01. Issuance of Letters of Credit. (a) The Fronting Bank
agrees, on the terms and subject to the conditions hereinafter set forth, to
issue Letters of Credit, in a form reasonably acceptable to the Administrative
Agent and the Fronting Bank, appropriately completed, for the account of the
Borrower, at any time and from time to time on and after the Closing Date until
the earlier of the LC Maturity Date and the termination of the LC Commitment in
accordance with the terms hereof; provided, however, that any Letter of Credit
shall be issued by the Fronting Bank only if, and each request by the Borrower
for the issuance of any Letter of Credit shall be deemed a representation and
warranty of the Borrower that, immediately following the issuance of any such
Letter of Credit, (i) the LC Exposure shall not exceed the LC Commitment in
effect at such time and (ii) the Revolving Credit Utilization at such time shall
not exceed the aggregate Revolving Credit Commitments at such time.
(b) Each Letter of Credit shall expire at the close of business on
the earlier of the date that is 12 months after the date of issuance of such
Letter of Credit and the LC Maturity Date, unless such Letter of Credit expires
by its terms on an earlier date, provided that any Letter of Credit with a term
of 12 months or less may provide for the renewal thereof for additional periods
of 12 months or less if the Fronting Bank has the ability to avoid any such
renewal at the time of such renewal and in any event any such renewal shall not
extend beyond the LC Maturity Date (it being understood that any Letter of
Credit issued prior to the consummation of the Subordinated Notes Refinancing
(or any renewal of any Letter of Credit prior to the consummation of the
Subordinated Notes Refinancing) shall provide for an expiration of such Letter
of Credit no later than the fifth Business Day prior to October 1, 2008). Each
Letter of Credit shall provide for payments of drawings in dollars.
(c) Each issuance of any Letter of Credit shall be made on at least
three Business Days' prior written or telecopy notice from the Borrower to the
Fronting Bank and the Administrative Agent (which shall give prompt notice
thereof to each Participating Lender) specifying the date of issuance, the date
on which such Letter of Credit is to expire (which shall comply with paragraph
(b) above), the amount of such Letter of Credit, the name and address of the
beneficiary of such Letter of Credit and such other information as may be
necessary or desirable to complete such Letter of Credit. The Fronting Bank will
give the Administrative Agent and the Administrative Agent will give to each
Participating Lender reasonably prompt notice of the issuance and amount of each
Letter of Credit and the expiration of each Letter of Credit.
SECTION 3.02. Participations; Unconditional Obligations. (a) By the
issuance of a Letter of Credit and without any further action on the part of the
Fronting Bank or the Participating Lenders in respect thereof, the Fronting Bank
hereby grants to each Participating Lender, and each Participating Lender hereby
agrees to acquire from the Fronting Bank, a participation in such Letter of
Credit equal to such Participating Lender's Applicable Percentage of the face
amount of such Letter of Credit, effective upon the issuance of such Letter of
Credit. In consideration and in furtherance of the
foregoing, each Participating Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, on behalf of the Fronting Bank in
accordance with Section 2.02(f), such Participating Lender's Applicable
Percentage of each LC Disbursement made by the Fronting Bank; provided, however,
that the Participating Lenders shall not be obligated to make any such payment
to the Fronting Bank with respect to any wrongful payment or disbursement made
under any Outstanding Letter of Credit as a result of the gross negligence or
wilful conduct of the Fronting Bank.
(b) Each Participating Lender acknowledges and agrees that its
obligation to acquire participations pursuant to paragraph (a) of this Section
3.02 in respect of Letters of Credit is absolute and unconditional and shall not
be affected by any circumstance whatsoever, including the occurrence and
continuance of an Event of Default or Default hereunder, and that each such
payment shall be made without any offset, abatement, withholding or reduction
whatsoever.
SECTION 3.03. LC Fee. The Borrower agrees to pay to the
Administrative Agent for the account of the Participating Lenders for each
calendar quarter (or shorter period commencing with the Closing Date, or ending
with the first date on which the LC Commitment shall have expired or been
terminated and there shall be no Outstanding Letters of Credit) a fee (the "LC
Fee") on the average daily amount of the Outstanding Letters of Credit at a rate
per annum equal to the LIBOR Spread in effect for Revolving Loans at the
beginning of such period. The LC Fee shall be computed on the basis of the
actual number of days elapsed over a year of 360 days. The Administrative Agent
agrees to disburse to each Participating Lender its pro rata portion of such LC
Fee promptly upon receipt. The LC Fee shall be paid in arrears on the last day
of March, June, September and December of each year and on the Revolving Credit
Maturity Date (as such date may be extended pursuant to the terms of the
definition thereof) (or the first date on which the LC Commitment shall have
expired or been terminated and there shall be no Outstanding Letters of Credit,
if earlier), commencing on the first such date following the Closing Date. Once
paid, the LC Fee shall not be refundable in any circumstances (other than
corrections of error in payment).
SECTION 3.04. Agreement To Repay LC Disbursements. (a) If the
Fronting Bank shall pay any draft presented under a Letter of Credit, the
Borrower shall pay to the Administrative Agent, on behalf of the Fronting Bank,
an amount equal to the amount of such draft before 11:00 a.m., New York City
time, on the Business Day on which the Fronting Bank shall have notified the
Borrower that payment of such draft will be made (or such later time as is not
later than three hours after the Borrower shall have received such notice or, if
the Borrower shall have received such notice later than 2:00 p.m., New York City
time, on any Business Day, not later than 10:00 a.m., New York City Time, on the
immediately following Business Day). The Administrative Agent will promptly pay
any such amounts received by it to the Fronting Bank. In the event that, after
the payment of any such amount to the Fronting Bank, the Fronting Bank shall not
pay such amount in respect of such draft, the Fronting Bank shall return to the
Administrative Agent, for the account of the Borrower, any such unpaid amount,
together with interest thereon accrued at the Federal Funds Effective Rate then
in effect from and including the date such amount was paid by the Borrower to
the Administrative Agent to
but excluding the date such amount was repaid by the Fronting Bank to the
Administrative Agent.
(a) The Borrower's obligation to repay the Fronting Bank for LC
Disbursements made by the Fronting Bank under the Outstanding Letters of Credit
shall be absolute, unconditional and irrevocable under any and all circumstances
and irrespective of the following:
(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, setoff, defense or other right that
the Borrower or any other Person may at any time have against the
beneficiary under any Letter of Credit, the Fronting Bank, the
Administrative Agent or any other Lender (other than the defense of
payment in full in accordance with the terms of this Agreement or a
defense based on the gross negligence or wilful misconduct of the Fronting
Bank) or any other Person in connection with this Agreement or any other
agreement or transaction;
(iii) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect,
provided that payment by the Fronting Bank under such Letter of Credit
against presentation of such draft or document shall not have constituted
gross negligence or wilful misconduct of the Fronting Bank;
(iv) payment by the Fronting Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit, provided that such payment shall not have
constituted gross negligence or wilful misconduct of the Fronting Bank;
and
(v) any other circumstance or event whatsoever, whether or not similar
to any of the foregoing, provided that such other circumstance or event
shall not have been the result of gross negligence or wilful misconduct of
the Fronting Bank.
It is understood that in making any payment under a Letter of Credit
(A) the Fronting Bank's exclusive reliance on the documents presented to it
under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary equals the amount of
such draft and whether or not any document presented pursuant to such Letter of
Credit proves to be insufficient in any respect, if such document on its face
appears to be in order, and whether or not any other statement or any other
document presented pursuant to such Letter of Credit proves to be forged or
invalid or any statement therein proves to be inaccurate or untrue in any
respect whatsoever, and (B) any noncompliance in any immaterial respect of the
documents presented under a Letter of Credit with the terms thereof shall, in
each case, not be deemed wilful misconduct or gross negligence of the Fronting
Bank.
SECTION 3.05. Letter of Credit Operations. The Fronting Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under an Outstanding Letter of Credit to
ascertain that the same appear on their face to be in conformity with the terms
and conditions of such Outstanding Letter of Credit. The Fronting Bank shall as
promptly as possible, but in no event later than two hours after such demand for
payment, give oral notification, confirmed by facsimile notice, to the
Administrative Agent and the Borrower of such demand for payment and shall as
promptly as possible, but in no event later than two hours prior to any payment
in respect of such demand, give oral notification, confirmed by facsimile
notice, to the Administrative Agent and the Borrower of the determination by the
Fronting Bank as to whether such demand for payment was in accordance with the
terms and conditions of such Outstanding Letter of Credit and whether the
Fronting Bank has made or will make an LC Disbursement thereunder, provided that
the failure to give such notice shall not relieve the Borrower of its obligation
to reimburse the Fronting Bank with respect to any such LC Disbursement, and the
Administrative Agent shall promptly give each Participating Lender notice
thereof.
SECTION 3.06. Cash Collateralization. If any Event of Default shall
occur and be continuing, the Borrower shall on the Business Day it receives
notice from the Administrative Agent or the Required Lenders (or, if the
maturity of the Loans has been accelerated, Participating Lenders holding
participations in Outstanding Letters of Credit representing at least 51% of the
aggregate undrawn amount of all Outstanding Letters of Credit) therefor, deposit
in an account with the Collateral Agent, for the benefit of the Participating
Lenders, an amount in cash equal to the LC Exposure as of such date. Such
deposit shall be held by the Collateral Agent as collateral for the payment and
performance of the Obligations. The Collateral Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such deposits in
Permitted Investments, which investments shall be made at the option and sole
discretion of the Collateral Agent, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall (a) automatically be applied by the
Administrative Agent to reimburse the Fronting Bank for LC Disbursements, (b) be
held for the satisfaction of the reimbursement obligations of the Borrower for
the LC Exposure at such time and (c) if the maturity of the Loans has been
accelerated (but subject to the consent of Participating Lenders holding
participations in Outstanding Letters of Credit representing at least 51% of the
aggregate undrawn amount of all Outstanding Letters of Credit), such amount (to
the extent not applied as aforesaid) shall be applied to satisfy the
Obligations. If the Borrower is required to provide an amount of cash collateral
hereunder as a result of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business
Days after all Events of Default have been cured or waived.
SECTION 3.07. Termination of LC Commitment. The Borrower may
permanently terminate, or from time to time in part permanently reduce, the LC
Commitment, in each case upon at least one Business Day's prior written or
facsimile notice to the Administrative Agent and the Fronting Bank, provided
that, after giving effect to such termination or reduction, the LC Commitment
shall not be less than the LC
Exposure at such time or greater than the aggregate Revolving Credit Commitments
at such time.
SECTION 3.08. Fronting Bank Fees. (a) The Borrower shall pay to the
Fronting Bank, for its own account, such commissions, issuance fees, transfer
fees and other fees and charges in connection with the issuance or
administration of each Letter of Credit as the Borrower and the Fronting Bank
shall agree.
(b) The Borrower shall pay to the Fronting Bank, for its own
account, a fronting fee (the "Fronting Fee") on the average daily aggregate
maximum amount available to be drawn (assuming compliance with all conditions to
drawing) under all outstanding Letters of Credit at the rate of 0.20% per annum,
payable in arrears on the last day of each March, June, September and December
of each year and on the Revolving Credit Maturity Date (as such date may be
extended pursuant to the terms of the definition thereof) (or the first date on
which the LC Commitment shall have expired or been terminated and there shall be
no Outstanding Letters of Credit, if earlier), commencing on the first such date
following the Closing Date. The Fronting Fee shall be computed on the basis of
the actual number of days elapsed over a year of 360 days.
SECTION 3.09. Resignation or Removal of Fronting Bank. (a) The
Fronting Bank may resign at any time by giving 180 days' prior written notice to
the Administrative Agent, the Lenders and the Borrower, and may be removed at
any time by the Borrower by notice to the Fronting Bank, the Administrative
Agent and the Lenders. Upon any such resignation or removal, the Borrower shall
(within 180 days after such notice of resignation or removal) either appoint a
Lender (with the consent of such Lender) as successor, or terminate the
unutilized LC Commitment; provided, however, that, if the Borrower elects to
terminate the unutilized LC Commitment, the Borrower may at any time thereafter
that the Revolving Credit Commitments are in effect reinstate by notice to the
Administrative Agent and the Lenders the LC Commitment in connection with the
appointment of a successor Fronting Bank. Subject to paragraph (b) below, upon
the acceptance of any appointment as Fronting Bank hereunder by a successor
Fronting Bank, such successor shall succeed to and become vested with all the
interests, rights and obligations of the retiring Fronting Bank and the retiring
Fronting Bank shall be discharged from its obligations to issue additional
Letters of Credit hereunder. At the time such removal or resignation shall
become effective, the Borrower shall pay all accrued and unpaid fees pursuant to
Section 2.05(b). The acceptance of any appointment as Fronting Bank hereunder by
a successor Fronting Bank shall be evidenced by an agreement entered into by
such successor, in a form satisfactory to the Borrower and the Administrative
Agent, and, from and after the effective date of such agreement, (i) such
successor shall be a party hereto and have all the rights and obligations of the
Fronting Bank under this Agreement and the other Loan Documents and (ii)
references herein and in the other Loan Documents to the "Fronting Bank" shall
be deemed to refer to such successor or to any previous Fronting Bank, or to
such successor and all previous Fronting Banks, as the context shall require.
(b) After the resignation or removal of the Fronting Bank hereunder,
the retiring Fronting Bank shall remain a party hereto and shall continue to
have all the rights and obligations of the Fronting Bank under this Agreement
and the other Loan
Documents with respect to Letters of Credit issued by it prior to such
resignation or removal, but shall not be required to issue additional Letters of
Credit.
SECTION 3.10. Existing Letters of Credit. All Existing Letters of
Credit shall be deemed to constitute Letters of Credit issued under this
Agreement as of the Closing Date.
ARTICLE IV
Representations and Warranties
The Borrower represents and warrants to each of the Lenders, the
Agents, the Swingline Lender and the Fronting Bank that:
SECTION 4.01. Organization; Powers. Each of the Borrower, TAFSI and
the Guarantors (a) is a corporation, limited partnership or limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Delaware, (b) has all requisite power and authority to own its
property and assets and to carry on its business as now conducted and as
proposed to be conducted, (c) is qualified to do business and in good standing
in every jurisdiction where such qualification is required, except where the
failure so to qualify or be in good standing would not result in a Material
Adverse Effect and (d) has the power and authority (corporate or otherwise) to
execute, deliver and perform its obligations under each of the Loan Documents
and each other agreement or instrument contemplated thereby to which it is or
will be a party and, in the case of Borrower, to borrow hereunder.
SECTION 4.02. Authorization. The Transactions and the execution,
delivery and performance by the Borrower, each Guarantor and TAFSI, as
applicable, of each of the Loan Documents to which it is a party, the borrowings
hereunder, the creation of the security interests contemplated by the Security
Documents and the other transactions contemplated by the Loan Documents (a) have
been duly authorized by all requisite corporate, limited liability company or
limited partnership and, if required, stockholder, member or partner action and
(b) will not (i) violate (A) any provision of law, statute, rule, regulation or
order of any Governmental Authority, other than any law, statute, rule,
regulation or order of any Governmental Authority, the violation of which will
not result in a Material Adverse Effect, or of the certificate of incorporation,
certificate of formation or other constitutive documents or by-laws, operating
agreements or agreement of limited partnership, as the case may be, of the
Borrower, any Guarantor or TAFSI or (B) any provision of any material indenture,
agreement or other instrument to which the Borrower, any Guarantor or TAFSI is a
party or by which any of them or any of their property (including the Mortgaged
Properties) or assets is or may be bound, (ii) be in conflict with, result in a
breach of or constitute (alone or with notice or lapse of time or both) a
default under any such indenture, agreement or other instrument or (iii) result
in the creation or imposition of any Lien (other than any Lien created under the
Security Documents) upon or with respect to any property or assets now owned or
hereafter acquired by the Borrower, any Guarantor or TAFSI.
SECTION 4.03. Enforceability. This Agreement has been duly executed
and delivered by the Borrower and constitutes, and each other Loan Document to
which the Borrower, any Guarantor or TAFSI is a party constitutes, or when
executed and delivered by it will constitute, a legal, valid and binding
obligation of the Borrower, such Guarantor or TAFSI, as the case may be,
enforceable against it in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or other similar laws affecting creditors' rights generally
and by general principles of equity (regardless of whether such enforceability
is considered in a proceeding at law or in equity).
SECTION 4.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority by any Guarantor, TAFSI or the Borrower is or will be required in
connection with the Transactions, except such as have been made or obtained and
are in full force and effect and other than filings, recordings and approvals
(i) to record deeds and leases with respect to real properties, (ii) to record
and/or perfect the security interest created by the Security Documents, (iii) to
record a leasehold memorandum, if currently unrecorded, in respect of any
leasehold interest to which a Leasehold Mortgage relates and (iv) that would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
SECTION 4.05. Financial Statements. (a) The unaudited pro forma
consolidated balance sheet of the Borrower and its subsidiaries as of September
30, 2004 (including the notes thereto) (the "Pro Forma Balance Sheet"), copies
of which have heretofore been furnished to each Lender, has been prepared giving
effect (as if such events had occurred on such date) to (i) the Transactions
(including the Borrowings under this Agreement contemplated to be made on the
Closing Date) and (ii) the payment of fees and expenses in connection with the
foregoing. The Pro Forma Balance Sheet has been prepared based on the
assumptions used to prepare the pro forma financial information contained in the
Confidential Information Memorandum, is based on the best information available
to the Borrower as of the date of delivery thereof, and presents fairly in all
material respects on a pro forma basis the estimated consolidated financial
position of the Borrower and its subsidiaries as of September 30, 2004, assuming
that the events specified in the preceding sentence had actually occurred as of
September 30, 2004.
(b) The Borrower has heretofore furnished to the Lenders (i) its
consolidated and consolidating balance sheets as of December 31, 2002 and
December 31, 2003, (ii) its consolidated and consolidating statements of
operations, stockholders' equity and cash flows for the fiscal years ended
December 31, 2001, December 31, 2002 and December 31, 2003, in the case of
clauses (i) and (ii), audited by and accompanied by the opinion of
PricewaterhouseCoopers LLP, independent public accountants, and (iii) its
consolidated and consolidating balance sheets and statements of operations,
stockholders' equity and cash flows as of and for the fiscal quarter and
nine-month period ended September 30, 2004 (and the comparable period for the
prior fiscal year), certified by its chief financial officer. Such financial
statements present fairly in all material respects the financial condition and
results of operations and cash flows of
the Borrower and its consolidated subsidiaries as of such dates and for such
periods. Such financial statements and the notes thereto disclose all material
liabilities required under GAAP to be disclosed, direct or contingent, of the
Borrower and its consolidated subsidiaries as of the dates thereof. Such
financial statements were prepared in accordance with GAAP applied on a
consistent basis, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.
SECTION 4.06. No Material Adverse Change. There has been no material
adverse change in the business, assets, operations or condition, financial or
otherwise, of the Borrower and its subsidiaries, taken as a whole, since
December 31, 2003.
SECTION 4.07. Title to Properties; Possession Under Leases. (a)
After giving effect to the consummation of the Transactions on the Closing Date,
each of the Borrower, the Guarantors and TAFSI will have good and marketable
title to, or valid leasehold interests in, all its material properties and
assets (including, in the case of the Guarantors, all Mortgaged Property); all
such material properties and assets shall be free and clear of Liens, other than
Liens expressly permitted by Section 7.02; and, except for leases of Mortgaged
Properties set forth on Schedule 7.02 and leases permitted by Section 7.03, no
material portion of any Mortgaged Property shall be subject to any lease,
license, sublease or other agreement granting to any Person any right to use,
occupy, or enjoy the same.
(b) Except as set forth on Schedule 4.07(b), after giving effect to
the consummation of the Transactions on the Closing Date, each Guarantor shall
have complied with all material obligations under all material leases to which
such Guarantor shall then be a party, and all such leases shall be in full force
and effect; and each Guarantor shall enjoy peaceful and undisturbed possession
under all such material leases under which it is tenant. Neither the Borrower
nor TAFSI is a party to any lease.
(c) Except as set forth on Schedule 4.07(c), neither the Borrower
nor any Guarantor has received any notice of, or has any knowledge of, any
pending or contemplated condemnation proceeding affecting the Mortgaged
Properties or any sale or disposition thereof in lieu of condemnation.
(d) Except as set forth on Schedule 4.07(d), as of the Closing Date,
neither the Borrower nor any Guarantor is obligated under any right of first
refusal, option or other contractual right to sell, assign or otherwise dispose
of any Mortgaged Property or any interest therein.
SECTION 4.08. Subsidiaries. Schedule 4.08 sets forth (as of the
Closing Date and after giving effect to the Transactions) the name of, and the
ownership interest of the Borrower in, each subsidiary of the Borrower (and
identifies each subsidiary that is a Guarantor).
SECTION 4.09. Litigation; Compliance with Laws. (a) Except as set
forth on Schedule 4.09, there are no actions, suits or proceedings at law or in
equity or by
or before any Governmental Authority now pending or, to the knowledge of the
Borrower, threatened against or affecting the Borrower, any Guarantor or TAFSI
or any business, property (including the network of TravelCenters operated by
the Borrower's subsidiaries), assets or rights of any such Person (i) that
involve any Loan Document or the Transactions or (ii) as to which there is a
reasonable possibility of an adverse determination and which, if adversely
determined, could, individually or in the aggregate, result in a Material
Adverse Effect.
(b) None of the Borrower, the Guarantors or TAFSI, nor any of their
respective material properties or assets (including all Mortgaged Properties),
are in violation of, nor will the continued operation of their material
properties and assets (including all Mortgaged Properties) as currently
conducted, violate any material law, rule, regulation or statute (including any
zoning, building, Environmental and Safety Law, ordinance, code or approval or
any building permits) or any restrictions of record or agreements affecting such
properties or assets, or are in default with respect to any judgment, writ,
injunction, decree or order of any Governmental Authority, where such violation
or default could reasonably be expected to result in a Material Adverse Effect.
The issuance of the Letters of Credit will not violate any applicable law or
regulation or violate or be prohibited by any judgment, writ, injunction, decree
or order of any Governmental Authority, where such violation would have a
Material Adverse Effect.
(c) All certificates of occupancy and/or completion and other
permits, licenses, consents and approvals required by law or by any order, rule
or regulation of any Governmental Authority for the use and operation of the
Mortgaged Properties for their intended purposes have been issued and are in
full force and effect except to the extent that the failure to have them would
not, individually or in the aggregate, result in a Material Adverse Effect.
SECTION 4.10. Agreements. After giving effect to the Transactions,
none of the Borrower, the Guarantors or TAFSI is in default in any manner under
any provision of any indenture or other agreement or instrument evidencing
Indebtedness, or any other material agreement or instrument to which it is a
party or by which it or any of its properties or assets are or may be bound,
where such default could reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.11. Federal Reserve Regulations. (a) None of the Borrower,
the Guarantors or TAFSI is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock.
(b) No part of the proceeds of any Letter of Credit or any Loan or
Swingline Loan will be used by the Borrower, any Guarantor or TAFSI, whether
directly or indirectly, and whether immediately, incidentally or ultimately, for
any purpose that entails a violation of, or is inconsistent with, the provisions
of the Regulations of the Board, including Regulations T, U and X.
SECTION 4.12. Investment Company Act; Public Utility Holding Company
Act. None of the Borrower, the Guarantors or TAFSI (a) is an "investment
company" as defined in, or is subject to regulation under, the Investment
Company Act of
1940 or (b) is a "holding company" as defined in, or is subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 4.13. Use of Proceeds. The proceeds of the Term Loans and
the Revolving Loans made on the Closing Date are to be used (a) first, (i) to
fund the Rip Xxxxxxx Purchase Price, (ii) to fund the Rip Xxxxxxx Working
Capital Payments, (iii) to make payments of approximately $65,100,000 in
connection with the Synthetic Lease Repurchases, (iv) to purchase all Existing
Term Loans and Assigned Indebtedness as provided in Section 2.01(b), including
the payment of accrued interest and fees with respect thereto, and (v) to pay
the Transaction Costs and (b) second, for general corporate purposes. The
Letters of Credit will be used solely for general corporate purposes in the
ordinary course of business of the Borrower and its subsidiaries. The proceeds
of the Swingline Loans and the Revolving Loans (other than Revolving Loans made
on the Closing Date) are to be used solely for general corporate purposes of the
Borrower and its subsidiaries.
SECTION 4.14. Tax Returns. Each of the Borrower, TAFSI and the
Guarantors has timely filed or caused to be filed all material Federal, state,
local and foreign tax returns and reports required to have been filed by it or
with respect to it and has paid or caused to be paid all taxes and assessments
required to have been paid by it, except (a) taxes that are being contested in
good faith by appropriate proceedings and for which the Borrower, TAFSI or such
Guarantor, as applicable, shall have set aside on its books adequate reserves in
accordance with GAAP and (b) to the extent that the failure to do so would not
reasonably be expected to result in a Material Adverse Effect. Each of the
Borrower, TAFSI and the Guarantors has filed or made adequate provision in
accordance with GAAP on its books for any material taxes payable by it in
connection with the Transactions.
SECTION 4.15. No Material Misstatements. The information provided by
or on behalf of the Borrower and contained in the Confidential Information
Memorandum (including all attachments and exhibits thereto), as supplemented,
and as supplemented further by information heretofore provided in writing by or
on behalf of the Borrower to the Lenders, when taken as a whole, was, as of the
date of the Confidential Information Memorandum, the dates otherwise specified
therein or the dates upon which such information was provided in writing,
accurate in all material respects and does not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading, provided that (a) the statements therein
describing documents and agreements are summaries only and as such are qualified
in their entirety by reference to such documents and agreements, (b) to the
extent any such information therein was based upon or constitutes a forecast or
projection, the Borrower represents only that it acted in good faith and
utilized reasonable assumptions, due and careful consideration and the best
information known to it at the time in the preparation of such information and
(c) as to the information that is specified as having been supplied by third
parties other than Affiliates of the Borrower, the Borrower represents only that
it is not aware of any material misstatement therein or omission therefrom.
SECTION 4.16. Employee Benefit Plans. Each of the Borrower, the
Guarantors, TAFSI and their ERISA Affiliates is in compliance in all respects
with the
applicable provisions of ERISA and the regulations and published interpretations
thereunder, except where the liability that could reasonably be expected to
result from noncompliance would not have a Material Adverse Effect. No
Reportable Event has occurred or exists or is reasonably expected to occur as to
which the Borrower, any Guarantor, TAFSI or any ERISA Affiliate was or is
required to file a report with the PBGC, and the present value of all benefit
liabilities under each Plan (based on those assumptions used to fund such Plan)
did not, as of the last annual valuation date applicable thereto, exceed by more
than $5,000,000 the value of the assets of such Plan. None of the Borrower, the
Guarantors, TAFSI or any ERISA Affiliate has incurred any Withdrawal Liability
that could result in a Material Adverse Effect. None of the Borrower, the
Guarantors, TAFSI or any ERISA Affiliate has received any notification that any
Multiemployer Plan is in reorganization or has been terminated within the
meaning of Title IV of ERISA, and no Multiemployer Plan is reasonably expected
to be in reorganization or to be terminated where such reorganization or
termination has resulted or could reasonably be expected to result, through
increases in the contributions required to be made to such Plan or otherwise, in
a Material Adverse Effect.
SECTION 4.17. Environmental and Safety Matters. (a) After giving
effect to the Transactions, each of the Borrower, the Guarantors and TAFSI is in
compliance with all Environmental and Safety Laws, with the exception of
instances that will not in the aggregate result in a Material Adverse Effect.
(b) (i) None of the Borrower, the Guarantors, or TAFSI has received
written notice of any failure to comply with, nor has any such notice been
issued that has not been fully satisfied so as to bring any property of the
Borrower, TAFSI or any Guarantor into full compliance with, all Environmental
and Safety Laws, except where such noncompliance would not reasonably be
expected to have a Material Adverse Effect; (ii) after giving effect to the
Transactions, the plants and facilities of the Borrower and its subsidiaries do
not use, manage, treat, store or dispose of any Hazardous Substances in
violation of any Environmental and Safety Laws, except where such violations
would not reasonably be expected to have a Material Adverse Effect; (iii) after
giving effect to the Transactions, all licenses, permits or registrations (or
any extensions thereof) required under any Environmental and Safety Law for the
business of the Borrower and its subsidiaries as conducted have been obtained
and each of the Borrower and its subsidiaries is in compliance therewith, except
for the failure to obtain such licenses, permits or registrations or to comply
therewith which would not reasonably be expected to have a Material Adverse
Effect; and (iv) neither the Borrower nor any of its subsidiaries is in
noncompliance with, breach of or default under any applicable writ, order,
judgment, injunction or decree (in each case under any Environmental and Safety
Law) where all instances of such noncompliance, breach or default at any time
would, in the aggregate, reasonably be expected to result in a Material Adverse
Effect.
(c) (i) No Hazardous Substance has been Released (and no written
notification of such Release has been filed) or is present whether or not in a
reportable or threshold planning quantity, at, on or under any property owned or
leased by the Borrower or any of its subsidiaries during the period of the
Borrower's or such subsidiary's ownership or lease of such property, or to the
knowledge of the Borrower or
such subsidiary at any time previous to such ownership or lease, under
conditions that require remedial action under applicable Environmental and
Safety Laws, except where such remedial action would not reasonably be expected
to have a Material Adverse Effect, (ii) no property now or previously owned or
leased by the Borrower or any of its subsidiaries has, directly or indirectly,
transported or arranged for the transportation of any Hazardous Substances
related to the Borrower or any of its Subsidiaries to any site listed, or
proposed for listing, on the National Priorities List promulgated pursuant to
CERCLA, on CERCLIS (as defined in CERCLA) or on any similar Federal, state or
foreign list of sites requiring investigation or cleanup, except where any
liability for such transportation or arrangement for transportation could not
reasonably be expected to result in a Material Adverse Effect. Neither the
Borrower nor any of its subsidiaries is aware of any event, condition or
circumstance involving environmental pollution or contamination, or employee
safety or health relating to the use or handling of, or exposure to, Hazardous
Substances, that would reasonably be expected to result in a Material Adverse
Effect.
(d) The Borrower and its subsidiaries, taken as a whole, are not and
have no reason to believe that they will be subject to any requirement of
Environmental and Safety Laws that will result in cash expenditures related to
environmental, health or safety matters that would reasonably be expected to
result in a Material Adverse Effect.
SECTION 4.18. Solvency. After giving effect to the Transactions to
occur on the Closing Date, (a) the fair salable value of the assets of (i) the
Borrower and its subsidiaries, on a consolidated basis, and (ii) each Guarantor
will exceed the amount that will be required to be paid on or in respect of the
existing debts and other liabilities (including contingent liabilities) of the
Borrower and its subsidiaries, on a consolidated basis, and such Guarantor,
respectively, as they mature, (b) the assets of (i) the Borrower and its
subsidiaries, on a consolidated basis, and (ii) each Guarantor will not
constitute unreasonably small capital to carry out its businesses as conducted
or as proposed to be conducted, including the capital needs of the Borrower and
its subsidiaries, on a consolidated basis, or such Guarantor, respectively
(taking into account, in each case, the particular capital requirements of the
businesses conducted by such entities and the projected capital requirements and
capital availability of such businesses), and (c) neither the Borrower nor the
Guarantors intend to, nor do they believe that they will, incur debts beyond
their ability to pay such debts as they mature (taking into account the timing
and amounts of cash to be received by them and the amounts to be payable on or
in respect of their obligations).
SECTION 4.19. Employment and Management Agreements. Except as
disclosed on Schedule 4.19, as of the Closing Date there are no (a) employment
agreements covering senior management employees of the Borrower, TAFSI or any
Guarantor or other material agreements relating to the compensation of
management employees (including the issuance of securities of the Borrower to
management employees), (b) agreements for senior management or consulting
services to which the Borrower, TAFSI or any Guarantor is a party or by which
any of them is bound or (c) collective bargaining agreements or other labor
agreements covering any of the employees of the Borrower, any Guarantor or
TAFSI.
SECTION 4.20. Capitalization. (a) As of the Closing Date and after
giving effect to the Transactions, the authorized capital stock of the Borrower
consists of 20,000,000 shares of Common Stock, par value $0.00001 per share (the
"Common Stock"), of which 6,934,569 shares are issued and outstanding. All
outstanding shares of capital stock of the Borrower are fully paid and
nonassessable. Set forth on Schedule 4.20(a)(i) is a list of every Person that,
as of the Closing Date (after giving effect to the Transactions), owns
beneficially (as defined in Rule 13d-3 promulgated under the Securities Exchange
Act of 1934 or any successor thereto) and of record shares of any class of
capital stock of the Borrower, together with the number of shares of such class
so owned.
(b) All outstanding shares of capital stock of TA are fully paid and
nonassessable and are owned beneficially and of record by the Borrower and have
been duly and validly pledged under the Pledge Agreement to the Collateral Agent
for the ratable benefit of the Secured Parties.
(c) All outstanding shares of capital stock of TAFSI are fully paid
and nonassessable and are owned beneficially and of record by the Borrower and
have been duly and validly pledged under the Pledge Agreement to the Collateral
Agent for the ratable benefit of the Secured Parties.
(d) All outstanding shares of capital stock of TA Licensing are
fully paid and nonassessable and are owned beneficially and of record by TA and
have been duly and validly pledged under the Pledge Agreement to the Collateral
Agent for the ratable benefit of the Secured Parties.
(e) All outstanding membership interests of TA Travel are fully paid
and nonassessable and are owned beneficially and of record by TA and have been
duly and validly pledged under the Pledge Agreement to the Collateral Agent for
the ratable benefit of the Secured Parties.
(f) Except as set forth on Schedule 4.20(f), as of the Closing Date,
there are no outstanding subscriptions, options, warrants, calls, rights
(including preemptive rights) or other agreements or commitments (including
pursuant to management or employee stock plans or similar plans) of any nature
relating to any capital stock of the Borrower, TAFSI, TA or any other Guarantor.
(g) All outstanding shares of capital stock of NSC Holdings are
fully paid and nonassessable and are owned beneficially and of record by TA and
65% of the voting capital stock of NSC Holdings and 100% of the non-voting
capital stock (if any) of NSC Holdings have been duly and validly pledged under
the Pledge Agreement to the Collateral Agent for the ratable benefit of the
Secured Parties.
SECTION 4.21. Security Documents. (a) The Pledge Agreement is
effective to create in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement) and proceeds thereof and, when
the Collateral is delivered to the Collateral Agent, the Pledge Agreement shall
constitute a fully perfected first-priority
Lien on, and security interest in, all right, title and interest of the
Borrower, each Guarantor or TAFSI, as applicable, in such Collateral and the
proceeds thereof, in each case prior and superior in right to any other Person.
(b) The Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Security
Agreement) other than the Intellectual Property (as defined in the Security
Agreement) and proceeds thereof, and when financing statements in appropriate
form are filed in the offices specified on Schedule 4.21, the Security Agreement
shall constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the Borrower, TAFSI and each Guarantor, as applicable, in
such Collateral and the proceeds thereof, in each case prior and superior in
right to any other Person, other than with respect to Liens expressly permitted
by Section 7.02.
(c) The Mortgages are effective to create in favor of the Collateral
Agent, for the ratable benefit of the Secured Parties, a legal, valid and
enforceable Lien on all of each Guarantor's right, title and interest in and to
the Mortgaged Properties thereunder and the proceeds thereof, and, when the
Mortgages are filed in the offices specified on Schedule 1.01(c), the Mortgages
shall constitute fully perfected Liens on, and security interests in, all right,
title and interest of such Guarantor in such Mortgaged Properties and the
proceeds thereof, in each case prior and superior in right to any other Person,
other than with respect to Liens expressly permitted by Section 7.02.
(d) The Security Agreement is effective to create in favor of the
Collateral Agent, for ratable benefit of the Secured Parties, a legal, valid and
enforceable security interest in the Intellectual Property (as defined in the
Security Agreement) and the proceeds thereof, and upon the filing of the
Security Agreement (or a short-form version thereof) with the United States
Patent and Trademark Office or the United States Copyright Office, as
applicable, the Security Agreement shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the Borrower, TAFSI
and each Guarantor in the Intellectual Property and the proceeds thereof, in
each case prior and superior in right to any other Person, other than with
respect to Liens expressly permitted by Section 7.02.
SECTION 4.22. Labor Matters. Except as set forth on Schedule 4.22,
as of the Closing Date, there are no strikes, lockouts or slowdowns against the
Borrower or any of its subsidiaries pending or, to the Borrower's knowledge,
threatened. The hours worked by and payment made to employees of the Borrower
and its subsidiaries have not been in violation of the Fair Labor Standards Act
or any other applicable Federal, state, local or foreign law dealing with such
matters, where such violations could reasonably be expected to result in a
Material Adverse Effect. The consummation of the Transactions will not give rise
to a right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement to which the Borrower or any of its
subsidiaries is a party or by which the Borrower or any of its subsidiaries is
bound on the Closing Date.
SECTION 4.23. Location of Real Property and Leased Premises. (a)
Schedule 4.23(a) lists completely and correctly as of the Closing Date all real
property owned by the Guarantors and the addresses thereof. Each Guarantor will
own in fee all the real property set forth on Schedule 4.23(a) with respect to
such Guarantor.
(b) Schedule 4.23(b) lists completely and correctly as of the
Closing Date all real property leased or subleased by the Guarantors as tenants
and the addresses thereof. Each Guarantor has a valid lease or sublease in all
the real property set forth on Schedule 4.23(b) with respect to such Guarantor.
(c) As of the Closing Date (and after giving effect to the
Transactions), the Borrower and TAFSI do not own or lease any real property.
SECTION 4.24. Insurance. The Borrower and each Guarantor maintains
with financially sound insurance companies insurance on all its properties in at
least such amounts and against at least such risks (but, including in any event,
all-risk casualty, public liability and product liability) as are usually
insured against in the same general geographic area by companies engaged in the
same or similar business.
SECTION 4.25. Delivery of Documents. (a) The Borrower has previously
made available, and has caused each Guarantor to make available, to the Agents
true, correct and complete copies of all real property leases or subleases,
easement agreements, option agreements and other agreements, instruments and
documents (whether or not recorded) that encumber or otherwise affect title to
the Mortgaged Properties.
(b) Each of the Franchise Agreements has been duly executed and
delivered by each of the Borrower, TAFSI and the Guarantors that is a party
thereto and, to the Borrower's knowledge, by each other party thereto and each
is in full force and effect, there having been no default thereunder by the
Borrower, TAFSI or the applicable Guarantor. There has been no amendment, change
or modification to any Franchise Agreement that is adverse in any material
respect to the interests of the Secured Parties without the written consent of
the Collateral Agent.
(c) On or before the date of this Agreement, each Agent has received
true, correct and complete copies of the Rip Xxxxxxx Acquisition Documents and
the Synthetic Lease Repurchase Documents.
SECTION 4.26. Fees and Expenses. The aggregate amount of fees and
expenses incurred in connection with the Transactions by the Borrower, TAFSI and
the Guarantors (the "Transaction Costs") will not exceed $12,000,000.
SECTION 4.27. Senior Indebtedness; Designated Senior Indebtedness.
The Obligations constitute "Senior Indebtedness" and "Designated Senior
Indebtedness" under and as defined in the Subordinated Note Documents (and to
the extent any Subordinated Note Refinancing Indebtedness or Subordinated
Acquisition Financing is issued, the Obligations shall constitute "Senior
Indebtedness" and "Designated Senior Indebtedness" (or shall have similar
designations having substantially the same effect)
under the Subordinated Note Refinancing Documents and the Subordinated
Acquisition Financing Documents, as applicable).
ARTICLE V
Conditions of Restatement, Lending and Issuance of Letters of Credit
SECTION 5.01. All Credit Events. The obligations of the Lenders to
make Loans hereunder, the obligation of the Swingline Lender to make Swingline
Loans hereunder and the obligation of the Fronting Bank to issue any Letter of
Credit (each, a "Credit Event") hereunder are subject to the satisfaction on the
date of each Credit Event, other than a Borrowing in which Revolving Loans are
refinanced with new Revolving Loans (without any increase in the aggregate
principal amount of Revolving Loans outstanding) as contemplated by Section
2.02(e) and other than any Revolving Loan made pursuant to Section 2.02(f), of
the following conditions:
(a) The Administrative Agent and, where applicable, the Fronting
Bank or the Swingline Lender shall have received a notice of such Credit Event
as required by Section 2.03, Section 3.01(c) and Section 2.21(b), respectively.
(b) The representations and warranties set forth in Article IV
hereof shall be true and correct in all material respects on and as of the date
of such Credit Event with the same effect as though made on and as of such date,
except to the extent such representations and warranties expressly relate to an
earlier date or that there are changes to the factual information contained in
such representations and warranties that do not reflect any violation of or
failure to comply with any provision of this Agreement or any other Loan
Document.
(c) The Borrower shall be in compliance with all the material terms
and provisions set forth herein and in each other Loan Document on its part to
be observed or performed, and at the time of and immediately after such Credit
Event no Event of Default or Default shall have occurred and be continuing.
Each Credit Event shall be deemed to constitute a representation and
warranty by the Borrower on the date of such Credit Event as to the matters
specified in paragraphs (b) and (c) of this Section 5.01. Continuations and
conversions of outstanding Term Borrowings pursuant to Section 2.10 shall not be
deemed to be new Borrowings for the purpose of this Section 5.01.
SECTION 5.02. Restatement and Initial Borrowing. The amendment and
restatement of the Existing Credit Agreement in the form hereof and the
obligations of each Lender to make Loans hereunder (including the obligations of
the Term Lenders to purchase Existing Term Loans and Assigned Indebtedness and
to convert Existing Terms Loans) shall not become effective until the date on
which each of the following conditions is satisfied:
(a) The Agents shall have received a favorable written opinion of
(i) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Borrower, the Guarantors and
TAFSI, to the effect set forth in Exhibit H-1,(1) (ii) the General Counsel of
the Borrower to the effect set forth in Exhibit H-2 and (iii) each local counsel
listed on Schedule 5.02(a) to the effect set forth in Exhibit H-3, in each case
(A) dated the Closing Date, (B) addressed to the Agents, the Fronting Bank, the
Lenders, the Swingline Lender and the Collateral Agent and (C) covering such
other matters incidental to the Loan Documents and the Transactions as the
Agents shall reasonably request. The Borrower hereby instructs each such counsel
to deliver its opinion to the Agents.
(b) All legal matters incident to this Agreement and the Borrowings
hereunder shall be satisfactory to the Lenders and their counsel and to Cravath,
Swaine & Xxxxx LLP, counsel for the Agents.
(c) The Agents shall have received (i) a copy of the certificate of
incorporation (or certificate of formation), including all amendments thereto,
of each of the Borrower, TAFSI and the Guarantors, certified as of a recent date
by the Secretary of State of the State of Delaware, and a certificate as to the
good standings of each of the Borrower, TAFSI and the Guarantors as of a recent
date, from such Secretary of State; (ii) a certificate of the Secretary or
Assistant Secretary of each of the Borrower, TAFSI and the Guarantors dated the
Closing Date and certifying (A) that, if applicable, attached thereto is a true
and complete copy of the By-laws of the Borrower, TAFSI or such Guarantor, as
the case may be, as in effect on the Closing Date and at all times since a date
prior to the date of the resolutions described in clause (B) below, (B) that
attached thereto is a true and complete copy of resolutions duly adopted by the
Board of Directors (or Managers or Managing Member) of the Borrower, TAFSI or
such Guarantor, as the case may be, authorizing the execution, delivery, and
performance of the Loan Documents to which the Borrower, TAFSI or such Guarantor
is or will be a party and, in the case of the Borrower, the borrowings
hereunder, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that the certificate of
incorporation (or certificate of formation) of the Borrower, TAFSI or such
Guarantor, as the case may be, has not been amended since the date of the last
amendment thereto shown on the certificate of good standing furnished pursuant
to clause (i) above and (D) as to the incumbency and specimen signature of each
officer executing any Loan Document or any other document delivered in
connection herewith on behalf of the Borrower, such Guarantor or TAFSI, as the
case may be; (iii) a certificate of another officer as to the incumbency and
specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (ii) above; and (iv) such other documents as Cravath,
Swaine & Xxxxx LLP, counsel for the Agents, may reasonably request.
(d) The Agents shall have received a certificate, dated the Closing
Date and signed by a Financial Officer of the Borrower (delivered, and
containing a statement that it was delivered, in good faith after reasonable
investigation) to the effect that the Borrowings made on the Closing Date do not
violate the provisions of the Subordinated
---------------------
(1) To include opinion as to absence of conflicts with Subordinated Notes
Indenture.
Note Indenture (including a reasonably detailed summary as to the calculations
necessary to determine the absence of any such violation).
(e) The Agents shall have received a certificate, dated the Closing
Date and signed by a Financial Officer of the Borrower, confirming compliance
with the conditions precedent set forth in paragraphs (b) and (c) of Section
5.01.
(f) The Agents shall have received (i) all Fees due and payable on
or prior to the Closing Date and (ii) reimbursement (or payment) of all expenses
required to be reimbursed (or paid) by the Borrower for which invoices have been
presented.
(g) The Guarantee Agreement shall have been duly executed by each
Guarantor and the Collateral Agent, and shall be in full force and effect. The
Indemnity and Subrogation Agreement shall have been duly executed by the
Borrower, each applicable Guarantor and the Collateral Agent and shall be in
full force and effect.
(h) The Pledge Agreement shall have been duly executed by the
parties thereto and delivered to the Collateral Agent and shall be in full force
and effect, and all the outstanding capital stock of each Guarantor and TAFSI,
and 65% of the capital stock of NSC Holdings, shall have been duly and validly
pledged thereunder to the Collateral Agent for the ratable benefit of the
Secured Parties and certificates representing such shares, accompanied by
instruments of transfer and stock powers endorsed in blank, shall be in the
actual possession of the Collateral Agent.
(i) The Security Agreement shall have been duly executed by the
Borrower and all other parties thereto and shall have been delivered to the
Collateral Agent and shall be in full force and effect on such date and each
document (including each Uniform Commercial Code financing statement) required
by law or reasonably requested by the Agents to be filed, registered or recorded
in order to create in favor of the Collateral Agent for the benefit of the
Secured Parties a valid, legal and perfected first-priority security interest in
or lien on the Collateral (subject to any Lien expressly permitted by Section
7.02) described in the Security Agreement shall have been delivered to the
Collateral Agent.
(j) The Collateral Agent shall have received the results of a search
of the Uniform Commercial Code filings (or equivalent filings) made with respect
to the Borrower, each Guarantor, Rip Xxxxxxx and TAFSI in the jurisdictions in
which Uniform Commercial Code filings (or equivalent filings) are to be made
pursuant to the preceding paragraph and such other jurisdictions reasonably
specified by the Agents, together with copies of the financing statements (or
similar documents) disclosed by such search, and accompanied by evidence
satisfactory to the Agents that the Liens indicated in any such financing
statement (or similar document) would be permitted under Section 7.02 or have
been (or, upon consummation of the fundings on the Closing Date, will be)
released.
(k) The Collateral Agent shall have received a Perfection
Certificate with respect to each of the Guarantors, TAFSI and the Borrower dated
the Closing Date and duly executed by a Responsible Officer of each such entity.
(l) (i) Each of the Security Documents, in form and substance
satisfactory to the Agents, relating to each of the Mortgaged Properties shall
have been duly executed by the parties thereto and delivered to the Collateral
Agent and shall be in full force and effect, (ii) each of such Mortgaged
Properties shall not be subject to any Lien other than those permitted under
Section 7.02, (iii) each of such Security Documents shall have been filed and
recorded in the recording office as specified on Schedule 1.01(c) or the
Borrower shall have made arrangements reasonably satisfactory to the Agents for
such recordation and payment of all applicable recording taxes and charges, (iv)
lender's title insurance policies with such endorsements, coinsurance and
reinsurance as may be reasonably requested by the Agents, in each case in form
and substance reasonably acceptable to the Agents, insuring each Mortgage shall
have been received by Agents or a nationally recognized title insurance company
reasonably acceptable to the Agents shall have unconditionally committed to
issue such policies and (v) the Collateral Agent shall have received such other
documents, surveys, abstracts, appraisals and legal opinions required to be
furnished pursuant to the terms of this Agreement or the Mortgages or to obtain
the policies of title insurance described above and such additional legal
opinions as may be reasonably requested by the Agents.
(m) The Rip Xxxxxxx Acquisition shall have been consummated or shall
be consummated simultaneously with the initial borrowings under the Senior
Facilities in accordance with applicable law and the Rip Xxxxxxx Acquisition
Documents (without giving effect to any amendment or waiver that is or could
reasonably be expected to be materially adverse to the interests of the Lenders
and not approved by the Agents).
(n) The Synthetic Lease Repurchases shall have been consummated or
shall be consummated simultaneously with the initial borrowings under the Senior
Facilities in accordance with applicable law and the Synthetic Lease Repurchase
Documents.
(o) The Borrower shall have paid all principal, interest, fees and
other amounts outstanding under the Existing Credit Agreement (other than
Existing Term Loans and Assigned Indebtedness) and the Agents shall have
received reasonably satisfactory evidence of the foregoing.
(p) After giving effect to the Transactions, the Borrower and its
subsidiaries shall have outstanding no Indebtedness or preferred stock other
than (a) the loans and other extensions of credit under the Senior Facilities,
(b) the Subordinated Notes, (c) any Indebtedness set forth in Schedule 7.01, (d)
the Indebtedness evidenced by the Santa Nella Note and (e) any Indebtedness
permitted pursuant to clauses (e), (h), (i), (j), (l) and (o) of Section 7.01.
The terms and conditions of all indebtedness to remain outstanding after the
Closing Date (including but not limited to terms and conditions relating to the
interest rate, fees, amortization, maturity, redemption, subordination,
covenants, events of default and remedies) shall be reasonably satisfactory in
all respects to the Agents. On the Closing Date, after giving effect to the
Transactions, the Agents shall be satisfied that the Borrower's total
outstanding Indebtedness (on a consolidated basis), shall not exceed
$700,000,000.
(q) The Agents shall have received all financial statements of Rip
Xxxxxxx that have previously been provided to the Borrower, which financial
statements shall not be materially adversely inconsistent with the financial
statements or forecasts previously provided to the Agents.
(r) The Agents shall have received the Pro Forma Balance Sheet,
which balance sheet shall not be materially adversely inconsistent with the
forecasts previously provided to the Agents.
(s) The Agents shall have received a solvency certificate, in form
and substance satisfactory to the Agents, from the chief financial officer of
the Borrower, together with such other evidence reasonably requested by the
Lenders, of the solvency of (i) the Guarantors, TAFSI and the Borrower, on a
consolidated basis, and (ii) each Guarantor, in each case after giving effect to
the Transactions.
(t) All requisite Governmental Authorities and, to the extent the
failure to obtain their prior approval or consent would reasonably be expected
to have a Material Adverse Effect, third parties shall have approved or
consented to the Transactions to the extent required, all applicable appeal
periods shall have expired and there shall be no governmental or judicial
action, actual or threatened, that could reasonably be expected to restrain,
prevent or impose burdensome conditions on the Transactions or the other
transactions contemplated hereby.
(u) There shall be no litigation or administrative proceedings or
other legal or regulatory developments, actual or threatened, that could
reasonably be expected to have a Material Adverse Effect.
(v) The Mortgaged Properties shall each be in compliance with all
applicable material laws, rules, regulations, statutes (including any zoning,
building, Environmental and Safety Law, ordinance, code or approval or any
building permits) and all restrictions of record and all material agreements
affecting the Mortgaged Property and all decrees or orders of any Governmental
Authority with jurisdiction with respect thereto, except to the extent such
non-compliance or failure to obtain any necessary permits are not reasonably
likely to result in a Material Adverse Effect.
(w) The Agents shall have received the documents required to be
delivered to them pursuant to Section 4.25.
(x) (i) With respect to each Mortgaged Property acquired in
connection with the Rip Xxxxxxx Acquisition, the Agents shall have received a
current survey of such Mortgaged Property, in form and substance reasonably
satisfactory to the Agents, and (ii) with respect to all other Mortgaged
Properties, the Agents shall have received (A) a title insurance policy or
endorsement, as applicable, which does not contain a survey exception, (B) a
current survey (or an update of a current survey previously certified to the
Agents) of such Mortgaged Property or (C) the Borrower shall have made
arrangements reasonably satisfactory to the Agents for delivery of the survey
materials described in clause (B) above to the Agents within 90 days after the
Closing Date.
(y) The Agents shall have received management's consolidated
financial projections for the Borrower and its subsidiaries for the fiscal year
ending December 31, 2004, and for each fiscal year thereafter through the fiscal
year ending December 31, 2012, which projections shall reflect the Transactions
and the other transactions completed hereby and include the written assumptions
upon which such projections are based, and such projections shall not be
materially adversely inconsistent with the projections provided to the Agents on
or prior to October 21, 2004.
(z) The Borrower's Adjusted EBITDA for the twelve month period ended
September 30, 2004 (calculated on a pro forma basis in the manner provided under
the definition of the term "EBITDA" as if the Transactions had occurred on the
first day of such twelve-month period), shall be not less than $145,000,000.
After giving effect to the Transactions and the other transactions contemplated
hereby, the ratio of (i) the Borrower's Total Debt, based on the unaudited pro
forma consolidated balance sheet of the Borrower as of the Closing Date, to (ii)
Adjusted EBITDA for the twelve month period ended September 30, 2004 (calculated
as described above), shall not exceed 4.75 to 1.00.
(aa) The Agents shall have received an estoppel certificate from the
ground lessors of the Mortgaged Properties located in Moriarty, New Mexico and
Seattle, Washington.
(bb) The Agents shall have received and be reasonably satisfied with
the documentation and other information reasonably requested by them relating to
(i) the merger of TC Properties with and into TA and (ii) the liquidation and
dissolution of TC Realty.
(cc) The Agents shall have received all documentation and other
information requested by them to satisfy the requirements of bank regulatory
authorities under applicable "know your customer" and anti-money laundering
rules and regulations, including the USA Patriot Act.
ARTICLE VI
Affirmative Covenants
The Borrower covenants and agrees with each Lender, the Agents, the
Fronting Bank and the Swingline Lender that, so long as this Agreement shall
remain in effect or the principal of or interest on any Loan or Swingline Loan
or LC Disbursement, any Fees or any other expenses or amounts payable under any
Loan Document shall be unpaid, unless the Required Lenders shall otherwise
consent in writing, the Borrower will and will cause each of its subsidiaries
to:
SECTION 6.01. Existence; Businesses and Properties. (a) Do or cause
to be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, provided that the foregoing shall not be construed
to prohibit any merger or consolidation permitted by Section 7.05 or the
liquidation or dissolution of any subsidiary of the Borrower that is not
prohibited by any other provision of this Agreement.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business, maintain and operate such business in
substantially the manner in which it is currently conducted and operated; comply
with all applicable laws, rules, regulations and statutes (including any zoning,
building, Environmental and Safety Law, ordinance, code or approval or any
building permits or any restrictions of record or agreements affecting the
Mortgaged Property) and decrees and orders of any Governmental Authority,
whether now in effect or hereafter enacted, except to the extent that the
failure to do so, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect; and at all times maintain and
preserve all property material to the conduct of such business and keep such
property in good repair, working order and condition and from time to time make,
or cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times.
(c) Maintain all financial records in accordance with GAAP.
SECTION 6.02. Insurance. (a) Keep its properties (including
Improvements and Personal Property (each as defined in the Mortgages)) insured
at all times by financially sound and reputable insurers against loss by fire,
casualty and such other hazards as may be afforded by an "all risk" policy or a
fire policy covering "special" causes of loss, including building ordinance law
endorsements; cause all such policies to be endorsed or otherwise amended to
include a "standard" or "New York" lender's loss payable endorsement, in form
and substance reasonably satisfactory to the Administrative Agent and the
Collateral Agent, which endorsement shall provide that, from and after the
Closing Date, the insurance carrier shall pay all proceeds otherwise payable to
the Borrower, the applicable Guarantor or any independent operator engaged to
operate a TravelCenter (if any) under such policies directly to the Collateral
Agent unless (i) the amounts so payable shall not exceed $50,000 and (ii) the
insurance carrier shall not have received written notice from the Administrative
Agent or the Collateral Agent that an Event of Default has occurred and, if
received, such notice shall not have been withdrawn (with the Administrative
Agent agreeing to withdraw such notice if the related Event of Default shall
have been cured and no other Event of Default shall then exist), cause all such
policies to provide that neither the Borrower, the Guarantors, the
Administrative Agent, the Collateral Agent nor any other party shall be a
coinsurer thereunder and to contain a "Replacement Cost Endorsement", without
any deduction for depreciation, and such other provisions as the Administrative
Agent or the Collateral Agent may reasonably require from time to time to
protect its interest; deliver original or certified copies of all such policies
to the Collateral Agent; cause each such policy to provide that it shall not be
canceled, modified or not renewed (i) by reason of nonpayment of premium upon
not less than 10 days' prior written notice thereof by insurer to the
Administrative Agent and the Collateral Agent or (ii) for any other reason upon
not less than 30 days' prior written notice thereof by insurer to the
Administrative Agent and the Collateral Agent; deliver to the Administrative
Agent and the Collateral Agent, prior to the cancellation, modification or
nonrenewal of any such policy of
insurance, a copy of a renewal or replacement policy (or other evidence of
renewal of a policy previously delivered to the Administrative Agent and the
Collateral Agent) together with evidence satisfactory to the Administrative
Agent and the Collateral Agent of payment of the premium therefor; and cause
each all-risk policy maintained by the Borrower or any Guarantor to be endorsed
to provide for a waiver by the related insurer of all its rights to recovery
against any independent operator engaged to operate a TravelCenter (if any) for
damage covered by such policy.
(b) If at any time the area in which the Premises (as defined in the
Mortgages) are located is designated (i) a "special flood hazard area" in any
Flood Insurance Rate Map published by the Federal Emergency Management Agency,
obtain (and/or cause the related Franchisee, if any, to obtain) flood insurance
in such total amount as the Collateral Agent or the Administrative Agent may
from time to time reasonably require, and otherwise comply with the National
Flood Insurance Program as set forth in said Flood Disaster Protection Act of
1973, as it may be amended from time to time or (ii) "Zone I" area, obtain
(and/or cause the related Network Operator, if any, to obtain) earthquake
insurance in such total amount as the Administrative Agent, the Collateral Agent
or the Required Lenders may from time to time reasonably require.
(c) With respect to any Mortgaged Property, carry and maintain
comprehensive general liability insurance including the "broad form CGL
endorsement" and coverage on an occurrence basis against claims made for
personal injury (including bodily injury, death and property damage) and
umbrella liability insurance against any and all claims, in no event for a
combined single limit of less than $5,000,000, naming the Collateral Agent as an
additional insured, on forms satisfactory to the Collateral Agent.
(d) Notify the Administrative Agent and the Collateral Agent
immediately whenever any separate insurance concurrent in form or contributing
in the event of loss with that required to be maintained under this Section 6.02
is taken out by the Borrower, any Guarantor or any independent operator engaged
to operate a TravelCenter and promptly deliver to the Administrative Agent and
the Collateral Agent a duplicate original copy of such policy or policies.
(e) In connection with the covenants set forth in this Section 6.02,
it is understood and agreed that:
(i) neither the Administrative Agent, the Lenders, the Swingline
Lender, the Fronting Bank nor their agents or employees shall be liable
for any loss or damage insured by the insurance policies required to be
maintained under this Section 6.02, it being understood that (A) the
Borrower shall look, and shall cause each Guarantor to look, solely to its
insurance company or any other parties other than the aforesaid parties
for the recovery of such loss or damage and (B) such insurance company
shall have no rights of subrogation against the Administrative Agent, the
Collateral Agent, the Lenders, the Swingline Lender, the Fronting Bank or
their agents or employees. If, however, the insurance policies do not
provide waiver of subrogation rights against such parties as requested
above, then the Borrower hereby agrees, to the extent permitted by law, to
waive its right of
recovery, if any, against the Administrative Agent, the Collateral Agent,
the Lenders, the Swingline Lender, the Fronting Bank and their agents and
employees; and
(ii) the designation of any form, type or amount of insurance
coverage by the Administrative Agent or the Collateral Agent under this
Section 6.02, shall in no event be deemed a representation, warranty, or
advice by the Administrative Agent or the Collateral Agent that such
insurance is adequate for the purposes of the Borrower's and each
Guarantor's business or the protection of the Borrower's and each
Guarantor's properties and the Administrative Agent and the Collateral
Agent shall have the right from time to time to require the Borrower to
keep (and/or cause any Guarantor to keep) other insurance in such form and
amount as the Administrative Agent or the Collateral Agent may reasonably
request, provided that such insurance shall be obtainable on commercially
reasonable terms.
SECTION 6.03. Obligations and Taxes. Pay its Indebtedness and other
material obligations promptly, and in accordance with their terms and pay and
discharge promptly when due all material taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or in respect of
its property, before the same shall become delinquent or in default, its well as
all lawful claims for labor, materials and supplies or otherwise that, if
unpaid, might give rise to a Lien upon such properties or any part thereof;
provided, however, that such payment and discharge shall not be required with
respect to any such obligation, tax, assessment, charge, levy or claim so long
as the validity or amount thereof shall be contested in good faith by
appropriate proceedings and the Borrower, TAFSI or a Guarantor, as applicable,
shall have set aside on its books adequate reserves with respect thereto in
accordance with GAAP and such contest operates to suspend collection of the
contested obligation, tax, assessment or charge and enforcement of a Lien and,
in the case of a Mortgaged Property, there is no risk of forfeiture of such
property.
SECTION 6.04. Financial Statements, Reports, etc. Furnish to the
Administrative Agent (for distribution to the Lenders):
(a) within 105 days after the end of each fiscal year (or, during
any time that the Borrower is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934, as amended (together
with the rules and regulations promulgated thereunder, the "Exchange
Act"), such shorter period as required by the Exchange Act for the filing
by the Borrower of annual reports on Form 10-K), the consolidated and
consolidating balance sheets and related statements of income and cash
flow, showing the consolidated financial condition of the Borrower and its
consolidated subsidiaries as of the close of such fiscal year and the
results of their operations during such year, all audited by
PricewaterhouseCoopers LLP or other independent public accountants of
recognized national standing reasonably acceptable to the Required Lenders
and accompanied by an opinion of such accountants (which shall not be
qualified in any material respect) to the effect that such consolidated
financial statements fairly present the consolidated financial condition
and results of operations of the
Borrower and its consolidated subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 60 days (or, during any time that the Borrower is subject
to the periodic reporting requirements of the Exchange Act, such shorter
period as required by the Exchange Act for the filing by the Borrower of
quarterly reports on Form 10-Q) after the end of each of the first three
fiscal quarters of each fiscal year, the unaudited consolidated and
consolidating balance sheets and related statements of income and changes
in financial position, showing the consolidated financial condition of the
Borrower and its consolidated subsidiaries as of the close of such fiscal
quarter and the results of their operations during such fiscal quarter and
the then elapsed portion of the fiscal year, all certified by a Financial
Officer of the Borrower as fairly presenting the consolidated financial
condition and results of operations of the Borrower and its consolidated
subsidiaries in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes required by
GAAP;
(c) concurrently with any delivery of financial statements under (a)
or (b) above, a certificate of a Financial Officer of the Borrower (i)
certifying that no Event of Default or Default has occurred or, if such an
Event of Default or Default has occurred, specifying the nature and extent
thereof and any corrective action taken or proposed to be taken with
respect thereto, (ii) setting forth computations in reasonable detail
satisfactory to the Administrative Agent calculating the Leverage Ratio
and Senior Leverage Ratio as of the end of the period covered by such
financial statements and demonstrating compliance with the covenants
contained in Sections 7.13. 7.14, and 7.15 and (iii) stating whether any
change in GAAP or in the application thereof has occurred since the date
of the Borrower's audited financial statements for the fiscal year ended
December 31, 2003, and, if any such change has occurred, specifying the
effect of such change on the financial statements accompanying such
certificate;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Borrower or any of its subsidiaries with the SEC or with any national
securities exchange;
(e) promptly following the preparation thereof, copies of each
management letter prepared by the Borrower's, a Guarantor's or TAFSI's
auditors (together with any response thereto prepared by the Borrower,
such Guarantor or TAFSI);
(f) Upon the earlier of (i) 105 days after the end of each fiscal
year of the Borrower and (ii) the date on which the financial statements
with respect to such period are delivered pursuant to paragraph (a) above,
historical summary data for the immediately preceding year and forecasted
financial projections and summary data through the end of the then current
fiscal year, in substantially the same form and format as set forth in
Section 11 of the Confidential Information Memorandum (including a
specification of the underlying assumptions and a
management discussion of historical results), all certified by a Financial
Officer of the Borrower to be a fair summary of its results and its good
faith estimate of the forecasted financial projections and results of
operations for the period through the then-current fiscal year;
(g) upon the earlier of (i) 105 days after the end of each fiscal
year of the Borrower and (ii) the date on which the financial statements
with respect to such period are delivered pursuant to paragraph (a) above,
a certificate of a Financial Officer of the Borrower setting forth, in
detail satisfactory to the Administrative Agent, the amount of Excess Cash
Flow, if any, for such period;
(h) promptly, from time to time, such other information regarding
the operations, business affairs and financial condition of any Guarantor,
TAFSI or the Borrower, or compliance with the terms of any Loan Document,
as the Administrative Agent, the Fronting Bank, the Swingline Lender or
any Lender may reasonably request;
(i) promptly, a copy of any amendment or waiver of any provisions of
any agreement referenced in Section 7.10 or any other amendment or waiver
of any provisions of any agreement to the extent that such amendment or
waiver is required hereunder to be furnished to the Administrative Agent,
the Fronting Bank or any Lender;
(j) promptly a copy of any notice of default received by the
Borrower, TAFSI or any Guarantor or under the Subordinated Note Indenture
or an indenture in respect of any Subordinated Note Refinancing
Indebtedness, as the case may be;
(k) a copy of all notices (other than regarding any scheduled or
mandatory repayments), certificates, financial statements and reports, as
and when delivered by or on behalf of the Borrower, TAFSI or any Guarantor
or under the Subordinated Note Indenture or an indenture in respect of any
Subordinated Note Refinancing Indebtedness, as the case may be (except to
the extent any such notice, certificate, financial statement or report is
otherwise required to be delivered pursuant to this Agreement); and
(l) a copy of all solicitations or requests for any proposed waiver
or amendment of any of the provisions of the Subordinated Note Indenture
or an indenture in respect of any Subordinated Note Refinancing
Indebtedness, as the case may be (but only if the consent or approval of
the Lenders is required in connection therewith).
SECTION 6.05. Litigation and Other Notices. Furnish to the
Administrative Agent, the Fronting Bank, the Swingline Lender, the Collateral
Agent and each Lender prompt written notice of the occurrence of the following:
(a) promptly after obtaining knowledge thereof, any Event of Default
or Default, specifying the nature and extent thereof and the corrective action
(if any) proposed to be taken with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any Person to file or commence, any action, suit or proceeding,
whether at law or in equity or by or before any Governmental Authority, against
the Borrower or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect; and
(c) any development that has resulted in, or could reasonably be
anticipated to result in, a Material Adverse Effect.
SECTION 6.06. ERISA. (a) Comply in all respects with the applicable
provisions of ERISA where failure to do so could reasonably be expected to have
a Material Adverse Effect and (b) furnish to the Administrative Agent (i) as
soon as possible, and in any event within 30 days after any Responsible Officer
of the Borrower or any Guarantor or any ERISA Affiliate either knows or has
reason to know that any Reportable Event has occurred, as to which the Borrower,
any Guarantor, TAFSI or any ERISA Affiliate was or is required to file a report
with the PBGC, that alone or together with any other Reportable Event could
reasonably be expected to result in liability of the Borrower, TAFSI, any
Guarantor or any ERISA Affiliate to the PBGC in an aggregate amount exceeding
$5,000,000, a statement of a Financial Officer of the Borrower setting forth
details as to such Reportable Event and the action proposed to be taken with
respect thereto, together with a copy of the notice, if any, of such Reportable
Event given to the PBGC, (ii) promptly after receipt thereof, a copy of any
notice the Borrower, TAFSI or any Guarantor or any ERISA Affiliate may receive
from the PBGC relating to the intention of the PBGC to terminate any Plan or
Plans, (other than a Plan maintained by an ERISA Affiliate that is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the
Code) or to appoint a trustee to administer any Plan or Plans, (iii) within 30
days after the due date for filing with the PBGC pursuant to Section 412(n) of
the Code of a notice of failure to make a required installment or other payment
with respect to a Plan, a statement of a Financial Officer of the Borrower,
TAFSI or such Guarantor, as applicable, setting forth details as to such failure
and the action proposed to be taken with respect thereto, together with a copy
of such notice given to the PBGC and (iv) promptly and in any event within 30
days after receipt thereof by the Borrower, TAFSI or any Guarantor or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, a copy of each notice
received by the Borrower or any ERISA Affiliate concerning (A) the imposition of
Withdrawal Liability or (B) a determination that a Multiemployer Plan is, or is
expected to be, terminated or in reorganization, in each case within the meaning
of Title IV of ERISA, where the liability that would reasonably be expected to
result would have a Material Adverse Effect.
SECTION 6.07. Maintaining Records; Access to Properties and
Inspections. Maintain all financial records in accordance with GAAP and permit
any representatives designated by any Agent, the Fronting Bank, the Swingline
Lender, the Collateral Agent or any Lender to visit and inspect the financial
records, and the properties of the Borrower, TAFSI and each Guarantor at
reasonable times and upon
reasonable notice and as often as reasonably requested and to make extracts from
and copies of such financial records, and permit any representatives designated
by any Agent, the Fronting Bank, the Swingline Lender, the Collateral Agent or
any Lender to discuss the affairs, finances and condition of the Borrower, TAFSI
or any Guarantor or any properties of Borrower or any Guarantor with the
officers thereof.
SECTION 6.08. Use of Proceeds. Use the Letters of Credit and the
proceeds of the Revolving Loans, any Swingline Loans and the Term Loans only for
the purposes set forth in Section 4.13.
SECTION 6.09. Fiscal Year. Cause its fiscal year to end on December
31 of each year.
SECTION 6.10. Further Assurances. (a) Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements, mortgages and deeds of trust) that may be required under applicable
law, or which the Required Lenders, the Administrative Agent or the Collateral
Agent may reasonably request, in order to effectuate the transactions
contemplated by the Loan Documents and in order to grant, preserve, protect and
perfect the validity and first priority of the security interests created or
intended to be created by the Security Documents. In addition, from time to
time, each of the Borrower, TAFSI and the Guarantors will, at its cost and
expense, promptly secure the Obligations by pledging or creating, or causing to
be pledged or created, perfected security interests with respect to such of its
assets and properties as the Administrative Agent or the Required Lenders shall
designate (it being understood that it is the intent of the parties that the
Obligations shall be secured by, among other things, substantially all the
assets of the Borrower, each Guarantor and TAFSI (including real and other
properties acquired subsequent to the Closing Date)), provided that the
Borrower, TAFSI and the Guarantors shall not be required to create, or cause to
be created, mortgages with respect to leasehold interests in real property with
a fair market value not in excess of $3,000,000. Such security interests and
Liens, will be created under the Security Documents and other security
agreements, mortgages, deeds of trust and other instruments and documents, in
form and substance satisfactory to the Required Lenders, and each of the
Borrower, TAFSI and the Guarantors shall deliver or cause to be delivered to the
Lenders all such instruments and documents, (including legal opinions, title
insurance policies and lien searches) as the Required Lenders shall reasonably
request to evidence compliance with this Section 6.10. Each of the Borrower and
the Guarantors agrees to provide such evidence as the Required Lenders shall
reasonably request as to the perfection and priority status of each such
security interest and Lien.
(b) If any additional direct or indirect subsidiary of the Borrower
is organized or acquired by the Borrower after the date hereof, (i) notify the
Administrative Agent and the Lenders of such subsidiary's organization or
acquisition, (ii) cause such subsidiary (unless such subsidiary is a Foreign
Subsidiary), simultaneously with its organization or acquisition, to execute and
become a party to the Guarantee Agreement, the Indemnity and Subrogation
Agreement, the Security Agreement and each applicable other Security Document in
favor of the Collateral Agent and (iii) if any shares of capital stock or other
equity interest or Indebtedness of such subsidiary are owned by or on
behalf of the Borrower or any Guarantor, cause such Person, simultaneously with
such subsidiary's organization or acquisition, to pledge to the Collateral Agent
such shares, evidence of such other equity interests and promissory notes
evidencing such Indebtedness pursuant to the Pledge Agreement, provided that the
Borrower and the Guarantors shall not be required to pledge more than 65% of the
outstanding voting equity interests in any Foreign Subsidiary. The Borrower
agrees to provide such evidence as the Collateral Agent shall reasonably request
as to the perfection and priority status of each security interest and Lien
created pursuant to such Security Documents.
SECTION 6.11. Environmental and Safety Laws. (a) Comply with, and
use its reasonable best efforts to ensure compliance by all tenants and
subtenants with, all Environmental and Safety Laws and obtain and comply with
and maintain, and use its reasonable best efforts to ensure that all tenants and
subtenants obtain and comply with and maintain, any and all licenses, approvals,
registrations or permits required by Environmental and Safety Laws, except to
the extent that failure to so comply or to obtain and comply with and maintain
such licenses, approvals, registrations and permits does not have, and would not
reasonably be expected to result in, a Material Adverse Effect.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions, required under
Environmental and Safety Laws and promptly comply with all lawful orders and
directives of all Governmental Authorities respecting Environmental and Safety
Laws, except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings would not have a
Material Adverse Effect or the failure to conduct and complete the same would
not reasonably be expected to result in a Material Adverse Effect.
(c) Notify the Administrative Agent of any of the following that is
likely to have a Material Adverse Effect:
(i) any Environmental Claim that the Borrower, TAFSI or any
Guarantor receives, including one to take or pay for any remedial,
removal, response or cleanup or other action with respect to any Hazardous
Substance contained on any property owned or leased by the Borrower, such
Guarantor or TAFSI;
(ii) any notice of any alleged violation of or knowledge by the
Borrower, Holdings, TAFSI or any Guarantor of a condition that might
reasonably result in a violation of any Environmental and Safety Law;
(iii) any commencement or written threat of the commencement of any
judicial or administrative proceeding or investigation alleging a
violation or potential violation of any requirement of any Environmental
and Safety Law by the Borrower, TAFSI or any Guarantor; and
(iv) any Release or threat of Release of any Hazardous Substance
that would reasonably be expected to result in a Material Adverse Effect.
(d) Without limiting the generality of Section 10.05(b), indemnify
each Agent, the Fronting Bank, the Swingline Lender, the Collateral Agent and
each Lender and each of their Related Parties (each such Person being called an
"Indemnitee") against, and to hold each Indemnitee harmless from, any claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses
(including reasonable counsel fees, expert and consultant fees, charges and
disbursements) of whatever kind or nature arising out of, or in any way relating
to, the violation of, noncompliance with or liability under any Environmental
and Safety Laws applicable to the operations of the Borrower or any Guarantor or
to the Mortgaged Properties, or any orders, requirements or demands of
Governmental Authorities related thereto, including reasonable attorneys' and
consultants' fees, investigation and laboratory fees, response costs, court
costs and litigation expenses, except to the extent that any of the foregoing
are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or wilful misconduct of
the Indemnitee seeking indemnification therefor. This indemnity shall continue
in full force and effect regardless of the termination of this Agreement and the
other Loan Documents.
SECTION 6.12. Material Contracts. Maintain in full force and effect
(including exercising any available renewal option and without amendment or
modification) all its material contracts (including each operating lease
permitted by Section 7.08) unless the failure so to maintain such contracts (or
the amendments or modifications thereto) individually or in the aggregate, would
not have a Material Adverse Effect, and promptly notify each Lender of each
failure to comply with this Section 6.12.
SECTION 6.13. Lender Deposit Accounts. Deposit and hold all cash
(other than cash on deposit with local banks which cash is automatically
transferred to a deposit account maintained with a Lender no less frequently
than every three Business Days) and Permitted Investments of the Borrower or any
of its subsidiaries in deposit accounts or securities accounts, as applicable,
maintained with a Lender or over which the Collateral Agent exercises "control"
(as defined in any applicable Uniform Commercial Code); provided, however, that
the Borrower and its subsidiaries shall be permitted to hold up to an aggregate
of $5,000,000 at any time in cash and/or Permitted Investments in accounts that
are not maintained with a Lender or "controlled" by the Collateral Agent.
ARTICLE VII
Negative Covenants
The Borrower covenants and agrees with each Lender, each Agent, the
Fronting Bank and the Swingline Lender that, so long as this Agreement shall
remain in effect or the principal of or interest on any Loan or Swingline Loan
or LC Disbursement, any Fees or any other expenses or amounts payable under any
Loan Document shall be unpaid, unless the Required Lenders shall otherwise
consent in writing, the Borrower will not, and will not cause or permit any of
its subsidiaries to:
SECTION 7.01. Indebtedness. Incur, create, assume or permit to exist
any Indebtedness, except:
(a) Indebtedness existing on the date hereof and set forth on
Schedule 7.01 (and any extensions, renewals or replacements of any such
Indebtedness so long as (i) the weighted average interest rate applicable to
such extended, renewed or replacement Indebtedness ("Refinancing Indebtedness")
must be less than or equal to the interest rate applicable to the Indebtedness
being extended, renewed or replaced, (ii) no material terms applicable to such
Refinancing Indebtedness (including any Guarantees and the subordination
provisions thereof) shall be more favorable to the refinancing lenders than the
terms contained in the Indebtedness being extended, renewed or replaced prior to
such refinancing, (iii) the weighted average life to maturity of such
Refinancing Indebtedness shall be greater than or equal to the weighted average
life to maturity of the Indebtedness being extended, renewed or replaced and the
first scheduled principal payment in respect of such Refinancing Indebtedness
shall not be earlier than the next scheduled principal payment (determined as of
the date of such extension, renewal or replacement) in respect of the
Indebtedness being extended, renewed or replaced, (iv) the principal amount of
such Refinancing Indebtedness shall be less than or equal to the principal
amount then outstanding of the Indebtedness being extended, renewed or replaced
and (v) such Refinancing Indebtedness may not be incurred if at the time of such
refinancing a Default or Event of Default has occurred and is continuing or
would result therefrom);
(b) Indebtedness created under the Loan Documents;
(c) in the case of the Guarantors, Indebtedness consisting of
purchase money Indebtedness incurred after the Closing Date to finance Capital
Expenditures permitted under Section 7.13; provided, however, that (i) for
purposes of Section 7.13, the aggregate principal amount of any such
Indebtedness shall be deemed to be a Capital Expenditure at the time incurred or
assumed, (ii) the aggregate of (A) the aggregate principal amount of
Indebtedness permitted pursuant to this Section 7.01(c) and (B) any Capital
Lease Obligations permitted pursuant to Sections 7.01(d) and 7.11(c) shall not
exceed $50,000,000 at any time outstanding and (iii) such Indebtedness is
incurred within 90 days after the making of the Capital Expenditures financed
thereby;
(d) in the case of the Guarantors, Indebtedness in respect of
Capital Lease Obligations permitted under Section 7.11(c);
(e) in the case of the Borrower or any Guarantor, Indebtedness in
respect of fuel-supply hedging agreements and arrangements, provided that any
such agreements or arrangements shall have been entered into for bona fide
hedging purposes and pursuant to a written fuel-supply hedging policy approved
by the board of directors of the Borrower;
(f) (i) in the case of the Borrower, Indebtedness in respect of the
Subordinated Notes in an aggregate principal amount at any time outstanding not
in excess of $190,000,000 and (ii) in the case of the Guarantors, Indebtedness
in respect of the Subordinated Note Guarantees;
(g) Indebtedness that arises from the refinancing from time to time
by the Borrower of the Subordinated Notes; provided, however, that (i) such
refinancing must be in whole and not in part, (ii) such Indebtedness shall be
subordinated to the Obligations on terms no less favorable to the Lenders than
those with respect to the Subordinated Notes, (iii) the stated maturity thereof
shall be on or after the date that is six months after the Term Loan Maturity
Date (assuming for this purpose that the Term Loan Maturity Date has been
extended pursuant to the terms of the definition thereof), and no scheduled or
other mandatory payments of principal (including in respect of scheduled
amortization, sinking fund payments or otherwise) shall be required prior to the
date that is six months after the Term Loan Maturity Date (assuming for this
purpose that the Term Loan Maturity Date has been extended pursuant to the terms
of the definition thereof), other than as a result of a "change of control" or
sales of assets, in either case on terms no less favorable to the Lenders than
those contained in the Subordinated Note Documents, (iv) the other material
terms and conditions thereof shall be no less favorable to the Lenders than the
terms and conditions contained in the Subordinated Note Documents, (v) such
Indebtedness shall be Indebtedness of the Borrower (but may be Guaranteed by the
Guarantors), (vi) such Indebtedness shall be unsecured, (vii) the material terms
and conditions of any Guarantees of such Indebtedness (including with respect to
subordination) shall be no less favorable to the Lenders than the Subordinated
Note Guarantees, (viii) the principal amount of such Indebtedness shall be less
than or equal to the principal amount then outstanding of the Subordinated Notes
(plus accrued interest and prepayment premiums in respect thereof) and (ix) such
Indebtedness may not be incurred at any time that a Default or Event of Default
has occurred and is continuing or would result therefrom;
(h) in the case of TAFSI, Indebtedness to the Borrower or any
Guarantor, provided that the amount of all such Indebtedness does not exceed
$3,000,000 in the aggregate at any time outstanding;
(i) in the case of any Guarantor, Indebtedness to the Borrower, the
other Guarantors or TAFSI;
(j) in the case of the Borrower, Rate Protection Agreements;
(k) in the case of the Guarantors, other Indebtedness in an
aggregate principal amount at any time outstanding not in excess of $20,000,000,
provided that the Indebtedness permitted by this clause (k) may be secured by
Liens permitted by clauses (o) or (p) of Section 7.02;
(l) in the case of the Borrower, Indebtedness to any of its
subsidiaries;
(m) Indebtedness of any subsidiary of the Borrower that becomes a
subsidiary of the Borrower after the date hereof pursuant to a Permitted
Business Acquisition, provided that (i) such Indebtedness is outstanding at the
time such subsidiary becomes a subsidiary of the Borrower and is not created in
contemplation of or in connection with such subsidiary becoming a subsidiary of
the Borrower (and any extensions, renewals or replacements of any such
Indebtedness so long as (A) the weighted average interest rate applicable to
such extended, renewed, refinanced or
replacement Indebtedness ("Refinancing Indebtedness") must be less than or equal
to the interest rate applicable to the Indebtedness being extended, renewed,
refinanced or replaced, (B) no material terms applicable to such Refinancing
Indebtedness (including the subordination provisions thereof) shall be more
favorable to the refinancing lenders than the terms contained in the
Indebtedness being extended, renewed, refinanced or replaced prior to such
refinancing, (C) the weighted average life to maturity of such Refinancing
Indebtedness shall be greater than or equal to the weighted average life to
maturity of the Indebtedness being extended, renewed, refinanced or replaced and
the first scheduled principal payment in respect of such Refinancing
Indebtedness shall not be earlier than the next scheduled principal payment
(determined as of the date of such extension, refinancing, renewal or
replacements) in respect of the Indebtedness being extended, renewed, refinanced
or replaced, (D) the principal amount of such Refinancing Indebtedness shall be
less than or equal to the principal amount then outstanding of the Indebtedness
being extended, renewed, refinanced or replaced and (E) such Refinancing
Indebtedness may not be incurred if at the time of such refinancing a Default or
Event of Default has occurred and is continuing or would result therefrom), (ii)
such subsidiary shall be a Guarantor, (iii) such Indebtedness is not Guaranteed
by the Borrower or by any other Guarantor and (iv) the aggregate principal
amount of Indebtedness permitted by this clause (m) shall not exceed $10,000,000
at any time outstanding;
(n) Indebtedness incurred to finance cash consideration payable in
connection with Permitted Business Acquisitions, provided that (i) any Permitted
Business Acquisitions that are to be financed with any such Indebtedness must be
consummated within six months after the date of issuance of such Indebtedness
(and the proceeds of such Indebtedness shall be deposited with the Collateral
Agent until so used and, to the extent such proceeds are not applied to
Permitted Business Acquisitions within such six-month period, such proceeds
shall be applied to prepay Term Borrowings), (ii) such Indebtedness is
subordinated to the Obligations on terms no less favorable to the Lenders than
the Subordinated Notes, (iii) the stated maturity thereof shall be on or after
the date that is six months after the Term Loan Maturity Date (assuming for this
purpose that the Term Loan Maturity Date has been extended pursuant to the terms
of the definition thereof), and no scheduled or other mandatory payments of
principal shall be required prior to the date that is six months after the Term
Loan Maturity Date (assuming for this purpose that the Term Loan Maturity Date
has been extended pursuant to the terms of the definition thereof), other than
as a result of a "change of control" or sales of assets, in either case on terms
no less favorable to the Lenders than those contained in the Subordinated Note
Documents, (iv) the other material terms and conditions thereof shall be no less
favorable to the Lenders than the terms and conditions contained in the
Subordinated Note Documents, (v) such Indebtedness shall be Indebtedness of the
Borrower (but may be Guaranteed by the Guarantors), (vi) such Indebtedness shall
be unsecured, (vii) the material terms and conditions of any Guarantees of such
Indebtedness by the Guarantors (including with respect to subordination) shall
be no less favorable to the Lenders than the Subordinated Note Guarantees,
(viii) the amount of Indebtedness permitted by this clause (n) at any time
outstanding shall not exceed the sum of $100,000,000 plus the aggregate
principal amount of Term Loans prepaid with the proceeds of such Indebtedness as
provided in clause (i) above or in the following proviso, (ix) as of the last
day of the most recently
ended fiscal quarter of the Borrower, the Borrower shall be in compliance with
Sections 7.14 and 7.15, provided that for purposes of calculating the Leverage
Ratio and Interest Coverage Ratio to determine compliance with this clause (ix),
the Leverage Ratio and Interest Coverage Ratio shall be calculated on a pro
forma basis to give effect to the applicable incurrence of Indebtedness and the
Permitted Business Acquisition relating thereto as if they had occurred at the
beginning of such period of four consecutive fiscal quarters, and (x) such
Indebtedness may not be incurred at any time that a Default or Event of Default
has occurred and is continuing or would result therefrom, and provided further
that if the Borrower is issuing Indebtedness in the capital markets that is
otherwise permitted by this clause (n) and in order to successfully market such
Indebtedness it is necessary to increase the aggregate principal amount thereof
being issued, then the Borrower may, subject to all the conditions set forth in
the immediately preceding proviso (including the limitation set forth in clause
(viii) above), so increase the aggregate principal amount of such Indebtedness,
but the incremental proceeds resulting from such increase must be deposited with
the Collateral Agent and, to the extent such proceeds are not used to finance a
Permitted Business Acquisition within six months after the date of issuance of
such Indebtedness, such proceeds shall be applied to prepay Term Borrowings or,
at the Borrower's option, Revolving Credit Borrowings (provided that the
aggregate amount of such proceeds applied to prepay Revolving Credit Borrowings
shall not exceed, on a cumulative basis during the term of this Agreement,
$50,000,000);
(o) Qualified Franchisee Guarantees, provided that, at any time, the
aggregate amount of Indebtedness subject to all Qualified Franchisee Guarantees
in effect at such time shall not exceed $7,500,000;
(p) Guarantees by the Borrower of Indebtedness of any subsidiary of
the Borrower and by any subsidiary of the Borrower of Indebtedness of the
Borrower or any other subsidiary of the Borrower, provided that (A) Guarantees
by the Borrower or any Guarantor of Indebtedness of any subsidiary of the
Borrower that is not a Guarantor shall be subject to Section 7.04(n) and (B) a
subsidiary of the Borrower that is not a Guarantor shall not Guarantee
Indebtedness of the Borrower or any Guarantor; and
(q) Indebtedness in respect of procurement card purchases in the
ordinary course of business.
SECTION 7.02. Liens. Create, incur, assume or permit to exist any
Lien on any property or assets (including stock or other securities of any
Person) now owned or hereafter acquired by it or on any income or revenues or
rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower or any subsidiary
thereof existing on the date hereof and set forth on Schedule 7.02 (including,
to the extent any such Lien is the result of a lease, any extensions, renewals
or replacements of such lease, provided that the annual lease payment under any
such extension, renewal or replacement shall be no less than the fair market
rental value of the leased property as of the date of such extension, renewal or
replacement), provided that such Liens shall secure only those obligations that
they secure on the date hereof;
(b) in the case of any Guarantor, any Lien existing on any property
or asset prior to the acquisition thereof (by merger, consolidation, asset
purchase or otherwise) by such Guarantor (including pursuant to a Permitted
Business Acquisition) or existing at the time such Guarantor becomes a
subsidiary of the Borrower pursuant to a Permitted Business Acquisition
(including any such Lien securing Indebtedness permitted under clause (m) of
Section 7.01, but excluding any such Lien securing any other Indebtedness),
provided that (i) such Lien is not created in contemplation of or in connection
with such acquisition, (ii) such Lien does not apply to any other property or
assets of such Guarantor (except for property in the nature of improvements to
property already subject to such Lien), including any accounts receivable or
inventory acquired or created after the date of such acquisition, and (iii) such
Lien does not (A) materially interfere with the use, occupancy and operation of
any property, (B) materially reduce the fair market value of such property but
for such Lien or (C) result in any material increase in the cost of operating,
occupying or owning (or leasing) such property;
(c) Liens for taxes, assessments or governmental charges not yet due
and payable (or due and payable but not yet delinquent) or which are being
contested in compliance with Section 6.03 or Section 6.12;
(d) in the case of the Guarantors, carriers', warehousemen's,
mechanics', materialmen's, repairmen's, landlord's or other like Liens arising
in the ordinary course of business and securing obligations that are not due and
payable or which are being contested in compliance with Section 6.03;
(e) in the case of the Guarantors, pledges and deposits made in the
ordinary course of business in compliance with workmen's compensation,
unemployment insurance and other social security laws or regulations;
(f) in the case of the Guarantors, pledges and deposits to secure
the performance of bids, trade contracts (other than for Indebtedness) leases,
statutory obligations surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business and
(ii) in the case of the Borrower and the Guarantors, pledges and deposits to
secure Indebtedness permitted under Section 7.01(e);
(g) in the case of the Guarantors, zoning restrictions, easements,
rights-of-way, restrictions on use of real property and other similar
encumbrances that do not materially impair the current use or the value of the
property subject thereto;
(h) in the case of the Guarantors, purchase money security interests
in real property, improvements thereto or equipment hereafter acquired (or, in
the case of improvements, constructed), provided that (i) such security
interests secure Indebtedness permitted by Section 7.01(c), (ii) such security
interests are incurred, and the Indebtedness secured thereby is created, within
90 days after such acquisition (or construction), (iii) the Indebtedness secured
thereby does not exceed 75% of the lesser of the cost or the fair market value
of such real property, improvements or equipment at the time of such acquisition
(or construction) and (iv) such security interests do not apply to any Mortgaged
Property or any other property or assets;
(i) Liens incurred in connection with Capital Lease Obligations
permitted by Section 7.01(d), provided that such Liens do not extend to any
other property or assets of such Person;
(j) any Lien created under the Loan Documents;
(k) the lease or sublease of retail space, office space or space for
truck weigh stations at any TravelCenter so long as (i) in the case of retail or
office space either (A) the term of the lease or sublease does not exceed three
years or (B) such lease or sublease does not result in the lease or sublease of
real property of the Borrower or any of its subsidiaries in excess of 3,000
square feet at any one location to any one lessee or (ii) in the case of space
leased or subleased for truck weigh stations, such lease or sublease does not
result in the lease or sublease of real property of the Borrower or any of its
Subsidiaries in excess of 8,000 square feet at any one location to any one
lessee;
(l) the nonexclusive leasing of any portion of a parking lot at any
TravelCenter for the purpose of allowing third parties to provide heat, air
conditioning, electricity and other services to customers of the Borrower and
its subsidiaries;
(m) the lease or sublease of retail space and office space at any
TravelCenter other than as described in clause (k) above, provided that (i) the
lease with respect thereto shall (A) contain provisions consistent with and not
in conflict with any term, condition, covenant or agreement contained in any
Loan Document, (B) require the lessee to deliver estoppel certificates to the
Collateral Agent in compliance with clause (iii) below, (C) provide that such
lease is subject and subordinate in all respects to the applicable Mortgage and
(D) constitute an "operating lease" (and not a financing lease) for all
purposes, (ii) in each case, the Borrower shall have delivered to the Collateral
Agent, reasonably in advance of the execution and delivery thereof, copies of
such lease and all other agreements to be entered into by the Borrower or any of
its subsidiaries in connection therewith, (iii) the Borrower shall have
delivered to the Collateral Agent within 30 days of a request therefor by the
Collateral Agent, an estoppel certificate of any lessee in form and substance
reasonably satisfactory to the Collateral Agent, (iv) in each case, the Borrower
shall, at its expense, take such action as shall be necessary or as shall be
reasonably requested by the Collateral Agent to assign to the Collateral Agent,
for the benefit of the Secured Parties, a perfected security interest in its
rights under such lease and other agreements, (v) after giving effect to the
entering into of such lease, no Default or Event of Default shall have occurred
and be continuing, (vi) promptly after execution of such lease, an executed copy
of such lease and a certificate of an officer of the Borrower certifying that
such lease complies with the provisions of this Section 7.02(l) shall be
delivered to the Administrative Agent and (vii) the lease or sublease of such
space: (A) shall not result in the representations and warranties contained in
the related Mortgage or in this Agreement to be untrue, (B) shall not result in
any material adverse effect on the value or operations of the related Mortgaged
Property as a TravelCenter, (C) shall have no effect on the Collateral Agent's
Lien on the remaining Land under the related Mortgage, (D) shall not restrict
ingress and egress to, the operation of or in any way interfere with the
business currently conducted on the Mortgaged Property and (E) shall be done and
conducted, as applicable, in all material respects in accordance with all laws,
rules, regulations or statutes (including any
zoning, building, Environmental and Safety Laws, ordinances, codes or approvals
or any building permits) or any restrictions of record or agreements affecting
the Mortgaged Property;
(n) judgment liens in respect of judgments that do not otherwise
constitute an Event of Default; and
(o) Liens on any Excepted Properties securing any Indebtedness of a
Guarantor issued to a Franchisee to finance the payment by such Guarantor to
such Franchisee of consideration in connection with the termination of such
Franchisee's lease of such Excepted Property, provided that the aggregate
principal amount of all Indebtedness secured by Liens described in this
paragraph (o) shall not exceed $10,000,000 at anytime outstanding and (ii) all
Indebtedness secured by Liens described in this paragraph (o) must be permitted
by Section 7.01(k);
(p) Liens on Excepted Properties securing contingent obligations of
any Guarantor to repay to any supplier amounts advanced by such supplier to such
Guarantor pursuant to any arrangement providing for (i) advances by such
supplier to such Guarantor to improve TravelCenters owned by such Guarantor,
(ii) long term commercial arrangements between such Guarantor and such supplier
for a specified period and (iii) a contingent obligation by such Guarantor to
repay to such supplier all or any portion of such amounts so advanced by such
supplier to such Guarantor if such Guarantor defaults on, or terminates prior to
the expiration of, its obligations in respect of such commercial arrangements,
provided that, to the extent that any such contingent obligations constitute
Indebtedness, such Indebtedness must be permitted by Section 7.01(k); and
(q) Liens on assets of the Borrower or any Guarantor not permitted
under any other clause of this Section 7.02, provided that the aggregate amount
of Indebtedness and other obligations secured by all Liens permitted under this
clause (q) shall not exceed $10,000,000 at any time outstanding.
SECTION 7.03. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any Person whereby it shall sell,
lease or transfer any property, real or personal, used or useful in the business
of the Borrower or its subsidiaries, whether now owned or hereafter acquired,
and thereafter rent or lease such property or other property that it intends to
use for substantially the same purpose or purposes as the property being sold,
leased or transferred (any such transaction, a "Sale and Lease-Back
Transaction"), other than any Sale and Lease-Back Transaction with respect to
property acquired by the Borrower or any subsidiary thereof following the
Closing Date, if such Sale and Lease-Back Transaction (i) involves a sale by the
Borrower or any subsidiary thereof for consideration equal to at least the
then-current fair market value of such property and (ii) results in a Capital
Lease Obligation or an operating lease permitted by Section 7.11, in either case
entered into to finance a Capital Expenditure permitted by Section 7.13
consisting of (A) the initial acquisition by the Borrower or such subsidiary of
the property sold or transferred in such Sale and Lease-Back Transaction or (B)
the development of a TravelCenter on such property.
SECTION 7.04. Investments, Loans and Advances. Purchase, hold or
acquire any capital stock, evidences of Indebtedness or other securities of,
make or permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other Person, except:
(a) in the case of the Borrower, investments by the Borrower in the
capital stock of, and loans to, the Guarantors and in promissory notes described
in Section 7.04(e);
(b) Permitted Investments;
(c) in the case of the Guarantors, pledges and deposits permitted
under subsection (f) of Section 7.02;
(d) in the case of the Guarantors, loans or advances to employees in
the ordinary course of business in an aggregate amount outstanding to any single
employee at any time not in excess of $50,000 (or, if and to the extent such
loans or advances shall be used by such employees solely for relocation
expenses, $150,000 and in an aggregate amount outstanding for all employees at
any time not in excess of $1,500,000 (which loans and advances shall not be
forgiven);
(e) in the case of the Borrower, investments by the Borrower in the
capital stock of, and loans to, TAFSI that are consistent with the limitations
on the business of TAFSI set forth in Section 7.08;
(f) in the case of the Borrower and the Guarantors, investments
constituting the purchase price of Permitted Business Acquisitions, provided
that (i) the consideration for each Permitted Business Acquisition shall consist
solely of cash (including cash proceeds of any Subordinated Acquisition
Financing), shares of common stock of the Borrower, Indebtedness referred to in
clause (m) of Section 7.01 or a combination thereof, (ii) the sum of all cash
consideration in respect of Permitted Business Acquisitions (excluding cash
consideration paid from the proceeds of any Subordinated Acquisition Financing
and excluding cash consideration received as proceeds of the issuance by the
Borrower of additional shares of its common stock on or within 30 days prior to
the date of such Permitted Business Acquisition for the purpose of financing
such Permitted Business Acquisition) plus the aggregate principal amount of all
Indebtedness referred to in clause (m) of Section 7.01 that results from
Permitted Business Acquisitions, shall not exceed, during any fiscal year of the
Borrower, $100,000,000 in the aggregate, provided that during any fiscal year
such $100,000,000 permitted amount may be increased by an amount (not exceeding
$20,000,000) equal to the unused amount of Capital Expenditures permitted in
such fiscal year pursuant to Section 7.13, (iii) the Borrower's investments (as
opposed to a Guarantor's investments) permitted pursuant to this Section 7.04(f)
shall be limited to investments in capital stock of, and other equity ownership
interests in, the acquired entities and shall not include any operating assets
and (iv) at the time of, and after giving effect to the consummation of
(including payment of all consideration in respect of), each Permitted Business
Acquisition, the aggregate amount of the Revolving Credit Commitments shall
exceed
the sum of the outstanding principal amount of Revolving Loans and Swingline
Loans plus the aggregate LC Exposure by at least $20,000,000;
(g) in the case of the Borrower, Rate Protection Agreements;
(h) investments not otherwise permitted by this Section 7.04,
including without limitation, in the case of the Guarantors, investments in any
joint venture (any such joint venture, a "Permitted Joint Venture") and Foreign
Subsidiaries, so long as the amount of all such investments, when taken together
with the aggregate principal amount then outstanding of all Indebtedness and
other obligations of subsidiaries of the Borrower that are not Guarantors that
are Guaranteed by the Borrower or any Guarantor pursuant to clause (n) of this
Section 7.04, does not exceed $35,000,000 in the aggregate at any time
outstanding and none of such investments is prohibited by the Subordinated Note
Documents or any Subordinated Note Refinancing Documents or Subordinated
Acquisition Financing Documents (except to the extent waived or consented to by
holders of the Subordinated Notes or Subordinated Note Refinancing Indebtedness
or Subordinated Acquisition Financing in accordance with the Subordinated Notes
Documents or such Subordinated Note Refinancing Documents or Subordinated
Acquisition Financing Documents);
(i) in the case of the Guarantors and TAFSI, intercompany loans and
advances to TAFSI and the Guarantors to the extent permitted under subsections
(h), (i) and (l) of Section 7.01;
(j) in the case of any Guarantor, promissory notes evidencing loans
made by such Guarantor to members of such Guarantor's management or to the
Sponsor to enable them to purchase shares of the Borrower's common stock,
provided that (i) the amount loaned to any single member of management or to the
Sponsor shall not exceed 50% of the aggregate purchase price of the shares so
purchased by such member or the Sponsor, as applicable, with the proceeds of
such loan, (ii) all the shares so purchased with the proceeds of any such loan
shall be retained by the applicable Guarantor for the benefit of the Secured
Parties until such loan has been repaid, (iii) the aggregate amount of all such
loans outstanding at any time shall not exceed $2,500,000, (iv) such loans shall
not be forgiven, (v) any such shares purchased by the Sponsor with the proceeds
of any such loan shall be resold to members of the Borrower's management as soon
as such resale may be consummated in accordance with applicable State and
Federal securities laws and (vi) any member of management who purchases shares
pursuant to the preceding clause (v) shall assume all obligations in respect of
the loans the proceeds of which were used by the Sponsor to purchase such
shares;
(k) investments received in connection with the bankruptcy or
reorganization of suppliers or customers and in settlement of delinquent
obligations of, and other disputes with, customers, in each case in the ordinary
course of business;
(l) investments existing on the date hereof, and set forth on
Schedule 7.04(l);
(m) Qualified Franchisee Guarantees permitted under Section 7.01(o);
and
(n) Guarantees by the Borrower of obligations of any subsidiary of
the Borrower and by any subsidiary of the Borrower of obligations of the
Borrower or any other subsidiary of the Borrower, provided that (A) a subsidiary
of the Borrower that is not a Guarantor shall not Guarantee any obligations of
the Borrower or any Guarantor and (B) the aggregate principal amount of
Indebtedness and other obligations of subsidiaries of the Borrower that are not
Guarantors that is Guaranteed by the Borrower or any Guarantor pursuant to this
clause (n) at any time outstanding, when taken together with the aggregate
amount of all investments then outstanding and made pursuant to clause (h) of
this Section 7.04, shall not exceed $35,000,000.
SECTION 7.05. Mergers, Consolidations, Sales of Assets and
Acquisitions. Merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or sell, transfer, assign,
lease, sublease or otherwise dispose of (in one transaction or in a series of
transactions) all or any substantial part of the assets (whether now owned or
hereafter acquired) or any capital stock of any Guarantor or TAFSI, or purchase,
lease or otherwise acquire (in one transaction or a series of transactions) all
or any substantial part of the assets of any other Person; provided, however,
that the foregoing shall not prohibit:
(a) sales of Permitted Investments for cash;
(b) sales, transfers and other dispositions of used or surplus
equipment, vehicles and other assets in the ordinary course of business
(including, without limitation, the sale of surplus land at a TravelCenter) to
the extent that the Borrower shall have complied with the provisions of Section
2.13(b) and the definition of the term "Prepayment Event";
(c) sales of inventory in the ordinary course of business;
(d) sales, transfers and other dispositions of TravelCenters and the
related assets for at least the then-current fair market value of such assets
(other than any such sales, transfers and other dispositions permitted under
Section 7.05(g)), with the related Net Cash Proceeds being applied in accordance
with the provisions of Section 2.13(b) and the definition of the term
"Prepayment Event", if (i) the aggregate number of TravelCenters so sold,
transferred or disposed of pursuant to this subsection (d) shall not exceed 20
since the Closing Date, (ii) the aggregate amount of Net Cash Proceeds received
by the Borrower in respect of such sales, transfers and dispositions shall not
exceed $75,000,000 since the Closing Date, (iii) the consideration received in
any such transaction shall consist of immediately available funds in an amount
equal to at least 75% of the then-current fair market value of the applicable
asset(s) (with any instrument evidencing consideration other than immediately
available funds being pledged to the Collateral Agent as Collateral pursuant to
the Pledge Agreement), (iv) no Default or Event of Default shall have occurred
and be continuing and no such event shall occur as the result of such proposed
transaction and (v) prior to any such proposed transaction, the Administrative
Agent and the Collateral Agent shall have received a certificate of a
Financial Officer of the Borrower describing the proposed transaction (including
the consideration to be received) and certifying as to the compliance with the
foregoing provisions on a prospective basis;
(e) licenses or sublicenses by the Borrower, any Guarantor or TAFSI
to the Borrower, any Guarantor or TAFSI or to Franchisees or third parties on
arm's-length terms, if any, of the trademarks and servicemarks owned by the
Borrower, such Guarantor or TAFSI;
(f) sales, transfers and other dispositions of any portion of a
Mortgaged Property in connection with the development of such property as
permitted in, and in accordance with, the provisions of Section 9 of the
Guarantee Agreement;
(g) sales, transfers and other dispositions of the parcels of real
estate listed on Schedule 7.05(g) (which Schedule may be amended by the Borrower
from time to time to substitute another parcel of real estate for any parcel of
real estate that is then listed on such Schedule and has not been sold,
transferred or otherwise disposed of on or prior to the date of such
substitution) and the related TravelCenter assets, with the related Net Cash
Proceeds being applied in accordance with the provisions of Section 2.13(b) and
the definition of the term "Prepayment Event";
(h) in the case of the Guarantors, (i) mergers and acquisitions
constituting Permitted Business Acquisitions that comply with Section 7.04(f),
(ii) acquisitions of equity interests pursuant to Permitted Joint Ventures in
compliance with Section 7.04(h) and (iii) the merger of one such Guarantor with
and into another such Guarantor (provided that (A) the Borrower provides the
Administrative Agent and the Collateral Agent with at least five Business Days'
prior notice, (B) the Borrower complies with all of its obligations under
Section 6.10 and (C) immediately after giving effect thereto no Default or Event
of Default shall have occurred or be continuing or would result therefrom);
(i) leases permitted by Section 7.08;
(j) sales, leases or other transfers of assets in connection with
Sale and Lease-Back Transactions permitted by Section 7.03; or
(k) in the case of any Guarantor or TAFSI, any sale, transfer or
other disposition of any asset to TAFSI or another Guarantor, as the case may
be, provided that the aggregate fair market value of all assets transferred to
TAFSI by the Guarantors does not exceed $3,000,000.
SECTION 7.06. Dividends and Distributions. (a) Declare or pay
directly or indirectly, any dividend or make any other distribution (by
reduction of capital or otherwise), whether in cash, property, securities or a
combination thereof, with respect to any shares of its capital stock or directly
or indirectly redeem, purchase, retire or otherwise acquire for value any shares
of any class of its capital stock or set aside any amount for any such purpose;
provided, however, that (i) each of the Guarantors and TAFSI may declare and pay
dividends or make other distributions to the Borrower or
another Guarantor, (ii) so long as no Default or Event of Default shall have
occurred and be continuing or shall be caused thereby, the Borrower may declare
and pay dividends or make other distributions to repurchase or redeem Common
Stock of the Borrower from officers, directors or employees of the Borrower who
are no longer employed by the Borrower, so long as the aggregate amount of such
dividends or other distributions paid during any fiscal year shall not exceed
the sum of (A) $5,000,000, provided that such $5,000,000 permitted amount shall
be increased with respect to any fiscal year ending after January 1, 2005, by
the amount of unused permitted dividends or other distributions under this
clause for the immediately preceding fiscal year (each such amount, a
"Carry-Forward Amount") (it being understood and agreed that (x) no
Carry-Forward Amount may be carried forward beyond the first two fiscal years
immediately following the fiscal year in which it arose and (y) any dividends or
other distributions made under this clause in any fiscal year shall be deemed
made, first, in respect of any Carry-Forward Amount from the earlier of the two
immediately preceding fiscal years, second, in respect of any Carry-Forward
Amount from the more recent immediately preceding fiscal year and, third, in
respect of the amount permitted to be made in such fiscal year (without giving
effect to any Carry-Forward Amount)), plus (B) the proceeds of any resale of
such Common Stock or common stock, as the case may be, to other or new
employees, directors or officers of the Borrower made prior to or within 180
days after such repurchases or redemptions and (iii) so long as no Default or
Event of Default shall have occurred and be continuing or shall be caused
thereby, the Borrower may redeem in whole or in part any capital stock of the
Borrower by issuing, in consideration for such redemption, any other class of
capital stock of the Borrower or rights to acquire such capital stock, provided
that any capital stock so issued or to be issued shall not provide for any
amortization, sinking fund payment, mandatory cash dividends or redemptions, or
any right on the part of the holder to require redemption, repurchase or
repayment thereof, in each case prior to the date that is six months after the
Term Loan Maturity Date (assuming for this purpose that the Term Loan Maturity
Date has been extended pursuant to the terms of the definition thereof), and
shall not have terms, taken as a whole, materially disadvantageous to the
Lenders.
(b) Permit its subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such subsidiary to (i) pay any dividends or
make any other distributions on its capital stock or any other interest or (ii)
make or repay any loans or advances to the Borrower other than any (A)
consensual encumbrances or restrictions incurred as a result of the Subordinated
Note Indenture and (B) consensual encumbrances or restrictions that are incurred
in connection with any Subordinated Note Refinancing Indebtedness, provided that
such encumbrances or restrictions are no more onerous than the encumbrances and
restrictions described in clause (A) above.
SECTION 7.07. Transactions with Affiliates. Sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates, except
that the Borrower, TAFSI and each Guarantor may engage in any of the foregoing
transactions at prices and on terms and conditions no less favorable to the
Borrower, TAFSI or such Guarantor, as the case may be, than could be obtained on
an arm's-length basis from unrelated third parties,
provided that the foregoing provisions shall not restrict (a) any transaction
listed on Schedule 7.07, (b) any transaction with an Affiliate expressly
permitted by this Agreement (including transactions expressly permitted by
Section 7.02, 7.04, 7.05 or 7.06) or (c) the payment of annual management,
consulting, monitoring and advisory fees to the Original Control Group in an
aggregate amount in any fiscal year not to exceed $1,000,000.
SECTION 7.08. Business of Borrower, the Guarantors and TAFSI. (a) In
the case of the Borrower, engage at any time in any business or business
activity other than (A) the ownership of all the outstanding capital stock of
one of more Guarantors and of TAFSI, together with the activities directly
related thereto, (B) the exercise of its rights and the performance of its
obligations under or contemplated by the Loan Documents, the Rip Xxxxxxx
Acquisition Documents and the Synthetic Lease Repurchase Documents and (C)
actions required by law to maintain its status as a corporation.
(b) In the case of each Guarantor, (i) engage in any activities
other than the business conducted by TA on the Closing Date (after giving effect
to the Rip Xxxxxxx Acquisition) and business activities reasonably incidental
thereto (including the operation of restaurants) or (ii) lease any TravelCenter
to a third-party operator, or engage any third-party operator to operate any
TravelCenter, or otherwise cease to conduct directly the operation of any
TravelCenter (other than in connection with any sale, lease or other transfer of
such TravelCenter in accordance with Section 7.05); provided, however, that (A)
the foregoing clause (ii) shall not be construed to prohibit existing leases set
forth on Schedule 7.08 (and any extensions, renewals or replacements of such
leases) and (B) the Guarantors may lease up to five additional TravelCenters in
the aggregate to third-party operators.
(c) In the case of TAFSI, (i) engage in any activities other than
the franchising of TravelCenters and activities incidental thereto in accordance
with its past practice, (ii) own or acquire any material assets (other than
assets under the Franchise Agreements), (iii) incur any material liabilities
(other than liabilities under the Transaction Documents and Franchise
Agreements) or (iv) have any subsidiaries.
SECTION 7.09. Limitations on Debt Prepayments. (a) Optionally
prepay, repurchase or redeem or otherwise defease or segregate funds with
respect to any Indebtedness for borrowed money (including, in the case of the
Borrower, the Subordinated Notes, any Subordinated Note Refinancing Indebtedness
and any Subordinated Acquisition Financing); provided, however, that the
foregoing shall not prevent the Borrower from (i) making any payment pursuant to
Section 2.12 or 2.13, (ii) refinancing the Subordinated Notes (or any
Subordinated Note Refinancing Indebtedness) pursuant to, and in accordance with,
the provisions of Section 7.01(g) (provided that, from and after any such
refinancing, this Section 7.09 shall apply to the Indebtedness incurred in
connection with such refinancing), (iii) prepaying or otherwise refinancing any
Indebtedness permitted pursuant to clauses (h), (i) or (l) of Section 7.01 or
(iv) prepaying the Santa Nella Note.
(b) Permit any amendment or modification to the terms of any
Subordinated Note Document, Subordinated Note Refinancing Document or
Subordinated Acquisition Financing Document if the effect of such amendment or
modification is to impose additional or increased scheduled or mandatory
repayment, retirement, repurchase or redemption obligations in respect of such
Indebtedness or to require any scheduled or mandatory payment to be made in
respect of the Subordinated Notes, any Subordinated Note Refinancing
Indebtedness and any Subordinated Acquisition Financing, as the case may be,
prior to the date that such payment would otherwise be due.
SECTION 7.10. Amendment of Certain Documents. Permit any termination
of, or any amendment or modification that in the reasonable judgment of the
Administrative Agent is adverse in any material respect to the Lenders to, (a)
the Certificate of Incorporation (or Certificate of Formation) of the Borrower,
TAFSI or any Guarantor, (b) if applicable, the By-laws of the Borrower, TAFSI or
any Guarantor, (c) any Subordinated Note Document, (d) any Subordinated Note
Refinancing Document, (e) any Subordinated Acquisition Financing Document, (f)
any Rip Xxxxxxx Acquisition Document or (g) any Synthetic Lease Repurchase
Document, in any such case without the prior written consent of the Required
Lenders. Without limiting the generality of the foregoing, with respect to the
Subordinated Note Documents, any Subordinated Note Refinancing Document and any
Subordinated Acquisition Financing Document, it is understood that (a) any
increase in the interest, fees or other amounts payable in connection therewith,
(b) any amendment that imposes additional covenants or events of default or
makes more restrictive the covenants or events of default contained therein and
(c) any amendment that renders the subordination provisions contained therein
less favorable to the Lenders shall in each case require the consent of the
Required Lenders.
SECTION 7.11. Limitation on Leases. Create or suffer to exist any
obligations on the part of the Borrower or any of its subsidiaries for the
payment of rents for any property under leases or agreements to lease, except,
in the case of any Guarantor:
(a) leases (other than leases of real property) of such Guarantor
(i) entered into in the ordinary course of business and in existence on the date
hereof having annual lease payments of less than $250,000 and (ii) in existence
on the date hereof and listed on Schedule 7.11(a) (and, in each case, any
extensions, renewals or replacements of such leases, provided that the annual
lease payment under any such extension, renewal or replacement shall be no
greater than the fair market rental value of the leased property, as of the date
of such extension, renewal or replacement for the term of such extension,
renewal or replacement);
(b) operating leases entered into after the date hereof by such
Guarantor as lessee (i) in the ordinary course of business in a manner and to an
extent consistent with historical practices of the networks of TravelCenters
operated by the Borrower's subsidiaries as of the date hereof and (ii) in
connection with Sale and Lease-Back Transactions permitted by Section 7.03,
provided that the aggregate annual lease payments under all leases described in
this clause (b) shall not exceed $30,000,000;
(c) Capital Lease Obligations incurred by such Guarantor to finance
the acquisition of equipment and other property, provided that (i) the aggregate
of (A) the
aggregate principal amount of all such Capital Lease Obligations and (B) any
purchase money Indebtedness permitted pursuant to Section 7.01(c) shall not
exceed $50,000,000 at any time outstanding, (ii) each Capital Lease Obligation
at the time of its incurrence shall have an average life to maturity greater
than the average life to maturity of the outstanding Term Loans, (iii) none of
the related leases shall contain financial covenants and (iv) for purposes of
Section 7.13, the amount of the aggregate annual rental payments shall be deemed
to be Capital Expenditures in the year in which they are paid;
(d) any fair market value leases entered into by TA in connection
with the relocation of its offices; and
(e) leases permitted pursuant to Section 7.03.
SECTION 7.12. Subsidiaries. After giving effect to the Transactions,
in the case of the Borrower, have any direct or indirect subsidiaries other than
(a) the subsidiaries set forth on Schedule 4.08, (b) any other direct or
indirect wholly owned subsidiary of the Borrower that is organized under the
laws of a State within the United States and that becomes a Guarantor pursuant
to Section 6.10, (c) any Permitted Joint Venture that is a direct or indirect
subsidiary of the Borrower and (d) any Foreign Subsidiaries. Each of the
Guarantors and TAFSI shall be and remain a wholly owned subsidiary of the
Borrower, provided that any Guarantor may be merged into another Guarantor if
such merger is permitted by Section 7.05(h)(iii).
SECTION 7.13. Capital Expenditures. In the case of the Borrower and
its consolidated subsidiaries, permit Capital Expenditures during any fiscal
year ending after December 31, 2004 to exceed $85,000,000; provided, however,
that the amount of permitted Capital Expenditures in any fiscal year shall be
(a) increased by (i) an amount equal to 50% of the excess of (A) consolidated
EBITDA (as adjusted pursuant to the next succeeding sentence) for the
immediately preceding fiscal year over (B) $150,000,000 and (ii) the lesser of
(A) 25% of the total amount of permitted Capital Expenditures for the
immediately preceding fiscal year (including amounts permitted as a result of
the application of clause (i) but excluding any unused Capital Expenditures
carried forward to such preceding year) and (B) the total amount of unused
permitted Capital Expenditures for the immediately preceding fiscal year
(excluding any unused Capital Expenditures carried forward to such preceding
year) and (b) decreased by the amount by which permitted consideration for
Permitted Business Acquisitions is increased for such fiscal year as
contemplated by the proviso to clause (ii) of Section 7.04(f). For purposes of
determining EBITDA under clause (a)(i)(A) above, there shall be included in the
determination of EBITDA for the relevant preceding fiscal year, the EBITDA
attributable to any Permitted Business Acquisition during the then current
fiscal year, calculated on a pro forma basis as if such Permitted Business
Acquisition had occurred on the first day of such preceding fiscal year
(including giving effect to pro forma adjustments allowed under Regulation S-X
of the Securities Act of 1933, as amended, provided that the pro forma
calculations shall not give effect to such adjustments unless the Borrower shall
have delivered to the Administrative Agent a certificate of a Financial Officer
of the Borrower stating (a) the amount of such adjustments and (b) that such
adjustments are consistent with Regulation S-X of the Securities Act of 1933, as
amended, based on the
reasonable good faith belief of the Financial Officer executing such certificate
at the time of such execution).
SECTION 7.14. Interest Expense Coverage Ratios. Permit the Interest
Expense Coverage Ratio for any fiscal quarter ending on the last day of or
during any period indicated below to be less than the ratio set forth opposite
such date:
From and Including: To and Including: Ratio:
------------------- ----------------- ------
March 31, 2005 December 30, 2006 2.50 to 1.00
December 31, 2006 December 30, 2008 2.75 to 1.00
December 31, 2008 and thereafter 3.00 to 1.00
SECTION 7.15. Leverage Ratio. Permit the Leverage Ratio on any date
during any fiscal quarter ending on the last day of or during any period
indicated below to be in excess of the ratio set forth opposite such period:
From and Including: To and Including: Ratio:
------------------- ----------------- ------
March 31, 2005 December 30, 2005 5.50 to 1.00
December 31, 2005 December 30, 2006 5.25 to 1.00
December 31, 2006 December 30, 2007 4.75 to 1.00
December 31, 2007 December 30, 2008 4.25 to 1.00
December 31, 2008 December 30, 2009 3.75 to 1.00
December 31, 2009 and thereafter 3.25 to 1.00
SECTION 7.16. Synthetic Repurchases. The Borrower will not, and will
not permit any Subsidiary to, enter into or be party to, or make any payment
under, any Synthetic Purchase Agreement unless (i) in the case of any Synthetic
Purchase Agreement related to any Equity Interest, the payments required to be
made by the Borrower or its subsidiaries are limited to amounts permitted to be
paid under Section 7.06(a), (ii) in the case of any Synthetic Purchase Agreement
related to any Restricted Indebtedness, the payments required to be made by the
Borrower or its Subsidiaries thereunder are limited to the amount permitted
under Section 7.09(a) and (iii) in the case of any Synthetic Purchase Agreement,
the obligations of the Borrower and the subsidiaries thereunder are subordinated
to the Obligations on terms satisfactory to the Administrative Agent.
SECTION 7.17. Designated Indebtedness. Without the prior written
consent of the Required Lenders, the Borrower will not, and will not permit any
Subsidiary to, designate any Indebtedness other than Indebtedness created under
the Loan Documents as "Designated Senior Indebtedness" for purposes of the
Subordinated Note Indenture (or as "Designated Senior Indebtedness", or any
similar designation having substantially the same effect, under any Subordinated
Acquisition Financing Documents or any Subordinated Note Refinancing Documents).
ARTICLE VIII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in any Loan
Document or any amendment or modification thereof or waiver thereunder, or any
representation, warranty, statement or information contained in any report,
certificate, financial statement or other instrument furnished pursuant to any
Loan Document or any amendment or modification thereof or waiver thereunder,
shall prove to have been false or misleading in any material respect when so
made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any
Loan or Swingline Loan or LC Disbursement when and as the same shall become due
and payable, whether at the due date thereof or at a date fixed for prepayment
thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan
or Swingline Loan or any Fee or any other amount (other than an amount referred
to in (b) above) due under any Loan Document, when and as the same shall become
due and payable, and such default shall continue unremedied for a period of
three Business Days;
(d) default shall be made in the due observance or performance by
the Borrower of any covenant, condition or agreement contained in Section 6.01
(with respect to the existence of the Borrower), 6.05 or 6.08 of this Agreement,
or in Section 8 or 9 of the Guarantee Agreement or in Article VII;
(e) default shall be made in the due observance or performance by
the Borrower, any Guarantor or TAFSI of any covenant, condition or agreement
contained in any Loan Document (other than those defaults specified in (b), (c)
or (d) above) and such default shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent or any Lender to the
Borrower;
(f) the Borrower or any of its subsidiaries shall (i) fail to pay
any principal or interest, regardless of amount, due in respect of (A) any
Indebtedness in a principal amount in excess of $10,000,000 or (B) Indebtedness
under the Santa Nella Note, in each case when and as the same shall become due
and payable (after giving effect to any applicable grace period) or (ii) fail to
observe or perform any other term, covenant, condition or agreement contained in
any agreement or instrument evidencing or governing any such Indebtedness (after
giving effect to any applicable grace period) if the effect of any failure
referred to in this clause (ii) is to cause, or to permit the holder or holders
of such Indebtedness or a trustee on its or their behalf (with or without the
giving of notice, the lapse of time or both) to cause, such Indebtedness to
become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of the Borrower or any of its subsidiaries, or of a substantial part
of the property or assets of the Borrower or any of its subsidiaries, under
Title 11 of the United States Code, as now constituted or hereafter amended, or
any other Federal or state bankruptcy, insolvency, receivership or similar law,
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any of its subsidiaries or
for a substantial part of the property or assets of the Borrower or any of its
subsidiaries or (iii) the winding-up or liquidation of the Borrower or any of
its subsidiaries and such proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering any of the foregoing shall
be entered;
(h) the Borrower or any of its subsidiaries shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11 of
the United States Code, as now constituted or hereafter amended, or any other
Federal or state bankruptcy, insolvency, receivership or similar law, (ii)
consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or the filing of any petition described in paragraph (g)
above, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or any
of its subsidiaries or for a substantial part of the property or assets of the
Borrower or any of its subsidiaries, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $10,000,000 (to the extent not covered by insurance) shall
be rendered against the Borrower, TAFSI or any Guarantor or any combination
thereof and the same shall remain undischarged for a period of 30 consecutive
days during which execution shall not be effectively stayed, or any action shall
be legally taken by a judgment creditor to levy upon assets or properties of the
Borrower, TAFSI or any Guarantor to enforce any such judgment;
(j) a Reportable Event or Reportable Events, or a failure to make a
required installment or other payment (within the meaning of Section 412(n)(1)
of the Code), shall have occurred with respect to any Plan or Plans that
reasonably could be expected to result in liability of the Borrower, TAFSI, any
Guarantor or any ERISA Affiliate to the PBGC or to a Plan in an aggregate amount
that could reasonably be expected to have a Material Adverse Effect and, within
30 days after the reporting of any such Reportable Event to the Administrative
Agent or after the receipt by the Administrative Agent of the statement required
pursuant to Section 6.06(b)(iii), the Administrative Agent shall have notified
the Borrower in writing that (i) the Required Lenders have reasonably determined
that, on the basis of such Reportable Event or Reportable Events or the failure
to make a required payment, there are reasonable grounds (A) for the termination
of such Plan or Plans by the PBGC, (B) for the appointment by the appropriate
United States District Court of a trustee to administer
such Plan or Plans or (C) for the imposition of a lien in favor of a Plan and
(ii) as a result thereof the liability is reasonably expected to have a Material
Adverse Effect;
(k) (i) the Borrower, any Guarantor, TAFSI or any ERISA Affiliate
shall have been notified by the sponsor of a Multiemployer Plan that it has
incurred Withdrawal Liability to such Multiemployer Plan, (ii) the Borrower,
such Guarantor, TAFSI or such ERISA Affiliate does not have reasonable grounds
for contesting such Withdrawal Liability or is not in fact contesting such
Withdrawal Liability in a timely and appropriate manner and (iii) the amount of
the Withdrawal Liability specified in such notice, when aggregated with all
other amounts required to be paid to Multiemployer Plans in connection with
Withdrawal Liabilities (determined as of the date or dates of such
notification), either (A) is in an amount that would reasonably be expected to
have a Material Adverse Effect and the Required Lenders have reasonably
determined that the Borrower, such Guarantor, TAFSI or such ERISA Affiliate will
not be able to make the payments required in connection with such Withdrawal
Liability or (B) any payment due as a result of such liability remains unpaid 30
days after such payment is due;
(l) the Borrower, any Guarantor, TAFSI or any ERISA Affiliate shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if solely as a result of such reorganization or
termination the aggregate annual contributions of the Borrower, each Guarantor,
TAFSI and each ERISA Affiliate to all Multiemployer Plans that are then in
reorganization or have been or are being terminated have been or will be
increased over the amounts required to be contributed to such Multiemployer
Plans for their most recently completed plan years by an amount exceeding
$10,000,000 and the Required Lenders have reasonably determined that the
Borrower, such Guarantor, Holdings, TAFSI or such ERISA Affiliate will not be
able to make the payments required in connection with such contribution;
(m) there shall have occurred a Change in Control;
(n) any material security interest purported to be created by any
Security Document shall cease to be, or shall be asserted by the Borrower, any
Guarantor or TAFSI not to be, a valid, perfected, first priority (except as
otherwise expressly provided in this Agreement or such Security Document)
security interest in the securities, assets or properties covered thereby,
except to the extent that any such loss of perfection or priority results from
the failure of the Collateral Agent to maintain possession of certificates
representing securities pledged under the Pledge Agreement (except to the extent
that such loss is covered by a lender's title insurance policy and the related
insurer promptly after such loss shall have acknowledged in writing that such
loss is covered by such title insurance policy);
(o) any Loan Document shall not be for any reason or shall be
asserted by the Borrower, any Guarantor or TAFSI not to be in full force and
effect and enforceable in all material respects in accordance with its terms; or
(p) the Obligations and the Guarantees thereof pursuant to the
Guarantee Agreement shall cease to constitute, or shall be asserted by the
Borrower or any
Guarantor not to constitute, senior indebtedness under the subordination
provisions of the Subordinated Note Documents (or the terms of any Subordinated
Acquisition Financing or Subordinated Note Refinancing Indebtedness) or such
subordination provisions shall be invalidated or otherwise cease to be a legal,
valid and binding obligation of the parties thereto, enforceable in accordance
with its terms; then, and in every such event (other than an event with respect
to the Borrower or any of its subsidiaries described in paragraph (g) or (h)
above), and at any time thereafter during the continuance of such event, the
Administrative Agent may and, at the request of the Required Lenders, shall by
notice to the Borrower, take any of or all the following actions, at the same or
different times: (i) terminate forthwith the Commitments and the LC Commitment,
(ii) declare the Loans and the Swingline Loans then outstanding to be forthwith
due and payable in whole or in part, whereupon the principal of the Loans and
the Swingline Loans so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall become
forthwith due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by the Borrower,
anything contained herein or in any other Loan Document to the contrary
notwithstanding, (iii) require cash collateral as contemplated by Section 3.06
and (iv) exercise any remedies available under any Loan Document or otherwise;
and in any event with respect to the Borrower or any of its subsidiaries
described in paragraph (g) or (h) above, the Commitments and the LC Commitment
shall automatically terminate and the principal of the Loans and the Swingline
Loans then outstanding, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Borrower accrued hereunder and
under any other Loan Document, shall automatically become due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by the Borrower, anything contained herein or
in any other Loan Document to the contrary notwithstanding.
ARTICLE IX
The Administrative Agent
In order to expedite the transactions contemplated by this
Agreement, JPMorgan Chase Bank, N.A. is hereby appointed to act as
Administrative Agent (which term for purposes of this Article shall be deemed to
refer to the Administrative Agent and the Collateral Agent) on behalf of the
Fronting Bank, the Swingline Lender and the Lenders. Each of the Lenders, and
each subsequent holder of any Loan by its acceptance thereof, the Fronting Bank
and the Swingline Lender hereby irrevocably authorize the Administrative Agent
to take such actions on their behalf and to exercise such powers as are
specifically delegated to the Administrative Agent by the terms and provisions
hereof and of the other Loan Documents, together with such actions and powers as
are reasonably incidental thereto. The Administrative Agent is hereby expressly
authorized by the Lenders, the Fronting Bank and the Swingline Lender, without
hereby limiting any implied authority, (a) to receive on behalf of the Lenders,
the Fronting Bank and the Swingline Lender all payments of principal of and
interest on the Loans, the Swingline Loans and LC Disbursements and all other
amounts due to the Lenders, the Fronting
Bank and the Swingline Lender hereunder, and promptly to distribute to each
Lender, the Fronting Bank and the Swingline Lender its proper share of each
payment so received; (b) to give notice on behalf of each of the Lenders to the
Borrower of any Event of Default specified in this Agreement of which the
Administrative Agent has actual knowledge acquired in connection with its agency
hereunder; and (c) to promptly distribute to each Lender and the Fronting Bank
copies of all notices, financial statements and other materials delivered by the
Borrower and the Guarantors pursuant to this Agreement as received by the
Administrative Agent (including notices of an occurrence of any Event of
Default).
Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its, his or her own gross negligence or wilful
misconduct, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or
observance by the Borrower, TAFSI or any Guarantor of any of the terms,
conditions, covenants or agreements contained in any Loan Document. The
Administrative Agent shall not be responsible to the Lenders or the Fronting
Bank or the Swingline Lender for the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement or any other Loan Documents or
other instruments or agreements. The Administrative Agent shall in all cases be
fully protected in acting, or refraining from acting, in accordance with written
instructions signed by the Required Lenders and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders and the Fronting Bank. The
Administrative Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper Person or
Persons. Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall have any responsibility to the Borrower, any Guarantor
or TAFSI on account of the failure of or delay in performance or breach by any
Lender, the Fronting Bank or the Swingline Lender of any of its obligations
hereunder or to any Lender or to the Fronting Bank or to the Swingline Lender on
account of the failure of or delay in performance or breach by any other Lender
or the Fronting Bank or the Borrower, TAFSI or any Guarantor of any of their
respective obligations hereunder or under any other Loan Document or in
connection herewith or therewith. The Administrative Agent may execute any and
all duties hereunder by or through agents or employees and shall be entitled to
rely upon the advice of legal counsel selected by it with respect to all matters
arising hereunder and shall not be liable for any action taken or suffered in
food faith by it in accordance with the advice of such counsel.
The Lenders, the Fronting Bank and the Swingline Lender hereby
acknowledge that the Administrative Agent shall be under no duty to take any
discretionary action permitted to be taken by it pursuant to the provisions of
this Agreement unless it shall be requested in writing to do so by the Required
Lenders.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign at
any time by notifying
the Lenders, the Fronting Bank, the Swingline Lender and the Borrower. Upon any
such resignation, the Required Lenders shall have the right to appoint a
successor. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Fronting Bank,
appoint a successor Administrative Agent, which shall be a bank with an office
in New York, New York, having a combined capital and surplus of at least
$500,000,000 or an Affiliate of any such bank. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Sections 6.12(d) and 10.05 shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as Administrative Agent.
With respect to the Loans made by it hereunder the Administrative
Agent, in its individual capacity and not as Administrative Agent, shall have
the same rights and powers as any other Lender and may exercise the same as
though it were not the Administrative Agent, and the Administrative Agent and
its Affiliates may accept deposits from, lend money to and generally engage in
any kind of business with the Borrower, any Guarantor, TAFSI or any Affiliate
thereof as if the Administrative Agent were not the Administrative Agent.
Each Lender, the Fronting Bank, and the Swingline Lender agree (a)
to reimburse the Administrative Agent, on demand, in the amount of its pro rata
share (based on its unused Commitments at such time, the Loans and Swingline
Loans owing to it at such time and its share of the LC Exposure at such time) of
any expenses incurred for the benefit of the Lenders, the Fronting Bank and the
Swingline Lender by the Administrative Agent, including counsel fees and
compensation of agents and employees paid for services rendered on behalf of the
Lenders, the Fronting Bank and the Swingline Lender, that shall not have been
reimbursed by the Borrower and (b) to indemnify and hold harmless the
Administrative Agent and any of its directors, officers, employees or agents, on
demand, in the amount of such pro rata share, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by or asserted against it in its capacity as the
Administrative Agent or any of them in any way relating to or arising out of
this Agreement or any other Loan Document or any action taken or omitted by it
or any of them under this Agreement or any other Loan Document, to the extent
the same shall not have been reimbursed by the Borrower, provided that no Lender
shall be liable to the Administrative Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or wilful
misconduct of the Administrative Agent or any of its directors, officers,
employees or agents. In addition, each Revolving Lender, the Fronting Bank, and
the Swingline Lender agree to reimburse the Administrative Agent, on demand, in
the amount of its pro rata share (based on its unused Revolving Commitments at
such time, the Revolving Loans and
Swingline Loans owing to it at such time and its share of the LC Exposure at
such time) of any expenses incurred for the benefit of the Fronting Bank or the
Swingline Lender by the Administrative Agent, including counsel fees and
compensation of agents and employees paid for services rendered on behalf of the
Fronting Bank or the Swingline Lender, that shall not have been reimbursed by
the Borrower.
Each Lender, the Fronting Bank and the Swingline Lender acknowledge
that they have, independently and without reliance upon the Administrative
Agent, any other Lender, the Fronting Bank or the Swingline Lender and based on
such documents and information as they have deemed appropriate, made their own
credit analysis and decision to enter into this Agreement. Each Lender, the
Fronting Bank and the Swingline Lender also acknowledge that they will,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as they shall from time to
time deem appropriate, continue to make their own decisions in taking or not
taking action under or based upon this Agreement or any other Loan Document, any
related agreement or any document furnished hereunder or thereunder.
The Lender identified on the facing page of, or elsewhere in, this
Agreement or in any other Loan Document as "Documentation Agent", shall not have
any right, power, obligation, liability, responsibility or duty under this
Agreement or the other Loan Documents other than those applicable to all of the
Lenders as such. Without limiting the foregoing, the Lender so identified shall
not have or be deemed to have, any fiduciary relationship with any Lender.
The provisions in this Article X shall apply, mutatis mutandis, to
the Syndication Agent hereunder.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed or sent by telecopy, telex, graphic scanning or other
telegraphic communications equipment of the sending party, as follows:
(a) If to the Borrower, TAFSI or any Guarantor, at 00000 Xxxxxx
Xxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxx 00000-0000, Attention of Xxxxx X. Xxxxxx,
Executive Vice President and Chief Financial Officer (Telecopy No. (440)
808-3301); with a copy to Oak Hill Capital Management, Inc., 00 Xxxx 00xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention of Rowan X.X. Xxxxxx (Telecopy
No. (000) 000-0000); with a copy to Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention of Xxxxx Xxxxx, Esq. (Telecopy
No. (000) 000-0000);
(b) If to the Administrative Agent, the Collateral Agent or the
Fronting Bank, to JPMorgan Chase Bank, N.A., Loan and Agency Services Group,
0000 Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000, Attention of Xxxx Xxxxxx
(Telecopy No. (000) 000-0000) and, in the event of the delivery of a notice of
Borrowing pursuant to
Section 2.03, Xxxxx Xxxx (Telecopy No. (000) 000-0000), with a copy to JPMorgan
Chase Bank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx 00000, Attention of Xxxxxxx Xxxxxxxx
(Telecopy No. (000) 000-0000);
(c) If to a Lender, at its address (or telecopy number) set forth on
Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Lender
shall have become a party hereto.
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by telecopy or other telegraphic communications equipment of the sender,
or on the date five Business Days after dispatch by certified or registered mail
if mailed, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 10.01 or in accordance with the latest
unrevoked direction from such party given in accordance with this Section 10.01.
The Administrative Agent shall deliver a copy of each Administrative
Questionnaire received by it to the Borrower.
SECTION 10.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower, each Guarantor and TAFSI
herein and/or in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the Lenders, the Fronting Bank and the
Swingline Lender and shall survive the making by the Lenders of the Loans, the
making by the Swingline Lender of the Swingline Loans and the issuance of
Letters of Credit by the Fronting Bank regardless of any investigation made by
the Lenders, the Fronting Bank and the Swingline Lender or on their behalf, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or Swingline Loan or any Fee or any other amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid or any Letter of Credit is outstanding and so long as the Commitments and
the LC Commitment have not been terminated.
SECTION 10.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower, the Agents, the Fronting Bank
and the Swingline Lender and when the Administrative Agent shall have received
copies hereof that, when taken together, bear the signatures of each Lender, and
thereafter shall be binding upon and inure to the benefit of the Borrower, each
Agent, the Fronting Bank, the Swingline Lender and each Lender and their
respective successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior
consent of all the Lenders.
SECTION 10.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Fronting Bank that issues any Letter of Credit), except that
(a) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender may assign or
otherwise transfer its rights or obligations hereunder except in accordance with
this Section. Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby (including any Affiliate of
the Fronting Bank that issues any Letter of Credit), Participants (to the extent
provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Agents, the Fronting
Bank, the Swingline Lender and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld or delayed) of:
(A) the Borrower, provided that no consent of the Borrower
shall be required for an assignment to a Lender, an Affiliate of a
Lender, an Approved Fund or, if an Event of Default under clause
(b), (c), (g) or (h) of Article VIII has occurred and is continuing,
any other assignee;
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for (1) an assignment of any
Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund
or (2) an assignment of a Revolving Commitment or any Lender's
obligations in respect of its LC Exposure or the outstanding
Swingline Loans to a Revolving Lender; and
(C) in the case of any assignment of all or a portion of a
Revolving Commitment or any Lender's obligations in respect of its
LC Exposure or the outstanding Swingline Loans, the Fronting Bank
and the Swingline Lender, provided no consent of the Fronting Bank
or the Swingline Lender shall be required for an assignment to a
Revolving Lender.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund or an assignment of the
entire remaining amount of the assigning Lender's Commitment or
Loans of any Class, the amount of the Commitment or Loans of the
assigning Lender subject to each such assignment (determined as of
the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be
less than $5,000,000 or, in the case of a Term Loan, $1,000,000
unless each of the Borrower and the Administrative Agent otherwise
consents, provided that (i) no such consent of the Borrower shall be
required if an Event of Default under clause (b), (c), (g) or (h) of
Article VIII has occurred and is continuing and (ii) affiliated
Approved Funds shall be treated as one assignee for purposes of
determining compliance with such minimum assignment amount;
(B) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, provided that this clause shall
not be construed to prohibit the assignment of a proportionate part
of all the assigning Lender's rights and obligations in respect of
one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together
with a processing and recordation fee of $3,500; provided that only
one such fee shall be payable in connection with simultaneous
assignments to or by two or more related Approved Funds; and
(D) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire.
For the purposes of this Section 10.04(b), the term "Approved Fund"
has the following meaning:
"Approved Fund" means any Person (other than a natural person) that
is engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course and that is administered or managed
by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Acceptance the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 6.12(d) and 10.5 and, with respect only to liabilities of
the Borrower thereunder to such Lender that have accrued or otherwise arise by
reason of circumstances or events prior to the assignment of its rights and
obligations hereunder, Sections 2.14, 2.16 and 2.20, as well as to any Fees
accrued for its account and not yet paid). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 10.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the
"Register"). The entries in the Register shall be conclusive, and the Borrower,
the Administrative Agent, the Fronting Bank and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the Borrower,
the Fronting Bank and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in this Section and
any written consent to such assignment required by this Section, the
Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Fronting Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it),
provided that (A) such Lender's obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (C) the Borrower, the
Administrative Agent, the Fronting Bank and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement, provided
that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.08(b) that affects such
Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees
that each Participant shall be entitled to the benefits of Sections 2.14, 2.16
and 2.20 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 10.06
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.18 as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.14, 2.16 or 2.20 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a
Non-U.S. Lender if it were a Lender shall not be entitled to the benefits of
Section 2.20 unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to
comply with Section 2.20 as though it were a Lender.
(d) Any Lender, without the consent of or notice to the
Administrative Agent or the Borrower, may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest, provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(e) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Bank") may grant to a special purpose funding vehicle (an
"SPC"), identified as such in writing from time to time by the Granting Bank to
the Administrative Agent and the Borrower, the option to provide to the Borrower
all or any part of any Loan that such Granting Bank would otherwise be obligated
to make to the Borrower pursuant to this Agreement, provided that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan, (ii) if an SPC
elects not to exercise such option or otherwise fails to provide all or any part
of such Loan, the Granting Bank shall be obligated to make such Loan pursuant to
the terms hereof. The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Bank to the same extent, and as if, such Loan were
made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement (all
liability for which shall remain with the Granting Bank). In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereof. In addition, notwithstanding anything to the
contrary contained in this Section, any SPC may (i) with notice to, but without
the prior written consent of, the Borrower and the Administrative Agent and
without paying any processing fee therefor, assign all or a portion of its
interests in any Loans to the Granting Bank or to any financial institutions
(consented to by the Borrower and Administrative Agent) providing liquidity
and/or credit support to or for the account of such SPC to support the funding
or maintenance of Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider of any surety, guarantee or credit or liquidity enhancement to such
SPC. This paragraph may not be amended without the written consent of the SPC.
SECTION 10.05. Expenses; Indemnity. (a) The Borrower agrees to pay
all reasonable out-of-pocket expenses incurred by the Administrative Agent and
the Collateral Agent in connection with the preparation of this Agreement and
the other Loan Documents or in connection with any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
hereby contemplated shall be consummated) or incurred by any Agent, the Fronting
Bank, the Swingline Lender, the Collateral Agent or any Lender in connection
with the enforcement or protection of their rights in connection with this
Agreement and the other Loan Documents or in connection
with the Loans made or the Letters of Credit issued hereunder, including the
reasonable fees, other charges and disbursements of Cravath, Swaine & Xxxxx LLP,
counsel for the Agents, the Collateral Agent, and the Fronting Bank and of local
counsel, and, in connection with any such enforcement or protection, the
reasonable fees, other charges and disbursements of any other one firm of
outside counsel for the Lenders (taken as a group) in each jurisdiction in which
the Lenders elect to engage counsel. The Borrower further agrees that it shall
indemnify the Agents, the Fronting Bank, the Swingline Lender, the Collateral
Agent and the Lenders from and hold them harmless against any documentary taxes,
assessments or charges made by any Governmental Authority by reason of the
execution and delivery and/or recordation of this Agreement or any of the other
Loan Documents.
(b) The Borrower agrees to indemnify each Agent, the Fronting Bank,
the Swingline Lender, the Collateral Agent and each Lender and each of their
Related Parties (each such Person being called an "Indemnitee") against, and to
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees, charges and
disbursements, incurred by or asserted against any Indemnitee arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereby or thereto of their
respective obligations hereunder or thereunder or the consummation of the
Transactions, (ii) the use of the Letters of Credit or the proceeds of the Loans
and the Swingline Loans or (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any Indemnitee is a
party thereto, provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claim, damages, liabilities or related
expenses result from actions or events taking place after any of such
Indemnitees takes possession of the Mortgaged Property at issue by foreclosure
or transfer in lieu of foreclosure or are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 10.05 shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transaction, contemplated hereby, the
repayment of any of the Loans or the Swingline Loans, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of any Agent, the Fronting
Bank, the Collateral Agent, the Swingline Lender or any Lender. All amounts due
under this Section 10.05 shall be payable on written demand therefor.
(d) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement or any other Loan Document, the Transactions, any
Loan, Swingline Loan or Letter of Credit or the use of the proceeds thereof.
SECTION 10.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing, and the Administrative Agent shall have declared, or
the Required Lenders shall have requested the Administrative Agent to declare,
the Loans and the Swingline Loans immediately due and payable pursuant to
Article VIII, each Lender is hereby authorized at any time and from time to
time, to the fullest extent permitted by applicable law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower or any Guarantor against any of
and all the obligations of such entity now, or hereafter existing under this
Agreement and other Loan Documents held by such Lender, irrespective of whether
such Lender shall have made any demand under this Agreement or such other Loan
Document and although such obligations may be unmatured. The rights of each
Lender under this Section 10.06 are in addition to other rights and remedies
(including other rights of setoff) that such Lender may have.
SECTION 10.07. APPLICABLE LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN THE MORTGAGES) SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 10.08. Waivers; Amendment. (a) No failure or delay on the
part of any Agent, the Fronting Bank, the Swingline Lender, the Collateral Agent
or any Lender in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Agents, the Fronting Bank,
the Swingline Lender, the Collateral Agent and the Lenders hereunder and under
the other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this
Agreement or any other Loan Document or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice or demand
on the Borrower in any case shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.23 with respect to an
Incremental Facility Amendment, neither this Agreement, the Guarantee Agreement
or any of the Security Documents nor any provision hereof or thereof may be
waived, amended or modified except, in the case of this Agreement, pursuant to
an agreement or agreements in writing entered into by the Borrower and the
Required Lenders, or, in the case of the Guarantee Agreement, or any of the
Security Documents, pursuant to an agreement or agreements in writing entered
into by the Borrower, the Collateral Agent (and any of the Guarantors and TAFSI,
if they are parties thereto) and consented to by the Required Lenders; provided,
however, that no such agreement shall (i) reduce the principal amount of, or
extend the scheduled date of payment of, any principal of or interest on, any
Loan, or forgive any such payment or any part thereof, or reduce the rate of
interest or forgive
any interest on any Loan, without the prior written consent of each Lender
adversely affected thereby, (ii) increase the Commitment or reduce, forgive or
extend the date for payment of the fees payable to any Lender without the prior
written consent of such Lender, (iii) amend or modify the provisions of Section
2.17, the provisions of this Section or the definition of the term "Required
Lenders" without the prior written consent of each Lender, (iv) release all or
substantially all of the Collateral under the Security Documents or release any
material Guarantee under the Guarantee Agreement other than as expressly
permitted hereunder or under such Security Documents or such Guarantee Agreement
without the prior written consent of each Lender, (v) change any provisions of
any Loan Document in a manner that by its terms adversely affects the rights in
respect of payments due to Lenders holding Loans of any Class differently than
those holding Loans of any other Class, without the written consent of Lenders
holding a majority in interest of the outstanding Loans and unused Commitments
of each affected Class, (vi) release any Collateral from the Liens of the
Security Documents, without the prior written consent of Lenders holding Loans,
a share of the used LC Commitment and unused Commitments representing at least
66?% of the aggregate of (A) the aggregate principal amount of the Loans and
Swingline Loans at such time, (B) the LC Exposure at such time and (C) the
aggregate unused Commitments at such time (except as expressly provided in such
Security Documents or the Credit Agreement) and (vii) amend, modify or waive any
condition precedent set forth in Section 5.01 with respect to the making of
Revolving Loans, without the prior written consent of Revolving Lenders holding
a majority in interest of the Revolving Credit Commitments, and provided further
that (A) no such agreement shall amend, modify, or otherwise affect the rights
or duties of any Agent, the Fronting Bank, or the Swingline Lender hereunder
without the prior written consent of such Agent, the Fronting Bank or the
Swingline Lender, as the case may be, and (B) this Section shall not be
construed to require the consent of any Lender to the release of Liens on
Excepted Properties as provided in Section 10.17. In furtherance of clause (vii)
of this Section 10.08(b), (x) any amendment or modification to or waiver of
Sections 7.13, 7.14 or 7.15 of this Agreement, or (y) any amendment or
modification to or waiver of any provision of this Agreement or any other Loan
Document at a time when any Default or Event of Default has occurred and is
continuing, and that would have the effect of eliminating any such Default or
Event of Default, shall not be deemed to be effective for purposes of
determining whether the conditions precedent set forth in Section 5.01 to the
making of any Revolving Loan have been satisfied unless the Revolving Lenders
holding a majority in interest of the Revolving Credit Commitments shall have
consented to such amendment, modification or waiver, provided that the foregoing
shall not be construed to affect any amendment or modification to any provision
of this Agreement or any other Loan Document (other than any amendment or
modification to Sections 7.13, 7.14 or 7.15 of this Agreement) if no Default or
Event of Default has occurred and is continuing at the time of such amendment or
modification. In connection with any proposed amendment, modification, waiver or
termination (a "Proposed Change") requiring the consent of all affected Lenders,
if the consent of the Required Lenders (and, to the extent any Proposed Change
requires the consent of Lenders holding Loans of any Class pursuant to clause
(v) of this Section 10.08(b), the consent of more than 50% in interest of the
outstanding Loans and unused Commitments of such Class) to such Proposed Change
is obtained, but the consent to such Proposed Change of other Lenders whose
consent is required is not
obtained (any such Lender whose consent is not obtained as described in this
Section 10.08(b) being referred to as a "Non-Consenting Lender"), then, so long
as the Lender that is acting as the Administrative Agent is not a Non-Consenting
Lender, at the Borrower's request, any assignee that is reasonably acceptable to
the Administrative Agent shall have the right to purchase from such
Non-Consenting Lender, and such Non-Consenting Lender agrees that it shall, upon
the Borrower's request, sell and assign to such assignee, at no expense to such
Non-Consenting Lender (including the payment by the Borrower of any processing
and recordation fee as may be applicable pursuant to Section 10.04(b)(ii)(C)),
all the Commitments, Term Loans, Revolving Loans, LC Exposure and interests in
Swingline Loans of such Non-Consenting Lender for an amount equal to the
principal balance of all Term Loans and Revolving Loans (and funded
participations in Swingline Loans and unreimbursed LC Disbursements) held by
such Non-Consenting Lender, together with all accrued interest, fees and other
amounts with respect thereto through the date of sale (including amounts under
Sections 2.14, 2.16 and 2.20), such purchase and sale to be consummated pursuant
to an executed Assignment and Acceptance in accordance with Section 10.04(b)
(which Assignment and Acceptance need not be signed by such Non-Consenting
Lender).
SECTION 10.09. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the applicable interest rate, together
with all fees and charges that are treated as interest under applicable law
(collectively, the "Charges"), as provided for herein or in any other document
executed in connection herewith, or otherwise contracted for, charged, received,
taken or reserved by any Lender or the Swingline Lender, shall exceed the
maximum lawful rate (the "Maximum Rate") that may be contracted for, charged,
taken, received or reserved by such Lender or the Swingline Lender in accordance
with applicable laws, the rate of interest payable to such Lender or the
Swingline Lender, together with all Charges payable to such Lender or the
Swingline Lender, shall be limited to the Maximum Rate.
SECTION 10.10. Entire Agreement. This Agreement and the other Loan
Documents and the fee arrangements between the Borrower and the Administrative
Agent constitute the entire contract between the parties relative to the subject
matter hereof. Any previous agreement among the parties with respect to the
subject matter hereof is superseded by this Agreement and the other Loan
Documents. Nothing in this Agreement or in the other Loan Documents, expressed
or implied, is intended to confer upon any party other than the parties hereto
and thereto any rights, remedies, obligations or liabilities under or by reason
of this Agreement or the other Loan Documents.
SECTION 10.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 10.11.
SECTION 10.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions, the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 10.13. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract, and shall become
effective as provided in Section 10.03.
SECTION 10.14. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 10.15. Jurisdiction; Consent to Service of Process. (a) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against the Borrower or its properties in
the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this agreement or the other Loan
Documents in any New York State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 10.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 10.16. Confidentiality. Each of the Agents, the Fronting
Bank, the Swingline Lender and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to any of its Related Parties, including accountants, legal
counsel and other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority and upon giving the Borrower prior
notice thereto to the extent reasonably practicable and not prohibited by
applicable laws or regulations or by any judicial or administrative order, (c)
to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to the Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any actual or prospective assignee of or
participant in any of its rights or obligations under this Agreement, (ii) any
pledgee referred to in Section 10.04(d) or (iii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower and its obligations, (g) or to any direct or indirect contractual
counterparty in swap agreements or such contractual counterparty's professional
advisor (so long as such contractual counterparty or professional advisor to
such contractual counterparty agrees to be bound by the provisions of this
Section 10.16), (h) to the National Association of Insurance Commissioners or
any similar organization or any nationally recognized rating agency that
requires access to information about such Lender's investment portfolio in
connection with ratings issued with respect to such Lender, (i) with the consent
of the Borrower or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes
available to any Agent, the Fronting Bank, the Swingline Lender or any Lender on
a nonconfidential basis from a source other than the Borrower. For the purposes
of this Section, the term "Information" shall mean all financial statements,
certificates, reports, agreements and information (including all analyses,
compilations and studies prepared by any Agent, the Fronting Bank, the Swingline
Lender or any Lender based on any of the foregoing) that are received from the
Borrower and relate to the Borrower, any Guarantor or TAFSI, any shareholder of
the Borrower or any employee, customer or supplier of the Borrower, any
Guarantor or TAFSI, other than any of the foregoing that were available to any
Agent, the Fronting Bank, the Swingline Lender or any Lender on a
nonconfidential basis prior to its disclosure thereto by the Borrower, and which
are, in the case of Information provided after the date hereof, clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information. The
provisions of this Section 10.16 shall remain operative and in full force and
effect regardless of the expiration and term of
this Agreement. Notwithstanding the foregoing, the parties hereto agree that the
filing of any of the Loan Documents (to the extent necessary in the reasonable
judgment of the Collateral Agent after consulting with the Borrower) to properly
assure the validity or priority of the Collateral Agent's Lien under any
Security Document or to the extent required by local counsel in order to render
an opinion in form and substance reasonably satisfactory to the Collateral Agent
in connection with such Lien will not result in a violation of the foregoing
confidentiality provisions.
SECTION 10.17. Release of Excepted Properties. The Collateral Agent
may, without the consent of any Lender, release the Lien of any Mortgage or the
Security Agreement upon any Excepted Property, provided that the Collateral
Agent shall have received a certificate from the Borrower, in form and substance
reasonably satisfactory to the Collateral Agent, to the effect that (a) the
assets with respect to which the applicable Lien is to be released constitute an
Excepted Property as provided herein and (b) no Default or Event or Default has
occurred and is continuing.
SECTION 10.18. USA Patriot Act. Each Lender hereby notifies the
Borrower that pursuant to the requirements of the USA Patriot Act, it is
required to obtain, verify and record information that identified the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance
with the USA Patriot Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
TRAVELCENTERS OF AMERICA, INC.,
by
/s/ Xxxxx X. Xxxxxx
------------------------------------
Name:
Title: Executive VP, Chief Financial
Officer & Secretary
TIN: 00-0000000
Principal Place of Business:
00000 Xxxxxx Xxxxx Xxxx,
Xxxxx 000
Xxxxxxxx, XX 00000
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent,
by /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name:
Title: Managing Director
XXXXXX COMMERCIAL PAPER INC.,
individually and as Syndication Agent,
by /s/ Xxxxxxx Xxx
------------------------------------
Name:
Title: Authorized Signatory
(Other Lender signatures omitted)
