EXHIBIT 10.25
CREDIT AGREEMENT dated as of March 21, 1997, among the
Borrower, the Lenders, the Agent, the Fronting Bank and the
Swingline Lender (each such term and each other term used but
not defined in this introductory statement having the meaning
assigned thereto in Article I).
The Borrower will be recapitalized pursuant to a series of
transactions in which (a) TA Operating Corporation, a Delaware corporation
("TA") that is currently indirectly wholly owned by the Borrower through TA
Holdings Corporation, a Delaware corporation ("TA Holdings"), will become a
direct wholly owned subsidiary of the Borrower and TA Holdings will merge with
and into the Borrower, (b) TA Franchise Systems Inc., a Delaware corporation
("TAFSI") that is currently indirectly wholly owned by the Borrower through TA
Holdings and TA, will become a direct wholly owned subsidiary of the Borrower,
(c) National Auto/Truckstops, Inc., a Delaware corporation ("National") that is
a direct wholly owned subsidiary of the Borrower, will repay in full (i) all
amounts outstanding under the National Credit Agreement and (ii) the National
Subordinated Notes and (d) TA will repay in full (i) all amounts outstanding
under the TA Credit Agreement and (ii) the TA Subordinated Notes. The foregoing
transactions are referred to herein collectively as the "Recapitalization".
In connection with the Recapitalization, (a) the Borrower will issue
the Subordinated Notes, (b) the Borrower will issue the Tranche A Exchange Notes
in exchange for (i) $65,000,000 aggregate principal amount of the National
Senior Notes and (ii) $20,500,000 aggregate principal amount of the TA Senior
Notes and (c) the Borrower will make capital contributions or advances to
National and TA in amounts sufficient to enable them to pay their respective
Existing Indebtedness, to redeem certain TA Senior Notes, to pay accrued
interest relating to all of the foregoing and to pay related expenses.
The Borrower has requested the Lenders to extend credit in the form
of (a) Term Loans in an aggregate principal amount of $80,000,000, (b) Swingline
Loans, at any time and from time to time prior to the Revolving Credit Maturity
Date, in an aggregate principal amount at any time outstanding not in excess of
$5,000,000 and (c) Revolving Loans, at any time and from time to time prior to
the Revolving Credit Maturity Date, in an aggregate principal amount at any time
outstanding not in excess of $40,000,000 MINUS the sum of (i) the aggregate
principal amount of Swingline Loans outstanding at such time and (ii) the LC
Exposure at such time. The Borrower has requested the Fronting Bank to issue
Letters of Credit, in an aggregate face amount at any time outstanding not in
excess of $20,000,000, to be used solely for general corporate purposes in the
ordinary course of business of the Borrower and its subsidiaries. The proceeds
of the Term Loans, together with the net proceeds of the issuance of the
Subordinated Notes and a portion of the Borrower's excess cash, are to be used
solely (a) to repay in full (i) all the Existing Indebtedness and (ii)
$4,500,000 aggregate principal amount of the TA Senior Notes, including, in each
case, the payment of accrued interest with respect thereto, (b) to pay all
accrued interest with respect to the National Senior Notes and the TA Senior
Notes to be exchanged for the Tranche A Exchange Notes, (c) to fund certain
operator lease repurchase costs (including the repurchase of all shares of the
Borrower's Common Stock held by such operators), inventory purchases and
anticipated capital expenditures of the Borrower and its subsidiaries and (d) to
pay the fees and expenses incurred in connection with the Recapitalization and
to pay certain other related expenses. The proceeds of the Swingline Loans and
the Revolving Loans are to be used solely for general corporate purposes of the
Borrower and its subsidiaries.
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The Lenders and the Swingline Lenders are willing to extend such
credit to the Borrower and the Fronting Bank is willing to issue Letters of
Credit for the account of the Borrower, in each case on the terms and subject to
the conditions set forth herein. Accordingly, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Term Loan or ABR Revolving Loan.
"ABR Revolving Loan" shall mean any Revolving Loan bearing interest
at a rate determined by reference to the Alternate Base Rate in accordance with
the provisions of Article II.
"ABR Spread" shall mean (a) in the case of Term Loans, 2.00% per
annum and (b) in the case of Revolving Loans, 1.50% per annum, in each case
subject to adjustment pursuant to Section 2.06(c).
"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.
"Accredited Lessee" shall have the meaning assigned to such term in
the Senior Note Purchase Agreements as in effect on the date hereof.
"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 1/16 of 1%) equal to the product (a) the LIBO Rate in
effect for such Interest Period and (b) Statutory Reserves. For purposes hereof,
the term "LIBO Rate" shall mean the rate (rounded upwards, if necessary, to the
next 1/16 of 1%) at which dollar deposits approximately equal in principal
amount to the Agent's portion of such Eurodollar Borrowing and for a maturity
comparable to such Interest Period are offered to the principal London office of
the 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.
"Administrative Fees" shall have the meaning assigned to such term
in Section 2.05(b).
"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.
"Agent" shall mean The Chase Manhattan Bank, a New York banking
corporation, in its capacity as agent for the Lenders.
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"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such
day plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%. For purposes hereof, the term "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time by the Agent as its
prime rate in effect at its principal office in New York City; each change in
the Prime Rate shall be effective on the date such change is publicly announced
as being effective. The term "Base CD Rate" shall mean the sum of (a) the
product of (i) the Three-Month Secondary CD Rate and (ii) Statutory Reserves and
(b) the Assessment Rate. The term "Three-Month Secondary CD Rate" shall mean,
for any day, the secondary market rate for three-month certificates of deposit
reported as being in effect on such day (or, if such day shall not be a Business
Day, the next preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of New York (which rate
will, under the current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day) or, if such
rate shall not be so reported on such day or such next preceding Business Day,
the average of the secondary market the quotations for three-month certificates
of deposit of major money center banks in New York City received at
approximately 10:00 a.m., New York City time, on such day (or, if such day shall
not be a Business Day, on the next preceding Business Day) by the Agent from
three New York City negotiable certificate of deposit dealers of recognized
standing selected by it. The term "Federal Funds Effective Rate" shall mean, for
any day, the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York or, if such rate is not so published for any day that
is a Business Day, the average of quotations for the day of such transactions
received by the Agent from three Federal funds brokers of recognized standing
selected by it. If for any reason the Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Base CD Rate or the Federal Funds Effective Rate or both for any
reason, including the inability or failure of the Agent to obtain sufficient
quotations in accordance with the terms thereof, the Alternate Base Rate shall
be determined without regard to clause (b) or (c), or both, of the first
sentence of this definition, as appropriate, until the circumstances giving rise
to such inability no longer exist. Any change in the Alternate Base Rate due to
a change in the Prime Rate, the Three-Month Secondary CD Rate or the Federal
Funds Effective Rate shall be effective on the effective date of such change in
the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective
Rate, respectively.
"Ancillary Agreements" shall mean the TA Ancillary Agreements and
the National Ancillary Agreements.
"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.
"Assessment Rate" shall mean for any date the annual rate (rounded
upwards, if necessary, to the next 1/100 of 1%) most recently estimated by the
Agent as the then-current net annual assessment rate that will be employed in
determining amounts payable by the Agent to the Federal Deposit Insurance
Corporation (or any successor) for insurance by such Corporation (or such
successor) of time deposits made in dollars at the Agent's domestic offices.
"Asset Purchase Agreements" shall mean the TA Asset Purchase
Agreement and the National Asset Purchase Agreement.
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"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Agent, in the form
of Exhibit B or such other form as shall be approved by the Agent.
"Assignments of Leases and Rents" shall mean the Assignments of
Leases and Rents, each substantially in the form of Exhibit C, between the
Borrower and the Collateral 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
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) Transition Capital
Expenditures made during such period.
"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 (a) any fees and expenses
payable or amortized during such period by the Borrower or its subsidiaries in
connection with the Transactions and (b) any interest on the Subordinated Notes
not paid in cash prior to maturity of the Subordinated Notes. 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.
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"Casualty" shall have the meaning assigned to such term in Section 9
of the Guarantee Agreement.
"CERCLA" shall have the meaning assigned to such term in the
definition of the term "Environmental and Safety Laws".
A "Change in Control" shall be deemed to have occurred if:
(a) any Person or group (within the meaning of Rule 13d-5 of the
Securities and Exchange Commission as in effect on the date hereof), other
than (i) the Institutional Investors (including the First Boston Entities
(as defined below)) or (ii) the Management Purchasers and their Permitted
Transferees (as set forth in Section 2(b) of the Stockholders Agreement),
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)(i) the Institutional Investors (including the First Boston
Entities) or (ii) the First Boston Entities, respectively, shall cease to
own in the aggregate, directly or indirectly, beneficially and of record,
shares representing at least 65% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Borrower
held by such Persons on the date hereof, PROVIDED that such 65% shall be
reduced by the dilution suffered by such Persons as a result of any
issuance by the Borrower after the Closing Date of any capital stock
representing ordinary voting power (A) for fair value for cash to
non-Affiliates of the applicable parties under clause (i) or (ii) above,
as the case may be, or (B) to its employees to the extent that the shares
issued to such employees do not exceed 15% of the then-outstanding capital
stock having ordinary voting power;
(c) any Person or group (within the meaning of Rule 13d-5 of the
Securities and Exchange Commission as in effect on the date hereof), other
than the Institutional Investors (including the First Boston Entities),
shall own directly or indirectly, beneficially or of record, shares
representing more than the lesser at any time of (i) 35% of the aggregate
ordinary voting power represented by the issued and outstanding capital
stock of the Borrower and (ii) the percentage of the aggregate ordinary
voting power represented by the shares owned directly or indirectly,
beneficially or of record, by the Institutional Investors (including the
First Boston Entities) at such time;
(d) 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 Institutional Investors (including the
First Boston Entities) or the Management Purchasers and their Permitted
Transferees nor (ii) elected by directors so nominated;
(e) any "Change in Control" (however denominated) shall have
occurred under the Tranche A Exchange Note Purchase Agreements or the
Subordinated Note Indenture;
(f) the Borrower shall cease to own and control directly, of record
and beneficially, 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);
(g) either 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.
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For purposes of this definition, the term "First Boston Entities" shall mean
Credit Suisse First Boston Corporation, The Clipper Group, L.P., Merchant
Truckstops, L.P., Clipper Capital Associates, L.P. and Clipper/Merchant I, L.P.
and their Affiliates and any of their designees on the Closing Date. For
purposes of clause (b) of this definition, the Convertible Preferred Stock and
the Senior Convertible Participating Preferred Stock shall be deemed to
constitute capital stock with ordinary voting power. For purposes only of
clauses (a), (c) and (d) of this definition, the term "Institutional Investor"
shall be deemed to include any other holder or holders of shares of the Borrower
having ordinary voting power if any Institutional Investor or First Boston
Entity (other than an Institutional Investor deemed to be an Institutional
Investor solely by virtue of this provision) shall hold the irrevocable general
proxy of each such holder in respect of the shares held by such holder.
"Class" (a) when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are Revolving
Loans or Term Loans, (b) when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Credit Commitment or a Term Loan
Commitment and (c) when used in reference to any Lender, refers to whether such
Lender is a Term Lender or a Revolving Lender.
"Closing Date" shall mean the date of the first Borrowing hereunder.
"Code" shall mean the Internal Revenue Code of 1986, or any
successor statute thereto, as the same may be amended from time to time.
"Collateral" shall mean all the "Collateral" as defined in any
Security Document and shall also include the Lockbox Collateral and the
Mortgaged Properties.
"Collateral Account" shall have the meaning given such term in the
Collateral Account Agreement.
"Collateral Account Agreement" shall mean the Collateral Account
Agreement, substantially in the form of Exhibit D, between the Borrower and the
Collateral Agent for the benefit of the Secured Parties.
"Collateral Agent" shall mean The Chase Manhattan Bank, as
Collateral Agent under the Intercreditor Agreement, the Security Documents and
the Guarantee Agreement.
"Collateral Assignment" shall mean the Collateral Assignment,
substantially in the form of Exhibit E, from the Borrower, TAFSI and the
Guarantors to the Collateral Agent, providing for the assignment to the
Collateral Agent of the Environmental Agreements, the Ancillary Agreements, the
Franchise Agreements, the Rate Protection Agreements and certain other
agreements specified in such Collateral Assignment.
"Commitment" shall mean, with respect to each Lender, such Lender's
Term Loan Commitment and Revolving Credit Commitment.
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.05(a).
"Common Stock" shall have the meaning assigned to such term in
Section 4.20.
"Condemnation Proceeds" shall have the meaning assigned to such term
in Section 9 of the Guarantee Agreement.
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"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated February 1997.
"Consolidated Net Worth" shall mean, at any date, on a consolidated
basis for the Borrower and its subsidiaries, (a) the sum of (i) common stock
taken at par or stated value, (ii) preferred stock (other than preferred stock
that is mandatorily redeemable on or prior to the first anniversary of the
latest final maturity of the then outstanding Tranche A Exchange Notes) taken at
its liquidation value, (iii) capital surplus relating to common stock and (iv)
retained earnings (or deficit) at such date minus (b) the sum of treasury stock
at such date (other than treasury stock repurchased pursuant to Section 7.06),
all determined in accordance with GAAP and after giving effect to all
adjustments required thereby, but excluding any adjustments required by purchase
accounting.
"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.
"Convertible Preferred Stock" shall mean the convertible perpetual
preferred stock of the Borrower, par value $.01 per share, which stock is
convertible into the Common Stock of the Borrower.
"Credit Event" shall have the meaning assigned to such term in
Article V.
"Current Assets" as of any date shall mean the total assets that
would properly be classified as current assets of the Borrower and its
subsidiaries on a consolidated basis as of such date in accordance with GAAP.
"Current Liabilities" as of any date shall mean the total
liabilities that would properly be classified as current liabilities (other than
the current portion of Funded Debt) of the Borrower and its subsidiaries on a
consolidated basis as of such date in accordance with GAAP.
"Default" shall mean any event or condition that upon notice, lapse
of time or both would constitute an Event of Default.
"Default Rate" shall have the meaning assigned to such term in
Section 2.07.
"dollars" or "$" shall mean lawful money of the United States.
"EBITDA" with respect to the Borrower and its subsidiaries for any
period shall mean the sum of (a) Net Income for such period, (b) all Federal,
state, local and foreign income taxes deducted in determining such Net Income,
(c) interest expense deducted in determining such Net Income, (d) depreciation,
amortization and other noncash charges deducted in determining such Net Income
and (e) to the extent deducted in determining such Net Income with respect to
any fiscal quarter ending on or prior to December 31, 2000, transition costs
paid during such period, PROVIDED that the aggregate amount of all transition
costs incurred after the Closing Date and permitted to be added back to Net
Income pursuant to this definition shall not exceed $11,000,000. 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 Truckstop in accordance with Section 7.08.
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"Environmental Agreements" shall mean (a) the Environmental
Agreement dated as of July 22, 1993 (as amended, supplemented or otherwise
modified from time to time), among BP Exploration & Oil Inc., TA and certain
other parties and (b) the Environmental Agreement dated as of November 23, 1992
(as amended, supplemented or otherwise modified from time to time), between
Union Oil Company of California and National.
"Environmental and Safety Laws" shall mean any and all applicable
current and future treaties, laws, regulations, enforceable requirements,
binding determinations, orders, decrees, judgments, injunctions, permits,
approvals, authorizations, licenses, permissions, notices or binding agreements
issued, promulgated or entered by any Governmental Authority, relating to the
environment, to employee health or safety as it pertains to the use or handling
of, or exposure to, Hazardous Substances, to preservation or reclamation of
natural resources or to the management, release or threatened release of
contaminants or noxious odors, including the Hazardous Materials Transportation
Act, the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendments and Reauthorization Act of 1986
("CERCLA"), the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 and the Hazardous and Solid Waste
Amendments of 1984, the Federal Water Pollution Control Act, as amended by the
Clean Water Act of 1977, the Clean Air Act of 1970, as amended, the Toxic
Substances Control Act of 1976, the Occupational Safety and Health Act of 1970,
as amended, the Emergency Planning and Community Right-to-Know Act of 1986, the
Safe Drinking Water Act of 1974, as amended, and any similar or implementing
state or local laws and all amendments or regulations promulgated thereunder.
"Environmental Claim" shall mean any written notice of any
Governmental Authority alleging potential liability for damage to the
environment or by 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.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, or any successor statute, together with the regulations thereunder, 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
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.
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"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.
"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
and (vi) the net negative change, if any, in Net Working Capital during such
period MINUS (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 Tranche A Exchange Notes
and 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 and Tranche A Exchange Notes (as
contemplated by Section 2.12), (v) the aggregate amount of Capital Expenditures
and Transition Capital Expenditures of the Borrower and its subsidiaries made
and permitted hereunder during such period (other than the amount of such
Transition Capital Expenditures that were financed during such period with funds
released to the Borrower from the Collateral Account), (vi) repayments during
such period of the portion of Capital Lease Obligations of the Borrower and its
subsidiaries not allocable to Cash Interest Expense and (vii) the net positive
change, if any, in Net Working Capital during such period, in each case
determined in accordance with GAAP.
"Existing Indebtedness" shall mean the aggregate principal amount
outstanding under (a) the National Credit Agreement, (b) the National
Subordinated Notes, (c) the TA Credit Agreement and (d) the TA Subordinated
Notes.
"Existing Letter of Credit" shall mean cash Letter of Credit
previously issued for the account of TA that (a) is outstanding on the Closing
Date and (b) is listed on Schedule 1.01(b).
"Facilities" shall mean, collectively, the Term Facility and the
Revolving Facility.
"Fees" shall mean the Administrative Fees, the Commitment Fees, the
LC Fees, the fees specified in Section 2.05(c) 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.
"First Plaza" shall mean the First Plaza Group Trust, a trust
organized under the laws of the State of New York.
"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 either Guarantor or XXXXX.
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"Fronting Bank" shall mean The Chase Manhattan Bank, a New York
banking corporation, in its capacity as fronting bank for Letters of Credit.
"Funded Debt" as to any Person shall mean all Indebtedness of such
Person that matures more than one year from the date of its creation or matures
within one year from such date but is renewable or extendible, at the option of
such Person, to a date more than one year from such date or arises under a
revolving credit or similar agreement that obligates the lender or lenders to
extend credit during a period of more than one year from such date, including
all amounts of Funded Debt required to be paid or prepaid within one year from
the date of its creation and, in the case of the Borrower, Indebtedness in
respect of the Loans and the Swingline Loans.
"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.
"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,
substantially in the form of Exhibit F, between the Guarantors and the
Collateral Agent.
"Guarantors" shall mean TA and National.
"Hazardous Substances" shall mean any toxic, radioactive, caustic or
otherwise hazardous substance, material or waste, including petroleum, its
derivatives, by-products and other hydrocarbons, or any substance having any
constituent elements, displaying any of the foregoing characteristics, including
polychlorinated biphenyls ("PCBs"), asbestos or asbestos-containing material,
and any substance, waste or material regulated under Environmental and Safety
Laws.
"Indebtedness" of any Person shall mean, without duplication, (a)
all obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
assets purchased by such Person, (e) all obligations of such Person issued or
assumed as the deferred purchase price of property or services (excluding trade
accounts payable and accrued expenses arising in the ordinary course of business
in accordance with customary trade terms), (f) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the obligations secured thereby have
been assumed by such Person, (g) all Guarantees by such Person of Indebtedness
of others, (h) all Capital Lease Obligations of such Person, (i) all
11
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. 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 Agent.
"Indemnity and Subrogation Agreement" shall mean the Indemnity,
Subrogation and Contribution Agreement, substantially in the form of Exhibit G,
between the Borrower, the Guarantors and the Collateral Agent.
"Institutional Investors" shall mean The Clipper Group, L.P., First
Plaza, Credit Suisse First Boston Corporation, Barclays USA, Inc., Olympus
Private Placement Fund, L.P., Clipper/ Merchant I, L.P., Clipper Capital
Associates, L.P., National Partners, L.P., National Partners II, L.P., National
Partners III, L.P., UBS Capital Corporation, The Travelers Indemnity Company,
The Phoenix Insurance Co. and their respective Affiliates.
"Insurance Proceeds" shall have the meaning assigned to such term in
Section 9 of the Guarantee Agreement.
"Intercreditor Agreement" shall mean the Master Collateral and
Intercreditor Agreement, substantially in the form of Exhibit H, among the
Secured Parties and the Collateral Agent, and, from and after the incurrence of
any Tranche A Exchange Note Refinancing Indebtedness pursuant to Section
7.01(g), the term "Intercreditor Agreement" shall include any intercreditor
agreement entered into in connection with the incurrence of such Tranche A
Exchange Note Refinancing Indebtedness.
"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, as the Borrower may elect, and (b) as to any ABR
Borrowing, the period commencing on the date of such Borrowing or on the last
day of the immediately preceding Interest Period applicable to such Borrowing,
as the case may be and ending on the earliest of (i) the next succeeding March
31, June 30, September 30 or December 31, (ii) the Revolving Credit Maturity
Date or the Term Loan Maturity Date, as applicable, and (iii) the date such
Borrowing is converted to a Borrowing of a different Type in accordance with
Section 2.10 or repaid or prepaid in accordance with Section 2.11, 2.12 or 2.13;
12
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.
"LC Commitment" shall mean $20,000,000, 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
seventh anniversary of the Closing Date.
"Leasehold Mortgage" shall mean any Mortgage that is a leasehold or
subleasehold mortgage.
"Lenders" shall mean the financial institutions party hereto.
"Letters of Credit" shall mean letters of credit issued by the
Fronting Bank for the account of the Borrower pursuant to Section 3.01(a).
"Leverage Ratio" shall mean, on any date, the ratio of (a) Total
Debt of the Borrower and its subsidiaries determined on a consolidated basis as
of such date to (b) EBITDA of the Borrower and its subsidiaries determined on a
consolidated basis for the period of four consecutive fiscal quarters most
recently ended as of such date.
"LIBOR Spread" shall mean (a) in the case of Term Loans, 3.00% per
annum and (b) in the case of Revolving Loans, 2.50% per annum, in each case
subject to readjustment pursuant to Section 2.06(c).
"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.
13
"Loan Documents" shall mean this Agreement, the Intercreditor
Agreement, the Security Documents, the Guarantee Agreement and the Indemnity and
Subrogation Agreement.
"Loans" shall mean the Revolving Loans and the Term Loans.
"Lockbox Agreements" shall mean the lockbox agreements among the
Borrower, TAFSI, each of the Guarantors, the Collateral Agent and a Sub-Agent
(as defined in each Lockbox Agreement), substantially in the form of Annex 1 to
the Security Agreement or in such other form as the Collateral Agent may
specify.
"Lockbox Collateral" shall have the meaning assigned to such term in
each of the Lockbox Agreements.
"Management Purchasers" shall mean the officers, directors or
employees of the Borrower or its subsidiaries who have purchased or will
purchase Common Stock of the Borrower.
"Margin Stock" shall have the meaning assigned to such term under
Regulation U.
"Material Adverse Effect" shall mean (a) a materially adverse effect
on the business, assets, operations, prospects or condition, financial or
otherwise, or the material agreements of the Borrower and its subsidiaries,
taken as a whole, (b) a material impairment of the ability of the Borrower,
either of the Guarantors or TAFSI to perform any of its obligations under any
Transaction Document to which it is or will be a party or (c) a material
impairment of the rights of or benefits available to the Agent, 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).
"Mortgages" shall mean the mortgages, deeds of trust, leasehold
mortgages, leasehold deeds of trust, assignments of leases and rents (including
any Assignments of Leases and Rents, substantially in the form of Exhibit C),
modifications and other security documents, delivered pursuant to clause (i) of
Section 5.02(l) or pursuant to Section 6.10, each (except in the case of any
leasehold Mortgage) substantially in the form of Exhibit I.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate (other
than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Section 414 of the Code) is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"National" shall have the meaning assigned to such term in the
introductory statement to this Agreement.
"National Ancillary Agreements" shall have the meaning assigned to
the term "Ancillary Agreements" in the National Asset Purchase Agreement and
shall include the Xxxx of Sale, the Assignment and Assumption Agreement, the
Non-Competition Agreement, the Office Sublease, the Credit Card Agreement, the
Trademark License Agreement, the Software License
14
Agreement and the Services Agreement (each as defined in the National Asset
Purchase Agreement).
"National Asset Purchase Agreement" shall mean the Asset Purchase
Agreement dated as of November 23, 1992, between National and Union Oil Company
of California, as amended, supplemented or otherwise modified from time to time
in accordance with the terms of this Agreement.
"National Credit Agreement" shall mean the Credit Agreement dated as
of April 13, 1993 (as amended, supplemented or otherwise modified from time to
time), among National, National Auto/Truckstops Holdings Corporation, the
financial institutions from time to time party thereto, The Chase Manhattan
Bank, as Agent and Fronting Bank, and First American National Bank, as Swingline
Lender.
"National Senior Notes" shall mean National's 8.76% Senior Secured
Notes due 2002.
"National Subordinated Notes" shall mean all of National's
outstanding Senior Subordinated Notes due 2003.
"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 and the
Tranche A Exchange Notes) 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 Clipper
Group, L.P. 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
15
treated as expense under GAAP, all computed in accordance with GAAP; PROVIDED,
HOWEVER, that the term "Net Income" shall exclude, for all purposes other than
for the purposes of calculating Consolidated Net Worth, (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 Recapitalization and the
other 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.
"Network Operator" shall mean each independent auto/truckstop
operator who will lease or sublease a Truckstop from either Guarantor.
"Obligations" shall mean all obligations defined as "Obligations" in
the Guarantee Agreement and the Security Documents.
"Offering Memorandum" shall mean the Offering Memorandum dated March
24, 1997, relating to the Subordinated Notes, as amended, supplemented or
otherwise modified from time to time.
"Operators" shall mean independent auto/truckstop operators who
lease or sublease their facilities from National.
"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 is merged with and into one of the Guarantors
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 Section 7.01).
"Permitted Developer" shall have the meaning assigned to such term
in Section 10 of the Guarantee Agreement.
16
"Permitted Development Entity" shall be a corporation or limited
partnership that does not satisfy the criteria to be considered a "subsidiary"
as contemplated in the definition thereof.
"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 Moody's;
(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 Agent or (ii) any domestic office of any other
commercial bank of recognized standing organized under the laws of the
United States of America or any state thereof that has a combined capital
and surplus and undivided profits of not less than $250,000,000 and which
is rated (or the senior debt securities of the holding company of such
commercial bank are rated) A or better by Standard & Poor's or A2 by
Moody's, 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 Agent or (ii) the holding company of any other commercial bank of
recognized standing organized under the laws of the United States of
America or any state thereof that has (A) a combined capital and surplus
in excess of $250,000,000 and (B) commercial paper rated at least A-1 or
the equivalent thereof by Standard & Poor's or at least P-1 or the
equivalent thereof by Moody's, 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 Agent or (ii) any domestic office of any
other commercial bank of recognized standing organized under the laws of
the United States of America or any state thereof that has combined
capital and surplus and undivided profits of not less than $250,000,000
and which is rated (or the senior debt securities of the holding company
of such commercial bank are rated) A or better by Standard & Poor's or A2
by Moody's, or carrying an equivalent rating by another nationally
recognized rating agency if neither of the two named rating agencies shall
rate such bank relating to marketable direct obligations issued or
unconditionally guaranteed by the United States but only if the securities
collateralizing such repurchase agreements are delivered to or to the
order of the Collateral Agent;
(f) other investment instruments approved in writing by the Required
Lenders and offered by financial institutions that have a combined capital
and surplus and undivided profits of not less than $250,000,000; and
17
(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, 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, substantially in
the form of Exhibit J, among the Borrower, each of the Guarantors, TAFSI and the
Collateral Agent.
"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
$1,000,000 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 $1,000,000 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 Agent
that it intends to reinvest within 180 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 lesser of (1) $1,000,000 and (2) 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 Truckstops and the
related assets permitted pursuant to Sections 7.05(d) and 7.05(g)
resulting in Net Cash Proceeds in an aggregate amount not exceeding (A)
during the period commencing on the Closing Date and ending on March 31,
2000, $50,000,000 and (B) during each period of four consecutive fiscal
quarters ending on each March 31 thereafter, $7,500,000, PROVIDED that
18
(1) such Net Cash Proceeds are either (x) used to repay or voluntarily
prepay Loans or Tranche A Exchange Notes, in accordance with this
Agreement and the Tranche A Exchange Note Purchase Agreements, on such
date as may be elected by the Borrower or (y) reinvested in other
Truckstop properties and related assets, (2) in connection with any such
reinvestment, the Borrower (x) provides the Agent and the Collateral Agent
with such opinions, documents, certificates, title insurance policies (as
required by Section 5.02(l)), surveys and other insurance policies as they
may reasonably request and (y) takes such other actions as the Agent 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(l) and assignment
with respect to the related real property for the ratable benefit of the
Secured Parties) and (3) the Borrower, pending any such repayment,
voluntary prepayment or reinvestment, promptly deposits such Net Cash
Proceeds in a cash collateral account established with the Collateral
Agent for the 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 (A) such proceeds are reinvested in equipment,
vehicles or other assets used in the principal lines of business of the
Borrower's subsidiaries within 180 days after the receipt thereof and (B)
the Borrower, pending such reinvestment, promptly deposits such proceeds
so received and unreinvested in a cash collateral account established with
the Collateral Agent for the benefit of the Secured Parties;
(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 9 of the Guarantee Agreement, (B) such Condemnation Proceeds or
Insurance Proceeds, pursuant to Section 9 of the Guarantee Agreement, are
not otherwise required to be applied as a mandatory prepayment pursuant to
Section 2.13(b) or (C) to the extent permitted by Section 9 of the
Guarantee Agreement, any Condemnation Proceeds or Insurance Proceeds are
(1) reinvested in equipment, vehicles or other assets used in the
principal lines of business of the Borrower's subsidiaries within 180 days
after the receipt thereof and (2) the Borrower, pending such reinvestment,
has deposited such amounts in an escrow account with the Collateral Agent
as contemplated in Section 9 of the Guarantee Agreement;
(vi) except as otherwise specified in Section 10 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 10 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
$2,000,000 in any fiscal year or $8,000,000 since the Closing Date,
PROVIDED that (A) 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 180 days of the date of
such sale and (B) the Borrower, pending such reinvestment, promptly
deposits such proceeds so received and unreinvested in a cash collateral
account established with the Collateral Agent for the benefit of the
Secured Parties.
19
"Pro Forma Balance Sheet" shall have the meaning assigned to such
term in Section 4.05(a).
"Pro Rata Share" shall mean, in relation to any amount, (a) with
respect to all the Lenders as a group, a share of such amount determined by
multiplying such amount by a fraction, the numerator of which shall be the sum
of the aggregate principal amount of Loans and Swingline Loans outstanding at
the time plus the aggregate face amount of all Letters of Credit outstanding at
the time plus the aggregate unused amount of the Revolving Credit Commitments in
effect at the time (the sum of the foregoing amounts being referred to as the
"Lenders' Amount"), and the denominator of which shall be the sum of the
Lenders' Amount and the aggregate outstanding principal amount of Tranche A
Exchange Notes outstanding at the time (the sum of the foregoing amounts being
referred to as the "Denominator Amount"), and (b) with respect to the Tranche A
Exchange Note Purchasers, a share of such amount determined by multiplying such
amount by a fraction, the numerator of which shall be the aggregate outstanding
principal amount of Tranche A Exchange Notes outstanding at the time, and the
denominator of which shall be the Denominator Amount. After the incurrence of
any Tranche A Exchange Note Refinancing Indebtedness, the Pro Rata Share shall
be determined, MUTATIS MUTANDIS, with respect to the analogous provisions of the
Tranche A Exchange Note Refinancing Indebtedness.
"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 satisfactory to the Agent with a
counterparty satisfactory to the Agent.
"Recapitalization" shall have the meaning assigned to such term in
the introductory statement to this Agreement.
"Register" shall have the meaning assigned to such term in Section
10.04(d).
"Regulation G" shall mean Regulation G of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"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.
"Release" shall mean any discharge, emission, release, or threat
thereof, including a "Release" as defined in CERCLA at 42 U.S.C. ss. 9601(22),
and the term "Released" has a meaning correlative thereto.
"Reportable Event" shall mean any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder 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.
20
"Resellers" shall mean independent auto/truckstop operators who own
their facilities and who are part of the National network.
"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.
"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 (b) of Section 2.01, as the same may be reduced from time to
time pursuant to Section 2.09.
"Revolving Credit Maturity Date" shall mean the seventh anniversary
of the Closing Date.
"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 (b) of Section 2.01. Each Revolving Loan
shall be a Eurodollar Revolving Loan or an ABR Revolving Loan.
"Secured Parties" shall have the meaning assigned to such term in
the Security Agreement.
"Security Agreement" shall mean the Security Agreement,
substantially in the form of Exhibit K, among the Borrower, each of the
Guarantors, TAFSI and the Collateral Agent.
"Security Documents" shall mean the Mortgages (including any
Assignment of Leases and Rents and any leasehold mortgage), the Security
Agreement, the Pledge Agreement, the Collateral Assignment, the Lockbox
Agreements, the Trademark Security Agreement, the Collateral Account 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 Convertible Participating Preferred Stock" shall mean the
Borrower's Series I Senior Convertible Participating Preferred Stock, par value
$.01 per share, and the Borrower's Series II Senior Convertible Participating
Preferred Stock, par value $.01 per share.
"Senior Funded Debt" means all Funded Debt of the Borrower and its
subsidiaries other than the Subordinated Notes (or the Subordinated Note
Refinancing Indebtedness).
21
"Series I Tranche A Exchange Note Purchasers" shall mean the Series
I Tranche A Exchange Note Purchasers party to the Tranche A Exchange Note
Purchase Agreements and their successors and assigns, including the holders of
the Series I Tranche A Exchange Notes from time to time.
"Series I Tranche A Exchange Notes" shall mean the 8.94% Series I
Senior Secured Notes due 2002 of the Borrower issued pursuant to the Tranche A
Exchange Note Purchase Agreements in an aggregate principal amount of
$35,500,000.
"Series II Tranche A Exchange Note Purchasers" shall mean the Series
II Tranche A Exchange Note Purchasers party to the Tranche A Exchange Note
Purchase Agreements and their successors and assigns, including the holders of
the Series II Tranche Exchange Notes from time to time.
"Series II Tranche A Exchange Notes" shall mean the Series II Senior
Secured Notes due 2005 of the Borrower issued pursuant to the Tranche A Exchange
Note Purchase Agreements in an aggregate principal amount of $50,000,000.
"Standard & Poor's" shall mean Standard & Poor's Rating Group.
"Statutory Reserves" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum applicable reserve percentages,
including any marginal, special, emergency or supplemental reserves (expressed
as a decimal) established by the Board and any other banking authority to which
the Agent is subject (a) with respect to the Base CD Rate (as such term is used
in the definition of the term "Alternate Base Rate") for new negotiable
nonpersonal time deposits in dollars of over $100,000 with maturities
approximately equal to three months and (b) with respect to the Adjusted LIBO
Rate, for Eurocurrency Liabilities (as defined in Regulation D of the Board).
Such reserve percentages shall include those imposed pursuant to Regulation D of
the Board. Eurodollar Loans shall be deemed to constitute Eurocurrency
Liabilities and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offset that may be available from time to
time to any Lender under such Regulation D. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Stockholders Agreement" shall mean the Stockholders Agreement dated
as of April 14, 1993, as amended as of March 6, 1997, and as further amended,
supplemented or otherwise modified from time to time in accordance with the
terms of this Agreement, among certain Institutional Investors, certain
Resellers, certain Operators and the Borrower.
"Subordinated Note Documents" shall mean the Subordinated Note
Guarantees, the Subordinated Note Indenture and the Subordinated Notes.
"Subordinated Note Guarantees" shall mean, collectively, the
Guarantees of the Guarantors guaranteeing repayment of the Subordinated Notes.
"Subordinated Note Indenture" shall mean the Senior Subordinated
Note Indenture dated as of March 24, 1997, among the Borrower, the Guarantors
and Fleet National Bank, as trustee, as amended from time to time in accordance
with the terms hereof and thereof.
22
"Subordinated Note Refinancing Indebtedness" shall mean any
Indebtedness incurred by the Borrower as contemplated in Section 7.01(h) in
connection with the refinancing of the Subordinated Notes.
"Subordinated Notes" shall mean (a) the Senior Subordinated Notes
due 2007 issued by the Borrower pursuant to the Subordinated Note Indenture and
(b) all senior subordinated notes of the Borrower issued in exchange for
Subordinated Notes on terms substantially identical to the terms of the
Subordinated Notes.
"subsidiary" shall mean, with respect to any Person (herein referred
to as the "parent"), any corporation, partnership, 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 The Chase Manhattan Bank, in its
capacity as Swingline lender.
"Swingline Loans" shall mean the Swingline loans made by the
Swingline Lender pursuant to Section 2.21.
"TA" shall have the meaning assigned to such term in the
introductory statement to this Agreement.
"TA Ancillary Agreements" shall have the meaning assigned to the
term "Ancillary Agreements" in the TA Asset Purchase Agreement and shall include
the Non-Competition Agreement, the Credit Card Agreement, the Services
Agreement, the Office Sub-Lease, the Assignment and Assumption Agreement, the
TAFSI Assumption Agreement, the Jobber Agreement, the Supplemental Agreement,
the Trademark Assignment and the Software License Agreement (each as defined in
the TA Asset Purchase Agreement).
"TA Asset Purchase Agreement" shall mean the Asset Purchase
Agreement dated as of July 22, 1993, as amended by Amendment No. 1 thereto dated
as of December 9, 1993, and as further amended, supplemented or otherwise
modified from time to time in accordance with the terms set forth in this
Agreement, among TA, BP Exploration & Oil, Inc. and Truckstops Corporation of
America, Inc.
"TA Credit Agreement" shall mean the Credit Agreement dated as of
December 9, 1993 (as amended, supplemented or otherwise modified from time to
time), among TA, the financial institutions from time to time party thereto, The
Chase Manhattan Bank, as Agent and Fronting Bank, Credit Suisse and The
Long-Term Credit Bank of Japan, as Co-Agents, and First American National Bank,
as Swingline Lender.
"TAFSI" shall mean TA Franchise Systems Inc., a Delaware
corporation.
"TA Senior Notes" shall mean TA's 8.63% Senior Secured Notes due
2002.
"TA Stockholders Agreement" shall mean the Stockholders Agreement
dated as of December 10, 1993, among the Borrower and the stockholders party
thereto, as amended in
23
accordance with the Borrower's Consent Solicitation dated February 13, 1997, as
the same may be further amended, modified or supplemented in accordance with the
provisions of this Agreement.
"TA Subordinated Notes" shall mean all of TA's outstanding Series A
and Series B Senior Subordinated Notes due 2003.
"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.
"Term Loan Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Term Loans hereunder as set forth in clause
(a) of Section 2.01, as the same may be reduced from time to time pursuant to
Section 2.09.
"Term Loan Maturity Date" shall mean the eighth anniversary of the
Closing Date.
"Term Loan Repayment Amount" shall have the meaning set forth in
Section 2.11(a).
"Term Loan Repayment Date" shall have the meaning set forth in
Section 2.11(a).
"Term Loans" shall mean the term loans made by the Lenders to the
Borrower pursuant to clause (a) of Section 2.01. Each Term Loan shall be a
Eurodollar Term Loan or an ABR Term Loan.
"The Clipper Group, L.P." shall mean The Clipper Group, L.P., a
limited partnership organized under the laws of the State of Delaware.
"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 mandatorily redeemable preferred stock at such time less the amount of cash
and cash equivalents set forth on the Borrower's consolidated balance sheet at
such time (including all amounts on deposit in the Collateral Account at such
time) in excess of $2,500,000.
"Trademark Security Agreement" shall mean the Trademark Security
Agreement, substantially in the form of Exhibit L, among the Borrower, the
Guarantor, TAFSI and the Collateral Agent.
"Tranche A Exchange Note Documents" shall mean the Tranche A
Exchange Note Purchase Agreements, the Tranche A Exchange Notes, the Guarantee
Agreement, the Security Documents and the Intercreditor Agreement.
"Tranche A Exchange Note Purchase Agreements" shall mean the Senior
Secured Note Exchange Agreements, each dated as of the date hereof, between the
Borrower and the Tranche A Exchange Note Purchasers party thereto, as amended,
supplemented or otherwise
24
modified from time to time in accordance with the terms of this Agreement. After
the incurrence of any Tranche A Exchange Note Refinancing Indebtedness, the term
"Tranche A Exchange Note Purchase Agreements" shall include all agreements (or
comparable documents, such as loan agreements or indentures) entered into by the
Borrower in connection with the sale or issuance of such refinancing
Indebtedness.
"Tranche A Exchange Note Purchasers" shall mean the Series I Tranche
A Exchange Note Purchasers and the Series II Tranche A Exchange Note Purchasers
party to the Tranche A Exchange Note Purchase Agreements and their successors
and assigns, including the holders of the Tranche A Exchange Notes from time to
time. After the incurrence of any Tranche A Exchange Note Refinancing
Indebtedness, the term "Tranche A Exchange Note Purchasers" shall include all
original purchasers of such refinancing Indebtedness and their successors and
assigns, including the holders of the Tranche A Exchange Notes from time to
time.
"Tranche A Exchange Note Refinancing Indebtedness" shall mean any
Indebtedness incurred by the Borrower as contemplated in Section 7.01(g) in
connection with the refinancing of either series of the Tranche A Exchange
Notes.
"Tranche A Exchange Notes" shall mean the Series I Tranche A
Exchange Notes and the Series II Tranche A Exchange Notes, in each case issued
pursuant to the Tranche A Exchange Note Purchase Agreements. After the
incurrence of any Tranche A Exchange Note Refinancing Indebtedness, the term
"Tranche A Exchange Notes" shall include all notes issued in respect of the
Tranche A Exchange Note Refinancing Indebtedness.
"Transaction Documents" shall mean the Loan Documents, the Tranche A
Exchange Note Documents and the Subordinated Note Documents.
"Transactions" shall have the meaning assigned to such term in
Section 4.02.
"Transition Capital Expenditures" shall mean, for any period, all
capital expenditures made by the Borrower and its subsidiaries during such
period to the extent that such capital expenditures (a) are in an amount in
excess of the Capital Expenditures permitted to be made during such period under
Section 7.13(a) of this Agreement and (b) are capital expenditures substantially
similar to those described in Section 10 of the Confidential Information
Memorandum.
"Truckstop" shall mean each full service truckstop facility that, as
of any date, is part of the network and that is owned by the Borrower or its
subsidiaries or leased by the Borrower or its subsidiaries as lessee or
sublessee.
"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.
"Voting Trust" shall mean the Voting Trust established pursuant to
the terms of the Voting Trust Agreement.
"Voting Trust Agreement" shall mean the Voting Trust Agreement dated
as of April 14, 1993, as amended as of March 6, 1997, among the Borrower,
certain Resellers, certain Operators and United States Trust Company of New
York, as trustee, as the same may be amended, modified or supplemented in
accordance with the provisions of this Agreement.
25
"Voting Trust Certificates" shall mean the Voting Trust Certificates
issued pursuant to the terms of the Voting Trust Agreement.
"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).
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. 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, (a) to make Terms Loans to the
Borrower 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
(b) 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 Credit
Loans repaid, and all reimbursements of LC Disbursements made, concurrently with
the making of any Revolving Credit Loans) an amount equal to the difference
between (i) 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 (ii) such Lender's Applicable Percentage of the sum of (A) the
aggregate principal amount of Swingline Loans outstanding at such time and (B)
the LC Exposure at such time. Within the limits set forth in clause (b) 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.
SECTION 2.02. LOANS. (a) Each Loan shall be made as part of
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
26
$500,000 and not less than $3,000,000 (or in the case of the Revolving Credit
Commitments, the lesser of $3,000,000 and an aggregate principal amount equal to
the remaining balance of the Revolving Credit Commitments).
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans, as the Borrower may request
pursuant to Section 2.03. Each Lender may at its option fulfill its Commitment
with respect to any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of 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 six 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 Agent may designate not
later than 12:00 noon, New York City time, and the 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 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 Agent
shall have received notice from a Lender prior to the date of any Borrowing that
such Lender will not make available to the Agent such Lender's portion of such
Borrowing, the Agent may assume that such Lender has made such portion available
to the Agent on the date of such Borrowing in accordance with this paragraph (c)
and the 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 Agent, such Lender and
the Borrower severally agree to repay to the 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 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 Agent
such corresponding amount, such amount shall constitute such Lender's Loan as
part of such Borrowing for purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Revolving Credit Borrowing if the
Interest Period requested with respect thereto would end after the Revolving
Credit Maturity Date.
(e) The Borrower may refinance all or any part of any Revolving
Credit Borrowing with a Revolving Credit Borrowing of the same or a different
Type, subject to the conditions and limitations set forth in this Agreement. Any
Revolving Credit Borrowing or part thereof so refinanced shall be deemed to be
repaid or prepaid in accordance with Section 2.04 or 2.12, as applicable, with
the proceeds of a new Revolving Credit Borrowing, and the proceeds of the new
Revolving Credit Borrowing, to the extent they do not exceed the principal
amount of the Revolving Credit Borrowing being refinanced, shall not be paid by
the Lenders to the Agent or by the Agent to the Borrower pursuant to paragraph
(c) above.
27
(f) If the 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
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 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 Agent will promptly pay such amount to the Fronting
Bank. The Agent will promptly remit to each Participating Lender its Applicable
Percentage of any amounts subsequently received by the 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 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
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 11:00 a.m., 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 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.
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
28
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 Agent shall maintain accounts in which it will record (i)
the amount of each Loan made hereunder, the 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 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 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 Agent, the following fees (each, a "Commitment Fee") on the Closing
Date and on the last day of March, June, September and December in each year and
on each date on which any of the 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 each of the Term Loan Commitment and 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 date upon
which such Lender's Commitments were accepted or the Closing Date, as
applicable, or ending with the date on which any of such Commitments of such
Lender shall expire or be terminated). The Commitment Fee due to each Lender in
respect of its Term Loan Commitment and Revolving Credit Commitment pursuant to
the immediately preceding sentence shall accrue from and including the date upon
which such Commitments of such Lender were accepted. For purposes of calculating
Commitment Fees in respect of Revolving Credit Commitments, any portion of such
Revolving Credit Commitments unavailable due to outstanding Letters of Credit
shall be deemed to be used amounts. All Commitment Fees shall be computed on the
basis of the actual number of days elapsed in a year of 360 days.
(b) The Borrower agrees to pay to the Agent, for its own account,
fees (the "Administrative Fees") at the time and in the amounts agreed upon in
the fee letter agreement dated February 14, 1997 (the "Fee Letter"), between the
Borrower and the Agent.
(c) The Borrower agrees to pay to the Agent, for payment to the
other Lenders (to the extent applicable), on the Closing Date the fees specified
in the Fee Letter, and the Agent shall pay to each Lender on the Closing Date
that portion of such fees as is owing to such Lender.
(d) The Borrower agrees to pay to the Fronting Bank, for its own
account, the fees specified in Section 3.08.
(e) All Fees (other than the fees payable to the Fronting Bank under
Section 3.08) shall be paid on the dates due, in immediately available funds, to
the Agent for distribution, if and
29
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 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 in effect at
such time, subject to adjustment pursuant to Section 2.06(c).
(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 in effect from time to time, subject to adjustment
pursuant to Section 2.06(c).
(c) So long as no Default or Event of Default shall have occurred
and be continuing, the Interest Rate Spreads in respect of Term Loans and, after
the first anniversary of the Closing Date, the Interest Rate Spreads in respect
of Revolving Loans shall be reduced by 0.25% at any time that the Facilities or
the Series II Tranche A Exchange Notes, as the case may be, are rated at least
Ba2 by Moody's or BB by Standard & Poor's so long as the Facilities or the
Series II Tranche A Exchange Notes, as the case may be, are rated at least Ba3
by Moody's and BB- by Standard & Poor's at such time.
(d) 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
by the 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 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 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 Agent shall have advised the Borrower and the Lenders that the
circumstances giving rise to such notice no
30
longer exist, be deemed to be a request for an ABR Borrowing. Each determination
by the Agent hereunder shall be conclusive absent manifest error.
SECTION 2.09. TERMINATION AND REDUCTION OF COMMITMENTS. (a) The Term
Loan Commitments shall be automatically terminated at 5:00 p.m., New York City
time, on the Closing Date. The Revolving Credit Commitments and the LC
Commitment shall be automatically terminated at 5:00 p.m., New York City time,
on the Revolving Credit Maturity Date and the LC Maturity Date, respectively.
Notwithstanding the foregoing, all the Commitments and the LC Commitment shall
be automatically terminated at 5:00 p.m., New York City time, on April 30, 1997,
if the initial borrowing under either of the Facilities has not occurred by such
time.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Agent, the Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Commitments;
PROVIDED, HOWEVER, that (i) each partial reduction of the 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) The Revolving Credit Commitments and the LC Commitments shall be
permanently reduced as provided in Section 2.13(e).
(d) Each reduction in the Commitments hereunder shall be made
ratably among the applicable Lenders in accordance with their respective
applicable Commitments. The Borrower shall pay to the Agent for the account of
the applicable Lenders, on the date of each termination or reduction, the
Commitment Fees on the amount of the Commitments so terminated or reduced
accrued to but excluding the date of such termination or reduction.
(e) 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 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
31
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) any portion of a Term Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued as a
Eurodollar Term Borrowing;
(f) any portion of a Eurodollar Term Borrowing that cannot be
converted into or continued as a Eurodollar Term Borrowing by reason of
subparagraph (e) above shall be automatically converted at the end of the
Interest Period in effect for such Borrowing into an ABR Term Borrowing;
and
(g) no Interest Period may be selected for any Eurodollar Term
Borrowing that would end later than a Term Loan Repayment Date occurring
on or after the first day of such Interest Period if, after giving effect
to such selection, the aggregate outstanding amount of (i) the Eurodollar
Term Borrowings with Interest Periods ending on or prior to such Term Loan
Repayment Date and (ii) the ABR Term Borrowings would not be at least
equal to the principal amount of Term Borrowings to be paid on such Term
Loan Repayment Date.
Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Term Borrowing that the Borrower requests be converted or continued, (ii)
whether such Term Borrowing is to be converted to or continued as a Eurodollar
Term Borrowing or an ABR Term Borrowing, (iii) if such notice requests a
conversion, the date of such conversion (which shall be a Business Day) and (iv)
if such Term Borrowing is to be converted to or continued as a Eurodollar Term
Borrowing, the Interest Period with respect thereto. If no Interest Period is
specified in any such notice with respect to any conversion to or continuation
as a Eurodollar Term Borrowing, the Borrower shall be deemed to have selected an
Interest Period of one month's duration. The Agent shall advise the other
Lenders of any notice given pursuant to this Section 2.10, of the 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
32
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 Agent, for the account of the Lenders, on each March 31, June 30,
September 30 and December 31 in any period set forth below (each such date being
a "Term Loan Repayment Date") a principal amount of the Term Loans (such amount,
as adjusted from time to time pursuant to Sections 2.12(b) and 2.13(e), being
called the "Term Loan Repayment Amount") equal to one-quarter of the amount set
forth below for such period, together in each case with accrued and unpaid
interest on the principal amount to be paid to but excluding the date of such
payment:
From and Including: To and Including: Amount:
April 1, 1997 March 31, 1998 $500,000
April 1, 1998 March 31, 1999 $500,000
April 1, 1999 March 31, 2000 $500,000
April 1, 2000 March 31, 2001 $500,000
April 1, 2001 March 31, 2002 $500,000
April 1, 2002 March 31, 2003 $500,000
April 1, 2003 March 31, 2004 $30,000,000
Xxxxx 0, 0000 Xxxx Loan Maturity Date $47,000,000
On each Term Loan Repayment Date, the Agent shall apply the Term Loan Repayment
Amount paid to the Agent to pay the Term Loans.
(b) To the extent not previously paid, all Term Borrowings shall be
due and payable on the Term Loan Maturity Date, together with accrued and unpaid
interest on the principal amount to be paid to but excluding the date of
payment.
(c) All repayments pursuant to this Section 2.11 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.12 OPTIONAL PREPAYMENT. (a) The Borrower shall have the
right at any time and from time to time to prepay (i) Revolving Credit
Borrowings, (ii) Term Borrowings or (iii) if the Borrower specifically elects,
Term Borrowings and outstanding Tranche A Exchange Notes in accordance with the
provisions of the Tranche A Exchange Note Purchase Agreements, in each case in
whole or in part, upon at least three Business Days' prior written or telecopy
notice (or telephone notice promptly confirmed by written or telecopy notice) to
the 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 FIRST, to reduce the scheduled payments of
principal due under Section 2.11(a) during the 12 month period following the
date of such prepayment and SECOND, pro rata against the remaining scheduled
payments of principal due under Section 2.11(a).
(c) Each notice of prepayment shall specify (i) the amount to be
prepaid, (ii) the prepayment date, (iii) whether the prepayment relates to
Revolving Credit Borrowings, to Term Borrowings or to both Term Borrowings and
outstanding Tranche A Exchange Notes and (iv) the principal amount to be prepaid
of (A) Revolving Credit Borrowings (or portion thereof) or
33
(B) Term 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) On each prepayment date with respect to the prepayment of any
Term Borrowing in respect of which the Borrower shall also be making a voluntary
prepayment of Tranche A Exchange Notes, the Borrower shall deliver to the Agent
for application pursuant to paragraph (a) above an amount equal to the Lenders'
Pro Rata Share of such prepaid amounts. On or before the delivery of all amounts
to be prepaid with respect to the Term Borrowings, the Borrower shall with
respect to the Pro Rata Share of such prepaid amounts attributable to the
Tranche A Exchange Notes give notice of such optional prepayment of such Pro
Rata Share pursuant to Section 5.2 of the Tranche A Exchange Note Purchase
Agreements (or the analogous provision, if any, in respect of the Tranche A
Exchange Note Refinancing Indebtedness). Pending payment to the Tranche A
Exchange Note Purchasers, the Borrower shall deposit the Pro Rata Share of such
prepaid amounts attributable to the Tranche A Notes in an escrow account with
the Collateral Agent pursuant to paragraph (f) below.
(e) At any time that (i) the Borrower shall elect to prepay both
Term Borrowings and Tranche A Exchange Notes pursuant to paragraph (d) above or
(ii) an offer notice is required to be delivered to the Tranche A Exchange Note
Purchasers pursuant to Section 2.13(d), the Borrower shall give (or cause to be
given) to the Agent an additional written notice (which notice shall be
included, as applicable, in the prepayment notice delivered pursuant to
paragraph (a) above or the Financial Officer's Certificate delivered pursuant to
Section 2.13(f)). Such written notice shall, (i) in the case of an optional
prepayment pursuant to paragraph (d) above, set forth a reasonably detailed
calculation of the amounts to be paid to the Lenders and the amounts to be paid
to the Tranche A Exchange Note Purchasers as contemplated in paragraph (d) above
and (ii) in the case of a notice relating to a Prepayment Event, describe in
reasonable detail the facts and circumstances giving rise to such Prepayment
Event and a reasonably detailed calculation of the Net Cash Proceeds therefrom
and the amounts to be paid to the Lenders and to be offered to the Tranche A
Exchange Note Purchasers in accordance with Section 2.13(d).
(f) If (i) any voluntary prepayment of Tranche A Exchange Notes is
to be made in connection with an optional prepayment of Term Borrowings pursuant
to paragraph (d) above or (ii) there is a prepayment in connection with any
Prepayment Event pursuant to Section 2.13(d), the Borrower will, concurrently
with any such prepayment under this Agreement, make effective provision whereby
the Tranche A Exchange Note Purchasers' Pro Rata Share of the related prepaid
amount, together with interest to the related prepayment date, is placed in
escrow with the Collateral Agent until the related prepayment date in respect of
the Tranche A Exchange Notes, whereupon such amounts shall be applied to the
prepayment of the Tranche A Exchange Notes or, in the case of amounts
attributable to rejected or deemed rejected offers as contemplated in Section
2.13(d), prepayments of (A) obligations outstanding under this Agreement and (B)
if applicable, Series I Tranche A Exchange Notes, in each case as contemplated
under Section 2.13(d).
(g) 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(d) or Section 2.13(e).
34
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 the Business Day next following) the occurrence of a Prepayment Event, the
Borrower shall apply an amount equal to 100% of the Net Cash Proceeds therefrom
to prepay obligations outstanding under this Agreement and the outstanding
Tranche A Exchange Notes in accordance with paragraph (d) below.
(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, 1997, and
(ii) the date on which the financial statements with respect to such period are
delivered pursuant to Section 6.04(a), the Borrower shall apply an amount equal
to 50% of Excess Cash Flow for such period to prepay obligations outstanding
under this Agreement and the outstanding Tranche A Exchange Notes in accordance
with paragraph (d) below.
(d) Upon the occurrence of any event described in paragraph (b) or
(c) above, the Borrower shall (i) offer to pay to the Agent (for application to
the prepayment of obligations outstanding under this Agreement in accordance
with paragraph (e) below) an amount equal to the Lenders' Pro Rata Share of the
amount to be prepaid as a result of such event (such amount, the "Prepayment
Amount") and (ii) offer to prepay the Tranche A Exchange Notes in the manner set
forth in Section 5.3 of the Tranche A Exchange Note Purchase Agreements (or the
analogous provision, if any, in respect of any Tranche A Exchange Note
Refinancing Indebtedness) in an amount equal to the Pro Rata Share of the
Prepayment Amount attributable to the Tranche A Exchange Notes. If any Series I
Tranche A Exchange Note Purchaser rejects or is deemed to reject (as provided in
Section 5.3 of the Tranche A Exchange Note Purchase Agreements (or the analogous
provision, if any, in respect of any Tranche A Exchange Note Refinancing
Indebtedness)) such offer, then on the related date for payment the Collateral
Agent shall (i) allocate such Series I Tranche A Exchange Note Purchaser's share
of such Net Cash Proceeds pro rata between the Series II Tranche A Exchange
Notes and the Term Loans and (ii) offer to apply such pro rata amount to (A) the
prepayment of Series II Tranche A Exchange Notes in the manner set forth in
Section 5.3 of the Tranche A Exchange Note Purchase Agreements (or the analogous
provision, if any, in respect of any Tranche A Exchange Note Refinancing
Indebtedness) and (B) to the prepayment of obligations outstanding under this
Agreement in accordance with paragraphs (e) and (f) below.
(e) Mandatory prepayments of outstanding obligations under this
Agreement made by the Borrower pursuant to paragraphs (b) and (c) above shall be
applied, subject to paragraph (h) below, FIRST, to prepay scheduled payments of
principal due on the Term Borrowings under Section 2.11(a) after the date of
such prepayment in the manner described in the immediately following sentence
and SECOND, following the payment in full of all Term Loans, permanently to
reduce Swingline Loans, Revolving Loans and the Revolving Credit Commitments.
Each such mandatory prepayment of principal of the Term Borrowings shall be
applied to reduce the scheduled payments of principal due under Section 2.11(a)
after the date of such prepayment (i) in the case of mandatory prepayments
described in clause (c) of the definition of the term "Prepayment Event", in the
inverse order of maturity and (ii) in the case of mandatory
35
prepayments described in paragraph (c) above, all other Prepayment Events and
any prepayment pursuant to paragraph (h) below, pro rata.
(f) The Borrower shall deliver to the Agent, (i) at the time of each
prepayment required under paragraph (b) or paragraph (c) of this Section 2.13, 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. In the
case of a prepayment pursuant to paragraph (d) above, such officer's certificate
shall also set forth the information required to be included therein pursuant to
Section 2.12(e)(ii). Each required notice of prepayment shall specify the
prepayment date, whether the related prepayment relates solely to obligations
under this Agreement or if it also relates to outstanding Tranche A Exchange
Notes, the Type of each Borrowing being prepaid, the principal amount of each
Borrowing (or portion thereof) to be prepaid and, if outstanding Tranche A
Exchange Notes are to be prepaid, the principal amount of such outstanding
Tranche A Exchange Notes (or portion thereof) to be prepaid, shall be
irrevocable and 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 and then to the
payment of principal.
(g) 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 Agent shall apply any cash deposited in the Prepayment
Account (i) allocable to Term Borrowings to prepay Eurodollar Term Borrowings
and (ii) allocable to Revolving Credit Borrowings to prepay Eurodollar Revolving
Credit Borrowings, in each case on the last day of their respective Interest
Periods (or, at the direction of the Borrower, on any earlier date) until all
outstanding Term Borrowings or Revolving Credit Borrowings, as the case may be,
have been prepaid or until all the allocable cash on deposit with respect to
such Borrowings has been exhausted. For purposes of this Agreement, "Prepayment
Account" shall mean an account established by the Borrower with the Agent and
over which the Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal for application in accordance with this paragraph
(g). The 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 Agent shall not be required to make any
investment that, in its sole judgment, would require or cause the Agent to be
in, or would result in any, violation of any law, statute, rule or regulation
and (ii) the 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 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
36
above. If the maturity of the Loans has been accelerated pursuant to Article
VIII, the 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 Agent, for its benefit and the benefit of the Fronting Bank, the
Swingline Lender and the Lenders, a security interest in the Prepayment Account.
(h) Any Term Lender may, subject to the following sentence, elect by
notice to the Agent in writing or by telecopy (or by telephone promptly
confirmed in writing or by telecopy) at least one Business Day prior to any
prepayment of Term Loans required to be made by the Borrower for the account of
such Lender pursuant to this Section 2.13, to decline all or a portion of such
prepayment (including any amount rejected by any Series I Tranche A Exchange
Note Purchaser and offered to such Term Lender pursuant to paragraph (d) above)
and, under such circumstances, the Borrower shall retain all amounts (such
amounts, together with all amounts declined by the Series II Tranche A Exchange
Note Purchasers pursuant to Section 5.3(c) of the Tranche A Exchange Note
Purchase Agreements, the "Declined Amounts") that would otherwise be used to
repay Term Loans pursuant thereto. In the event that any portion of the Declined
Amounts has not been invested in assets used in the principal lines of business
of the Borrower or its subsidiaries or used by the Borrower to make an optional
prepayment pursuant to Section 2.12 during the one-year period after such
Declined Amounts were so declined, the Borrower shall be required, on the last
day of such one-year period, to apply an amount equal to 100% of the remaining
portion of such Declined Amounts in accordance with paragraph (d) above to the
same extent as if such Declined Amounts constituted a mandatory prepayment
pursuant to paragraph (b) or (c) above, PROVIDED that (i) any amounts declined
by the Series I Tranche A Exchange Note Purchasers shall be allocated pro rata
between the Term Lenders and the Series II Tranche A Exchange Note Purchasers
and (ii) no Term Lender and no Series II Tranche A Exchange Note Purchasers
shall be entitled to decline to accept any such mandatory prepayment. The
provisions of this Section 2.13 are subject to the Intercreditor Agreement as
long as any Tranche A Exchange Notes are outstanding.
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.
37
(b) If any Lender, the Swingline Lender or the Fronting Bank shall
have determined that the applicability of any law, rule, regulation, agreement
or guideline adopted pursuant to or arising out of the July 1988 report of the
Basic Committee on Banking Regulations and Supervisory Practices entitled
"International Convergence of Capital Measurement and Capital Standards", or the
adoption after the date hereof of any other law, rule, regulation, agreement or
guideline regarding capital adequacy, or any change in any of the foregoing or
in the interpretation or administration of any of the foregoing by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender), 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 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
38
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 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.
(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 hereof 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 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
39
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. 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 Term Loan Commitments or 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 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.
SECTION 2.18. SHARING OF SETOFFS. Each Lender agrees that if it
shall, through the exercise of a right of banker's lien, setoff or counterclaim
against the Borrower, or pursuant to a claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency, or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Loan or Loans or LC
Exposure as a result of which the unpaid principal portion of its Loans or its
LC Exposure shall be proportionately less than the unpaid principal portion of
the Loans of any other Lender or any other Lender's LC Exposure, such Lender
shall be deemed simultaneously to have purchased from such other Lender at face
value, and shall promptly pay to such other Lender the purchase price for, a
participation in the Loans of such other Lender or the LC Exposure of such other
Lender, so that the aggregate unpaid principal amount of the Loans, LC Exposures
and participations in Loans and LC Exposures held by each Lender shall be in the
same proportion to the aggregate unpaid principal amount of all Loans and LC
Exposures then outstanding as the principal amount of such Lender's Loans and LC
Exposures prior to such exercise of banker's lien, setoff or counterclaim or
other event was to the principal amount of all Loans and LC Exposures
outstanding prior to such exercise of banker's lien, setoff or counterclaim or
other event; PROVIDED, HOWEVER, that, if any such purchase or purchases or
adjustments shall be made pursuant to this Section 2.18 and the payment giving
rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded
40
to the extent of such recovery and the purchase price or prices or adjustment
restored without interest. The Borrower expressly consents to the foregoing
arrangements and agrees that any Lender holding a participation in a Loan or LC
Exposure deemed to have been so purchased may exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any and all moneys owing
by the Borrower to such Lender by reason thereof as fully as if such Lender had
made a Loan directly to the Borrower in the amount of such participation.
SECTION 2.19. PAYMENTS. (a) Except as provided in Sections 2.05(d),
the Borrower shall make each payment (including principal of or interest on any
Borrowing or any Fees or other amounts but excluding payments in respect of
Swingline Loans) 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 Agent
(for the account of the Agent, the Fronting Bank or the Lenders, as the case may
be), at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, in immediately
available funds. The Agent shall promptly remit in dollars to the Agent, the
Fronting Bank or the Lenders, as the case may be, its share of such payments
received by the Agent.
(b) The Borrower shall make each payment in respect of Swingline
Loans not later than 12:00 noon, New York City time, on the date when due to the
Swingline Lender at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
(c) 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 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 taxes imposed on the net income of the 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
franchise taxes imposed on the Agent, the Fronting Bank, the Swingline Lender or
any Lender (or Transferee) by the United States or any jurisdiction under the
laws of which the 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), the 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 applicable to additional sums payable
under this Section 2.20) such Lender (or Transferee), the 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 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.
41
(b) In addition, the Borrower agrees to pay any current or future
stamp, intangible or documentary taxes or any other excise 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 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), the
Agent, the Swingline Lender and the Fronting Bank for the full amount of Taxes
and Other Taxes paid by such Lender (or Transferee), the Agent, the Swingline
Lender or the Fronting Bank, as the case may be, and any liability (including
penalties, interest 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. Such
indemnification shall be made within 30 days after the date any Lender (or
Transferee), the Agent, the Swingline Lender or the Fronting Bank, as the case
may be, makes written demand therefore. If a Lender (or Transferee), the 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), the 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, the 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), the Agent, the Swingline Lender or the Fronting
Bank, agrees to return such refund (plus penalties, interest or other charges)
to such Lender (or Transferee), the Agent, the Swingline Lender or the Fronting
Bank in the event such Lender (or Transferee), the 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), the 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), the Agent, the Swingline Lender or the Fronting Bank, the Borrower
will furnish to the 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), the 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 Agent two copies of either United States Internal Revenue
Service Form 1001 or Form 4224, 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-8, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S. lender
delivers a Form W-8, a certificate
42
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 872(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 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. Notwithstanding any provision of Section
2.20(a) to the contrary, the Borrower shall not have any obligation to pay 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), the Agent, the Fronting Bank or the Swingline Bank
to comply with its obligations pursuant to this Section 2.20(f) or (ii) any
representation made on Form 1001 or 4224 or successor applicable form on
certification by the Lender (or Transferee), the Agent, the Fronting Bank, or
the Swingline Bank incurring such Taxes or Other Taxes proving to have been
incorrect, false or misleading in any material respect when so made or deemed to
be made.
(g) Any of the Agent, the Fronting Bank, the Swingline Lender or any
Lender (or Transferee) 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), the Agent, the Fronting Bank, or
the Swingline Lender.
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) $5,000,000 and (ii) the difference
between (A) the lesser of (I) the aggregate Revolving Credit Commitments, as the
same may be reduced from time to time pursuant to Section 2.09, at such time and
(II) 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 Lender,
and each 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 the pro rata share (determined as aforesaid) of such Swingline Loan.
Each Swingline Loan shall be in a principal amount that is an integral multiple
of $500,000 and shall be made available to the Borrower by means of a credit to
the general deposit account of the Borrower by 3:00 p.m. on the date such
Swingline Loan is requested to be made pursuant to paragraph (b) below. 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 Swingline Lender telephonic, written
or telecopy notice (in the case of telephonic notice, such notice shall be
promptly confirmed in writing or by
43
telecopy) not later than 12:00 noon, New City time, on the day of a proposed
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. The
Swingline Lender shall give the Agent prompt written or telecopy advice of any
notice received from the Borrower pursuant to this paragraph (b).
(c) Forthwith upon demand by the Swingline Lender, each Lender shall
pay to the Agent, as payment for its participation, such 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 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. If any Lender shall not have made such
amount available to the Agent, such Lender and the Borrower severally agree to
pay to the 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 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 Lender, the Federal Funds Effective Rate. If such
Lender shall pay to the Agent such amount, such amount so paid shall constitute
such Lender's Revolving Credit Loan for purposes of this Agreement and the
aggregate amount of Swingline Loans outstanding shall be reduced by the amount
of each such Revolving Credit Loan (it being understood that (i) each 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).
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 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. 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 Agent
44
(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 Agent and the 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 addition, the Fronting Bank hereby grants to each Participating
Lender, and each Participating Lender hereby acquires from the Fronting Bank, a
participation in each Existing Letter of Credit equal to such Participating
Lender's Applicable Percentage of the face amount of such Existing Letter of
Credit effective on the Closing Date and the Borrower hereby acknowledges and
agrees that it shall be the account party under each Existing Letter of Credit
as though such Existing Letters of Credit were issued hereunder. In
consideration and in furtherance of the foregoing, each Participating Lender
hereby absolutely and unconditionally agrees to pay to the 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 Agent for
the account of the Participating Lenders for each calendar quarter (or shorter
period commencing with the date hereof 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 Agent agrees to disburse to each Participating Lender its pro
rata portion of such LC Fee promptly upon receipt. The LC Fee shall be paid in
arrears on the last day of March, June, September and December of each year and
on the Revolving Credit Maturity Date (or the first date on which the LC
Commitment shall have expired or been terminated and there shall be no
Outstanding Letters of Credit, if earlier), commencing on the first such date
following the Closing Date. Once paid, the LC Fee shall not be refundable in any
circumstances (other than corrections of error in payment).
SECTION 3.04. AGREEMENT TO REPAY LC DISBURSEMENTS. (a) If the
Fronting Bank shall pay any draft presented under a Letter of Credit, the
Borrower shall pay to the 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
45
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 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
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 Agent to but
excluding the date such amount was repaid by the Fronting Bank to the Agent.
(b) The Borrower's obligation to repay the Fronting Bank for LC
Disbursements made by the Fronting Bank under the Outstanding Letters of Credit
shall be absolute, unconditional and irrevocable under any and all circumstances
and irrespective of the following:
(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, setoff, defense or other right that
the Borrower or any other Person may at any time have against the
beneficiary under any Letter of Credit, the Fronting Bank, the Agent or
any other Lender (other than the defense of payment in full in accordance
with the terms of this Agreement or a defense based on the gross
negligence or wilful misconduct of the Fronting Bank) or any other Person
in connection with this Agreement or any other agreement or transaction;
(iii) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect,
PROVIDED that payment by the Fronting Bank under such Letter of Credit
against presentation of such draft or document shall not have constituted
gross negligence or wilful misconduct of the Fronting Bank;
(iv) payment by the Fronting Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit, PROVIDED that such payment shall not have
constituted gross negligence or wilful misconduct of the Fronting Bank;
and
(v) any other circumstance or event whatsoever, whether or not
similar to any of the foregoing, PROVIDED that such other circumstance or
event shall not have been the result of gross negligence or wilful
misconduct of the Fronting Bank.
It is understood that in making any payment under a Letter of Credit
(A) the Fronting Bank's exclusive reliance on the documents presented to it
under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary equals the amount of
such draft and whether or not any document presented pursuant to such Letter of
Credit proves to be insufficient in any respect, if such document on its face
appears to be in order, and whether or not any other statement or any other
document presented pursuant to such Letter of Credit proves to be forged or
invalid or any statement therein proves to be inaccurate or untrue in any
respect whatsoever, and (B) any noncompliance in any immaterial respect of the
documents presented under a Letter of Credit with the terms thereof shall, in
each case, not be deemed wilful misconduct or gross negligence of the Fronting
Bank.
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SECTION 3.05. LETTER OF CREDIT OPERATIONS. The Fronting Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under an Outstanding Letter of Credit to
ascertain that the same appear on their face to be in conformity with the terms
and conditions of such Outstanding Letter of Credit. The Fronting Bank shall as
promptly as possible, but in no event later than two hours after such demand for
payment, give oral notification, confirmed by facsimile notice, to the 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 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 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 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 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. The provisions of this Section 3.06 are subject to
the provisions of the Intercreditor Agreement as long as any Tranche A Exchange
Notes are outstanding.
SECTION 3.07. TERMINATION OF LC COMMITMENT. (a) The Borrower may
permanently terminate, or from time to time in part permanently reduce, the LC
Commitment, in each case upon at least three Business Days' prior written or
facsimile notice to the 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. The Borrower shall pay to the Agent for the account of
the Participating Lenders, on the date of such termination or reduction, the LC
Fees on the amount of the LC Commitment so terminated or reduced accrued to but
excluding the date of such termination or reduction.
(b) The LC Commitment shall be permanently reduced as provided in
Section 2.13(e).
47
SECTION 3.08. FRONTING BANK FEES. (a) The Borrower shall pay to the
Fronting Bank, for its own account, such commissions, issuance fees, transfer
fees and other fees and charges in connection with the issuance or
administration of each Letter of Credit as the Borrower and the Fronting Bank
shall agree.
(b) The Borrower shall pay to the Fronting Bank, for its own
account, a fronting fee (the "Fronting Fee") on the average daily aggregate
maximum amount available to be drawn (assuming compliance with all conditions to
drawing) under all outstanding Letters of Credit at the rate of 0.20% per annum,
payable in arrears on the last day of each March, June, September and December
of each year and on the Revolving Credit Maturity Date (or the first date on
which the LC Commitment shall have expired or been terminated and there shall be
no Outstanding Letters of Credit, if earlier), commencing on the first such date
following the Closing Date. The Fronting Fee shall be computed on the basis of
the actual number of days elapsed over a year of 360 days.
SECTION 3.09. RESIGNATION OF REMOVAL OF FRONTING BANK. (a) The
Fronting Bank may resign at any time by giving 180 days' prior written notice to
the Agent, the Lenders and the Borrower, and may be removed at any time by the
Borrower by notice to the Fronting Bank, the 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 Agent and the Lenders the LC Commitment
in connection with the appointment of a successor Fronting Bank. Subject to
paragraph (b) below, upon the acceptance of any appointment as Fronting Bank
hereunder by a successor Fronting Bank, such successor shall succeed to and
become vested with all the interests, rights and obligations of the retiring
Fronting Bank and the retiring Fronting Bank shall be discharged from its
obligations to issue additional Letters of Credit hereunder. At the time such
removal or resignation shall become effective, the Borrower shall pay all
accrued and unpaid fees pursuant to Section 2.05(d). The acceptance of any
appointment as Fronting Bank hereunder by a successor Fronting Bank shall be
evidenced by an agreement entered into by such successor, in a form satisfactory
to the Borrower and the 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.
48
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Lenders, the
Agent, 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 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 (after giving effect to the Recapitalization), except where the failure
so to qualify or be in good standing would not result in a Material Adverse
Effect and (d) has the corporate power and authority to execute, deliver and
perform its obligations under each of the Transaction Documents and each other
agreement or instrument contemplated thereby to which it is or will be a party
and, in the case of Borrower, to borrow hereunder.
SECTION 4.02. AUTHORIZATION. The execution, delivery and performance
by the Borrower, each Guarantor and TAFSI, as applicable, of each of the
Transaction Documents to which it is a party, the borrowings hereunder, the
creation of the security interests contemplated by the Security Documents and
the other transactions contemplated by the Transaction Documents (including (x)
the Recapitalization and (y) the agreements executed and delivered in connection
with the offering of and the issuance by the Borrower of its Tranche A Exchange
Notes and Subordinated Notes) (all the foregoing, collectively, the
"Transactions") (a) have been duly authorized by all requisite corporate and, if
required, stockholder action and (b) will not (i) violate (A) any provision of
law, statute, rule or regulation, other than any law, statute, rule or
regulation, the violation of which will not result in a Material Adverse Effect,
or of the certificate of incorporation or other constitutive documents or
by-laws of the Borrower, either Guarantor or TAFSI, (B) any order of any
Governmental Authority or (C) any provision of any material indenture, agreement
or other instrument to which the Borrower, either Guarantor or TAFSI is a party
or by which either 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, either Guarantor or TAFSI.
SECTION 4.03. ENFORCEABILITY. This Agreement has been duly executed
and delivered by the Borrower and constitutes, and each other Transaction
Document to which the Borrower, each Guarantor or TAFSI is a party 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 either 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
49
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 are not material to
the Borrower, either Guarantor or TAFSI individually or in the aggregate.
SECTION 4.05. FINANCIAL STATEMENTS. (a) The unaudited pro forma
consolidated balance sheet of the Borrower and its subsidiaries as of December
31, 1996 (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 Recapitalization and 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 on a pro forma basis the estimated consolidated
financial position of the Borrower and its subsidiaries as of December 31, 1996,
assuming that the events specified in the preceding sentence had actually
occurred at December 31, 1996.
(b) The Borrower has heretofore furnished to the Lenders its
consolidated and consolidating balance sheets and related statements of
operations, stockholders' equity and cash flows as of and for the fiscal years
ended December 31, 1996, 1995 and 1994, audited by and accompanied by the
opinion of Price Waterhouse, independent public accountants. Such financial
statements present fairly the financial condition and results of operations and
cash flows of the Borrower and its consolidated subsidiaries as of such dates
and for such periods. Such financial statements and the notes thereto disclose
all material liabilities required under GAAP to be disclosed, direct or
contingent, of the Borrower and its consolidated subsidiaries as of the dates
thereof. Such financial statements were prepared in accordance with GAAP applied
on a consistent basis.
SECTION 4.06. NO MATERIAL ADVERSE CHANGE. There has been no material
adverse change in the business, assets, operations, properties, financial
condition, contingent liabilities, prospects or material agreements of the
Borrower and its subsidiaries, taken as a whole, since December 31, 1996.
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, 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; 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.
50
(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) Neither the Borrower nor either Guarantor is obligated under any
right of first refusal, option or other contractual right to sell, assign or
otherwise dispose of any Mortgaged Property or any interest therein.
SECTION 4.08. SUBSIDIARIES. As of the Closing Date and after giving
effect to the Recapitalization (a) the Borrower has no subsidiaries other than
the Guarantors and TAFSI and (b) none of the Guarantors or TAFSI has any
subsidiaries.
SECTION 4.09. LITIGATION; COMPLIANCE WITH LAWS. (a) Except as set
forth on Schedule 4.09, there are no actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of the Borrower, threatened against or affecting the Borrower, either
Guarantor or TAFSI or any business, property (including the network of
Truckstops operated by the Borrower's subsidiaries), assets or rights of any
such Person (i) that involve any Transaction Document or the Transactions or
(ii) as to which there is a reasonable possibility of an adverse determination
and which, if adversely determined, could, individually or in the aggregate,
result in a Material Adverse Effect.
(b) None of the Borrower, the Guarantors or TAFSI, nor any of their
respective material properties or assets, are in violation of, nor will the
continued operation of their material properties and assets 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 the
Mortgaged Property 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) Certificates of occupancy and permits are in effect for 80% of
the aggregate value of the Mortgaged Properties, as currently constructed.
SECTION 4.10. AGREEMENTS. After giving effect to the
Recapitalization and 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, (i)
to buy or carry Margin Stock or to extend credit to others for the purpose of
buying or carrying Margin Stock or to refund indebtedness originally incurred
for such purpose or (ii) for any purpose that entails a violation of, or is
51
inconsistent with, the provisions of the Regulations of the Board, including
Regulations G, 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 Borrower will use the Letters of
Credit and the proceeds of the Loans and any Swingline Loans only for the
purposes specified in the preamble to this Agreement.
SECTION 4.14. TAX RETURNS. Each of the Borrower, TAFSI and the
Guarantors has filed or caused to be filed all material Federal, state and local
tax returns required to have been filed by it or with respect to it and has paid
or caused to be paid all taxes shown to be due and payable on such returns or on
any assessments received by it or with respect to it, except taxes that are
being contested in good faith by appropriate proceedings and for which the
Borrower, TAFSI or such Guarantor shall have set aside on its books adequate
reserves in accordance with GAAP. 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 Offering
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 (including the Offering Memorandum),
when taken as a whole, was, as of the date of the Confidential Offering
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 material
respects with the applicable provisions of ERISA and the regulations and
published interpretations thereunder. No Reportable Event has occurred, been
waived or exists as to which the Borrower, either 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 $2,000,000 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
52
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 any material liability on the
part of the Borrower, TAFSI or the applicable Guarantor, individually or
collectively.
(b) (i) None of the Borrower, the Guarantors, or TAFSI has received
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 either Guarantor into full compliance with, all Environmental and Safety
Laws, except where such noncompliance could 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 could 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 proposed to be 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 could 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 where such noncompliance, breach or default will materially and adversely
affect the ability of the Borrower or any of its subsidiaries, as applicable, to
operate any real property owned or leased by it, and no event has occurred and
is continuing that, with the passage of time or the giving of notice or both,
will constitute such noncompliance, breach or default thereunder.
(c) (i) No Hazardous Substance has been Released (and no oral or
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
could 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 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 could
reasonably be expected to result in a Material Adverse Effect.
(d) The Borrower and its Subsidiaries are conducting and will
continue to conduct their respective businesses and operations in an
environmentally responsible manner, and 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
53
expenditures related to environmental, health or safety matters that could have
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 their 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 management employees of the Borrower, TAFSI or either
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 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, either 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 (i) 30,000,000 shares of Common Stock, par value $.01 per share (the
"Common Stock"), of which 1,276,672 shares are issued and outstanding and (ii)
20,000,000 shares of Preferred Stock, par value $.01 per share, of which (A)
6,000,000 shares have been designated shares of Convertible Preferred Stock,
Series I, par value $.01 per share (the "Series I Preferred Stock"), (B)
2,500,000 shares have been designated shares of Convertible Preferred Stock,
Series II, par value $.01 per share (the "Series II Preferred Stock," and
together with the Series I Preferred Stock, the "Junior Preferred Stock"), (C)
3,000,000 have been designated Senior Convertible Participating Preferred Stock,
Series I, par value $.01 per share, ("Series I Senior Preferred Stock") and (D)
1,000,000 shares have been designated shares of Senior Convertible Participating
Preferred Stock, Series II, par value $.01 per share ("Series II Senior
Preferred Stock" and, together with the Series I Senior Preferred Stock, the
"Senior Preferred Stock") . All outstanding shares of capital stock of the
Borrower are fully paid and nonassessable. 1,086,250 shares of the Common Stock
are owned of record by the Voting Trust in accordance with the terms of the
Voting Trust Agreement. Set forth on Schedule 4.20(a)(i) is a list of every
Person that, as of the Closing Date, will own beneficially (as defined in Rule
13d-3 promulgated under the Securities Exchange Act of 1934 or any successor
thereto) and of record shares of any class of capital stock of the Borrower,
together with the number of shares of such class so owned. Set forth on Schedule
4.20(a)(ii) is a list of every Person that, to the Borrower's knowledge based on
information provided to it by the Voting Trustee under the Voting Trust
Agreement, as of the Closing Date, will own beneficially and of record Voting
Trust Certificates, together with the number of shares represented by such
certificates so owned.
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(b) At all times following the Closing Date, the authorized capital
stock of TA will consist of 1,000 shares of Common Stock, par value $.01 per
share, of which 100 shares will be issued and outstanding at all times. All
outstanding shares of capital stock of TA are fully paid and nonassessable and,
after giving effect to the Recapitalization, are owned beneficially and of
record by the Borrower.
(c) At all times following the Closing Date, the authorized capital
stock of National will consist of 1,000 shares of Common Stock, par value $.01
per share, of which 10 shares will be issued and outstanding at all times. All
outstanding shares of capital stock of National are fully paid and nonassessable
and are owned beneficially and of record by the Borrower.
(d) At all times following the Closing Date, the authorized capital
stock of TAFSI will consist of 1,000 shares of Common Stock, par value $1 per
share, of which 100 shares will be issued and outstanding at all times. All
outstanding shares of capital stock of TAFSI are fully paid and nonassessable
and, after giving effect to the Recapitalization, are owned beneficially and of
record by the Borrower.
(e) Except as set forth on Schedule 4.20(e), there will be no
outstanding subscriptions, options, warrants, calls, rights (including
preemptive rights) or other agreements or commitments (including pursuant to
management or employee stock plan or similar plan) of any nature relating to any
capital stock of the Borrower, TA, National or TAFSI.
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 and the Collateral Account Agreement are
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, respectively, in the Security Agreement and the
Collateral Account Agreement) and proceeds thereof, and when financing
statements in appropriate form are filed in the offices specified on Schedule
4.21 (or, in the case of TAFSI, in the offices of the Secretary of State of the
State of Ohio) and, in the case of cash included in the Collateral under the
Collateral Account Agreement, when such cash is deposited in the Collateral
Account, each of the Security Agreement and the Collateral Account 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 rights of Persons pursuant to Liens expressly
permitted by Section 7.02.
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(d) The Trademark Security Agreement is effective to create in favor
of the Collateral Agent, for ratable benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Collateral (as defined in the
Trademark Security Agreement) and the proceeds thereof, and upon the filing of
assignment statements with the United States Patent and Trademark Office,
together with financing statements in appropriate form filed in the offices
specified on Schedule 4.21, the Trademark Security Agreement shall constitute a
fully perfected Lien on, and security interest in, all right, title and interest
of the Borrower, TAFSI and each Guarantor in such Collateral and the proceeds
thereof, in each case prior and superior in right to any other Person, other
than with respect to Liens expressly permitted by Section 7.02.
(e) The Collateral Assignment is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable assignment of, transfer of all right, title and interest of the
Borrower, TAFSI or each Guarantor, as applicable, in, and security interest in,
the Assigned Contracts (as defined in the Collateral Agreement) and proceeds
thereof, and when financing statements in appropriate form are filed in the
offices specified on Schedule 4.21, the Collateral Agreement shall constitute a
fully perfected Lien on, and security interest in, all right, title and interest
of the Borrower, TAFSI or such Guarantor, as applicable, in such Assigned
Contracts 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. 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 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) Neither the Borrower nor TAFSI owns or leases any real property.
SECTION 4.24. INSURANCE. The Borrower and each Guarantor maintains
(after giving effect to insurance it has caused each Network Operator, if any,
to maintain) 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. The Borrower has been named
as an additional insured party on each insurance policy that it has caused each
Guarantor and each Network Operator, if any, to maintain.
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SECTION 4.25. DELIVERY OF DOCUMENTS. (a) The Borrower has previously
made available, and has caused each Guarantor to make available, to the Agent
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 the real
property listed on Schedules 4.23(a) and 4.23(b).
(b) On or prior to the Closing Date, each Lender has received
complete certified copies (as certified to by, as applicable, the Secretary of
the Borrower, the applicable Guarantor or TAFSI) of the Environmental
Agreements, the Stockholders Agreement, the TA Stockholders Agreement, the
Tranche A Exchange Note Purchase Agreements and the Subordinated Note Indenture,
including all exhibits, schedules and disclosure letters referred to therein or
delivered pursuant thereto (if any), and all amendments thereto, waivers
relating thereto and other side letters or agreements affecting the terms
thereof. None of such documents and agreements has been amended, supplemented or
otherwise modified, nor have any of the provisions thereof been waived, in each
case in any manner that, in the reasonable judgment of the Agent, is adverse in
any material respect to the Lenders, except pursuant to a written agreement or
instrument that has heretofore been consented to by the Required Lenders.
(c) Each of the Stockholders Agreement, the TA Stockholders
Agreement, the Environmental Agreements, the Tranche A Exchange Note Purchase
Agreements and the Subordinated Note Indenture has been duly executed and
delivered by the Borrower, TAFSI and the applicable Guarantor and, to the
Borrower's knowledge, by each party thereto and each of the material terms and
provisions thereof is in full force and effect.
(d) Each of the Franchise Agreements has been duly executed and
delivered by the Borrower, TAFSI and the applicable Guarantor and, to the
Borrower's knowledge, by each 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 respect to the interests of the
Secured Parties without the written consent of the Collateral Agent.
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 will not exceed $16,500,000.
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ARTICLE V
CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT
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 of the following conditions:
SECTION 5.01. ALL CREDIT EVENTS. On the date of each Credit Event
other than a Borrowing in which Revolving Credit Loans are refinanced with new
Revolving Credit Loans (without any increase in the aggregate principal amount
of Revolving Credit Loans outstanding) as contemplated by Section 2.02(e) and
other than any Revolving Credit Loan made pursuant to Section 2.02(f):
(a) The 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. FIRST BORROWING. On the Closing Date:
(a) The Agent shall have received a favorable written opinion of (i)
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, counsel for the Borrower, the
Guarantors and TAFSI, to the effect set forth in Exhibit M-1 and (ii) each local
counsel listed on Schedule 5.02(a) to the effect set forth in Exhibit M-2, in
each case (A) dated the Closing Date, (B) addressed to the Agent, 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 Agent shall request. The Borrower hereby instructs each such
counsel to deliver its opinion to the Agent.
(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, counsel for the Agent.
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(c) The Agent shall have received (i) a copy of the certificate of
incorporation, including all amendments thereto, of each of the Borrower, TAFSI
and the Guarantors, certified as of 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 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 of the Borrower,
TAFSI or such Guarantor, as the case may be, authorizing the execution,
delivery, and performance of the Transaction Documents and 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 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
Transaction Document or any other document delivered in connection herewith on
behalf of the Borrower, such Guarantor or TAFSI, as the case may be; (iii) a
certificate of another officer as to the incumbency and specimen signature of
the Secretary or Assistant Secretary executing the certificate pursuant to (ii)
above; and (iv) such other documents as the Lenders or their counsel or Cravath,
Swaine & Xxxxx, counsel for the Agent, may reasonably request.
(d) The Agent shall have received a certificate, dated the Closing
Date and signed by a Financial Officer of the Borrower, confirming compliance
with the conditions precedent set forth in paragraphs (b) and (c) of Section
5.01.
(e) The Agent shall have received all Fees and other amounts due and
payable on or prior to the Closing Date.
(f) The Intercreditor Agreement shall have been duly executed by the
Borrower, the Tranche A Exchange Note Purchasers and the Collateral Agent, and
shall be in full force and effect.
(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 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
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) Each of the Security Agreement, the Trademark Security
Agreement, the Collateral Assignment and the Collateral Account Agreement shall
have been duly executed by the Borrower and all other parties thereto and shall
have on 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 Agent 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
59
Collateral (subject to any Lien expressly permitted by Section 7.02) described
in each of such agreements shall have been delivered to the Collateral Agent.
(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 and TAFSI in the States (or other jurisdictions)
in which are located the chief executive offices of such Persons, any offices of
such Persons in which records have been kept relating to Accounts and the other
jurisdiction in which Uniform Commercial Code filings (or equivalent filings)
are to be made pursuant to the preceding paragraph, together with copies of the
financing statements (or similar documents) disclosed by such search, and
accompanied by evidence satisfactory to the Agent that the Liens indicated in
any such financing statement (or similar document) would be permitted under
Section 7.02 or have been 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 Lenders, relating to each of the Mortgaged Properties
(including each Mortgage and each Assignment of Leases and Rents) 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 a lender's title insurance
policy, in form and substance acceptable to Agent, insuring such Security
Document as a first lien on such Mortgaged Property (subject to any Lien
expressly permitted by Section 7.02) shall have been received by Agent) and, in
connection therewith, the Agent shall have received evidence satisfactory to it
of each such filing and recordation and (iv) the Collateral Agent shall have
received such other documents, including a policy or policies of title insurance
issued by a nationally, recognized title insurance company, together with such
endorsements, coinsurance and reinsurance as may be requested by the Agent, the
Fronting Bank, the Swingline Lender and the Lenders, insuring the Mortgages as
valid first liens on the Mortgaged Properties, free of Liens other than those
permitted under Section 7.02, together with such surveys, abstracts, appraisals
and legal opinions required to be furnished pursuant to the terms of the
Mortgages or as reasonably requested by the Agent, the Fronting Bank, the
Swingline Lender or the Lenders.
(m) The Borrower and each Guarantor shall have obtained insurance in
compliance with Section 6.02 and the applicable provisions of the Security
Documents, and the Agent shall have received a report or reports (in form and
substance satisfactory to it (including, among other things, a description of
coverage and a summary of terms of the insurance maintained by the Borrower and
each Guarantor) from Xxxxxx Xxxxxxx Corporation and/or an insurance firm of
comparable stature as to the adequacy of such insurance based on the nature and
requirements of the truckstop industry and based on Xxxxxx Xxxxxxx Corporation's
or such other firm's knowledge and experience with respect thereto.
(n) All policies of insurance maintained pursuant to Section 6.02
shall have been endorsed or otherwise amended to include a "standard" or "New
York" lender's loss payable endorsement, in form and substance reasonably
satisfactory to the 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 insured party under such policies directly
to the Collateral Agent unless (i) the amounts so payable shall not exceed
$50,000 and (ii) the insurance
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carrier shall not have received written notice from the Agent or the Collateral
Agent that an Event of Default has occurred.
(o) The Recapitalization and the other Transactions shall have been
consummated or shall be consummated simultaneously with the closing of the
Facilities in accordance with documentation reasonably satisfactory to the
Lenders and applicable law, and the Lenders shall (i) be satisfied with the
capitalization, structure and equity ownership of the Borrower and its
subsidiaries after giving effect to the Recapitalization and the other
Transactions, (ii) be satisfied with all voting and other governance
arrangements under the certificate of incorporation, by-laws, voting trust
agreement, stockholders agreement and all related documents and (iii) be
satisfied that, in connection with the Recapitalization and the other
Transactions, the aggregate amount of fees and expenses shall not exceed
$16,500,000.
(p) The Borrower shall have received not less than $125,000,000 in
gross cash proceeds from the issuance of the Subordinated Notes in a public
offering or Rule 144A or other private placement to purchasers reasonably
satisfactory to the Agent, which Subordinated Notes shall (i) bear interest at a
rate not greater than the then-current market rate of interest as determined in
good faith by the Borrower at the time of issuance of the Subordinated Notes,
(ii) mature not earlier than the tenth anniversary of the Closing Date, and not
be subject to any sinking fund requirements or other amortization, (iii) be
subordinated to the Facilities on terms reasonably satisfactory to the Lenders
and (iv) otherwise have terms and conditions reasonably satisfactory in all
respects to the Lenders (including but not limited to terms relating to fees,
covenants, events of default and remedies).
(q) The Borrower shall have repaid, or shall have caused TA to
repay, $4,500,000 aggregate principal amount of the TA Senior Notes and the
Borrower shall have received all the outstanding National Senior Notes and all
the remaining outstanding TA Senior Notes in exchange for (i) the Series I
Tranche A Exchange Notes, which (A) shall bear interest at a rate (other than
during the continuance of a default or an event of default under the Tranche A
Exchange Note Purchase Agreements) not greater than 8.94% per annum and (B)
shall have terms and conditions reasonably satisfactory in all respects to the
Lenders (including covenants, events of default and remedies substantially
identical to the corresponding provisions contained in this Agreement) and (ii)
the Series II Tranche A Exchange Notes, which (A) shall bear interest at a rate
per annum not to exceed the LIBOR Rate (as defined in the Tranche A Exchange
Note Purchase Agreements) plus 3.00% (other than during the continuance of a
default or an event of default under the Tranche A Exchange Note Purchase
Agreements) and (B) shall have terms and conditions reasonably satisfactory in
all respects to the Lenders (including covenants, events of default and remedies
substantially identical to the corresponding provisions contained in this
Agreement).
(r) The Existing Indebtedness shall have been repaid in full, all
commitments to lend thereunder shall have been permanently terminated and all
obligations thereunder and security interests relating thereto shall have been
discharged, and the Agent shall have received reasonably satisfactory evidence
of such repayment, termination and discharge.
(s) After giving effect to the Recapitalization and the other
Transactions, the Guarantors, TAFSI and the Borrower shall have no liabilities
other than (i) the Loans under the Facilities, (ii) the Tranche A Exchange
Notes, (iii) the Subordinated Notes, (iv) the Guarantee Agreement, (v) the
Subordinated Note Guarantees and (vi) other liabilities satisfactory to the
Lenders and Indebtedness permitted under Section 7.01.
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(t) The Lenders shall have received a satisfactory pro forma
consolidated balance sheet of the Borrower as of December 31, 1996, after giving
effect to the Recapitalization and the other Transactions and the Lenders shall
be satisfied that such balance sheet is not materially inconsistent with the
projections previously furnished to the Lenders.
(u) The Lenders shall be reasonably satisfied in all material
respects with all arrangements among the Borrower, the Operators that are
stockholders of the Borrower and the Resellers that are stockholders of the
Borrower, including all franchise, lease and fuel supply agreements.
(v) The Agent shall have received appraisals, reasonably
satisfactory in form and substance to the Agent, from an appraiser reasonably
satisfactory to the Agent, of the real property, personal property and other
assets of the Borrower and its subsidiaries after giving effect to the
Transactions and the other transactions contemplated hereby.
(w) The Lenders shall be satisfied with all legal, tax and
accounting matters relating to the Transactions, the financing therefor and all
other transactions contemplated hereby.
(x) The Lenders shall be satisfied in all respects with the tax and
ERISA positions and the contingent tax and other liabilities of each Guarantor,
TAFSI and the Borrower and the plans of such Guarantor and the Borrower with
respect thereto.
(y) The Lenders shall be satisfied with the sufficiency of amounts
available under the Revolving Facility to meet the ongoing working capital
requirements of the Borrower following the consummation of the Transactions.
(z) The Lenders shall have received a solvency letter, in form and
substance satisfactory to the Agent, from Valuation Research Corp. together with
such other evidence reasonable requested by the Lenders of the solvency of (i)
the Guarantors, TAFSI and the Borrower, on a consolidated basis, and (ii) the
Guarantors, in each case after giving effect to the Recapitalization and the
other Transactions.
(aa) All requisite Governmental Authorities and third parties shall
have approved or consented to the Recapitalization and the other Transactions to
the extent required, all applicable appeal periods shall have expired and there
shall be no governmental or judicial action, actual or threatened, that has or
would have a reasonable likelihood of restraining, preventing or imposing
burdensome conditions on the transactions contemplated hereby.
(bb) There shall be no litigation or administrative proceedings or
other legal or regulatory developments, actual or threatened, that, in the
judgment of the Lenders, involve a reasonable possibility of a material adverse
effect on the business, assets, operations, properties, financial condition,
contingent liabilities, prospects or material agreements of the Guarantors,
TAFSI and the Borrower, taken as a whole, or the ability of the Guarantors,
TAFSI and the Borrower, taken as a whole, to perform its obligations under Loan
Documents, or the ability of the parties to consummate the Recapitalization or
the other Transactions or the validity or enforceability of any of the Loan
Documents or the rights, remedies and benefits available to the Agent, the
Fronting Bank, the Swingline Lender, the Collateral Agent and the Lenders under
the Loan Documents, or which would be materially inconsistent with the
assumptions underlying the projections set forth in the Confidential Information
Memorandum.
(cc) The Mortgaged Properties shall each be in compliance with all
applicable material laws, rules, regulations, statutes (including any zoning,
building, Environmental and
62
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.
(dd) The Agent shall have received the certified documents required
to be delivered to it pursuant to Section 4.25(b).
(ee) The Agent shall have received (i) satisfactory title insurance
policies for each Mortgaged Property and (ii) either (A) a satisfactory
certificate from a Responsible Officer of the applicable Guarantor certifying
that the surveys relating to the Mortgaged Properties of such Guarantor
delivered to the Agent in connection with the TA Credit Agreement and the
National Credit Agreement are true and correct in all material respects as of
the date hereof and as of the Closing Date or (B) a current survey, in form and
substance reasonably acceptable to the Agent, of such Mortgaged Property.
(ff) The Agent shall have received a satisfactory certificate from a
Responsible Officer of the applicable Guarantor certifying that, to the best of
his knowledge, all New Improvements (as defined in Section 6.14) located upon
each Mortgaged Property set forth on Schedule 6.14 have been completed in
accordance with applicable laws, rules, regulations and statutes.
(gg) The Borrower shall have deposited directly into the Collateral
Account proceeds from the Term Loans in an amount not less than $45,000,000.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Lender, the Agent, the
Fronting Bank and the Swingline Lender under 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.
(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
in all material respects with all material 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; 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,
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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 (and/or cause the related Network
Operator, if any, to 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 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 the
applicable Network Operator, 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 Agent
or the Collateral Agent that an Event of Default has occurred and, if received,
such notice shall not have been withdrawn (with the 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 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 Agent or the Collateral Agent may reasonably require from time to time to
protect its interest; deliver (and/or cause the related Network Operator, if
any, to 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 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 Agent and the Collateral Agent;
deliver to the 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 Agent and the Collateral Agent) together with evidence
satisfactory to the Agent and the Collateral Agent of payment of the premium
therefor; and cause each all-risk policy maintained by the Borrower or either
Guarantor to be endorsed to provide for a waiver by the related insurer of all
its rights to recovery against any Network Operator 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 "flood hazard area" in any Flood
Insurance Rate Map published by the Federal Emergency Management Agency, obtain
(and/or cause the related Network Operator, if any, to obtain) flood insurance
in such total amount as the Collateral Agent or the Agent may from time to time
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
Agent, the Collateral Agent or the Required Lenders may from time to time
require.
(c) With respect to any Mortgaged Property, carry and maintain
(and/or cause the related Network Operator, if any, to 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
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$5,000,000, naming the Collateral Agent as an additional insured, on forms
satisfactory to the Collateral Agent.
(d) Notify (and/or cause each Network Operator, if any, to notify)
the 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 Network Operator and promptly deliver to the Agent and the Collateral
Agent a duplicate original copy of such policy or policies.
(e) Use reasonable efforts to cause the Phase II Consultant (as
defined in the Environmental Agreement) to maintain, and name the Borrower as an
additional insured wherever permissible under, the contracts of insurance
coverage at levels at least as high as set forth in Schedule 6.02(e).
(f) In connection with the covenants set forth in this Section 6.02,
it is understood and agreed that:
(i) neither the Agent, the Lenders, the Swingline Lender, the
Fronting Bank, the Tranche A Exchange Note Purchasers, 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 Agent, the Collateral Agent, the Lenders, the Swingline Lender, the
Fronting Bank, the Tranche A Exchange Note Purchasers 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 Agent, the Collateral Agent, the Lenders,
the Swingline Lender, the Fronting Bank, the Tranche A Exchange Note
Purchasers and their agents and employees; and
(ii) the designation of any form, type or amount of insurance
coverage by the Agent or the Collateral Agent under this Section 6.02,
shall in no event be deemed a representation, warranty, or advice by the
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 Agent and the
Collateral Agent shall have the right from time to time to require the
Borrower to keep (and/or cause any Guarantor or the related Network
Operator, if any, to keep) other insurance in such form and amount as the
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
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 such Guarantor, as applicable, shall have
set aside on its books adequate reserves with respect thereto in accordance with
GAAP and such
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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
Agent and each Lender:
(a) as soon as available, and in no event later than 105 days after
the end of each fiscal year (or 90 days during any time that the Borrower
is subject to the periodic reporting requirements of the Securities
Exchange Act of 1934, as amended), the consolidated and consolidating
balance sheets and related statements of income and cash flow, showing the
consolidated financial condition of the Borrower and its consolidated
subsidiaries as of the close of such fiscal year and the results of their
operations during such year, all audited by Price Waterhouse 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) as soon as available, and in no event later than 60 days (or 45
days during any time that the Borrower is subject to the periodic
reporting requirements of the Securities Exchange Act of 1934, as amended)
after the end of each of the first three fiscal quarters of each fiscal
year, the unaudited consolidated and consolidating balance sheets and
related statements of income and changes in financial position, showing
the consolidated financial condition of the Borrower and its consolidated
subsidiaries as of the close of such fiscal quarter and the results of
their operations during such fiscal quarter and the then elapsed portion
of the fiscal year, all certified by a Financial Officer of the Borrower
as fairly presenting the consolidated financial condition and results of
operations of the Borrower and its consolidated subsidiaries in accordance
with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes required by GAAP;
(c) concurrently with any delivery of financial statements under (a)
or (b) above, a certificate of the accounting firm or a Financial Officer
of the Borrower opining on or certifying such statements (which
certificate, when furnished by an accounting firm, may be limited to
accounting matters and disclaim responsibility for legal interpretations)
(i) certifying that no Event of Default or Default has occurred or, if
such an Event of Default or Default has occurred, specifying the nature
and extent thereof and any corrective action taken or proposed to be taken
with respect thereto and (ii) setting forth computations in reasonable
detail satisfactory to the Agent demonstrating compliance with the
covenants contained in Sections 7.13. 7.14, 7.15, 7.16 and 7.17;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Borrower or any of its subsidiaries with the Securities and Exchange
Commission, or any governmental authority succeeding to any of or all the
functions of said Commission, or with any national securities exchange, or
distributed to any of their shareholders, as the case may be;
(e) promptly following the preparation thereof, copies of each
management letter prepared by the Borrower's, either Guarantor's or
TAFSI's auditors (together with any response thereto prepared by the
Borrower, such Guarantor or TAFSI);
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(f) as soon as available, and in any event no later than 105 days
after the end of each fiscal year historical summary data for the
immediately preceding year and forecasted financial projections and
summary data through the end of the then current fiscal year, in
substantially the same form and format as set forth in Section 10 of the
Confidential Information Memorandum (including a specification of the
underlying assumptions and a management discussion of historical results),
all certified by a Financial Officer of the Borrower to be a fair summary
of its results and its good faith estimate of the forecasted financial
projections and results of operations for the period through the
then-current fiscal year;
(g) upon the earlier of (i) 105 days after the end of each fiscal
year of the Borrower (commencing with the fiscal year ending December 31,
1997) 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 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 either
Guarantor, TAFSI or the Borrower, or compliance with the terms of any Loan
Document, as the 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, any amendment or waiver of any
provision of the Tranche A Exchange Note Documents not requiring the
consent or approval of the Lenders 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 Agent, the Fronting Bank or any
Lender;
(j) promptly, a copy of any notice of a default received by the
Borrower, TAFSI or either Guarantor under any other Loan Document;
(k) promptly a copy of any notice of default received by the
Borrower, TAFSI or either Guarantor (i) from any Tranche A Exchange Note
Purchaser under the Tranche A Exchange Note Purchase Agreements or (ii)
under the Subordinated Note Indenture;
(l) 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 either
Guarantor (i) to the Tranche A Exchange Note Purchasers under the Tranche
A Exchange Note Purchase Agreements or (ii) under the Subordinated Note
Indenture (except to the extent any such notice, certificate, financial
statement or report is otherwise required to be delivered pursuant to this
Agreement); and
(m) a copy of all solicitations or requests for any proposed waiver
or amendment of any of the provisions of the Tranche A Exchange Note
Documents or Subordinated Note Indenture (but only if the consent or
approval of the Lenders is required in connection therewith).
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SECTION 6.05. LITIGATION AND OTHER NOTICES. Furnish to the Agent,
the Fronting Banks, the Swingline Lender, the Collateral Agent and each Lender
prompt written notice of the occurrence of the following:
(a) 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 material respects with the
applicable provisions of ERISA and (b) furnish to the Agent, the Fronting Bank,
the Swingline Lender and each Lender (i) as soon as possible, and in any event
within 30 days after any Responsible Officer of the Borrower or either Guarantor
or any ERISA Affiliate either knows or has reason to know that any Reportable
Event has occurred, as to which the Borrower, either 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, either Guarantor or any ERISA Affiliate to
the PBGC in an aggregate amount exceeding $2,000,000, 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 either
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 10 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 either 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.
SECTION 6.07. MAINTAINING RECORDS; ACCESS TO PROPERTIES AND
INSPECTIONS. Maintain all financial records in accordance with GAAP and permit
any representatives designated by the 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 the 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 either Guarantor or any properties of
Borrower or either Guarantor with the officers thereof.
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SECTION 6.08. USE OF PROCEEDS. Use the Letters of Credit and the
proceeds of the Loans only for the purposes set forth in the preamble to this
Agreement.
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 Agent or the Collateral Agent may
reasonably request, in order to effectuate the transactions contemplated by the
Transaction 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 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)). Such security interests and Liens, will be
created under the Security Documents and other security agreements, mortgages,
deeds of trust and other instruments and documents, in form and substance
satisfactory to the Required Lenders, and each of the Borrower, TAFSI and the
Guarantors shall deliver or cause to be delivered to the Lenders all such
instruments and documents, (including legal opinions, title insurance policies
and lien searches) as the Required Lenders shall reasonably request to evidence
compliance with this Section 6.10. Each of the Borrower and the Guarantors
agrees to provide such evidence as the Required Lenders shall reasonably request
as to the perfection and priority status of each such security interest and
Lien.
(b) Within 90 days following the Closing Date, enter into Lockbox
Agreements with financial institutions reasonably acceptable to the Agent.
SECTION 6.11. RATE PROTECTION AGREEMENTS. In the case of the
Borrower, enter into within 90 days following the Closing Date, and maintain at
any time prior to the date that is four years following the Closing Date, Rate
Protection Agreements satisfactory to the Agent, with respect to the Loans or
the Series II Tranche A Exchange Notes, to the extent necessary to cause not
less than 50% of the Funded Debt of the Borrower and its subsidiaries on a
consolidated basis at such date to be either (a) Indebtedness that accrues
interest at a fixed rate or (b) Indebtedness with respect to which such a Rate
Protection Agreement is in effect.
SECTION 6.12. ENVIRONMENTAL AND SAFETY LAWS. (a) Comply with, and
use its best efforts to ensure compliance by all tenants and subtenants
(including each Network Operator, if any) with, all Environmental and Safety
Laws and obtain and comply with and maintain, and use its best efforts to ensure
that all tenants and subtenants (including each Network Operator, if any) 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 could 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
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faith by appropriate proceedings and the pendency of such proceedings would not
have a Material Adverse Effect.
(c) Notify the Agent of any of the following that is likely to have
a Material Adverse Effect:
(i) any Environmental Claim that the Borrower, TAFSI or either
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 threatened 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 either Guarantor; and
(iv) any Release or threat of Release that could reasonably be
expected to result in a Material Adverse Effect.
(d) Without limiting the generality of Section 10.05(b), indemnify
the Agent, the Fronting Bank, the Swingline Lender, the Collateral Agent and
each Lender and each of their respective directors, officers, employees, agents
and Affiliates (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 either Guarantor or to the
Mortgaged Properties, or any orders, requirements or demands of Governmental
Authorities related thereto, including reasonable attorneys' and consultants'
fees, investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or wilful misconduct of the Indemnitee
seeking indemnification therefor. This indemnity shall continue in full force
and effect regardless of the termination of this Agreement and the other Loan
Documents.
SECTION 6.13. MATERIAL CONTRACTS. Maintain in full force and effect
(including exercising any available renewal option and without amendment or
modification) all its material contracts (including each operating lease
permitted by Section 7.08) unless the failure so to maintain such contracts (or
the amendments or modifications thereto) individually or in the aggregate, would
not have a Material Adverse Effect, and promptly notify each Lender of each
failure to comply with this Section 6.13.
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SECTION 6.14. CERTIFICATES OF OCCUPANCY, PERMITS AND ZONING. (a)
Within 270 days following the Closing Date, the Borrower shall deliver the
following documents to the Collateral Agent for Mortgaged Properties set forth
on Schedule 6.14 having 80% of the aggregate value of all Mortgaged Properties
set forth on such Schedule:
(i)(A) a copy of the original permanent certificate or certificates
of occupancy or completion, as the same may have been amended or issued
from time to time, covering any Improvement located upon the Mortgaged
Property that was constructed after the date of the TA Credit Agreement or
the National Credit Agreement, as applicable (a "New Improvement"), that
were required to have been issued by the appropriate Governmental
Authority for such New Improvement or (ii) a letter from an appropriate
Governmental Authority stating that at the time of construction
certificates of occupancy were not required for each such New Improvement
for which a certificate as described above has not been delivered and, if
reasonably requested by the Agent or Collateral Agent, suitable evidence
of the date of construction of each New Improvement on such Mortgaged
Property;
(ii) without limiting the Borrower's obligations under Section 6.12,
(A) a copy of all material licenses, permits and authorizations (other
than certificates of occupancy or completion, all applications, plans and
filings necessary for the issuance of any such certificate and all
licenses, permits and authorizations that were no longer required once any
such certificate was issued) that were necessary for the construction of
each New Improvement located upon the Mortgaged Property or that are
necessary for the current operation of such New Improvement and (B) a copy
of all applications (including plans) that were necessary for the issuance
of any certificate of occupancy or completion with respect to any New
Improvement, but only to the extent now or hereafter in the Borrower's
possession;
(iii) a copy of all applications (and documents filed in connection
therewith (including plans)) that the Borrower makes to any Governmental
Authority in order to comply with the provisions of this Section 6.14; and
(iv) one of the following: (A) written confirmation from the
applicable zoning commission or other appropriate Governmental Authority
stating that, with respect to each Mortgaged Property as built, it
complies with existing land use and zoning ordinances, regulations and
restrictions applicable to such property, (B) an opinion from local
counsel acceptable to the Agent to the same effect as covered by clause
(A) above or (C) a zoning endorsement satisfactory to the Agent in
connection with the Collateral Agent's mortgagee title insurance policy of
such Mortgaged Property.
(b) After the Closing Date, the Borrower shall use commercially
reasonable efforts to obtain (and promptly upon obtaining the same deliver to
the Collateral Agent):
(i) estoppel certificates from ground lessors of any Mortgaged
Property;
(ii) estoppel certificates from each Operator of each Mortgaged
Property; and
(iii) subordination and attornment agreements from each Operator of
each Mortgaged Property, unless the related operating lease by its terms,
is subject and subordinate to the Lien of the applicable Mortgage or
Leasehold Mortgage.
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(c) After the Closing Date, the Borrower shall (i) use commercially
reasonable efforts (A) to cause the lease relating to its leasehold interest in
property located in Willington, Connecticut, to be amended to provide
commercially reasonable leaseholding financability provisions and to provide for
the lessor of such property to consent to the granting of a Mortgage on such
leasehold interest and (B) to obtain the consent of the landlord of its property
(1) on site 1058 in Nashville, Tennessee, and (2) on site 1084 in Amarillo,
Texas, to the granting of a Mortgage on such leasehold interests, and (ii) upon
obtaining any such consent, promptly cause the applicable Guarantor to enter
into a Mortgage with respect to such Mortgaged Property.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees with each Lender, the 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 (but not any extensions, renewals or replacements of such
Indebtedness);
(b) Indebtedness created under the Loan Documents;
(c) in the case of the Guarantors, Indebtedness consisting of
purchase money Indebtedness incurred in the ordinary course of business
after the Closing Date to finance Capital Expenditures or Transition
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 or a
Transition Capital Expenditure, as the case may be, 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 $25,000,000 at any time outstanding and (iii)
such Indebtedness is incurred within 90 days after the making of the
Capital Expenditures or Transition 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 either 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
Tranche A Exchange Notes and the Subordinated Notes and (ii) in the case
of the Guarantors,
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Indebtedness in respect of the Tranche A Exchange Note Guarantees and the
Subordinated Note Guarantees;
(g) Indebtedness that arises from the refinancing from time to time
by the Borrower of (i) the Series I Tranche A Exchange Notes, (ii) the
Series II Tranche A Exchange Notes or (iii) the Series I Tranche A
Exchange Notes and the Series II Tranche A Exchange Notes (and, in each
case, the related Tranche A Exchange Note Guarantees) and ranks PARI PASSU
with or subordinate to the Loans, the Swingline Loans, any unreimbursed LC
Disbursements and the guarantees of each Guarantor supporting the Loans,
the Swingline Loans and any unreimbursed LC Disbursements; PROVIDED,
HOWEVER, that (A) such refinancing must be in whole and not in part with
respect to all the Series I Tranche A Exchange Notes, all the Series II
Tranche A Exchange Notes or all the Tranche A Exchange Notes, as
applicable, (B) the weighted average interest rate applicable to such
Indebtedness must be less than or equal to the interest rate applicable to
the Tranche A Exchange Notes being refinanced, (C) no material terms
applicable to such Indebtedness or the related guarantees shall be more
favorable to the refinancing lenders than the terms that are applicable to
the Tranche A Exchange Note Purchasers, (D) the weighted average life to
maturity of such Indebtedness shall be greater than or equal to the
weighted average life to maturity of the Tranche A Exchange Notes being
refinanced and the first scheduled principal payment in respect of such
Indebtedness shall not be earlier than the first scheduled principal
payment in respect of such Tranche A Exchange Notes, (E) such Indebtedness
shall be Indebtedness of the Borrower, (F) the priority of the security
interest in the collateral securing the repayment of such Indebtedness (if
such Indebtedness is to be secured) and the total amount or share of the
collateral to be made available to secure such Indebtedness shall be no
more senior or favorable than that which secured the repayment of the
Tranche A Exchange Notes being refinanced at the time of such refinancing
and the refinancing lenders shall enter into an intercreditor agreement
with the Lenders in substantially the form of the Intercreditor Agreement
(or in such other form as may be reasonably acceptable to the Required
Lenders) providing for the sharing of collateral on such basis, (G) the
principal amount of such Indebtedness shall be less than or equal to the
principal amount then outstanding of the Tranche A Exchange Notes being
refinanced and (H) such Indebtedness may not be incurred if at the time of
such refinancing a Default or Event of Default has occurred and is
continuing or would result therefrom;
(h) Indebtedness that arises from the refinancing from time to time
by the Borrower of the Subordinated Notes and is subordinate to the
Obligations (which, if required by the terms of any Indebtedness incurred
pursuant to Section 7.01(g) above in connection with any refinancing of
the Tranche A Exchange Notes, shall include such refinancing
Indebtedness); PROVIDED, HOWEVER, that (i) such refinancing must be in
whole and not in part, (ii) the weighted average interest rate applicable
to such Indebtedness must be less than or equal to the interest rate
applicable to the Subordinated Notes, (iii) no material terms applicable
to such Indebtedness (including the subordination provisions thereof)
shall be more favorable to the refinancing lenders than the terms that are
applicable under the Subordinated Note Indenture prior to such
refinancing, (iv) the weighted average life to maturity of such
Indebtedness shall be greater than or equal to the weighted average life
to maturity of the Subordinated Notes and the first scheduled principal
payment in respect of such Indebtedness shall not be earlier than the
first scheduled principal payment in respect of the Subordinated Notes,
(v) such Indebtedness shall be Indebtedness of the Borrower, (vi) such
Indebtedness shall be unsecured, (vii) the guarantees by the Guarantors of
such Indebtedness shall be no more favorable to the refinancing lenders
than the Subordinated Note Guarantees, (viii) the principal amount of
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such Indebtedness shall be less than or equal to the principal amount then
outstanding of the Subordinated Notes and (ix) such Indebtedness may not
be incurred if at the time of such refinancing a Default or Event of
Default has occurred and is continuing or would result therefrom;
(i) in the case of TAFSI, Indebtedness to the Borrower or either
Guarantor, PROVIDED that the amount of all such Indebtedness does not
exceed $3,000,000 in the aggregate at any time outstanding;
(j) in the case of either Guarantor, Indebtedness to the Borrower,
the other Guarantor or TAFSI;
(k) in the case of the Borrower, Rate Protection Agreements;
(l) in the case of the Guarantors, other unsecured Indebtedness in
an aggregate principal amount at any time outstanding not in excess of
$5,000,000; and
(m) in the case of the Borrower, Indebtedness to any of its
subsidiaries.
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 either Guarantor, any Lien existing on any
property or asset prior to the acquisition thereof by such Guarantor or
TAFSI, 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 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;
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(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;
(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 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 and office space at any
Truckstop so long as either (i) the term of the lease or sublease does not
exceed three years or (ii) 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; and
(l) the lease or sublease of retail space and office space at any
Truckstop 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 Agent within 30 days of a request therefor by the
Collateral Agent, an estoppel certificate of any lessee in form and
substance satisfactory to the 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,
including the execution, delivery and recording of an Assignment of Leases
and Rents substantially in the form of Exhibit C, (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 Agent and (vii) the lease
or sublease of such space: (A) shall not
75
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 Truckstop, (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 accordance
with all material 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.
SECTION 7.03. SALE AND LEASE-BACK TRANSACTIONS. Enter into any
arrangement, directly or indirectly, with any Person whereby it shall sell 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 or
transferred (any such transaction, a "Sale and Lease-Back Transaction"), other
than (a) any Sale and Lease-Back Transactions involving the properties described
on Schedule 7.03 or (b) 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 Truckstop 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 $10,000 (or, if and to the
extent such loans or advances shall be used by such employees solely for
relocation expenses, $100,000) and in an aggregate amount outstanding for
all employees at any time not in excess of $1,000,000 (which loans and
advances shall not be forgiven);
(e) in the case of either Guarantor, promissory notes evidencing
loans made by the Borrower to members of such Guarantor's management or
the Institutional Investors 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 any single Institutional Investor shall not exceed
50% of the aggregate purchase price of the shares purchased by such
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member or Institutional Investor with the proceeds of any such loan, (ii)
all the shares purchased by such member or Institutional Investor with the
proceeds of any such loan shall be retained by such Guarantor for the
benefit of the Secured Parties until such time as such loan shall have
been repaid, (iii) the aggregate amount of all such loans outstanding at
any time shall not exceed $1,500,000, (iv) such loans shall not be
forgiven by the Borrower, (v) any shares purchased by any Institutional
Investor with the proceeds of any such loan shall be resold to members of
the Borrower's management as soon as such a resale may be consummated in
accordance with applicable state and federal securities laws and (vi) any
member of the Borrower's management who purchases shares pursuant to the
preceding clause (v) shall assume all obligations under the loans the
proceeds of which were used by such Institutional Investor to purchase
such shares;
(f) 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;
(g) investments in connection with Permitted Business Acquisitions,
it being understood that the aggregate purchase consideration paid in any
such investment shall (i) constitute a Capital Expenditure during the
period in which such investment occurs or (ii) if and to the extent the
Borrower and its subsidiaries are not permitted to incur additional
Capital Expenditures under Section 7.13(a) at the time of such investment,
constitute a Transition Capital Expenditure during the period in which
such investment occurs;
(h) in the case of the Guarantors and TAFSI, investments in any
joint venture so long as the amount of all such investments does not
exceed $5,000,000 in the aggregate at any time outstanding (any such joint
venture, a "Permitted Joint Venture");
(i) in the case of the Borrower, Rate Protection Agreements;
(j) investments not otherwise permitted above so long as the amount
of all such investments does not exceed $1,000,000 in the aggregate at any
time outstanding; and
(k) in the case of the Guarantors and TAFSI, intercompany loans and
advances permitted under subsections (i), (j) and (m) of Section 7.01.
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 either 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
(to the extent that the Borrower shall have complied with the provisions
of Section 2.13(b));
(c) sales of inventory in the ordinary course of business;
77
(d) sales, transfers and other dispositions of Truckstops 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
Truckstops so sold, transferred or disposed of pursuant to this subsection
(d) shall not exceed 10 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 $30,000,000 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 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) sublicenses by the Borrower, either Guarantor or TAFSI to
Franchisees and Network Operators, 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 10 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 Truckstop 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 and TAFSI, (i) the acquisition of
assets from, or shares or other equity interests in, any Person in
connection with a Permitted Business Acquisition or a Permitted Joint
Venture and (ii) the merger of any Person with and into one of the
Guarantors as required by the definition of the term "Permitted Business
Acquisition";
(i) leases permitted by Section 7.08;
(j) sales of assets in connection with Sale and Lease-Back
Transactions permitted by Section 7.03; or
(k) in the case of either Guarantor or TAFSI, any sale, transfer or
other disposition of any asset to TAFSI or the other 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.
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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 and (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 (A) 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 (1) during any fiscal year or (2) since the Closing Date
shall not exceed the sum of $1,000,000 or $3,000,000, respectively, plus, in
each case, 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 (B) from Operators, so long as the aggregate amount of such repurchases
since the Closing Date shall not exceed $15,000,000.
(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 Tranche A
Exchange Note Purchase Agreements or the Subordinated Note Indenture and (B)
consensual encumbrances or restrictions that are incurred in connection with any
Tranche A Exchange Notes Refinancing Indebtedness or 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 in the ordinary course of business 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 or (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).
SECTION 7.08. BUSINESS OF BORROWER, THE GUARANTORS AND TAFSI. (a) In
the case of the Borrower, (i) engage at any time in any business or business
activity other than (A) the ownership of all the outstanding capital stock of
each Guarantor and TAFSI, together with the activities directly related thereto,
(B) the exercise of its rights and the performance of its obligations under or
contemplated by the Transaction Documents and (C) actions required by law to
maintain its status as a corporation.
(b) In the case of each Guarantor, (i) engage in any activities
other than the business currently conducted by it and business activities
reasonably incidental thereto (including the operation of restaurants) or (ii)
lease any Truckstop to a third-party operator, or engage any third-party
operator to operate any Truckstop, or otherwise cease to conduct directly the
operation of any Truckstop (other than in connection with any sale of such
Truckstop in accordance with Section 7.05); PROVIDED, HOWEVER, that such
Guarantor may lease Truckstops to creditworthy third-party operators with
experience in the operation of similar facilities who shall at the time become
Franchisees if (A) in each case, the lease shall (1) provide for payment of rent
and all
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other material amounts payable thereunder at rates at least equal to the fair
market rental value as a full-service truckstop facility (using for such purpose
the highest number resulting at the time from at least three standard methods of
determining fair market rental value), as of the date such lease is executed by
such Guarantor, of the entire premises covered by such lease for the term
thereof, including any renewal options, (2) require the lessee to use and
operate the Truckstop in a manner consistent with industry standards from time
to time for the operation of similar facilities and in any event in compliance
with the applicable Franchise Agreement as of the date such lease is executed by
such Guarantor, (3) have a term not longer than 10 years, PROVIDED that such
lease may be renewed for a period of up to 10 years, or successive periods of up
to 10 years each, if such lease shall provide for payment of rent and all other
material amounts payable thereunder at rates reasonably believed by such
Guarantor, as of the date such lease is entered into, to be the fair market
rental value (determined as aforesaid) of the entire premises covered by such
lease for each such period, (4) contain provisions consistent with and not in
conflict with any term, condition, covenant or agreement contained in any Loan
Document, (5) require the lessee to deliver estoppel certificates to the
Collateral Agent in compliance with clause (D) below, (6) provide that such
lease is subject and subordinate in all respects to the applicable Mortgage and
may be terminated by such Guarantor in case of default under or termination of
the applicable Franchise Agreement and (7) constitute an "operating lease" (not
a financing lease) for all purposes, (B) in each case, such Guarantor shall have
delivered to the Agent, reasonably in advance of the execution and delivery
thereof, copies of such lease and all other agreements to be entered into by
such Guarantor in connection therewith, (C) such Guarantor shall have delivered
to the Agent within 30 days of a request therefor by the Agent, an estoppel
certificate of any lessee in form and substance satisfactory to the Agent, (D)
in each case, such Guarantor 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, including
the execution, delivery and recording of an Assignment of Leases and Rents
substantially in the form of Exhibit C, (E) the Interest Expense Coverage Ratio
on the date of such lease for the period of four fiscal quarters ending with the
last full fiscal quarter immediately preceding such date (giving effect to the
entering into of such lease as if it had been entered into on the first day of
such period but without giving effect to any transfer to the lessee of the
obligation to make capital expenditures that were made by such Guarantor) shall
be equal to or greater than the Interest Expense Coverage Ratio for such period
(without giving effect to the entering into of such lease), (F) after giving
effect to the entering into of such lease, no Default or Event of Default shall
have occurred and be continuing and there shall have no decrease in Consolidated
Net Worth, (G) the consideration received by such Guarantor from the lessee in
connection with such lease (including any franchise fee and consideration from
the sale of inventory or other assets relating to such Truckstop) shall be paid
in cash and, in the case of assets, shall equal the greater of (1) the
then-current fair market value of such assets and (2) the book value of such
assets as reflected on such Guarantor's financial statements at such time, (H)
the lessee shall be an Accredited Lessee, (I) the lessee shall not be a lessee
or operator of more than three other Truckstops leased by the Guarantors
pursuant to this Section 7.08 (provided that no more than 10 persons may be
lessee of more than one Truckstop leased pursuant to this Section 7.08 and no
more than five persons may be lessee of more than two Truckstops leased pursuant
to this Section 7.08), (J) such lease shall prohibit the lessee from mortgaging
such lessee's leasehold interest in the Truckstop or such lease, (K) the rent
payable at a fixed or contractual rate under such lease shall equal or exceed
70% of the total rent payable under such lease assuming such lease had been
entered into on the first day of the period of four consecutive fiscal quarters
ending with the last full fiscal quarter immediately preceding the date of such
lease and (L) 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 7.08 shall be delivered to the
Agent; PROVIDED, FURTHER, that such Guarantor may (i) enter into extensions,
renewals and replacements of leases permitted pursuant to
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Section 7.02(a) and (ii) lease or sublease retail space and office space at any
Truckstop to the extent permitted pursuant to Section 7.02(k) and Section
7.02(l).
(c) In the case of TAFSI, (i) engage in any activities other than
the franchising of auto/truckstops and activities incidental thereto in
accordance with its past practice, (ii) own or acquire any material assets
(other than assets under the Franchise Agreements) or (iii) incur any material
liabilities (other than liabilities under the Transaction Documents and
Franchise Agreements).
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 and the Tranche A Exchange Notes); 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 of Tranche A Exchange
Notes (or Tranche A Exchange Note Refinancing Indebtedness) or the Subordinated
Notes (or the Subordinated Note Refinancing Indebtedness) pursuant to, and in
accordance with, the provisions of Section 7.01(g) or 7.01(h), respectively
(PROVIDED that, from and after any such refinancing, this Section 7.09 shall
apply to the Indebtedness incurred in connection with such refinancing) or (iii)
prepaying or otherwise refinancing any Indebtedness permitted pursuant to
clauses (i), (j), (l) or (m) of Section 7.01.
(b) Permit any amendment or modification to the terms of any
Subordinated Note, any Subordinated Note Guarantee or the Subordinated Note
Indenture 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
prior to the date that such payment would otherwise be due; or permit any
amendment or modification to the terms of the Tranche A Exchange Notes or the
Tranche A Exchange Note Purchase Agreements unless made in compliance with
Section 7.04 of the Intercreditor Agreement (or the analogous provision, if any,
of any successor agreement).
SECTION 7.10. AMENDMENT OF CERTAIN DOCUMENTS AND SUBORDINATED NOTES.
Permit any termination of, or any amendment or modification that in the
reasonable judgment of the Agent is adverse in any material respect to the
Lenders to, (a) the Certificate of Incorporation of the Borrower, TAFSI or
either Guarantor, (b) the By-laws of the Borrower, TAFSI or any Guarantor, (c)
the Subordinated Notes, the Subordinated Guarantees and the Subordinated Note
Indenture, (d) either Environmental Agreement, (e) the Ancillary Agreements and
(f) either Asset Purchase Agreement without the prior written consent of the
Required Lenders. Without limiting the generality of the foregoing, with respect
to the Subordinated Notes, the Subordinated Guarantees and the Subordinated Note
Indenture, 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.
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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 either Guarantor:
(a) (i) leases (other than leases of real property) of such
Guarantor 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) leases of such Guarantor 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
Truckstops 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
such leases shall not exceed $10,000,000;
(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 annual rental payments in respect of all
such Capital Lease Obligations and (B) any purchase money Indebtedness
permitted pursuant to Section 7.01(c) shall not exceed $15,000,000 at any
time outstanding, (ii) each Capital Lease Obligation at the time of its
incurrence shall have an average life to maturity greater than the average
life to maturity of the outstanding Term Loans, (iii) none of the related
leases shall contain financial covenants and (iv) for purposes of Section
7.13, the amount of such aggregate annual rental payments shall be deemed
to be Capital Expenditures in the year in which they are incurred; and
(d) any fair market value leases entered into by such Guarantor in
connection with the relocation of its offices.
SECTION 7.12. SUBSIDIARIES. After giving effect to the
Recapitalization and the Transactions, in the case of the Borrower, have any
direct or indirect subsidiaries other than the Guarantors, TAFSI and any
Permitted Joint Venture that is a direct or indirect subsidiary of the Borrower.
Each of the Guarantors and TAFSI shall remain a wholly owned subsidiary of the
Borrower.
SECTION 7.13. CAPITAL EXPENDITURES. (a) In the case of the Borrower
and its consolidated subsidiaries, permit Capital Expenditures during any fiscal
year, commencing with the fiscal year ending December 31, 1997, to exceed
$25,000,000; PROVIDED, HOWEVER, that the amount of permitted Capital
Expenditures in any fiscal year shall be increased by (a) an amount equal to 50%
of the excess of (i) consolidated EBITDA for the immediately preceding fiscal
year over (ii) $64,000,000 and (b) the lesser of (i) 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 (a) but
excluding any unused Capital Expenditures carried forward to such preceding
year) and (ii) 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). Notwithstanding the foregoing, the
aggregate amount of Capital Expenditures permitted in any fiscal year shall not
exceed $35,000,000.
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(b) In the case of the Borrower and its consolidated subsidiaries,
(i) permit Transition Capital Expenditures to exceed (A) during any fiscal year,
commencing with the fiscal year ending December 31, 1997, $50,000,000 or (B)
during the term of this Agreement, $140,000,000 or (ii) permit the aggregate
purchase consideration in connection with Permitted Business Acquisitions that,
pursuant to Section 7.04(g), constitutes a Transition Capital Expenditure to
exceed $25,000,000 during the term of this Agreement.
SECTION 7.14. CONSOLIDATED NET WORTH. Permit Consolidated Net Worth
at any time to be less than $90,000,000 PLUS, without duplication, (a) 50% of
Net Income for each fiscal quarter (beginning with the fiscal quarter ending
June 30, 1997) for which Net Income is positive, PLUS (b) 100% of the Net Cash
Proceeds of any primary offering of equity securities consummated by the
Borrower or either Guarantor after the Closing Date, PLUS (c) 100% of any
capital contribution made to the Borrower or either Guarantor after the Closing
Date by any holder of their respective capital stock, MINUS (d) amounts paid to
repurchase or redeem Common Stock of the Borrowers from Operators as permitted
by Section 7.06(a)(ii).
SECTION 7.15. CURRENT RATIO. Permit on the last day of any fiscal
quarter the ratio of Current Assets to Current Liabilities to be less than 1.50
to 1.00.
SECTION 7.16. INTEREST EXPENSE COVERAGE RATIOS. (a) Permit the
Interest Expense Coverage Ratio for any fiscal year ending on a date set forth
below to be less than the ratio set forth opposite such date:
FISCAL YEAR: RATIO:
----------- -----
December 31, 1997 1.50
December 31, 1998 1.75
December 31, 1999 2.00
December 31, 2000 2.25
December 31, 2001 2.50
December 31, 2002 2.75
December 31, 2003 3.00
December 31, 2004, and thereafter 3.25
(b) Incur Indebtedness if, after giving effect to the incurrence of
such Indebtedness, the ratio of EBITDA to Cash Interest Expense determined on
the last day of the most recently completed period of four consecutive fiscal
quarters for such period (or in the case of any fiscal quarter ending prior to
March 31, 1998, for the period commencing April 1, 1997, and ending on the last
day of such fiscal quarter), as if such Indebtedness had been incurred at the
beginning of such period, would be less than 1.00 to 1.00.
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SECTION 7.17. 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:
------------------ ---------------- -----
July 1, 1997 June 30, 1998 5.50 to 1.00
July 1, 1998 December 31, 1998 5.25 to 1.00
January 1, 1999 December 31, 1999 4.75 to 1.00
January 1, 2000 December 31, 2000 4.50 to 1.00
January 1, 2001 December 31, 2001 3.75 to 1.00
January 1, 2002 December 31, 2002 3.25 to 1.00
January 1, 2003 December 31, 2003, and thereafter 3.00 to 1.00
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 representation, warranty, statement or information
contained in any report, certificate, financial statement or other
instrument furnished pursuant any Loan Document, 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
2.12(d), 2.13(b), 6.01, 6.05, 6.08, 6.11, 6.12, 6.13, Section 9 or 10 of
the Guarantee Agreement or in Article VII (other than Section 7.02);
(e) default shall be made in the due observance or performance by
the Borrower, either 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 the earlier of (i) 30 days after an executive
officer of TAFSI, such Guarantor or the Borrower first becomes aware or
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should have become aware thereof and (ii) 15 days after notice thereof
from the Agent or any Lender to the Borrower, such Guarantor or TAFSI, as
applicable;
(f) the Borrower or any of its subsidiaries shall (i) fail to pay
any principal or interest, regardless of amount, due in respect of any
Indebtedness in a principal amount in excess of $2,000,000, 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 30 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 (but within 30 days in any event), any proceeding
or the filing of any petition described in paragraph (h) 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 $2,000,000 (to the extent not covered by insurance)
shall be rendered against the Borrower, TAFSI or either 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 either 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, either Guarantor or any ERISA Affiliate to the
85
PBGC or to a Plan in an aggregate amount exceeding $2,000,000 and, within
30 days after the reporting of any such Reportable Event to the Agent or
after the receipt by the Agent of the statement required pursuant to
Section 6.06(b)(iii), the 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 an Event of Default exists hereunder; or a
trustee shall be appointed by a United States District Court to administer
any such Plan or Plans; or the PBGC shall institute proceedings to
terminate any Plan or Plans;
(k) (i) the Borrower, either 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 $2,000,000 or
more 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) is less than $2,000,000 and any payment due as a result of such
liability remains unpaid 30 days after such payment is due;
(l) the Borrower, either 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 $2,000,000 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,
either 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);
86
(o) any Loan Document shall not be for any reason or shall be
asserted by the Borrower, either Guarantor or TAFSI not to be in full
force and effect and enforceable in all material respects in accordance
with its terms;
(p) the Obligations and the guarantees thereof pursuant to the
Guarantee Agreement shall cease to constitute, or shall be asserted by the
Borrower or either Guarantor not to constitute, senior indebtedness under
the subordination provisions of the Subordinated Notes, the Subordinated
Guarantees and the Subordinated Note Indenture (or the provisions of the
Subordinated Note Refinancing Indebtedness) or such subordination
provisions shall be invalidated or otherwise cease to be a legal, valid
and binding obligation of the parties thereto, enforceable in accordance
with its terms; or
(q) any material provision of the Guarantee Agreement or any Loan
Document shall cease to be in full force and effect and enforceable in
accordance with its terms for any reason whatsoever or either Guarantor or
TAFSI shall contest or deny in writing the validity or enforceability of
any of its obligations under the Guarantee Agreement or any other Loan
Document, as applicable, or the Obligations hereunder shall cease to be
entitled to the benefits of any Security Document, this Agreement or the
Intercreditor Agreement for any reason whatsoever;
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 Agent may and, at the
request of the Required Lenders, shall (subject to the terms of the
Intercreditor Agreement, as long as any Tranche A Exchange Notes are
outstanding), 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.
Notwithstanding the foregoing, in the event that a nonpayment
default under paragraph (a), (d), or (e) above is solely the result of any
Network Operator's failure to perform its obligations to either Guarantor
pursuant to any operating lease with such Guarantor permitted by Section 7.08,
then, so long as (i) there shall not be a similar failure by more than two other
Network Operators and (ii) such Guarantor has rights against such Network
Operator (including compelling such Network Operator to cure such default,
exercising its self-help remedies as landlord under such operating lease or
terminating such operating lease and taking possession of the premises within
the time for cure as provided herein) and the Agent, in its reasonable judgment,
is satisfied that such Guarantor is diligently and with best efforts prosecuting
such
87
enforcement until cure of such default, no Event of Default shall be deemed to
have occurred hereunder with respect thereto.
ARTICLE IX
THE AGENT
In order to expedite the transactions contemplated by this
Agreement, The Chase Manhattan Bank is hereby appointed to act as Agent (which
term for purposes of this Article shall be deemed to refer to the 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 Agent to take such actions on their behalf and to
exercise such powers as are specifically delegated to the 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 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 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 Guarantor pursuant to this
Agreement as received by the Agent (including notices of an occurrence of any
Event of Default).
Neither the 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 either Guarantor of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The 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 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 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 Agent nor any of its directors, officers, employees or agents shall
have any responsibility to the Borrower, either 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 the Guarantor of any of their respective
obligations hereunder or under any other Loan Document or in connection herewith
or therewith. The 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
88
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 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 Agent as
provided below, the 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 Agent gives notice
of its resignation, then the retiring Agent may, on behalf of the Lenders and
the Fronting Bank, appoint a successor 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 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 Agent and the retiring Agent shall be discharged from its duties and
obligations hereunder. After the 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 Agent.
With respect to the Loans made by it hereunder the Agent, in its
individual capacity and not as Agent, shall have the same rights and powers as
any other Lender and may exercise the same as though it were not the Agent, and
the Agent and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower, either Guarantor,
TAFSI or any Affiliate thereof as if the Agent were not the Agent.
Each Lender, the Fronting Bank, and the Swingline Lender agree (a)
to reimburse the Agent, on demand, in the amount of its pro rata share (based on
its Commitment hereunder) of any expenses incurred for the benefit of the
Lenders, the Fronting Bank and the Swingline Lender by the 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 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 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 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 Agent or any of its directors,
officers, employees or agents.
Each Lender, the Fronting Bank and the Swingline Lender acknowledge
that they have, independently and without reliance upon the 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 and the Intercreditor Agreement. Each
Lender, the Fronting Bank and the Swingline Lender also acknowledge that they
will, independently and without reliance upon the Agent or any other
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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.
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 telex, graphic scanning or other telegraphic
communications equipment of the sending party, as follows:
(a) If to the Borrower, TAFSI or either Guarantor, at 00000 Xxxxxx
Xxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxx 00000-0000; with a copy to The
Clipper Group, L.P., 00 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention of Rowan X.X. Xxxxxx (Telecopy No. (000) 000-0000); with
a copy to Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxxx X. Xxxxxxxx, Esq.
(Telecopy No. (000) 000-0000).
(b) If to the Agent, the Swingline Agent or the Fronting Bank, at
000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx
Xxxxxxxx (Telecopy No. (000) 000-0000); with a copy to The Chase Manhattan
Bank Loan and Agency Services Group, Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx,
XX 00000, Attention of Xxxxxx Xxxxxxx (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 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
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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 Agent, the Fronting Bank
and the Swingline Lender and when the 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, the 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) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrower, the Agent, the Fronting
Bank, the Swingline Lender or the Lenders that are contained in this Agreement
shall bind and inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion
of its interests, rights and obligations under this Agreement and the
Intercreditor Agreement (including all or a portion of its Commitments and the
Loans at the time owing to it); PROVIDED, HOWEVER, that (i) except in the case
of (A) any assignment to a Lender or an Affiliate of such Lender or, in the case
of a non-bank Lender, a Person under common management with such Lender or (B)
any assignment to an assignee reasonably acceptable to the Borrower (it being
understood that any Lender shall be deemed to be acceptable to the Borrower for
purposes of this clause) if such assignment was requested by any Governmental
Authority having jurisdiction over the assigning Lender, the Borrower (the
consent of which shall not be unreasonably withheld, it being understood that it
would be reasonable for the Borrower to withhold such consent in the case of any
assignment that would have the result of increasing the number of Lenders) and,
if any such assignment includes all or a portion of any Lender's Revolving
Credit Commitment, each of the Agent and the Fronting Bank, must give their
prior written consent to such assignment, (ii) the amount of the Commitment of
the assigning Lender subject to each such assignment (determined as of the date
the Assignment and Acceptance with respect to such assignment is delivered to
the Agent) shall not be less than $5,000,000 (or (i) if the amount of the
assigning Lender's Commitment is less than $5,000,000, an amount equal to the
amount of such Commitment or (ii) in the case of an assignment by a non-bank
Lender to a Person under common management with such non-bank Lender, in an
amount not less than $1,000,000), (iii) the parties to each such assignment
shall execute and deliver to the Agent an Assignment and Acceptance, together
with a processing and recordation fee of $3,500 and (iv) the assignee, if it
shall not be a Lender, shall deliver to the Agent an Administrative
Questionnaire. Upon acceptance and recording pursuant to paragraph (e) of this
Section 10.04, from and after the effective date specified in each Assignment
and Acceptance, which effective date shall be at least five Business Days after
the execution thereof (unless waived by the Agent), (i) 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 Intercreditor Agreement and (ii) 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 the
Intercreditor Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement and the Intercreditor Agreement, such Lender
shall cease to be a party hereto and to the Intercreditor Agreement but shall
continue to be entitled to the benefits of Sections 6.12(d) and 10.05 and, with
respect only to liabilities of the Borrower thereunder to such Lender that have
accrued or otherwise arise by reason of
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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).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Commitments and LC Commitment, and the outstanding balances of its Term
Loans and Revolving Credit Loans, in each case without giving effect to
assignments thereof that have not become effective, are as set forth in such
Assignment and Acceptance; (ii) except as set forth in clause (i) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of the Borrower, either Guarantor or TAFSI or
the performance or observance by the Borrower, either Guarantor or TAFSI of any
of its obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement and the Intercreditor Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 6.04 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the Intercreditor
Agreement; (vi) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Agent by the terms hereof, together with such powers as
are reasonable incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations that by the terms of
this Agreement and the Intercreditor Agreement are required to be performed by
it as a Lender.
(d) The Agent shall maintain at one of its offices in The City of
New York a copy of each Assignment and Acceptance delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitments and LC Commitment of, and principal amount of the Loans owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive in the absence of manifest error and
the Borrower, the 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. 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.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and the written consent of the Agent to such assignment, the Agent
shall (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Lenders, the Fronting Bank and the Swingline Lender.
(f) Each Lender may without the consent of the Borrower or the Agent
sell participations to one or more banks or other entities in all or a portion
of its rights and obligations
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under this Agreement (including all or a portion of its Commitments and the
Loans owing to it); PROVIDED, HOWEVER, that (i) such Lender's obligations under
this Agreement and the Intercreditor Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other entities
shall be entitled to the benefit of the cost protection provisions contained in
Sections 2.14, 2.16 and 2.20 to the same extent as if they were Lenders,
PROVIDED that the Borrower shall not be required to reimburse the participating
lenders or other entities pursuant to Section 2.14, 2.16 or 2.20 in an amount
that exceeds the amount that would have been payable thereunder to such Lender
had such Lender not sold such participation and (iv) the Borrower, the Agent,
the Fronting Bank, the Swingline Lender and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and the Intercreditor Agreement, and
such Lender shall retain the sole right to enforce the obligations of the
Borrower relating to the Loans or LC Disbursements and to approve any amendment,
modification or waiver of any provision of this Agreement (PROVIDED that the
participating bank or other entity may be provided with the right to approve
amendments, modifications or waivers affecting it with respect to (A) any
decrease in the Fees payable hereunder with respect to Loans in which the
participating bank or other entity has purchased a participation, (B) any change
in the amount of principal of, or decrease in the rate at which interest is
payable, on the Loans in which the participating bank or other entity has
purchased a participation, (C) any extension of the dates fixed for scheduled
payments of principal of or interest on the Loans in which the participating
bank or other entity has purchased a participation or (D) any release of all or
substantially all the Collateral).
(g) Any Lender or participant may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Section 10.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower, each Guarantor and TAFSI
furnished to such Lender by or on behalf of the Borrower, any Guarantor or
TAFSI, PROVIDED that, prior to any such disclosure of information designated by
the Borrower, any Guarantor or TAFSI as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 10.17.
(h) In the event that Standard & Poor's, Xxxxx'x, and Xxxxxxxx'x
BankWatch shall, after the date that any Lender becomes a Revolving Lender,
downgrade the long-term certificate of deposit ratings of such Lender, and the
resulting ratings shall be BBB+ or lower, Baa1 or lower and BBB+ or lower, then
the Fronting Bank shall have the right, but not the obligation, at its own
expense, upon notice to such Lender and the Agent, to replace (or to request the
Borrower to use its reasonable efforts to replace) such Lender with an assignee
(in accordance with and subject to the restrictions contained in paragraph (b)
above), and such Lender hereby agrees to transfer and assign without recourse
(in accordance with and subject to the restrictions contained in paragraph (b)
above) all its interests, rights and obligations in respect of its Revolving
Credit Commitment to such assignee; PROVIDED, HOWEVER, that (i) no such
assignment shall conflict with any law, rule and regulation or order of any
Governmental Authority and (ii) the Fronting Bank or such assignee, as the case
may be, shall pay to such Lender in immediately available funds on the date of
such assignment the principal of and interest accrued to the date of payment on
the Loans made by such Lender hereunder and all other amounts accrued for such
Lender's account or owed to it hereunder.
(i) Any Lender may at any time assign all or any portion of its
rights under this Agreement to a Federal Reserve Bank, PROVIDED that no such
assignment shall release a Lender from any of its obligations hereunder. In
order to facilitate such an assignment to a Federal
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Reserve Bank, the Borrower shall, at the request of the assigning Lender, duly
execute and deliver to the assigning Lender a promissory note or notes
evidencing the Loans made to the Borrower by the assigning Lender hereunder.
(j) The Borrower shall not assign or delegate any of its rights or
duties hereunder without the prior written consent of the Agent, the Fronting
Bank, the Swingline Lender and each Lender. Except as provided in Section 3.09
and Section 2.21, respectively, neither the Fronting Bank nor the Swingline
Lender may assign or delegate any of its respective rights and duties hereunder
without the prior written consent of the Borrower and Agent.
SECTION 10.05. EXPENSES; INDEMNITY. (a) The Borrower agrees to pay
all out-of-pocket expenses incurred by the Agent, the Fronting Bank, the
Swingline Lender 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 the 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, counsel for the Agent, 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
counsel for the Agent, the Fronting Bank, the Swingline Lender, the Collateral
Agent or any Lender. The Borrower further agrees that it shall indemnify the
Agent, the Fronting Bank, the Swingline Lender, the Collateral Agent, 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 the Agent, the Fronting Bank,
the Swingline Lender, the Collateral Agent and each Lender and each of their
respective directors, officers, employees, agents and Affiliates (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 and the other
transactions contemplated hereby or thereby, (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
unenforceabilty of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Agent, the Fronting
Bank, the
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Collateral Agent, the Swingline Lender or any Lender. All amounts due under this
Section 10.05 shall be payable on written demand therefor.
SECTION 10.06. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, and the Agent shall have declared, or the Required
Lenders shall have requested the 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 either 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 (i) in addition to other rights and remedies (including other
rights of setoff) that such Lender may have and (ii) subject to the terms of the
Intercreditor Agreement.
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 the 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 Agent, the Fronting Bank,
the Swingline Lender, the Collateral Agent and the Lenders hereunder and under
the other Loan Document are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this
Agreement or any other Loan Document or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice or demand
on the Borrower in any case shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances.
(b) Neither this Agreement, the Guarantee Agreement or any of the
Security Documents nor any provision hereof or thereof may be waived, amended or
modified except, in the case of this Agreement, pursuant to an agreement or
agreements in writing entered into by the Borrower and the Required Lenders, or,
in the case of the Guarantee Agreement, or any of the Security Documents,
pursuant to an agreement or agreements in writing entered into by the Borrower,
any Guarantor and the Collateral Agent (and TAFSI, if it is a party 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 maturity of,
any principal of or interest on, any Loan, or forgive any such payment or any
part thereof, or reduce the rate of interest on any Loan, without the prior
written consent of each Lender adversely affected thereby, (ii) increase the
Commitment or reduce or extend the date for payment of the fees payable to any
Lender without the prior written consent of such Lender, (iii) amend or modify
the provisions of Section 2.17, the provisions of this Section or the definition
of the term "Required Lenders" without the prior written consent of each Lender,
(iv) release all or substantially all of the Collateral under any Security
Document or any guarantor under the Guarantee Agreement other than as expressly
95
permitted hereunder or under such Security Document or such Guarantee 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 prepayments to be made 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) waive, in whole or in part, any payment, including
any mandatory prepayment, without the written consent of Lenders holding a
majority in interest of the outstanding Loans and unused Commitments of each
affected Class or (vii) change the rights of the Term Lenders to decline
mandatory prepayments as provided in Section 2.13(h), without the written
consent of Lenders holding a majority in interest of the outstanding Term Loans,
and PROVIDED FURTHER that no such agreement shall amend, modify, or otherwise
affect the rights or duties of the Agent, the Fronting Bank, or the Swingline
Lender hereunder without the prior written consent of the Agent, the Fronting
Bank or the Swingline Lender, as the case may be
(c) Notwithstanding the provisions of paragraph (b) above, as long
as any Tranche A Exchange Notes are outstanding the provisions of the
Intercreditor Agreement shall supersede any contrary provisions herein regarding
consents, amendments, modifications and waivers.
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 letter referred to in Section 2.05(c) constitute the
entire contract between the parties relative to the subject matter hereof. Any
previous agreement among the parties with respect to the subject matter hereof
is superseded by this Agreement and the other Loan Documents. Nothing in this
Agreement or in the other Loan Documents, expressed or implied, is intended to
confer upon any party other than the parties hereto and thereto any rights,
remedies, obligations or liabilities under or by reason of this Agreement or the
other Loan Documents.
SECTION 10.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO 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
96
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. INVESTMENT OF CERTAIN ESCROWED AMOUNTS. (a) In the
event that the Borrower or any Guarantor deposits money with the Collateral
Agent, or such money is received directly by the Collateral Agent, pursuant to
or in connection with (i) the definition of the term "Prepayment Event" (in
connection with any deposit of Net Cash Proceeds pending any permitted
application of such money contemplated by such definition (other than with
respect to any Mortgaged Property Casualty or Condemnation governed by Section 9
of the Guarantee Agreement)) or (ii) Section 9 of the Guarantee Agreement (in
connection with any Mortgaged Property Casualty or Condemnation), the Borrower
and each Guarantor understands and agrees that (A) such amounts shall be held as
collateral for the payment of the Obligations in separate escrow accounts (or
sub-accounts of a single escrow account) with the Collateral Agent for the
benefit of the Secured Parties, (B) the Collateral Agent shall have exclusive
dominion and control over such accounts (or subaccount), (C) 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, (D) interest or
profits, if
97
any, on such investments shall accumulate in such accounts (or sub-accounts) and
(E) amounts held in such accounts (or sub-accounts) shall be released or applied
(1) in the case of Section 9 of the Guarantee Agreement, as provided in (and
subject to the provisions of) such Section and (2) in all other cases, upon the
demand by the Borrower or the applicable Guarantor in connection with the
Borrower's or such Guarantor's application of such amounts within the specified
period of time in accordance with the definition of the term "Prepayment Event".
(b) Nothing in this Section 10.16 shall prevent the Collateral Agent
from applying at any time all or any part of the amounts on deposit in the
above-contemplated accounts (or subaccounts) to the curing of any Event of
Default under this Credit Agreement. The provisions of this Section 10.16 are
subject to the provisions of the Intercreditor Agreement so long as any Tranche
A Exchange Notes are outstanding.
SECTION 10.17. CONFIDENTIALITY. Except as otherwise provided in
Section 10.04(g), each of the Agent, the Fronting Bank, the Swingline Lender and
each of the Lenders agrees to keep confidential (and (i) to cause its respective
officers, directors and employees to keep confidential and (ii) to use its best
efforts to cause its respective agents and representatives to keep confidential)
the Information and all copies thereof, extracts therefrom and analyses or other
materials based thereon, except that the Agent, the Fronting Bank, the Swingline
Lender or any Lender shall be permitted to disclose Information (a) to such of
its respective officers, directors, employees, professional advisors, agents and
representatives as need to know such Information, (b) to the extent requested by
any regulatory authority, (c) to direct contractual counterparties in swap
agreements, PROVIDED that any such contractual counterparty agrees to be bound
by the provisions of this Section 10.17, (d) to the extent otherwise required by
applicable laws and regulations or by any subpoena or similar legal process or
(e) to the extent such Information (i) becomes publicly available other than as
a result of a breach of this Agreement or (ii) becomes available to the Agent,
the Fronting Bank, the Swingline Lender or any Lender on a non confidential
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 the 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, either Guarantor or TAFSI, any shareholder of the
Borrower or any employee, customer or supplier of the Borrower, either Guarantor
or TAFSI, other than any of the foregoing that were available to the 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. The provisions of this Section 10.17 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 or the Note 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
98
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.
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/ Xxxxxxx X. Xxxxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President
THE CHASE MANHATTAN BANK,
by
/s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE,
by
/s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Head of Corporate Banking
CRESCENT/MACH I PARTNERS, L.P.,
by TCW ASSET MANAGEMENT
COMPANY, its Investment Manager,
by
/s/ Xxxx X. Gold
----------------------------------
Name: Xxxx X. Gold
Title: Managing Director
KEYPORT LIFE INSURANCE COMPANY,
by
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: V.P. and Chief Investment Officer
KZH HOLDING CORPORATION,
by
/s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, New York Branch,
by
/s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Deputy General Manager
MANUFACTURERS AND TRADERS TRUST
COMPANY,
by
/s/ C. Xxxxxxx Xxxxxxxxx
----------------------------------
Name: C. Xxxxxxx Xxxxxxxxx
Title: Banking Officer
NATIONAL CITY BANK,
by
/s/ Xxxxxxx X. Xxxxxxxx, Xx.
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Vice President
OAK HILL SECURITIES FUND, L.P.,
by OAK HILL SECURITIES GenPar, L.P.,
its General Partner
by OAK HILL SECURITIES MGP, Inc.,
its General Partner
by
/s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
PILGRIM AMERICA PRIME RATE TRUST,
by
/s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Portfolio Analyst
PROTECTIVE LIFE ISURANCE COMPANY,
by
/s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signator
SENIOR FLOATING RATE FUND, INC.,
by
/s/ Xxxx XxXxxxxx
----------------------------------
Name: Xxxx XxXxxxxx
Title: Authorized Signatory
SOCIETE GENERALE,
by
/s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST,
by
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and Director
EXHIBIT A
ADMINISTRATIVE QUESTIONNAIRE
TravelCenters of America, Inc.
$120,000,000 Senior Secured Credit Facilities
Please accurately complete the following information and return via fax to The
Chase Manhattan Bank, Attention of Xxxxxx Xxxxxxx as soon as possible.
FAX Number: 000-000-0000
LEGAL NAME TO APPEAR IN DOCUMENT:
--------------------------------------------------------------------------------
GENERAL INFORMATION - DOMESTIC LENDING OFFICE:
Institution Name:
---------------------------------------------------------------
Street Address:
-----------------------------------------------------------------
City, State, Zip Code:
----------------------------------------------------------
GENERAL INFORMATION - LIBOR LENDING OFFICE:
Institution Name:
---------------------------------------------------------------
Street Address:
-----------------------------------------------------------------
City, State, Zip Code:
----------------------------------------------------------
CONTACTS/NOTIFICATION METHODS:
CREDIT CONTACTS:
Primary Contact:
----------------------------------------------------------------
Street Address:
-----------------------------------------------------------------
City, State, Zip Code:
----------------------------------------------------------
Phone Number:
-------------------------------------------------------------------
FAX Number:
---------------------------------------------------------------------
Backup Contact:
-----------------------------------------------------------------
Street Address:
-----------------------------------------------------------------
City, State, Zip Code:
----------------------------------------------------------
Phone Number:
-------------------------------------------------------------------
FAX Number:
---------------------------------------------------------------------
TAX WITHHOLDING:
Non Resident Alien Y* N
----- -----
* Form 4224 Enclosed
Tax ID Number
2
CONTACTS/NOTIFICATION METHODS:
ADMINISTRATIVE CONTACTS - BORROWINGS, PAYDOWNS, INTEREST, FEES, ETC.
Contact:
------------------------------------------------------------------------
Street Address:
-----------------------------------------------------------------
City, State, Zip Code:
----------------------------------------------------------
Phone Number:
-------------------------------------------------------------------
FAX Number:
---------------------------------------------------------------------
PAYMENT INSTRUCTIONS:
Name of Bank where funds are to be transferred:
--------------------------------------------------------------------------------
Routing Transit/ABA number of Bank where funds are to be transferred:
--------------------------------------------------------------------------------
Name of Account, if applicable:
--------------------------------------------------------------------------------
Account Number:
-----------------------------------------------------------------
Additional Information:
---------------------------------------------------------
--------------------------------------------------------------------------------
MAILINGS:
Please specify who should receive financial information:
Name:
---------------------------------------------------------------------------
Street Address:
-----------------------------------------------------------------
City, State, Zip Code:
----------------------------------------------------------
It is very important that all of the above information is accurately filled in
and returned promptly. If there is someone other than yourself who should
receive this questionnaire, please notify us of their name and fax number and we
will fax them a copy of the questionnaire. If you have any questions, please
call Xxxxxx Xxxxxxx of The Chase Manhattan Bank at 000-000-0000.
EXHIBIT B
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of March 21, 1997 ("the
Credit Agreement"), among TravelCenters of America, Inc., a Delaware corporation
(the "Borrower"), the financial institutions from time to time party thereto
(the "Lenders") and The Chase Manhattan Bank, as agent for the Lenders (in such
capacity, the "Agent"), as fronting bank (in such capacity, the "Fronting Bank")
and as swingline lender (in such capacity, the "Swingline Lender"). Capitalized
terms used herein but not defined herein shall have the meanings assigned to
such terms in the Credit Agreement.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the Effective Date set forth on the reverse
hereof, the interests set forth on the reverse hereof (the "Assigned Interest")
in the Assignor's rights and obligations under the Credit Agreement, including,
without limitation, the percentages and amounts set forth on the reverse hereof
of (i) the Commitments of the Assignor on the Effective Date, (ii) the loans
owing to the Assignor which are outstanding on the Effective Date, together with
unpaid interest accrued on such assigned Loans to the Effective Date, (iii)
participations in Letters of Credit acquired from the Fronting Bank which are
outstanding on the Effective Date, (iv) participations in Swingline Loans
acquired from the Swingline Lender which are outstanding on the Effective Date
and (v) the Fees accrued to the Effective Date for the account of the Assignor.
Each of the Assignor and the Assignee hereby makes and agrees to be bound by all
the representations, warranties and agreements set forth in Section 10.04(c) of
the Credit Agreement, a copy of which has been received by each such party. From
and after the Effective Date (x) the Assignee shall be a party to and be bound
by the provisions of the Credit Agreement and, to the extent of the interests
assigned by this Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and under the Loan Documents and (y) the Assignor shall, to
the extent of the interests assigned by this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
2. This Assignment and Acceptance is being delivered to the Agent together
with (i) if the Assignee is organized under the laws of a jurisdiction outside
the United States, the forms specified in Section 2.20(f) of the Credit
Agreement, duly completed and executed by such Assignee, (ii) if the Assignee is
not already a Lender under the Credit Agreement, an Administrative Questionnaire
in the form of Exhibit C to the Credit Agreement and (iii) a processing and
recordation fee of $3,500.
3. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Date of Assignment: . . . . . . . . . . . . . . . . . . . . . . . . . . .
Legal Name of Assignor: . . . . . . . . . . . . . . . . . . . . . . . . .
Legal Name of Assignee: . . . . . . . . . . . . . . . . . . . . . . . . .
Assignee's Address for Notices: . . . . . . . . . . . . . . . . . . . . .
Effective Date of Assignment: . . . . . . . . . . . . . . . . . . . . . .
(may not be fewer than 5 Business
Days after the Date of Assignment): . . . . . . . . . . . . . . . . . . .
2
Percentage assigned of
Facility and Commitment
thereunder (set forth, to
at least 8 decimals, as a
percentage of the Facility
and the aggregate
Principal Commitments of all
Commitment Amount Assigned Lenders thereunder)
---------- --------------- -------------------
Term Loan: $ %
Revolving Credit: $ %
Fees Assigned (if any): $
The terms set forth above are hereby agreed to:
........................as Assignor,
By:.................................
Name:...............................
Title:..............................
........................as Assignee,
By:.................................
Name:...............................
Title:..............................
Consented to by:
TRAVELCENTERS OF AMERICA, INC., if
required,
By:.................................
Name:...............................
Title:..............................
THE CHASE MANHATTAN BANK, if required, as
Agent, Fronting Bank and Swingline Lender,
By:.................................
Name:...............................
Title:..............................
EXHIBIT C
Property No.
---
------------, --
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS (this "ASSIGNMENT"), made as of the
27th day of March, 1997, by NATIONAL AUTO/TRUCKSTOPS, INC., a Delaware
corporation and a wholly owned subsidiary of TRAVELCENTERS OF AMERICA, INC., a
Delaware corporation (the "BORROWER"), having an address at 0000 Xxxx Xxx
Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 ("ASSIGNOR") to THE CHASE MANHATTAN BANK,
as Collateral Agent for the Lenders, the Swingline Lender, the Fronting Bank and
the Tranche A Exchange Note Purchasers, having an office at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("ASSIGNEE") (each of the foregoing capitalized terms, and
all other capitalized terms used but not otherwise defined herein shall have the
respective meanings given to them in the Mortgage (as hereinafter defined)).
THIS ASSIGNMENT CONSTITUTES ADDITIONAL COLLATERAL FOR THE OBLIGATIONS SECURED BY
THE MORTGAGE (AS HEREINAFTER DEFINED) AND FOUR OTHER MORTGAGES ON PROPERTY IN
FLORIDA WHICH OTHER MORTGAGES ARE BEING RECORDED CONTEMPORANEOUSLY. THE MAXIMUM
AMOUNT SECURED HEREBY, BY FOUR OTHER ASSIGNMENTS OF LEASES AND RENTS RELATING TO
SUCH FOUR OTHER MORTGAGES AND BY SUCH FOUR OTHER MORTGAGES IN THE STATE OF
FLORIDA IS LIMITED TO $20,494,598.00, IN THE AGGREGATE, AS SET FORTH IN THE
MORTGAGES.
WITNESSETH THAT:
Assignor is the owner of certain real property, with the improvements,
certain fixtures and personal property located thereon, the location of which
real property is more particularly described in Exhibit A annexed hereto and
made a part hereof (all of such property is collectively the "PROPERTY").
Pursuant to the Credit Agreement and pursuant to the Tranche A Exchange
Note Purchase Agreements, (a) Assignee, the Lenders and the Fronting Bank have
loaned or agreed to loan or issue to the Borrower on a term basis by the
Lenders, Term Loans in an aggregate principal amount not to exceed $80,000,000,
and (b) the Tranche A Exchange Note Purchasers have agreed to accept $85,500,000
in aggregate principal amount of the Borrower's Tranche A Exchange Notes in
exchange for (i) $65,000,000 aggregate principal amount of the outstanding
National Senior Notes and (ii) $20,500,000 aggregate principal amount of the
outstanding TA Senior Notes.
Assignor is a wholly owned Subsidiary of the Borrower and will derive
substantial benefit from the making of the Loans by the Lenders, the making of
Swingline Loans by the Swingline Lender, the issuance of Letters of Credit by
the Fronting Bank and the purchase of the Tranche A Exchange Notes by the
Tranche A Exchange Note Purchasers. In order to induce the Lenders to make
Loans, the Swingline Lender to make Swingline Loans, the Fronting Bank to issue
Letters of Credit and the Tranche A Exchange Note Purchasers to accept the
Tranche A Exchange Notes, the Assignor has agreed to guarantee
2
pursuant to the Guarantee Agreement the Obligations (as defined in the Credit
Agreement) (the due and punctual payment and performance of the covenants,
agreements, obligations and liabilities of the Assignor under the Guarantee
Agreement, this Assignment, the Mortgage (as hereinafter defined) and the other
Loan Documents are herein referred to as the "GUARANTEE OBLIGATIONS").
The obligations of the Lenders to make Loans and of the Fronting Bank to
issue Letters of Credit under the Credit Agreement and the obligations of the
original Tranche A Exchange Note Purchasers to purchase the Tranche A Exchange
Notes under the Tranche A Exchange Note Purchase Agreements are conditioned
upon, among other things, the execution and delivery by the Assignor of this
Assignment, in the form hereof, to secure (a) the due and punctual payment of
(i) the principal of, premium, if any, and interest on the Loans, the Swingline
Loans and the Tranche A Exchange Notes, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, (ii) each
payment required to be made by the Borrower under the Credit Agreement in
respect of any Letter of Credit, when and as due, including payments in respect
of reimbursement of disbursements, interest thereon and obligations to provide
cash collateral and (iii) all other monetary obligations of the Assignor
(including the Guarantee Obligations) and the Borrower to the Lenders, the
Swingline Lender, the Fronting Bank, the Agent, the Tranche A Exchange Note
Purchasers or the Collateral Agent under the Credit Agreement, the Tranche A
Exchange Note Purchase Agreements, this Assignment and the other Loan Documents
and Tranche A Exchange Note Documents to which the Assignor is or is to be a
party, (b) the due and punctual performance of all covenants, agreements,
obligations and liabilities of the Borrower and the Assignor under or pursuant
to the Credit Agreement, the Tranche A Exchange Note Purchase Agreements, this
Assignment and the other Loan Documents and Tranche A Exchange Note Documents to
which the Borrower or the Assignor is or is to be a party and (c) the due and
punctual payment and performance of all obligations of the Borrower, monetary or
otherwise, under each Rate Protection Agreement entered into with a counterparty
that was a Lender (or an Affiliate of a Lender) at the time such Rate Protection
Agreement was entered into (all the obligations referred to in the preceding
clauses (a) through (c) being referred to collectively as the "SECURED
OBLIGATIONS"), provided that for purposes of this Mortgage, Secured Obligations
shall not include any obligations of the Mortgagor or the Borrower in respect of
any Revolving Loans or any Letters of Credit.
In connection with the above-described transaction, Assignor has executed
and delivered to Assignee either (i) a Mortgage, Security Agreement and
Assignment of Leases and Rents, (ii) a Deed of Trust, Security Agreement and
Assignment of Leases and Rents or (iii) a Deed to Secure Debt, dated the date
hereof, encumbering the Property and securing the Secured Obligations, which has
been recorded in the land records of the county where the Property is located
prior to this Assignment (the "MORTGAGE").
Assignee, in connection with the leasing of the Truckstop to a third-party
operator, has required that Assignor make, execute and deliver this Assignment.
NOW, THEREFORE, in consideration of the foregoing and in consideration of
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, to further secure the Secured Obligations, Assignor hereby
agrees as follows:
3
1. Assignor, hereby presently and irrevocably grants, transfers, bargains,
sells, assigns, conveys, and sets over unto Assignee, its successors and
assigns, from and after the date hereof, all right, title and interest of
Assignor in and to (i) a certain operating lease which is more particularly
described in Exhibit B annexed hereto and made part hereof (the "OPERATING
LEASE") and all other Leases which now or may hereafter affect the Property, or
any part of parts thereof and all guarantees, modifications, renewals and
extensions thereof, and (ii) all documents and instruments made or hereafter
made in respect of, together with all of the Rents, to become due or to which
Assignor is now or may hereafter become entitled, arising out of the Operating
Lease and all other Leases, or the Property or any part or parts thereof.
2. Upon the occurrence and during the continuance of an Event of Default,
without regard to the adequacy of the security for the Secured Obligations,
Assignee shall have the exclusive power and authority to:
(i) enter upon and take possession of the Property and manage the
same;
(ii) (A) demand, collect, xxx for, attach, levy, recover, receive,
compromise, and (B) adjust and make, execute, and deliver receipts and
releases for, Rents which may be or hereafter become due, owing or payable
from each present or future operator, lessee, sublessee, licensee,
concessionaire or other occupant of the Property or any part thereof
(collectively, the "TENANTS");
(iii) receive, endorse and deposit for collection in the name of
Assignor or Assignee any checks, promissory notes or other evidences of
indebtedness, whether made payable to Assignor or Assignee, which are
given in payment or on account of Rent or by way of compromise or
settlement of any indebtedness for such Rents;
(iv) institute, prosecute, settle or compromise any summary or other
proceedings for the recovery of the Rents or for removing any and all
Tenants in accordance with the applicable Operating Lease, any other
applicable Lease or with applicable law;
(v) institute, prosecute, settle or compromise any proceedings for
the protection of the Property, for the recovery of any damage done to the
Property or for the abatement of any nuisance thereon or thereabouts;
(vi) defend, settle or compromise any legal proceedings brought, or
claims made against, Assignee or its agents, employees or servants which
may affect the Property, and, at the option of Assignee, defend, settle or
compromise any claims made or legal proceedings brought against Assignor
which may affect the Property or any part thereof;
(vii) lease or rent the Property or any part thereof for such time
and at such rentals as Assignee, in its sole discretion, may deem
advisable;
(viii) make any changes or improvements, structural or otherwise,
on, in or to the Property or any part thereof which Assignee, in its
reasonable discretion, may deem necessary or expedient for the leasing,
renting or preservation thereof;
4
(ix) keep and maintain the Property in tenantable and rentable
condition and in a good state of repair;
(x) purchase such equipment and supplies as may be necessary or
desirable in the opinion of Assignee for use in connection with the
operation of the Property;
(xi) pay, from and out of the Rents collected by Assignee hereunder,
all taxes, assessments, or any and all other charges, costs and expenses
which Assignee may deem necessary or advisable to pay in connection with
the management and operation of the Property (including, without
limitation, any interest, principal or other payments due on any and all
loans secured by mortgages on the Property, if any, including the Secured
Obligations secured by the Mortgage);
(xii) contract for and purchase such insurance as Assignee may deem
advisable or necessary for the protection of Assignee and the Property,
including, without limitation, insurance of the types required under the
Mortgage;
(xiii) execute and comply with all requirements of applicable
Governmental Authorities relating to the Property and remove any and all
violations of the requirements of applicable Governmental Authorities
relating to the Property;
(xiv) enforce, enjoin or restrain the violation of any of the terms,
provisions and conditions of the Operating Lease and any other Leases; and
(xv) do anything and everything which Assignor could or would do
which might increase the Rents or which might diminish the expense of
operating the Property, whether herein expressly authorized or not, and in
all respects act in the place and stead of Assignor and have all of the
powers as owner as possessed by Assignor for the purposes aforesaid.
All the foregoing power and rights may be executed by Assignee or by its agents,
servants or attorneys, in the name of Assignee or in the name of Assignor, and
in such manner as Assignee, its agents, servants or attorneys consider to be
necessary, desirable, expedient, or appropriate; PROVIDED, HOWEVER, that under
no circumstances shall Assignee be under any obligation to exercise any of the
foregoing powers or rights or be in any manner, liable to Assignor or any other
party for failure to exercise such powers and rights.
3. Upon the occurrence and during the continuance of an Event of
Default, Assignee shall have the right to use and apply the Rents collected and
received by it under this Assignment (a) for the payment of any and all costs
and expenses incurred in connection with (i) enforcing the terms of this
Assignment, the Mortgage, the Loan Documents, or Tranche A Exchange Note
Documents, (ii) upholding and defending the rights of Assignee hereunder, under
the Mortgage, the Loan Documents, or Tranche A Exchange Note Documents, and
(iii) collecting Rents due under the Operating Lease or any other Leases; (b)
for the payment of operating expenses that are due and payable and for all other
expenses relating to the operation and maintenance of the Property and the
payment of all costs and expenses in connection therewith; (c) for the payment
of all costs and expenses including, without limitation, reasonable attorneys'
fees and disbursements paid or incurred by or on behalf of Assignee in the
protection and maintenance of the lien
5
of the Mortgage or granted hereby in connection with any litigation or
proceeding affecting this Assignment, the Mortgage, or the Property and (d) for
distribution to the Assignee for the payment in full of Indebtedness and
satisfaction of the Secured Obligations.
4. Assignor hereby irrevocably constitutes and appoints Assignee its true
and lawful attorney, upon the occurrence and during the continuance of an Event
of Default, to undertake and execute any or all of the powers described herein
with the same force and effect as if undertaken or executed by Assignor.
5. Assignee shall not in any way be liable to Assignor for any act done or
anything omitted to be done by it in good faith in connection with the
management of the Property, except for the consequences of its own gross
negligence or willful misconduct, nor shall Assignee be liable for any act or
omission of its agents, servants or employees provided that due care is used by
Assignee in the selection of such agents, servants and employees, except for the
consequences of the gross negligence or willful misconduct of such agents,
servants or employees. Except as aforesaid, Assignee shall be accountable to
Assignor only for monies actually received by it pursuant to this Assignment.
6. It is understood and agreed that nothing contained in this Assignment
shall prejudice or be construed to prejudice the right of Assignee under any of
the Loan Documents or Tranche A Exchange Note Documents, without notice except
where required by the terms of the applicable document, to institute, persecute
and compromise any action which it would deem advisable to protect its interest
in the Property, including an action to foreclose the Mortgage, and in such
action, to move for the appointment of a receiver of the Rents, or prejudice any
rights which Assignee shall have upon the occurrence of an Event of Default.
This Assignment shall survive, however, the commencement of any such action and
shall continue in full force and effect in the event of any foreclosure action
until a sale of the Property shall be had thereunder.
7. Upon request of Assignee, Assignor shall execute and deliver to
Assignee such further instruments as Assignee may deem reasonably necessary to
effect this Assignment. Assignor, at its sole cost and expense, shall cause such
further instruments to be recorded in such manner and in such places as may be
reasonably required by Assignee.
8. Assignor shall pay all recording and filing fees in respect of this
Assignment as well as any and all taxes which may be due and payable on the
recording of this Assignment and any taxes hereafter imposed on this Assignment.
Should Assignor fail to pay the same, all such recording and filing fees and
taxes may be paid by Assignee on behalf of Assignor and the amount thereof,
together with interest at the Default Rate, shall be payable by Assignor to
Assignee immediately upon demand, or at the option of Assignee, Assignee may
reimburse itself therefor out of the Rents which may in such circumstance be
collected by Assignee.
9. Failure of Assignee to avail itself of any of the terms, covenants and
conditions of this Assignment shall not be construed or deemed to be a waiver of
any of its rights hereunder. The rights and remedies of the Assignee under this
Assignment are cumulative and are not in lieu of but are in addition to, and
shall not be affected by the exercise of, any other rights and remedies which
Assignee shall have under or by virtue of law or equity, the Loan Documents or
the Tranche A Exchange Note Documents (collectively, the "OTHER RIGHTS"). The
rights and remedies of Assignee hereunder may be exercised
6
independently of or concurrently with any of the Other Rights at any time or
from time to time.
10. Assignee hereby gives Assignor a license to exercise all of its rights
as landlord or otherwise with respect to the Operating Lease or any other
Leases, to collect all the Rents, and to retain, use and enjoy the same in
accordance with the Loan Documents and the Tranche A Exchange Note Documents.
This Assignment shall continue in full force and effect until the satisfaction
and cancellation of the Mortgage as provided in Section 3.05(a) of the Mortgage,
and upon such occurrence, this Assignment and the authority and powers herein
granted by Assignor to Assignee shall cease and terminate, and, in that event,
Assignee shall (i) execute and deliver to Assignor such instrument or
instruments effective to evidence the termination of this Assignment and the
reassignment to Assignor of the rights, powers and authorities granted herein as
may be reasonably requested by Assignor, and (ii) deliver to Assignor any monies
held by Assignee for the benefit of Assignor. Assignor agrees that upon
termination of this Assignment it shall assume payment of all unmatured or
unpaid charges, expenses or obligations incurred or undertaken by Assignee in
connection with the management of the Property in accordance with the terms
hereof. This Assignment shall be amended so as to release and reassign to
Assignor the Operating Lease or other Leases, and that portion of the Rents
which relate to the Operating Lease or other Leases, which encumber a Property
which is to be released pursuant to Section 3.05(b) of the Mortgage, and
Assignee shall deliver to Assignor any monies with respect to any Property so
released held by Assignee for the benefit of Assignor. Assignor agrees that,
upon any release and reassignment contemplated by the preceding sentence, it
shall assume payment of all unmatured or unpaid charges, expenses or obligations
incurred or undertaken by Assignee in connection with the management of any
Property which is being so released. Assignor will pay all costs and expenses,
including attorneys' fees and disbursements, incurred by Assignee in connection
with any such amendment.
11. All of the covenants, agreements and provisions in this Assignment
binding upon or for the benefit of Assignor or Assignee shall bind and inure to
the benefit of their respective successors and assigns.
12. All notices, demands or requests made pursuant to this Assignment
shall be given in the manner set forth in Section 3.02 of the Mortgage.
13. This Assignment may not be changed orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
14. This Assignment shall be governed by, construed and enforced in
accordance with the laws of the State where the Property is located.
7
15. Upon payment and discharge in full of all outstanding Credit Agreement
Obligations or all outstanding Tranche A Exchange Note Obligations (each such
term as defined in the Intercreditor Agreement), all references herein to the
Credit Agreement or the Tranche A Exchange Note Purchase Agreements, as the case
may be, shall become null and void (other than references for purposes of
incorporating herein definitions of terms used therein, which terms will
continue to have the meanings assigned thereto immediately prior to such payment
and discharge, subject to subsequent amendment or modification in accordance
with the terms hereof).
IN WITNESS WHEREOF, Assignor has executed this Assignment as of the day
and year first above written.
WITNESSES: ASSIGNOR:
NATIONAL AUTO/TRUCKSTOPS, INC.,
by
-------------------------------- --------------------------------
Name:
Title:
--------------------------------
ATTEST:
--------------------------------
Name:
Title:
[CORPORATE SEAL]
EXHIBIT D
[FORM OF]
COLLATERAL ACCOUNT AGREEMENT
COLLATERAL ACCOUNT AGREEMENT, dated as of March
27, 1997, made by TRAVELCENTERS OF AMERICA, INC., a
Delaware corporation (the "BORROWER"), in favor of THE
CHASE MANHATTAN BANK, a New York banking corporation
("CHASE"), as collateral agent (in such capacity, the
"COLLATERAL AGENT") for the Secured Parties (as defined
herein). All capitalized terms used but not defined herein
shall have the meanings set forth in the other Transaction
Documents.
Reference is made to (a) the Master Collateral and Intercreditor
Agreement dated as of March 27, 1997 (as amended or modified from time to time,
the "INTERCREDITOR AGREEMENT"), among the Participating Creditors (as defined in
the Intercreditor Agreement) and the Collateral Agent and countersigned by the
Borrower and its subsidiaries; (b) the Credit Agreement dated as of March 21,
1997 (as amended or modified from time to time, the "CREDIT AGREEMENT"), among
the Borrower, the financial institutions party thereto, as lenders (the
"LENDERS"), and Chase, as agent (in such capacity, the "AGENT"), as fronting
bank (in such capacity, the "FRONTING BANK") and as swingline lender (in such
capacity, the "SWINGLINE LENDER"); and (c) the Senior Secured Note Exchange
Agreements, each dated as of March 21, 1997 (as amended or modified from time to
time, the "TRANCHE A EXCHANGE NOTE PURCHASE AGREEMENTS"), among the Borrower and
the Tranche A Exchange Note Purchasers named therein.
The Lenders, the Fronting Bank and the Swingline Lender,
respectively, have agreed to make Loans to the Borrower, to issue Letters of
Credit for the account of the Borrower and to make Swingline Loans to the
Borrower pursuant to, and upon the terms and subject to the conditions specified
in, the Credit Agreement. The Tranche A Exchange Note Purchasers have agreed to
accept the Tranche A Exchange Notes in exchange for the Existing Senior Notes
held by them pursuant to, and upon the terms and conditions specified in, the
Tranche A Exchange Note Purchase Agreements.
The obligations of the Lenders to make Loans, of the Fronting Bank to
issue Letters of Credit and of the Swingline Lender to make Swingline Loans
under the Credit Agreement and the obligations of the Tranche A Exchange Note
Purchasers to accept the Tranche A Exchange Notes in exchange for the Existing
Senior Notes held by them pursuant to the Tranche A Exchange Note Purchase
Agreements are conditioned upon, among other things, the execution and delivery
by the Pledgor of a pledge agreement in the form hereof to secure (a) the due
and punctual payment of (i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, the Swingline Loans and the Tranche
A Exchange Notes, when and as due, whether at maturity, by acceleration, upon
one or more dates set for prepayment or otherwise, (ii) each payment required to
be made by the Borrower under the Credit Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral and
(iii) all other monetary obligations, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed or otherwise,
(including monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) of the Borrower to the Secured Parties
under the Credit Agreement, the Tranche A Exchange Note Purchase Agreements,
this Agreement and the other Transaction Documents, (b) the due and punctual
performance of all covenants, agreements, obligations and liabilities of the
Borrower
2
under or pursuant to the Agreement, the Tranche A Exchange Note Purchase
Agreements and the other Transaction Documents, (c) the due and punctual payment
and performance of all the covenants, agreements, obligations and liabilities of
each Grantor under or pursuant to the Credit Transaction Documents to which such
Grantor is a party and (d) the due and punctual payment and performance of all
obligations of the Borrower, monetary or otherwise, under each Rate Protection
Agreement entered into with a counterparty that was a Lender (or an Affiliate of
a Lender) at the time such Rate Protection Agreement was entered into (all the
obligations referred to in the preceding clauses (a) through (d) being referred
to collectively as the "OBLIGATIONS"). All capitalized terms used but not
defined herein shall have the meanings set forth in the other Transaction
Documents.
On the Closing Date, $45,000,000 of the proceeds of the Term
Loans shall be deposited in the Collateral Account (as defined herein) to fund
certain anticipated Capital Expenditures, Transition Capital Expenditures and
other ordinary course payments to be made by the Borrower and the Guarantors
from time to time.
It is a further condition precedent to the obligations of the
Lenders to make the Loans, the Fronting Bank to issue Letters of Credit and the
Swingline Lender to make the Swingline Loans under the Credit Agreement and to
the obligations of the Tranche A Exchange Note Purchasers to accept the Tranche
A Exchange Notes under the Tranche A Exchange Note Purchase Agreements that the
Borrower deposit $45,000,000 of the Term Loans made under the Credit Agreement
on the Closing Date in the Collateral Account simultaneously with the initial
Credit Event thereunder.
Accordingly, the Borrower and the Collateral Agent, on behalf of
itself and each other Secured Party (and each of their successors and assigns),
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. The following terms shall have the
following meanings:
"ACCOUNT COLLATERAL" shall have the meaning assigned to such term
in Section 2.01 of this Agreement.
"AGREEMENT" shall mean this Collateral Account Agreement, as the
same may be amended, supplemented or otherwise modified from time to
time.
"CODE" shall mean the Uniform Commercial Code as from time to
time in effect in the State of New York.
"COLLATERAL ACCOUNT" shall have the meaning assigned to such term
in Section 3.01 of this Agreement.
"EVENT OF DEFAULT" shall mean any "Event of Default" as defined
in the Credit Agreement and any "Event of Default" as defined in the
Tranche A Exchange Note Purchase Agreements.
"INDEMNITEE" shall mean any "Indemnitee" as defined in the Credit
Agreement and any "Indemnitee" as defined in the Tranche A Exchange Note
Agreements.
"OBLIGATIONS" shall have the meaning assigned to such term in the
preliminary statement of this Agreement.
3
"SECURED PARTIES" shall mean (a) the Lenders, (b) the Fronting
Bank, (c) the Agent, (d) the Collateral Agent, (e) the Tranche A
Exchange Note Purchasers, (f) the Swingline Lender and (g) the
successors and assigns of each of the foregoing.
"SECURITY INTEREST" shall have the meaning assigned to such term
in Section 2.01.
SECTION 1.02. RULES OF INTERPRETATION. The rules of
interpretation specified in Section 1.02 of the Credit Agreement shall be
applicable to this Agreement.
ARTICLE II
SECURITY INTEREST
SECTION 2.01. SECURITY INTEREST. As collateral security for the
prompt and complete payment and performance when due, whether at the stated
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise of the Obligations, the Borrower hereby (a) deposits on the Closing
Date $45,000,000 of the Term Loans (the "COLLATERAL") in the Collateral Account,
and (b) bargains, sells, conveys, assigns, sets over, mortgages, pledges,
hypothecates and transfers to the Collateral Agent, for the ratable benefit of
the Secured Parties, and hereby grants to the Collateral Agent, its successors
and assigns, for the benefit of the Secured Parties, a continuing first priority
lien and security interest in all of its right, title and interest in and to the
Collateral, together with (i) all Collateral Account Deposits (as defined below)
made from time to time in accordance with Section 3.02 hereof and (ii) all
interest accruing from time to time and held in the Collateral Account pursuant
to Section 3.03 (the "COLLATERAL ACCOUNT INTEREST" and together with the
Collateral and the Collateral Account Deposits, the "ACCOUNT COLLATERAL") (the
"SECURITY INTEREST").
SECTION 2.02. NO ASSUMPTION OF LIABILITY. The Security Interest
is granted as security only and shall not subject the Collateral Agent or any
other Secured Party to, or in anyway alter or modify, any obligation or
liability of the Borrower with respect to or arising out of the Account
Collateral.
ARTICLE III
ESTABLISHMENT OF COLLATERAL ACCOUNT
SECTION 3.01. ESTABLISHMENT. The Collateral Agent has established
in the name of the Collateral Agent for the ratable benefit of the Secured
Parties an account (the "COLLATERAL ACCOUNT") with Chase for purposes of this
Agreement. Only Account Collateral will be deposited in the Collateral Account.
Subject to the provisions of this Agreement, the Collateral Account shall be
under the sole dominion and control of the Collateral Agent, and the Collateral
Agent shall have the sole right to make withdrawals from the Collateral Account
and to exercise all rights with respect to the Account Collateral from time to
time therein as set forth in this Agreement and the other Security Documents;
PROVIDED, HOWEVER, that so long as no Event of Default under the Credit
Agreement or the Tranche A Exchange Note Purchase Agreements shall have occurred
and be continuing, the Collateral Agent, from time to time, shall disburse and
apply portions of the Account Collateral in accordance with the provisions of
Section 3.4 of this Agreement. All Account Collateral delivered to the
Collateral Agent pursuant hereto shall be held in the Collateral Account in
accordance with the provisions hereof.
SECTION 3.02. DEPOSIT OF FUNDS IN COLLATERAL ACCOUNT. The
Collateral Account shall be used by the Collateral Agent for the purpose of
receiving (a) pursuant to Section 5.02 (gg) of the Credit Agreement and Section
3.23 of the Tranche A Exchange Note Purchase Agreements, the deposit of
$45,000,000 of the proceeds of the Term Loans made on the Closing Date, (b) cash
deposits made from time to time by the Borrower after the date hereof
("COLLATERAL ACCOUNT
4
DEPOSITS") and (c) Collateral Account Interest accruing from time to time after
the date hereof pursuant to Section 3.03.
SECTION 3.03. INTEREST ON FUNDS DEPOSITED. Until the Termination
Date (as defined in Section 6.13 below) and so long as no Event of Default under
the Credit Agreement or the Tranche A Exchange Note Purchase Agreements shall
have occurred and be continuing, the Account Collateral shall be invested in
Permitted Investments at the direction of the Borrower. All interest and other
income accruing on or to the Account Collateral shall be held in the Collateral
Account as part of the Account Collateral. All risk of loss in respect of such
investments shall be borne by the Borrower except as otherwise provided in this
Agreement.
SECTION 3.04. DISBURSEMENT OF ACCOUNT COLLATERAL IN COLLATERAL
ACCOUNT. Provided that no Event of Default under the Credit Agreement or the
Tranche A Exchange Notes Purchase Agreements shall have occurred and be
continuing, the Collateral Agent shall from time to time disburse funds from the
Collateral Account upon receipt of a certificate of a Responsible Officer of the
Borrower that (a) no Event of Default has occurred and is continuing and (b) the
disbursement of such funds to the Borrower in such amounts as shall be specified
in such certificate are to be used within the next 30 days exclusively for
ordinary course purposes or any other use of the Term Loans contemplated by the
Credit Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to and with the Collateral
Agent and each other Secured Party that:
SECTION 4.01 TITLE; NO OTHER LIENS. Except for the Security
Interest granted to the Collateral Agent for the ratable benefit of the Secured
Parties pursuant to this Agreement and the other Liens expressly permitted
pursuant to Section 7.02 of the Credit Agreement and Section 7.2 of the Tranche
A Exchange Note Purchase Agreements (the "PERMITTED LIENS"), the Borrower is the
legal, record and beneficial owner of, and has good title to the Account
Collateral with respect to which it has purported to grant a Security Interest
hereunder, free and clear of any and all Liens or claims of others. No security
agreement, financing statement or other public notice with respect to all or any
part of such Account Collateral is on file or of record in any public office,
except such as have been filed, pursuant to this Agreement, in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties or Permitted
Liens or Liens.
SECTION 4.02. AUTHORITY. The Borrower has full power and
authority to grant to the Collateral Agent the Security Interest in the Account
Collateral with respect to which it has purported to grant a Security Interest
hereunder, pursuant hereto and to execute, deliver and perform its obligations
in accordance with the terms of this Agreement, without the consent or approval
of any other person other than any consent or approval that has been obtained.
SECTION 4.03. ENFORCEABLE OBLIGATION; PERFECTED, FIRST PRIORITY
SECURITY INTERESTS. The Security Interest (a) constitutes a legal, valid and
binding security interest in all the Account Collateral securing the payment and
performance of the Obligations enforceable against the Borrower in accordance
with its terms, (b) upon completion of the filings and other actions specified
in Schedule I attached hereto shall constitute a perfected security interest in
the Account Collateral in favor of the Collateral Agent for the ratable benefit
of the Secured Parties, and (c) is prior to all other Liens (other than
Permitted Liens) on the Account Collateral in existence on the date hereof.
5
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.01. REMEDIES UPON DEFAULT. Upon the occurrence and
during the continuance of an Event of Default, the Collateral Agent may (i) upon
prior written notice to the Borrower, withdraw Account Collateral from the
Collateral Account and (ii) upon prior written notice to the Borrower, exercise
in respect of the Account Collateral, in addition to other rights and remedies
provided for herein or otherwise available to them, all of the rights and
remedies of a secured party under the Code as in effect at the time of such
exercise.
SECTION 5.02. APPLICATION OF PROCEEDS. All cash proceeds received
by the Collateral Agent in respect of any withdrawal pursuant to Section 5.01 of
all or any part of the Account Collateral shall be applied:
FIRST, to the payment of all costs and expenses incurred by the
Agent or the Collateral Agent (in its capacity as such hereunder or
under any other Credit Transaction Document) in connection with such
collection or sale or otherwise in connection with this Agreement or any
of the Obligations, including all court costs and the fees, other
charges and expenses of its agents and legal counsel, the repayment of
all advances made by the Collateral Agent hereunder or under any other
Credit Transaction Document on behalf of the Borrower or any Grantor and
any other costs or expenses incurred in connection with the exercise of
any right or remedy hereunder or under any other Credit Transaction
Document;
SECOND, subject to the provisions of the Intercreditor Agreement,
to the Collateral Agent for distribution to the Participating Creditors
(as defined in the Intercreditor Agreement) as provided in Article IV of
the Intercreditor Agreement for the payment in full of Indebtedness and
satisfaction of the Obligations owed to the Participating Creditors; and
THIRD, to the Borrower, its successors or assigns, or as a court
of competent jurisdiction may otherwise direct.
Subject to the terms of the Intercreditor Agreement, the Collateral Agent shall
have absolute discretion as to the time of application of any such proceeds,
monies or balances in accordance with this Agreement
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. NOTICES. All communications and notices hereunder
shall (except as otherwise expressly permitted herein) be in writing and given
as provided in Section 10.01 of the Credit Agreement and Section 16.6 of the
Tranche A Exchange Note Purchase Agreements. All communications and notices
hereunder to the Collateral Agent shall be given to it at the address set forth
in Schedule II hereto.
SECTION 6.02. SECURITY INTEREST ABSOLUTE. All rights of the
Collateral Agent hereunder, the Security Interest granted hereunder and all
obligations of the Borrower hereunder shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of any Credit
Transaction Document, any agreement with respect to any of the Obligations or
any other agreement or instrument relating to any of the foregoing, (b) any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Obligations, or any other amend ment or waiver of or any consent
to any departure from any Credit Transaction Document or any other agreement or
instrument, (c) any exchange, release or non-perfection of any Lien on other
6
collateral, or any release or amendment or waiver of or consent under or
departure from any guarantee, securing or guaranteeing all or any of the
Obligations or (d) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, any Grantor in respect of the
Obligations or in respect of this Agreement (other than the indefeasible payment
in full of all the Obligations by any of the Grantors).
SECTION 6.03. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Credit Transaction Document shall be
considered to have been relied upon by the Secured Parties and shall survive the
making by the Lenders of the Loans, the making by the Swingline Lender of the
Swingline Loans and the acceptance by the Tranche A Exchange Note Purchasers of
the Tranche A Exchange Notes, and the execution and delivery to the Tranche A
Exchange Note Purchasers of the Tranche A Exchange Notes, and the issuance by
the Fronting Bank of any Letter of Credit, regardless of any investigation made
by the Secured Parties or on their behalf, and shall continue in full force and
effect as long as the principal of or any accrued interest on, or any other fee
or amount payable under or in respect of any Loan, Swingline Loan, Tranche A
Exchange Note or Letter of Credit, or this Agreement or, without duplication of
the foregoing, under any of the other Credit Transaction Documents is
outstanding and unpaid and so long as the Commitments and the LC Commitment have
not been terminated.
SECTION 6.04. BINDING EFFECT; ASSIGNMENTS. This Agreement shall
become effective as to the Borrower when a counterpart hereof executed on behalf
of the Borrower shall have been delivered to the Collateral Agent and a
counterpart hereof shall have been executed on behalf of the Collateral Agent,
and thereafter shall be binding upon the Borrower and the Collateral Agent and
their respective successors and assigns, and shall inure to the benefit of the
parties hereto, and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder or any interest
herein or in the Account Collateral, or any part thereof (and any such attempted
assignment shall be void), or otherwise pledge, encumber or grant any option
with respect to the Account Collateral, or any part thereof, or any cash or
property held by the Collateral Agent as Account Collateral under this Agreement
except as expressly contemplated by this Agreement or the other Credit
Transaction Documents.
SECTION 6.05. SUCCESSORS AND ASSIGNS. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of any Grantor or the Collateral Agent that are
contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns.
SECTION 6.06. POWER OF ATTORNEY. The Collateral Agent is hereby
appointed by the Borrower, as its true and lawful agent and attorney-in-fact,
and in such capacity the Collateral Agent shall have the right, with power of
substitution for the Borrower and in each Grantor's name or otherwise, for the
use and benefit of the Collateral Agent and the other Secured Parties, upon the
occurrence and during the continuance of an Event of Default, (a) to commence
and prosecute any and all suits, actions or proceedings at law or in equity in
any court of competent jurisdiction to collect or otherwise realize on all or
any of the Account Collateral or to enforce any rights in respect of any Account
Collateral; (b) to settle, compromise, compound, adjust or defend any actions,
suits or proceedings relating to all or any of the Account Collateral; (e) to
use, sell, assign, transfer, pledge, make any agreement with respect to or
otherwise deal with all or any of the Account Collateral, and to do all other
acts and things necessary to carry out the purposes of this Agreement, as fully
and completely as though the Collateral Agent were the absolute owner of the
Account Collateral for all purposes; PROVIDED, HOWEVER, that nothing herein
contained shall be construed as requiring or obligating the Collateral Agent or
any other Secured Party to make any commitment or to make any inquiry as to the
nature or sufficiency of any payment received by the Collateral Agent or any
other Secured Party, or to present or file any claim or notice, or to take any
action with respect to the Account Collateral or any part thereof or the moneys
due or to
7
become due in respect thereof or any property covered thereby, and no action
taken or omitted to be taken by the Collateral Agent or any other Secured Party
with respect to the Account Collateral or any part thereof shall give rise to
any defense, counterclaim or offset in favor of the Borrower or to any claim or
action against the Collateral Agent or any other Secured Party.
SECTION 6.07. COLLATERAL AGENT'S FEES AND EXPENSES;
INDEMNIFICATION. (a) The Borrower agrees to pay upon demand to the Collateral
Agent the amount of any and all reasonable expenses, including the reasonable
fees and expenses of its counsel and of any experts or agents, that the
Collateral Agent may incur in connection with (i) the administration of this
Agreement, (ii) the custody or preservation of, or the collection from or other
realization upon any of the Account Collateral, (iii) the exercise, enforcement
or protection of any of the rights of the Collat eral Agent hereunder or (iv)
the failure of the Borrower to perform or observe any of the provisions hereof.
If the Borrower shall fail to do any act or thing that it has covenanted to do
hereunder or any of its representations or warranties hereunder shall be
breached, the Collateral Agent may (but shall not be obligated to) do the same
or cause it to be done or remedy any such breach and there shall be added to the
Obligations the cost or expense incurred by the Collateral Agent in so doing.
(b) Without limitation of their indemnification obligations under
the other Credit Transaction Documents, the Borrower agrees to indemnify the
Collateral Agent and the other Indemnities against, and hold each of them
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including reasonable counsel fees and expenses, incurred by or
asserted against any of them arising out of, in any way connected with, or as a
result of, the execution, delivery or performance of this Agreement or any
claim, litigation, investigation or proceeding relating hereto or to the Account
Collateral, 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, claims, damages, liabilities or related expenses 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) Any amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The provisions
of this Section 6.07 shall remain operative and in full force and effect
regardless of the termination of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Obligations, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Credit Transaction Document or any investigation made by or on behalf of
the Collateral Agent or any other Secured Party. All amounts due under this
Section shall be payable on written demand therefor and shall bear interest at
the Alternate Base Rate (as defined in the Credit Agreement) plus 2%.
SECTION 6.08. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6.09. WAIVERS; AMENDMENT. (a) No failure or delay of the
Collateral Agent or any other Secured Party 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 Collateral Agent hereunder and of the other Secured Parties under the other
Credit Transaction Documents are cumulative and are not exclusive of any rights
or remedies that they would otherwise have. No waiver of any provisions of this
Agreement or any other Credit Transaction 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
8
on the Borrower in any case shall entitle it to any other or further notice or
demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written agreement entered into
between the Borrower and the Collateral Agent, with the prior written consent of
the Required Lenders and the Required Holders; PROVIDED, HOWEVER, that except as
provided herein or in the other Credit Transaction Documents, no such agreement
shall amend, modify, waive or otherwise adversely affect a Secured Party's
rights and interests in any material amount of the Collateral without the prior
written consent of such Secured Party.
SECTION 6.10. 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 CREDIT
TRANSACTION 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 CREDIT TRANSACTION
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 6.10.
SECTION 6.11. SEVERABILITY. In the event any one or more of the
provisions contained in this Agreement or in any other Credit Transaction
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 (it
being understood that the invalidity of a particular provision in a particular
jurisdiction shall not in and of itself affect the validity of such provision in
any other jurisdiction). 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 6.12. 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 Credit Transaction 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 the Collateral Agent or any other Secured Party may otherwise have to
bring any action or proceeding relating to this Agreement or the other Credit
Transaction 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 Credit
Transaction Documents in any New York State or Federal court. Each of the
parties
9
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 6.01. 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 6.13. TERMINATION. This Agreement and the Security
Interest shall terminate when (a) all the Obligations having been indefeasibly
paid in full and the Lenders and the Swingline Lender having no further
commitment to lend under the Credit Agreement, no Letters of Credit are
outstanding and the Fronting Bank has no further obligation to issue Letters of
Credit under the Credit Agreement or (b) no funds remain in the Collateral
Account and the Borrower has given the Collateral Agent written notice that
there will not be any future Collateral Account Deposits (the "TERMINATION
DATE"), at which time the Collateral Agent shall (i) execute and deliver to the
Borrower a proper instrument or instruments acknowledging the satisfaction and
termination of this Agreement, prepared by the Borrower at its expense, that the
Borrower shall reasonably request to evidence such termination and (ii) deliver
any Account Collateral remaining in the Collateral Account to the Borrower. Any
execution and delivery of termination statements, documents or Account
Collateral pursuant to this Section 6.13 shall be without recourse to or
warranty by the Collateral Agent.
SECTION 6.14. HEADINGS. Article and Section headings 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 6.15. 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 6.04.
SECTION 6.16. INTERCREDITOR AGREEMENT. (a) The Collateral Agent
agrees, for itself and for each other Secured Party, that it and each other
Secured Party shall be bound by the terms of the Intercreditor Agreement in
connection with the administration of this Agreement.
(b) The Borrower hereby acknowledges receipt of a copy of and
agrees to be bound by the terms of the Intercreditor Agreement.
SECTION 6.17. REFERENCES TO CREDIT AGREEMENT. Upon the payment
and discharge in full of all outstanding Credit Agreement Obligations or all
outstanding Tranche A Exchange Note Obligations, all references herein to the
terms of the Credit Agreement or the Tranche A Exchange Note Documents, as the
case may be, shall become null and void (other than references for the purposes
of incorporating herein definitions of terms used therein, which terms will
continue to have the meanings assigned thereto immediately prior to such payment
and discharge, subject to subsequent amendment or modifications in accordance
with the terms hereof).
10
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
TRAVELCENTERS OF AMERICA, INC.,
by
----------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as
Collateral Agent,
by
----------------------------
Name:
Title:
EXHIBIT E
COLLATERAL ASSIGNMENT (the "COLLATERAL ASSIGNMENT") dated as of
March 27, 1997, from TRAVELCENTERS OF AMERICA, INC., a Delaware
corporation (the "BORROWER"), TA OPERATING CORPORATION, a Delaware
corporation ("TA"), NATIONAL AUTO/TRUCKSTOPS, INC., a Delaware corporation
("NATIONAL") and TA FRANCHISE SYSTEMS, INC., a Delaware corporation
("TAFSI" and, together with TA, National and the Borrower, the
"GRANTORS"), to THE CHASE MANHATTAN BANK, a New York banking corporation
("CHASE"), as collateral agent (in such capacity, the "COLLATERAL AGENT")
for the Secured Parties (as defined in the Security Agreement).
Reference is made to (a) the Master Collateral and Intercreditor Agreement
dated as of March 27, 1997 (as amended or modified from time to time, the
"Intercreditor Agreement"), among the Participating Creditors (as defined
therein) and the Collateral Agent and countersigned by the Grantors; (b) the
Credit Agreement dated as of March 21, 1997 (as amended or modified from time to
time, the "CREDIT AGREEMENT"), among the Borrower, the financial institutions
party thereto, as lenders (the "LENDERS"), and Chase, as agent (in such
capacity, the "AGENT"), as fronting bank (in such capacity, the "Fronting BANK")
and as swingline lender (in such capacity, the "SWINGLINE LENDER"; and (c) the
Senior Secured Note Exchange Agreements, each dated as of March 21, 1997 (as
amended or modified from time to time, the "SENIOR SECURED NOTE AGREEMENTS"),
among the Borrower and the Tranche A Exchange Note Purchasers named therein.
The Lenders, the Fronting Bank and the Swingline Lender, respectively,
have agreed to make Loans to the Borrower, to issue Letters of Credit for the
account of the Borrower and to make Swingline Loans to the Borrower pursuant to,
and upon the terms and subject to the conditions specified in, the Credit
Agreement. The Tranche A Exchange Note Purchasers have agreed to accept
$35,500,000 aggregate principal amount of the Borrower's 8.94% Series I Senior
Secured Notes due 2002 (the "SERIES I TRANCHE A EXCHANGE NOTES") and $50,000,000
aggregate principal amount of the Borrower's Series II Senior Secured Notes due
2005 (the "SERIES II TRANCHE A EXCHANGE NOTES" and, together with the Series I
Tranche A Exchange Notes, the "TRANCHE A EXCHANGE NOTES") in exchange for (i)
$65,000,000 aggregate principal amount of the outstanding 8.76% Senior Secured
Notes due 2002 of National (the "NATIONAL SENIOR NOTES") and (ii) $20,500,000
aggregate principal amount of the outstanding 8.63% Senior Secured Notes due
2002 of TA (the "TA SENIOR NOTES" and, together with the National Senior Notes,
the "EXISTING SENIOR NOTES") held by them pursuant to, and upon the terms and
subject to the conditions specified in, the Tranche A Exchange Note Purchase
Agreements.
The obligations of the Lenders to make Loans, of the Fronting Bank to
issue Letters of Credit and of the Swingline Lender to make Swingline Loans
under the Credit Agreement and the obligations of the Tranche A Exchange Note
Purchasers to accept the Tranche A Exchange Notes in exchange for the Existing
Senior Notes held by them pursuant to the Tranche A Exchange Note Purchase
Agreements are conditioned upon, among other things, the execution and delivery
by the Grantors of a security agreement in the form hereof to secure (a) the due
and punctual payment of (i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, the Swingline Loans and the Tranche
A Exchange Notes, when and as due, whether at maturity, by acceleration, upon
one or more dates set for prepayment or otherwise, (ii) each payment required to
be made by the Borrower under the Credit Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral and
(iii) all other monetary obligations, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed or otherwise,
(including monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) of the Borrower to the Secured Parties
under the Credit Agreement, the Tranche A Exchange Note Purchase Agreements,
this Agreement and the other Credit Transaction Documents, (b) the due and
punctual performance of all covenants, agreements, obligations and liabilities
of the Borrower under or pursuant to the Credit
Agreement, the Tranche A Exchange Note Purchase Agreements and the other Credit
Transaction Documents, (c) the due and punctual payment and performance of all
the covenants, agreements, obligations and liabilities of each Grantor under or
pursuant to the Credit Transaction Documents to which such Grantor is a party
and (d) the due and punctual payment and performance of all obligations of the
Borrower, monetary or otherwise, under each Rate Protection Agreement entered
into with a counterparty that was a Lender (or an Affiliate of a Lender) at the
time such Rate Protection Agreement was entered into (all the obligations
referred to in the preceding clauses (a) through (d) being referred to
collectively as the "OBLIGATIONS").
Accordingly, the Grantors and the Collateral Agent, on behalf of itself,
and each other Secured Party (and each of their successors and assigns), hereby
agree as follows:
SECTION 1. DEFINITION OF TERMS USED HEREIN. All capitalized terms used but
not defined herein shall have the meanings set forth in the other Credit
Transaction Documents.
SECTION 2. COLLATERAL ASSIGNMENT. As collateral security for the
Obligations, each Grantor hereby assigns to the Collateral Agent (for the
ratable benefit of the Secured Parties), and hereby grants to the Collateral
Agent (for the ratable benefit of the Secured Parties) a security interest in,
all of such Grantor's right, title and interest in, to and under the following
contracts and instruments, as the same may be modified, amended or supplemented
from time to time:
(a) the Asset Purchase Agreements;
(b) the Environmental Agreements;
(c) the Ancillary Agreements;
(d) the Franchise Agreements;
(e) the Rate Protection Agreements; and
(f) such other contracts and instruments of the Grantors as the
Collateral Agent shall designate from time to time to the Grantors in
writing.
The contracts and instruments listed in clauses (a) through (f), as amended and
in effect from time to time, are referred to collectively as the "Assigned
Contracts". The foregoing assignment shall include (a) any and all rights to
receive and demand payments under any and all Assigned Contracts, (b) any and
all rights to receive and compel performance under any and all Assigned
Contracts, (c) the right to make all waivers, amendments, determinations and
agreements of or under any and all Assigned Contracts, (d) the right to take
such action, including commencement, conduct and consummation of legal,
administrative or other proceedings, as shall be permitted by the Assigned
Contracts or by law and (e) any and all other rights, interests and claims now
existing or hereafter arising under or in connection with any and all Assigned
Contracts.
SECTION 3. GRANTORS TO REMAIN LIABLE. Notwithstanding any other provision
contained in this Collateral Assignment, (a) each Grantor shall at all times
remain liable under the Assigned Contracts to perform, at its own cost and
expense, all its duties and obligations thereunder to the same extent as if this
Collateral Assignment had not been executed; (b) the exercise by the Collateral
Agent of any of the rights assigned hereunder shall not release either Grantor
from any of its duties or obligations under any Assigned Contract; and (c)
neither the Collateral Agent nor any other Secured Party shall have any
obligation or liability under any Assigned Contract by reason of, or arising out
of, this Collateral Assignment, and neither the Collateral Agent nor any other
Secured Party shall be obligated to perform any of the obligations or duties of
the Grantors under any of the Assigned Contracts or to make any payment or to
present or file any claim or to take any other action to collect or enforce any
right or payment assigned under this Collateral Assignment. Subject to the
covenants
2
and limitations of the Grantors contained in the Credit Transaction Documents
(including Section 7(b) hereof), so long as no Default or Event of Default (both
terms as defined in the Credit Agreement and the Tranche A Exchange Note
Purchase Agreements) shall have commenced and be continuing, the Grantors may
exercise all rights under or with respect to the Assigned Contracts, including
the right to require payment of all moneys due or to become due under, and
otherwise demand or compel performance under, the Assigned Contracts and the
right to enforce all rights and exercise all remedies under the Assigned
Contracts.
SECTION 4. DEFAULT AND EVENT OF DEFAULT. Upon the commencement and during
the continuance of a Default or Event of Default, the Collateral Agent may, at
its option, without notice to or demand upon either Grantor (both of which are
hereby waived for the purpose of this Section 4), in addition to all other
rights and remedies provided under any of other Credit Transaction Documents, in
its own name or the name of either Grantor, demand, xxx upon or otherwise
enforce the Assigned Contracts to the same extent as if the Collateral Agent
were the party named in the Assigned Contracts, and exercise all other rights of
either Grantor under the Assigned Contracts in such manner as it may determine.
Any moneys actually received by the Collateral Agent pursuant to the exercise of
any of the rights and remedies granted in this Collateral Assignment shall be
applied as provided in the Intercreditor Agreement.
SECTION 5. NO LIABILITY. Neither the Collateral Agent nor any other
Secured Party shall be liable for any loss sustained by any Grantor resulting
from the Collateral Agent's failure to enforce the Assigned Contracts (whether
before or during a Default or an Event of Default) or from any other act or
omission of the Collateral Agent except to the extent that it is finally
determined by a court of competent jurisdiction that such loss resulted from the
Collateral Agent's gross negligence or wilful misconduct. Neither the Collateral
Agent nor any other Secured Party shall be obligated to perform or discharge any
obligation, duty or liability under the Assigned Contracts under or by reason of
this Collateral Assignment.
SECTION 6. IRREVOCABLE AUTHORIZATION. Except as otherwise expressly
provided herein, each Grantor hereby irrevocably authorizes and directs each
person who shall be a party to or liable for the performance of any of the
Assigned Contracts, upon receipt of written notice from the Collateral Agent to
the effect that a Default or Event of Default exists and is continuing, to
attorn to or otherwise recognize the Collateral Agent as owner under the
Assigned Contracts and to pay, observe and otherwise perform the obligations
under the Assigned Contracts to or for the Collateral Agent or the Collateral
Agent's designee as though the Collateral Agent or such designee were the
Grantors named in the Assigned Contracts, and to continue to do so until
otherwise notified by the Collateral Agent. The Collateral Agent shall provide
the Grantors with a copy of any such notification; PROVIDED, HOWEVER, that the
failure to do so shall not affect the Collateral Agent's rights under this
Collateral Assignment.
SECTION 7. REPRESENTATIONS, WARRANTIES AND COVENANTS RELATING TO THIS
COLLATERAL ASSIGNMENT. (a) The Grantors represent and warrant to and with the
Collateral Agent and each other Secured Party that no Grantor has assigned,
pledged, charged or otherwise encumbered the Assigned Contracts other than the
assignment made hereby and by the Security Agreement. Each Grantor hereby
covenants that so long as this Collateral Assignment shall remain in effect it
will not assign or pledge the whole or any part of the right, title and interest
hereby assigned to anyone other than the Collateral Agent. In addition, each
Grantor covenants that it shall use reasonable efforts to deliver to the
Collateral Agent all such written consents and acknowledgements, in form and
substance satisfactory to the Collateral Agent, as the Collateral Agent shall
reasonably request in connection with this Collateral Assignment (including the
consents of the Union Oil Company of California, a California Corporation, and
BP Exploration & Oil Inc., an Ohio corporation, respectively, of the assignment
of the Assigned Contracts to which each is a party, substantially in the form of
Annex 1 hereto).
(b) The Grantors jointly and severally agree, represent and warrant that
the Assigned Contracts (other than Franchise Agreements entered into after the
date hereof) have not been modified, amended, altered or changed in any manner
since December 9, 1993, that is adverse to the interests of the Secured Parties,
and are in full force and effect, there being no material default thereunder by
any Grantor. No Grantor will permit any
3
waiver, amendment, change or modification that is adverse in any respect to the
interests of the Secured Parties to be made to the Assigned Contracts without
the written consent of the Collateral Agent.
SECTION 8. FURTHER ASSURANCES. Each Grantor agrees that at any time and
from time to time, upon the written request of the Collateral Agent, the
Grantors will promptly and duly execute and take such further actions as the
Collateral Agent may reasonably deem desirable in obtaining and protecting the
full benefits of this Collateral Assignment and of the rights and powers herein
granted and in order to carry out more effectively the intent and purpose of
this Collateral Assignment, including, without limitation, if reasonably
requested by the Collateral Agent, at the expense of the Grantors, the
recording, filing, re-recording or re-filing of any Uniform Commercial Code
financing statements or of such other documents with respect hereto, in
accordance with the laws of such jurisdictions, as the Collateral Agent may from
time to time reasonably request.
SECTION 9. NOTICES. All communications and notices hereunder shall (except
as otherwise expressly permitted herein) be in writing and given as provided in
Section 10.01 of the Credit Agreement and Section 16.6 of the Tranche A Exchange
Note Purchase Agreements. All communications and notices hereunder to the
Collateral Agent shall be given to it at its address set forth in Annex 2
hereto.
SECTION 10. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Grantors herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Collateral Assignment or any other Credit Transaction Document
shall be considered to have been relied upon by the Secured Parties and shall
survive the making by the Lenders of the Loans, the making by the Swingline
Lender of the Swingline Loans and the acceptance by the Tranche A Exchange Note
Purchasers of the Tranche A Exchange Notes, the execution and delivery to the
Tranche A Exchange Note Purchasers of the Tranche A Exchange Notes, and the
issuance by the Issuing Bank of any Letter of Credit, regardless of any
investigation made by the Secured Parties or on their behalf, and shall continue
in full force and effect as long as the principal of or any accrued interest on,
or any other fee or amount payable under or in respect of, any Loan, Swingline
Loan, Tranche A Exchange Note or Letter of Credit, or this Collateral Assignment
or, without duplication of the foregoing, under any of the other Credit
Transaction Documents, is outstanding and unpaid and so long as the Commitments
and the LC Commitment have not been terminated.
SECTION 11. BINDING EFFECT; ASSIGNMENTS. This Collateral Assignment shall
become effective as to each Grantor when a counterpart hereof executed on behalf
of such Grantor shall have been delivered to the Collateral Agent and a
counterpart hereof shall have been executed on behalf of the Collateral Agent,
and thereafter shall be binding upon such Grantor and the Collateral Agent and
their respective successors and assigns, and shall inure to the benefit of such
Grantor, the Collateral Agent and the other Secured Parties and their respective
successors and assigns, except that no Grantor shall have the right to assign
its rights hereunder or any interest herein or in the Collateral (and any such
attempted assignment shall be void) except as expressly contemplated by this
Collateral Assignment or the other Credit Transaction Documents.
SECTION 12. SUCCESSORS AND ASSIGNS. Whenever in this Collateral Assignment
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party, and all covenants, promises
and agreements by or on behalf of the Grantors or the Collateral Agent that are
contained in this Collateral Assignment shall bind and inure to the benefit of
their respective successors and assigns.
SECTION 13. POWER OF ATTORNEY. The Collateral Agent is hereby appointed by
the Grantors, as the true and lawful agent and attorney-in-fact of each Grantor,
and in such capacity the Collateral Agent shall have the right, with power of
substitution for the Grantors and in each Grantor's name or otherwise, for the
use and benefit of the Collateral Agent and the other Secured Parties, upon the
occurrence and during the continuance of a Default or an Event of Default, (a)
to receive, endorse, assign and/or deliver any and all notes, acceptances,
checks, drafts, money orders or other evidences of payment relating to the
Assigned Contracts or any part thereof; (b) to demand, collect, receive payment
of, give receipt for and give discharges and releases of all or
4
any of the Assigned Contracts; (c) to sign the name of either Grantor on any
invoice or xxxx of lading relating to any of the Assigned Contracts; (d) to
commence and prosecute any and all suits, actions or proceedings at law or in
equity in any court of competent jurisdiction to collect or otherwise realize on
all or any of the Assigned Contracts or to enforce any rights in respect of any
Assigned Contracts; (e) to settle, compromise, compound, adjust or defend any
actions, suits or proceedings relating to all or any of the Assigned Contracts;
and (f) to use, sell, assign, transfer, pledge, make any agreement with respect
to or otherwise deal with all or any of the Assigned Contracts, and to do all
other acts and things necessary to carry out the purposes of this Collateral
Assignment, as fully and completely as though the Collateral Agent were the
Grantors named in the Assigned Contracts; PROVIDED, HOWEVER, that nothing herein
contained shall be construed as requiring or obligating the Collateral Agent or
any other Secured Party to make any commitment or to make any inquiry as to the
nature or sufficiency of any payment received by the Collateral Agent or any
other Secured Party, or to present or file any claim or notice, or to take any
action with respect to the Assigned Contracts or any part thereof or the moneys
due or to become due in respect thereof or any property covered thereby, and no
action taken or omitted to be taken by the Collateral Agent or any other Secured
Party with respect to the Assigned Contracts or any part thereof shall give rise
to any defense, counterclaim or offset in favor of any Grantor or to any claim
or action against the Collateral Agent or any other Secured Party. It is
understood and agreed that the appointment of the Collateral Agent as the agent
and attorney-in-fact of the Grantors for the purposes set forth above is coupled
with an interest and is irrevocable. The provisions of this Section 13 shall in
no event relieve any Grantor of any of its obligations hereunder or under the
other Credit Transaction Documents with respect to the Assigned Contracts or any
part thereof or impose any obligation on the Collateral Agent or any other
Secured Party to proceed in any particular manner with respect to the Assigned
Contracts or any part thereof, or in any way limit the exercise by the
Collateral Agent or any other Secured Party of any other or further right that
it may have on the date of this Collateral Assignment or hereafter, whether
hereunder, under any other Credit Transaction Document, by law or otherwise. Any
sale pursuant to the provisions of this Section 13 shall be deemed to conform to
the commercially reasonable standards as provided in Section 9-504(3) of the
Uniform Commercial Code as in effect in the State of New York or its equivalent
in other jurisdictions.
SECTION 14. COLLATERAL AGENT'S FEES AND EXPENSES; INDEMNIFICATION. (a)
Each Grantor jointly and severally agrees to pay upon demand to the Collateral
Agent the amount of any and all reasonable expenses, including the reasonable
fees and expenses of its counsel and of any experts or agents, that the
Collateral Agent may incur in connection with (i) the administration of this
Collateral Assignment, (ii) the custody or preservation of, or the sale of,
collection from or other realization upon any of the Assigned Contracts, (iii)
the exercise, enforcement or protection of any of the rights of the Collateral
Agent hereunder or (iv) the failure of the Grantors to perform or observe any of
the provisions hereof. If any Grantor shall fail to do any act or thing that it
has covenanted to do hereunder or any representation or warranty of any Grantor
hereunder shall be breached, the Collateral Agent may (but shall not be
obligated to) do the same or cause it to be done or remedy any such breach and
there shall be added to the Obligations the cost or expense incurred by the
Collateral Agent in so doing.
(b) Without limitation of its indemnification obligations under the other
Credit Transaction Documents, each Grantor jointly and severally agrees to
indemnify the Collateral Agent and the other Indemnitees against, and hold each
of them harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees and expenses, incurred by or
asserted against any of them arising out of, in any way connected with, or as a
result of, the execution, delivery or performance of this Collateral Assignment
or any claim, litigation, investigation or proceeding relating hereto or to the
Assigned Contracts, 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, claims, damages, liabilities or related expenses 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) Any amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The provisions
of this Section 14 shall remain operative and in full force and
5
effect regardless of the termination of this Collateral Assignment, the
consummation of the transactions contemplated hereby, the repayment of any of
the Obligations, the invalidity or unenforceability of any term or provision of
this Collateral Assignment or any other Credit Transaction Document or any
investigation made by or on behalf of the Collateral Agent or any other Secured
Party. All amounts due under this Section 14 shall be payable on written demand
therefor and shall bear interest at the Alternate Base Rate (as defined in the
Credit Agreement) plus 2%.
SECTION 15. GOVERNING LAW. THIS COLLATERAL ASSIGNMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 16. WAIVERS; AMENDMENT. (a) No failure or delay of the Collateral
Agent or any other Secured Party in exercising any power or right hereunder and
no course of dealing between the parties thereto 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 Collateral Agent hereunder and of
the other Secured Parties under the other Credit Transaction Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provisions of this Collateral Assignment or any
other Credit Transaction Document or consent to any departure by any Grantor
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 any Grantor in any case shall entitle such Grantor or any other Grantor to
any other or further notice or demand in similar or other circumstances.
(b) Subject to the provisions of the Intercreditor Agreement, neither this
Collateral Assignment nor any provision hereof may be waived, amended or
modified except pursuant to a written agreement entered into by a Grantor or the
Grantors and the Collateral Agent, with the prior written consent of the
Required Lenders and the Required Holders; PROVIDED, HOWEVER, that except as
provided herein or in the other Credit Transaction Documents, no such agreement
shall amend, modify, waive or otherwise adversely affect a Secured Party's
rights and interests in any material amount of the Collateral without the prior
written consent of such Secured Party.
SECTION 17. 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 COLLATERAL ASSIGNMENT OR ANY OF THE OTHER CREDIT
TRANSACTION 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 COLLATERAL ASSIGNMENT AND THE OTHER CREDIT
TRANSACTION DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 17.
SECTION 18. SEVERABILITY. In the event any one or more of the provisions
contained in this Collateral Assignment or in any other Credit Transaction
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 (it
being understood that the invalidity of a particular provision in a particular
jurisdiction shall not in and of itself affect the validity of such provision in
any other jurisdiction). The parties shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions
6
with valid provisions the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
SECTION 19. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each Grantor
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
Collateral Assignment or the other Credit Transaction 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 Collateral Assignment shall
affect any right that the Collateral Agent or any other Secured Party may
otherwise have to bring any action or proceeding relating to this Collateral
Assignment or the other Credit Transaction Documents against either Grantor or
its properties in the courts of any jurisdiction.
(b) Each Grantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Collateral Assignment or the other Credit
Transaction 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 Collateral Assignment irrevocably consents to
service of process in the manner provided for notices in Section 9. Nothing in
this Collateral Assignment will affect the right of any party to this Collateral
Assignment to serve process in any other manner permitted by law.
SECTION 20. TERMINATION; RELEASE. (a) This Collateral Assignment shall
terminate when all the Obligations have been indefeasibly paid in full and the
Lenders and the Swingline Lender have no further commitment to lend under the
Credit Agreement, no Letters of Credit are outstanding and the Fronting Bank has
no further obligation to issue Letters of Credit under the Credit Agreement, at
which time the Collateral Agent shall take such actions as the Grantors shall
reasonably request at the expense of the Grantors to reassign and deliver to the
Grantors, without recourse or warranty, the Assigned Contracts and related
documents, if any, in which the Collateral Agent shall have any interest under
this Collateral Assignment and which shall then be held by the Collateral Agent
or be in its possession and the security interest of the Collateral Agent in the
Assigned Contracts shall terminate.
(b) Upon any assignment or conveyance by any Grantor of any Assigned
Contract or any of such Grantor's rights, title or interest therein that is
permitted under the Credit Agreement, the Guarantee Agreement and the Tranche A
Exchange Note Purchase Agreements (including releases in connection with any
disposition of assets pursuant to Sections 7.03 and 7.05 of the Credit
Agreement, Sections 9 and 10 of the Guarantee Agreement and Sections 7.3 and 7.5
of the Tranche A Exchange Note Purchase Agreements), or, subject to the terms of
the Intercreditor Agreement, upon the effectiveness of any written consent to
the release of the Collateral Agent's security interest in any Assigned Contract
pursuant to Section 10.08 of the Credit Agreement and Section 13 of the Tranche
A Exchange Note Purchase Agreements, the Collateral Agent's security interest in
such Assigned Contract shall be automatically released.
(c) In connection with any termination or release pursuant to paragraph
(a) or (b), the Collateral Agent shall execute and deliver to such Grantor, at
such Grantor's expense, all Uniform Commercial Code termination statements and
similar documents that such Grantor shall reasonably request to evidence such
termination or release. Any execution and delivery of termination statements or
documents pursuant to this Section 20 shall be without recourse to or warranty
by the Collateral Agent.
7
SECTION 21. HEADINGS. Article and Section headings used herein are for
convenience of reference only, are not part of this Collateral Assignment and
are not to affect the construction of, or to be taken into consideration in
interpreting, this Collateral Assignment.
SECTION 22. COUNTERPARTS. This Collateral Assignment 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 11.
SECTION 23. INTERCREDITOR AGREEMENT. (a) The Collateral Agent agrees, for
itself and for each other Secured Party, that it and each other Secured Party
shall be bound by the terms of the Intercreditor Agreement in connection with
the administration of this Collateral Assignment.
(b) Each Grantor hereby acknowledges receipt of a copy of and agrees to be
bound by the terms of the Intercreditor Agreement.
SECTION 24. REFERENCES TO CREDIT AGREEMENT. Upon the payment and discharge
in full of all outstanding Credit Agreement Obligations or all outstanding
Tranche A Exchange Notes, all references herein to the terms of the Credit
Agreement or the Tranche A Exchange Note Purchase Agreements, as the case may
be, shall become null and void (other than references for the purpose of
incorporating herein definitions of terms used therein, which terms will
continue to have the meanings assigned thereto immediately prior to such payment
and discharge, subject to subsequent amendment or modifications in accordance
with the terms hereof).
IN WITNESS WHEREOF, the parties hereto have caused this Collateral
Assignment to be duly executed by their respective officers thereunto duly
authorized as of the date first above written.
TRAVELCENTERS OF AMERICA, INC.,
by
------------------------------
Name:
Title:
TA OPERATING CORPORATION,
by
------------------------------
Name:
Title:
NATIONAL AUTO/TRUCKSTOPS, INC.,
by
------------------------------
Name:
Title:
8
TA FRANCHISE SYSTEMS INC.,
by
------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as Collateral
Agent,
by
------------------------------
Name:
Title:
9
Annex 1
to the Collateral Assignment
March [ ], 1997
Reference is hereby made to (i) the Collateral Assignment dated as of
March [ ], 1997 (the "COLLATERAL ASSIGNMENT"), among The Chase Manhattan Bank
("CHASE"), as collateral agent (the "COLLATERAL AGENT"), TravelCenters of
America, Inc., a Delaware Corporation (the "BORROWER"), TA Operating
Corporation, a Delaware corporation ("TA"), National Auto/Truckstops, Inc., a
Delaware corporation ("NATIONAL") and TA Franchise Systems, Inc., a Delaware
corporation, (ii) the Asset Purchase Agreement dated as of [ ], 1993 (as amended
or modified from time to time, the "ASSET PURCHASE AGREEMENT"), between [Seller]
(the "SELLER") and [TA or National], (iii) the Environmental Agreement entered
into as of [ ] , 1993 (as amended or modified from time to time, (the
"ENVIRONMENTAL AGREEMENT"), between the Seller and [TA or National], (iv) the
Credit Agreement dated as of March [ ], 1997 (the "CREDIT AGREEMENT"), among the
Borrower and the financial institutions party thereto (the "LENDERS"), and
Chase, as agent, as fronting bank and as swingline lender, and (v) the Senior
Secured Exchange Note Agreements each dated as of March [ ], 1997 (the "TRANCHE
A EXCHANGE NOTE PURCHASE AGREEMENTS"), among the Borrower and the Tranche A
Exchange Note Purchasers party thereto. Capitalized terms used but not defined
herein shall have the meanings assigned thereto in the Credit Agreement and the
Tranche A Exchange Note Purchase Agreements.
In connection with the foregoing, the undersigned hereby consents and
agrees as follows:
(a) the undersigned hereby consents to the assignment to the
Collateral Agent, pursuant to the Collateral Assignment, of the Asset
Purchase Agreement, the Ancillary Agreements and the Environmental
Agreement and each of the undersigned hereby agrees that the Collateral
Agent may enforce such agreements against each of the undersigned in
accordance with the terms of such agreements and the terms of the
Collateral Assignment, subject to any defenses or rights of offset or
termination which the Seller may have under the Assigned Contracts;
(b) the undersigned agrees that Section 19 of the Environmental
Agreement permits the Collateral Agent to reassign, in whole or in part,
the rights assigned to it under the Collateral Assignment to:
(1) any successor to the rights and obligations of Chase, as
"Collateral Agent";
(2) any "Lender" or "Tranche A Exchange Note Purchaser" and
any of their respective successors and assigns;
(3) any purchaser or transferee (including Chase or any other
Lender or Tranche A Exchange Note Purchaser) of any Real Property at
a judicial or non-judicial sale or other foreclosure proceeding or
by deed or assignment in lieu of foreclosure and to any such
purchaser's or transferee's purchasers, transferees, successors or
assigns; and
(c) the undersigned agrees that the Environmental Agreement and the
other agreements referred to therein constitute the entire contract
between the parties relative to the subject matter of the Environmental
Agreement.
[SELLER]
by
----------------------------
Name:
Title:
Acknowledged and Accepted as of the date first
above written:
THE CHASE MANHATTAN BANK, as
Collateral Agent,
by
--------------------------------
Name:
Title:
2
EXHIBIT F
GUARANTEE AGREEMENT dated as of March 27, 1997, among
TRAVELCENTERS OF AMERICA, INC., a Delaware corporation (the
"BORROWER"), TA OPERATING CORPORATION, a Delaware corporation
("TA"), NATIONAL AUTO/TRUCKSTOPS, INC., a Delaware corporation
("NATIONAL" and, together with TA, the "GUARANTORS"), and THE CHASE
MANHATTAN BANK, a New York banking corporation ("CHASE"), as
collateral agent (in such capacity, the "COLLATERAL AGENT") for the
Secured Parties (as defined in the Credit Agreement referred to
below).
Reference is made to (a) the Master Collateral and Intercreditor Agreement
dated as of March 27, 1997 (as amended or modified from time to time, the
"INTERCREDITOR AGREEMENT"), among the Participating Creditors (as defined
therein) and the Collateral Agent and countersigned by the Borrower and the
Guarantors; (b) the Credit Agreement dated as of March 21, 1997 (as amended or
modified from time to time, the "CREDIT AGREEMENT"), among the Borrower, the
financial institutions party thereto, as lenders (the "LENDERS"), and Chase, as
agent (in such capacity, the "AGENT"), as fronting bank (in such capacity, the
("FRONTING BANK") and as swingline lender (in such capacity, the "SWINGLINE
LENDER") and (c) the Senior Secured Note Exchange Agreements, each dated as of
March 21, 1997 (as amended or modified from time to time, the "TRANCHE A
EXCHANGE NOTE PURCHASE AGREEMENTS"), among the Borrower and the Tranche A
Exchange Note Purchasers named therein.
The Lenders, the Fronting Bank and the Swingline Lender, respectively,
have agreed to make Loans to the Borrower, to issue Letters of Credit for the
account of the Borrower and to make Swingline Loans to the Borrower pursuant to,
and upon the terms and subject to the conditions specified in, the Credit
Agreement. The Tranche A Exchange Note Purchasers have agreed to accept
$35,500,000 aggregate principal amount of the Borrower's 8.94% Series I Senior
Secured Notes due 2002 (the "SERIES I TRANCHE A EXCHANGE NOTES") and $50,000,000
aggregate principal amount of the Borrower's Series II Senior Secured Notes due
2005 (the "SERIES II TRANCHE A EXCHANGE NOTES" and, together with the Series I
Tranche A Exchange Notes, the "TRANCHE A EXCHANGE NOTES") in exchange for (i)
$65,000,000 aggregate principal amount of the outstanding 8.76% Senior Secured
Notes due 2002 of National (the "NATIONAL SENIOR NOTES") and (ii) $20,500,000
aggregate principal amount of the outstanding 8.63% Senior Secured Notes due
2002 of TA (the "TA SENIOR NOTES" and, together with the National Senior Notes,
the "EXISTING SENIOR NOTES") held by them pursuant to, and upon the terms and
subject to the conditions specified in, the Tranche A Exchange Note Purchase
Agreements.
The obligations of the Lenders to make Loans and of the Fronting Bank to
issue Letters of Credit and of the Swingline Lender to make Swingline Loans
under the Credit Agreement and the obligations of the Tranche A Exchange Note
Purchasers to accept the Tranche A Exchange Notes in exchange for the Existing
Senior Notes held by them pursuant to the Tranche A Exchange Note Purchase
Agreements are conditioned upon, among other things, the execution and delivery
by each Guarantor of a guarantee agreement in the form hereof. In order to
induce the Lenders to make Loans, the Swingline Lender to make Swingline Loans,
the Fronting Bank to issue Letters of Credit and the Tranche A Exchange Note
Purchasers to accept the Tranche A Exchange Notes in exchange for the Existing
Senior Notes held by them, the Guarantors are willing to execute and deliver
this Agreement.
Accordingly, the Guarantors and the Collateral Agent, on behalf of itself,
and each other Secured Party (and each of their successors and assigns), hereby
agree as follows:
SECTION 1. DEFINITION OF TERMS USED HEREIN. All capitalized terms used but
not defined herein shall have the meanings set forth in the other Transaction
Documents.
1
SECTION 2. DEFINITION OF CERTAIN TERMS USED HEREIN. As used herein, the
following terms shall have the following meanings:
"CREDIT TRANSACTION DOCUMENTS" shall mean the Loan Documents (as defined
in the Credit Agreement) and the Financing Documents (as defined in the Tranche
A Exchange Note Purchase Agreements).
SECTION 3. GUARANTEE. Each Guarantor absolutely and unconditionally
guarantees, jointly with the other Guarantor and severally, as a primary obligor
and not merely as a surety, (a) the due and punctual payment by the Borrower of
(i) the principal of and premium, if any, and interest (including interest
accruing during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding) on the Loans, the Swingline Loans and the Tranche A Exchange Notes,
when and as due, whether at maturity, by acceleration, upon one or more dates
set for prepayment or otherwise, (ii) each payment required to be made by the
Borrower under the Credit Agreement in respect of any Letter of Credit, when and
as due, including payments in respect of reimbursement of disbursements,
interest thereon and obligations to provide cash collateral and (iii) all other
monetary obligations, including fees, costs, expenses and indemnities, whether
primary, secondary, direct, contingent, fixed or otherwise, (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceedings, regardless of whether allowed or
allowable in such proceeding) of the Borrower to the Secured Parties under the
Credit Agreement, the Tranche A Exchange Note Purchase Agreements and the other
Credit Transaction Documents to which the Borrower is or is to be a party, (b)
the due and punctual performance of all covenants, agreements, obligations and
liabilities of the Borrower under or pursuant to the Credit Agreement, the
Tranche A Exchange Note Purchase Agreements, and the other Credit Transaction
Documents and (c) the due and punctual payment and performance of all
obligations of the Borrower, monetary or otherwise, under each Rate Protection
Agreement entered into with a counterparty that was a Lender (or an Affiliate of
a Lender) at the time such Rate Protection Agreement was entered into (all the
obligations referred to in the preceding clauses (a) through (c) above being
referred to collectively as the "OBLIGATIONS"). Each Guarantor further agrees
that the Obligations may be extended or renewed, in whole or in part, without
notice to or further assent from it, and that it will remain bound upon its
guarantee notwithstanding any extension or renewal of any Obligation.
Anything contained in this Agreement to the contrary notwithstanding, the
obligations of each Guarantor hereunder shall be limited to a maximum aggregate
amount equal to the greatest amount that would not render such Guarantor's
obligations hereunder subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of Title 11 of the United States Code or any
provisions of applicable state law (collectively, the "FRAUDULENT TRANSFER
LAWS"), in each case after giving effect to all other liabilities of such
Guarantor, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of each
Guarantor (a) in respect of intercompany indebtedness to the Borrower or
Affiliates of the Borrower to the extent that such indebtedness would be
discharged in an amount equal to the amount paid by such Guarantor hereunder and
(b) under any Guarantee of senior unsecured Indebtedness or Indebtedness
subordinated in right of payment to the Obligations which Guarantee contains a
limitation as to maximum amount similar to that set forth in this paragraph,
pursuant to which the liability of such Guarantor hereunder is included in the
liabilities taken into account in determining such maximum amount) and after
giving effect as assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to subrogation,
contribution, reimbursement, indemnity or similar rights of such Guarantor
pursuant to (i) applicable law or (ii) any agreement providing for an equitable
allocation among such Guarantor and other Affiliates of the Borrower of
obligations arising under Guarantees by such parties.
SECTION 4. OBLIGATIONS NOT WAIVED. Each Guarantor waives presentment to,
demand of payment from and protest to the Borrower of any of the Obligations,
and also waives notice of acceptance of its guarantee and notice of protest for
nonpayment. The obligations of each Guarantor hereunder shall not be affected by
(a) the failure of the Collateral Agent or any other Secured Party to assert any
claim or demand or to enforce any right or remedy against the Borrower under the
provisions of any Credit Transaction Document or otherwise; (b) any
2
rescission, waiver, amendment or modification of, or any release from any of the
terms or provisions of, any Credit Transaction Document, any guarantee or any
other agreement; (c) the release of any security held by the Collateral Agent or
any other Secured Party for the Obligations or any of them; or (d) the failure
of the Collateral Agent or any other Secured Party to exercise any right or
remedy against any other guarantor of the Obligations.
SECTION 5. GUARANTEE OF PAYMENT. Each Guarantor further agrees that its
guarantee hereunder constitutes a guarantee of payment when due and not of
collection, and waives any right to require that any resort be had by the
Collateral Agent or any other Secured Party to any security held for payment of
the Obligations or to any balance of any deposit account or credit on the books
of the Collateral Agent or any other Secured Party in favor of the Borrower or
any other person.
SECTION 6. NO DISCHARGE OR DIMINISHMENT OF GUARANTEE. The obligations of
each Guarantor hereunder shall be absolute and unconditional and shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including, without limitation, any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any setoff, counterclaim,
deduction, diminution, abatement, suspension deferment, reduction, recoupment,
termination or defense (other than full and strict indefeasible satisfaction of
the Obligations) whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, no obligation of either Guarantor hereunder shall
be released, discharged or impaired or otherwise affected by any circumstance or
condition whatsoever (whether or not the Borrower, either Guarantor, the
Collateral Agent or any other Secured Party has knowledge thereof) that may or
might in any manner or to any extent vary the risk of either Guarantor or
otherwise operate as a discharge of either Guarantor as a matter of law or
equity (other than the indefeasible payment in full of all the Obligations),
including, without limitation:
(a) any termination, amendment, modification, addition, deletion or
supplement to or other change to any of the terms of any Credit
Transaction Document or any other instrument or agreement applicable to
any of the parties hereto or thereto, or any assignment or transfer of any
thereof, or any furnishing or acceptance of security, or any release of
any security, for any Obligations of the Borrower or either Guarantor
hereunder or thereunder, or the failure of any security or the failure of
any person to perfect any interest in any collateral;
(b) any failure, forbearance, omission or delay on the part of the
Borrower or either Guarantor or the Collateral Agent or any other Secured
Party to conform or comply with any term of any Credit Transaction
Document or any other instrument or agreement, or any failure to give
notice to the Borrower or either Guarantor of the occurrence of an Event
of Default or any Default occurring under the Credit Agreement or the
Tranche A Exchange Note Purchase Agreements;
(c) any waiver of the payment, performance or observance of any of
the obligations, conditions, covenants or agreements contained in any
Credit Transaction Document, or any other waiver, consent, extension,
renewal, indulgence, compromise, release, settlement, refunding or other
action or inaction under or in respect of any Credit Transaction Document
or any other instrument or agreement, or under or in respect of any
obligation or liability of the Borrower or either Guarantor or the
Collateral Agent or any other Secured Party or any exercise or
non-exercise of any right, remedy, power or privilege under or in respect
of any such instrument of agreement or any such obligation or liability;
(d) any extension of the time for payment of the principal of or
interest on any Obligation, or of the time for performance of any other
obligations, covenants or agreements under or arising out of any Credit
Transaction Document, or the extension or the renewal of any thereof;
3
(e) the exchange, surrender, substitution or modification of, or the
furnishing of any additional, collateral security for the Obligations
under any Credit Transaction Document;
(f) any failure, omission or delay on the part of the Collateral
Agent or any other Secured Party to enforce, assert or exercise any right,
power or remedy conferred on it in any Credit Transaction Document, or any
such failure, omission or delay on the part of the Collateral Agent or any
other Secured Party in connection with any Credit Transaction Document or
any other action or inaction on the part of the Collateral Agent or any
other Secured Party;
(g) to the extent permitted by applicable law, any voluntary or
involuntary bankruptcy, insolvency, reorganization, moratorium,
arrangement, adjustment, readjustment, composition, assignment for the
benefit of creditors, receivership, conservatorship, custodianship,
liquidation, marshalling of assets and liabilities or similar proceedings
with respect to the Borrower or either Guarantor or any other person or
any of their respective properties or creditors, or any action taken by
any trustee or receiver or by any court in any such proceeding (including,
without limitation, any automatic stay incident to any such proceeding);
(h) any limitation on the liability or obligations of the Borrower
or either Guarantor under any Credit Transaction Document or any other
instrument or agreement, which may now or hereafter be imposed by any
statute, regulation, rule of law or otherwise, or any discharge,
termination, cancellation, frustration, irregularity, invalidity or
unenforceability, in whole or in part, of any thereof;
(i) any merger, consolidation or amalgamation of the Borrower or
either Guarantor into or with any other person, or any sale, lease or
transfer of any of the assets of the Borrower or the Guarantor to any
other person;
(j) any change in the ownership of any shares of capital stock of
the Borrower or either Guarantor;
(k) to the extent permitted by applicable law, any release or
discharge, by operation of law, of the Borrower or either Guarantor from
the performance or observance of any obligation, covenant or agreement
contained in any Credit Transaction Document; or
(l) any other occurrence, circumstance, happening or event
whatsoever, whether similar or dissimilar to the foregoing, whether
foreseen or unforeseen and any other circumstance which might otherwise
constitute a legal or equitable defense, release or discharge (including
the release or discharge of the liabilities of a guarantor or surety or
which might otherwise limit recourse against the Borrower or either
Guarantor, whether or not the Borrower or either Guarantor shall have
notice or knowledge of the foregoing).
SECTION 7. CONTINUED EFFECTIVENESS. Each Guarantor further agrees that its
guarantee shall continue to be effective or be reinstated, as the case may be,
if at any time payment, or any part thereof, of any Obligation is rescinded,
invalidated, declared to be fraudulent or preferential, or must otherwise be
returned, refunded, repaid or restored by the Collateral Agent or any other
Secured Party for any reason whatsoever, including, without limitation, upon the
bankruptcy or reorganization of the Borrower, such Guarantor or otherwise.
SECTION 8. WAIVER OF SUBROGATION. In furtherance of the foregoing and not
in limitation of any other right that the Collateral Agent or any other Secured
Party has at law or in equity against either Guarantor by virtue hereof, upon
the failure of the Borrower or either Guarantor to pay any Obligation when and
as the same shall become due, whether at maturity, by acceleration, after notice
of prepayment or otherwise, each Guarantor hereby promises to and will, upon
receipt of written demand by the Collateral Agent or any other Secured Party,
4
forthwith pay, to the Collateral Agent for distribution to the Secured Parties
in accordance with the Intercreditor Agreement in cash the amount of such unpaid
Obligation. Each Guarantor hereby waives any claim, right or remedy which it may
now have or hereafter acquire against the Borrower that arises hereunder and/or
from the performance by such Guarantor hereunder including any claim, right or
remedy of the Collateral Agent or any Secured Party or any security which the
Collateral Agent or any Secured Party now has or hereafter acquires, regardless
of whether such claim, right or remedy arises in equity, under contract, by
statute, under common law or otherwise.
Each Guarantor agrees that, as between such Guarantor, on the one hand,
and the Collateral Agent and the other Secured Parties, on the other hand, (a)
the maturity of the Obligations guaranteed hereby may be accelerated as provided
in the Intercreditor Agreement, the Credit Agreement or the Tranche A Exchange
Note Purchase Agreements for the purposes of such Guarantor's guaranty herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed hereby and (b) in the
event of any declaration of acceleration of such Obligations as provided in the
Credit Agreement or the Tranche A Exchange Note Purchase Agreements, such
Obligations (whether or not due and payable) shall forthwith become due and
payable in full by such Guarantor for purposes of this Agreement.
SECTION 9. MORTGAGED PROPERTY CASUALTY AND CONDEMNATION. (a)
Notwithstanding any provision of the Credit Transactions Documents, the
Collateral Agent is authorized at its option (for the benefit of the Secured
Parties), to collect and receive, to the extent payable to either Guarantor, all
insurance proceeds, damages, claims and rights of action and the right thereto
under any insurance policies with respect to any casualty or other insured
damage ("CASUALTY") to any portion of any Mortgaged Property (collectively,
"INSURANCE PROCEEDs"), unless the amount of the related Insurance Proceeds is
less than [$100,000] and an Event of Default shall not have occurred and be
continuing. Each Guarantor agrees to notify the Collateral Agent, the holders of
the Tranche A Exchange Notes and the Agent, in writing, promptly after such
Guarantor obtains notice or knowledge of any Casualty to a Mortgaged Property,
which notice shall set forth a description of such Casualty and such Guarantor's
good faith estimate of the amount of related damages. If any Guarantor shall
receive any Insurance Proceeds, such Guarantor agrees, subject to the foregoing
limitations, to endorse and transfer any Insurance Proceeds it receives to the
Collateral Agent.
(b) Each Guarantor will notify the Collateral Agent, the holders of
the Tranche A Exchange Notes and the Agent immediately upon obtaining knowledge
of the institution of any action or proceeding for the taking of any Mortgaged
Property, or any part thereof or interest therein, for public or quasi-public
use under the power of eminent domain, by reason of any public improvement or
condemnation proceeding, or in any other manner (a "CONDEMNATION"). No
settlement or compromise of any claim in connection with any such action or
proceeding shall be made without the consent of the Collateral Agent, which
consent shall not be unreasonably withheld. The Collateral Agent is authorized,
at its option (for the benefit of the Secured Parties), to collect and receive
all proceeds of any such Condemnation (in each case, the "CONDEMNATION
PROCEEDS"). Each Guarantor agrees to execute such further assignment of any
Condemnation Proceeds as the Collateral Agent may reasonably require.
(c) In the event of a Condemnation of all or substantially all of
any Mortgaged Property (which determination shall be made by the Collateral
Agent in its reasonable discretion), unless the applicable Guarantor shall have
notified the Collateral Agent in writing promptly after such Condemnation that
it intends to replace the related Mortgaged Property (and no Default or Event of
Default shall have occurred and be continuing at the time of such election), the
Collateral Agent may deem such event to be a Prepayment Event, and shall apply
the Condemnation Proceeds received as a result of such Condemnation (less the
reasonable costs, if any, incurred by the Collateral Agent or such Guarantor in
the recovery of such Condemnation Proceeds, including reasonable attorneys'
fees, other charges and disbursements (the Collateral Agent having agreed to
reimburse such Guarantor from such Condemnation Proceeds such costs incurred by
such Guarantor)) to prepay obligations outstanding under the Credit Agreement
and outstanding Tranche A Exchange Notes to the extent
5
required under Section 2.13(b) of the Credit Agreement and Section 5.3 of the
Tranche A Exchange Note Purchase Agreements, with any remaining Condemnation
Proceeds being returned to such Guarantor. If the applicable Guarantor shall
elect to replace a Mortgaged Property as contemplated above, (i) the replacement
property shall be of utility comparable to that of the replaced Mortgaged
Property and (ii) the insufficiency of any Condemnation Proceeds to defray the
entire expense of the related location, acquisition and replacement of such
replacement property shall in no way relieve such Guarantor of its obligation to
complete the construction of any replacement property if such Guarantor shall
have made such election and shall have acquired the related real property.
(d) In the event of any Condemnation of the Mortgaged Property, or
any part thereof (other than any Condemnation described in paragraph (c) above
(unless such Condemnation shall not be deemed to be a Prepayment Event or the
applicable Guarantor shall be permitted and shall have elected to replace the
related Mortgaged Property, in each case, as provided in paragraph (c) above)
and subject to the provisions of paragraph (f) below) the Collateral Agent shall
apply the Condemnation Proceeds, FIRST, in the case of a partial Condemnation,
to the repair or restoration of any integrated structure subject to such
Condemnation or, in the case of a total or "substantially all" Condemnation, to
the location of a replacement property, acquisition of such replacement property
and construction of the replacement structures, in each case, under the
conditions specified in paragraph (f) below, and, SECOND, shall apply the
remainder of such Condemnation Proceeds (less the reasonable costs, if any,
incurred by the Collateral Agent or such Guarantor in the recovery of such
Condemnation Proceeds, including reasonable attorneys fees (the Collateral Agent
having agreed to reimburse such Guarantor from such Condemnation Proceeds such
costs incurred by such Guarantor)) to prepay obligations outstanding under the
Credit Agreement and outstanding Tranche A Exchange Notes to the extent required
under Section 2.13(b) of the Credit Agreement and Section 5.3 of the Tranche A
Exchange Note Purchase Agreements with any remaining Condemnation Proceeds being
returned to such Guarantor.
(e) In the event of any Casualty of less than 50% of the useable
square footage of the improvements of any Mortgaged Property, the applicable
Guarantor shall, subject to the conditions contained in clause (f), restore the
Mortgaged Property to substantially its same condition immediately prior to such
Casualty. In the event of any Casualty of greater than 50% of the useable square
footage of the improvements of any Mortgaged Property and so long as no Default
or Event of Default has occurred and is continuing, the applicable Guarantor
shall have the option to either:
(i) restore the Mortgaged Property to a condition substantially
similar to its condition immediately prior to such Casualty and to invest
the balance, if any, of any Insurance Proceeds, in equipment, vehicles or
other assets used in such Guarantor's principal lines of business within
180 days after the receipt thereof, PROVIDED that such Guarantor, pending
such reinvestment, promptly deposits such excess Insurance Proceeds in a
cash collateral account established with the Collateral Agent for the
benefit of the Secured Parties, or
(ii) direct the Collateral Agent to apply the related Insurance
Proceeds to prepay obligations outstanding under the Credit Agreement and
outstanding Tranche A Exchange Notes to the extent required under Section
2.13(b) of the Credit Agreement and Section 5.3 of the Tranche A Exchange
Note Purchase Agreements, with any remaining Insurance Proceeds being
returned to such Guarantor.
It is understood that any excess Insurance Proceeds that are not reinvested in
such Guarantor's principal lines of business contemplated above will be applied
to prepay obligations outstanding under the Credit Agreement and outstanding
Tranche A Exchange Notes to the extent required under Section 2.13(b) of the
Credit Agreement and Section 5.3 of the Tranche A Exchange Note Purchase
Agreements.
If required to do so, the applicable Guarantor shall make the
election contemplated by the immediately preceding paragraph by notifying the
Collateral Agent, the holders of Tranche A Exchange Notes
6
and the Agent promptly after the later to occur of (A) five days after such
Guarantor and its insurance carrier reach a final determination of the amount of
any Insurance Proceeds and (B) 30 days after the occurrence of the Casualty. If
the applicable Guarantor shall be required or shall elect to restore the
Mortgaged Property, the insufficiency of any Insurance Proceeds or Condemnation
Proceeds to defray the entire expense of such restoration shall in no way
relieve such Guarantor of such obligation to so restore if it is so required or
once such election has been made. In the event such Guarantor shall be required
to restore or shall notify the Collateral Agent, the holders of Tranche A
Exchange Notes and the Agent of its election to restore, such Guarantor shall
diligently and continuously prosecute the restoration of the Mortgaged Property
to completion. In the circumstance where the applicable Guarantor shall be
required to restore or shall so elect to restore and no Default or Event of
Default has occurred and is continuing such Guarantor shall not be required to
comply with the requirements of paragraph (f) below in connection with such
restoration (except as required by clauses (f)(i) and (ii)), so long as the cost
of such restoration shall be less than $400,000. In the event of a Casualty
where the applicable Guarantor is required to make the election set forth above
and such Guarantor either shall fail to notify the Collateral Agent, the holders
of Tranche A Exchange Notes and the Agent of its election within the period set
forth above or shall elect not to restore the Mortgaged Property, the Collateral
Agent shall (after being reimbursed for all reasonable costs of recovery of such
Insurance Proceeds including reasonable attorneys' fees and after reimbursing
such Guarantor for all such reasonable costs incurred by such Guarantor) apply
such Insurance Proceeds to prepay obligations outstanding under the Credit
Agreement and outstanding Tranche A Exchange Notes to the extent required under
Section 2.13(b) of the Credit Agreement and Section 5.3 of the Tranche A
Exchange Note Purchase Agreements. In addition, upon such prepayment, the
applicable Guarantor shall be obligated to place the remaining portion, if any,
of the Mortgaged Property in a safe condition that is otherwise in compliance
with the requirements of applicable Governmental Authorities and the provisions
of the Credit Agreement and the applicable Mortgage.
(f) Except as otherwise specifically provided in this Section 9, all
Insurance Proceeds and all Condemnation Proceeds recovered by the Collateral
Agent (A) are to be applied to the restoration of the applicable Mortgaged
Property (or, if permitted in the event of total or "substantially all"
Condemnation as contemplated in paragraph (c) above, to the location,
acquisition and construction of a replacement for the applicable Mortgaged
Property) (less the reasonable cost, if any, to the Collateral Agent of such
recovery and of paying out such proceeds, including reasonable attorneys' fees,
other charges and disbursements and costs allocable to inspecting the Work (as
defined below)) and (B) shall be applied by the Collateral Agent to the payment
of the cost of restoring or replacing the Mortgaged Property so damaged,
destroyed or taken or of the portion or portions of the Mortgaged Property not
so taken (the "WORK") and (C) shall be paid out from time to time to the
applicable Guarantor as and to the extent the Work (or the location and
acquisition of any replacement of any Mortgaged Property) progresses for the
payment thereof, but subject to each of the following conditions:
(i) such Guarantor must promptly commence the restoration process or
the location, acquisition and replacement process (in the case of a total
or "substantially all" Condemnation) in connection with the Mortgaged
Property;
(ii) the Work shall be in the charge of an architect or engineer and
before such Guarantor commences any Work, other than temporary work to
protect property or prevent interference with business, the Collateral
Agent shall have received the plans and specifications and the general
contract for the Work from such Guarantor. Said plans and specifications
shall provide for such Work that, upon completion thereof, the
improvements shall (A) be in compliance with all requirements of
applicable Governmental Authorities such that all representations or
warranties of such Guarantor relating to the compliance of such Mortgaged
Property with applicable laws, rules or regulations in the Credit
Transaction Documents will be correct in all respects and (B) be at least
equal in value and general utility to the improvements that were on such
Mortgaged Property (or that were on the
7
Mortgaged Property that has been replaced, if applicable) prior to the
Casualty or taking, and in the case of a taking, subject to the affect of
such taking;
(iii) except as provided in (iv) below, each request for payment
shall be made on seven days' prior notice to the Collateral Agent and
shall be accompanied by a certificate to be made by such architect or
engineer, stating (A) that all the Work completed has been done in
substantial compliance with the plans and specifications, (B) that the sum
requested is justly required to reimburse such Guarantor for payments by
such Guarantor to, or is justly due to, the contractor, subcontractors,
materialmen, laborers, engineers, architects or other Persons rendering
services or materials for the Work (giving a brief description of such
services and materials) and that, when added to all sums previously paid
out by the Collateral Agent, does not exceed the value of the Work done to
the date of such certificate;
(iv) each request for payment in connection with the acquisition of
a replacement Mortgaged Property (in the case of a total or "substantially
all" Condemnation) shall be made on 30 days' prior notice to the
Collateral Agent and, in connection therewith, (A) each such request shall
be accompanied by a copy of the sales contract or other document governing
the acquisition of the replacement property by such Guarantor and a
certificate of such Guarantor stating that the sum requested represents
the sales price under such contract or document and the related reasonable
transaction fees and expenses (including brokerage fees) and setting forth
in sufficient detail the various components of such requested sum and (B)
such Guarantor shall (1) in addition to any other items required to be
delivered under this Section 9, provide the Agent, the holders of Tranche
A Exchange Notes and the Collateral Agent with such opinions, documents,
certificates, title insurance policies (as required by Section 5.02(l) of
the Credit Agreement and Section 3.14 of the Tranche A Exchange Note
Purchase Agreements), surveys and other insurance policies as they may
reasonably request and (2) take such other actions as the Agent and the
Collateral Agent may reasonable 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(l) of the Credit Agreement
and Section 3.14 of the Tranche A Exchange Note Purchase Agreements and
assignment with respect to such real property for the ratable benefit of
the Secured Parties);
(v) each request shall be accompanied by waivers of liens
satisfactory to the Collateral Agent covering that part of the Work for
which payment or reimbursement is being requested and, if required by the
Collateral Agent, by a search prepared by a title company or licensed
abstractor or by other evidence satisfactory to the Collateral Agent, that
there has not been filed with respect to such Mortgaged Property any
mechanics' or other lien or instrument for the retention of title in
respect of any part of the Work not discharged of record or bonded to the
reasonable satisfaction of the Collateral Agent;
(vi) there shall be no Default or Event of Default that has occurred
and is continuing;
(vii) the request for any payment after the Work has been completed
shall be accompanied by a copy of any certificate or certificates required
by law to render occupancy of the improvements being rebuilt, repaired or
restored legal; and
(viii) after commencing the Work, such Guarantor shall continue to
perform the Work diligently and in good faith to completion in accordance
with the approved plans and specifications.
Upon completion of the Work and payment in full therefor, the Collateral Agent
will disburse to such Guarantor the amount of any Insurance Proceeds or
Condemnation Proceeds then or thereafter in the hands of the Collateral Agent on
account of the Casualty or Taking that necessitated such Work, together with all
undisbursed accrued
8
interest thereon to be applied (x) to prepay obligations outstanding under the
Credit Agreement and outstanding Tranche A Exchange Notes to the extent required
under Section 2.13(b) of the Credit Agreement and Section 5.3 of the Tranche A
Exchange Note Purchase Agreements, with any excess being returned to such
Guarantor, or (y) to be reinvested in such Guarantor's principal lines of
business within 180 days after the receipt thereof, PROVIDED that such
Guarantor, pending such reinvestment, promptly deposits such amounts in a cash
collateral account established with the Collateral Agent for the benefit of the
Secured Parties.
(g) Notwithstanding any other provisions of this Section 9, if the
applicable Guarantor shall have elected to replace a Mortgaged Property in
connection with a total or "substantially all" Condemnation as contemplated in
paragraph (c) above, all Condemnation Proceeds held by the Collateral Agent in
connection therewith shall be applied to prepay obligations outstanding under
the Credit Agreement and outstanding Tranche A Exchange Notes to the extent
required under Section 2.13(b) of the Credit Agreement and Section 5.3 of the
Tranche A Exchange Note Purchase Agreements if (i) such Guarantor notifies the
Collateral Agent, the holders of the Tranche A Exchange Notes and the Agent that
it does not intend to replace the related Mortgaged Property, (ii) an officer of
such Guarantor shall not have notified the Agent, the holders of the Tranche A
Exchange Notes and the Collateral Agent in writing that such Guarantor has
acquired or has entered into a binding contract to acquire land upon which it
will construct the replacement property within six months after the related
Condemnation or (iii) such Guarantor shall have not notified the Agent, the
holders of the Tranche A Exchange Notes and the Collateral Agent in writing that
it has begun construction of the replacement structures within one year after
the related Condemnation. Any funds not required to be applied in accordance
with Section 2.13(b) of the Credit Agreement and Section 5.3 of the Tranche A
Exchange Note Purchase Agreements shall be returned to the applicable Guarantor.
(h) Nothing in this Section 9 shall prevent the Collateral Agent
from applying at any time all or any part of the Insurance Proceeds or
Condemnation Proceeds to the curing of any Event of Default under any Credit
Transaction Document. The provisions of this Section 9 are subject to the
provisions of the Intercreditor Agreement so long as any Tranche A Exchange
Notes are or any Indebtedness under the Credit Agreement is outstanding.
SECTION 10. REAL ESTATE DEVELOPMENT ACTIVITIES. (a) Notwithstanding
any provision of the Credit Transaction Document or any other provision of this
Agreement, but subject to the provisions of this Section 10, either Guarantor
may convey with respect to a contribution or sale (with the related Net Cash
Proceeds, in the case of a sale, being applied in accordance with the provisions
of Section 2.13(b) of the Credit Agreement and Section 5.3 of the Tranche A
Exchange Note Purchase Agreements) a portion of the Land (as defined in the
related Mortgage) that has no significant improvements on it in respect of any
Mortgaged Property to a Permitted Development Entity for the purpose of
developing such conveyed Land, and the Lenders hereby consent to the release by
the Collateral Agent of its Lien on such Land if the following conditions are
satisfied:
(i) such Guarantor shall make no conveyance, contribution, loan or
other investment (other than the conveyance of the Land) to the Permitted
Development Entity in exchange for such Guarantor's ownership interest, if
any, in such Permitted Development Entity;
(ii) the Permitted Development Entity shall have a principal owner
or principal participant (other than such Guarantor) that is the managing
general partner or shareholder of the Permitted Development Entity (A)
whose primary business is the development of real estate projects of the
kind and nature of the proposed development of the Land and who possesses
a minimum of 10 years related experience in such area, (B) who shall have
sufficient net worth at the time the project is proposed and at all times
thereafter in an amount sufficient to lead a reasonable Person to conclude
that such Person is sufficiently capitalized to construct and complete the
proposed project and to comply with the conditions set forth herein and
(C) who shall be directly responsible for all aspects of the development,
financing, construction and operation of the proposed project (the
"PERMITTED DEVELOPER") and such
9
Permitted Developer shall not assign its interest in the Permitted
Development Entity prior to the completion of the proposed project and the
passage of one year;
(iii) such Guarantor shall not be obligated in any respect
(including by way of guarantee) for the obligations of the Permitted
Development Entity or the Permitted Developer (PROVIDED, HOWEVER, that
such Guarantor may indemnify, defend and hold harmless the Permitted
Developer with respect to liabilities and obligations arising under
Environmental and Safety Laws as a result of or in connection with
conditions existing or actions, occurring on or prior to the date of
conveyance of the Land to the Permitted Developer), such Guarantor shall
not make or agree to make any further conveyance, contribution,
investment, loan or guarantee in connection with development of the
conveyed Land or the operation of such Land after the development thereof
and, in that regard, if the Permitted Development Entity is other than a
corporation and such Guarantor is to be an owner in such Permitted
Development Entity, such Guarantor shall be a limited partner in such
entity and not a general partner;
(iv) if the Permitted Development Entity shall be a limited
partnership and such Guarantor is to be an owner in such entity, (A) such
Guarantor shall deliver to the Collateral Agent an opinion of counsel in
form and substance and from counsel reasonably satisfactory to the
Collateral Agent to the effect that such Guarantor is a limited partner in
such Permitted Development Entity and as such is afforded the benefits of
limited liability under the laws of the state of such entity's
organization and (B) such Guarantor shall use its best efforts to secure
indemnities from the Permitted Developer (and/or the other participants in
the proposed project) to such Guarantor, in such form as shall be
satisfactory to the Collateral Agent, in respect of liabilities (including
contingent liabilities) that such Guarantor may incur in the event that
its limited liability status as the holder of a limited partnership
interest is not available to such Guarantor at any time during such
Guarantor's involvement in the Permitted Development;
(v) such Guarantor shall have given the Agent, the holders of the
Tranche A Exchange Notes and the Collateral Agent not less than 60 days'
prior written notice of any such proposed contribution setting forth (A)
the identity of the Permitted Developer and the proposed type of Permitted
Development Entity, (B) a survey of the Land proposed to be conveyed and
its relationship to the remaining Land, which survey shall show, among
other things, the location of the improvements proposed to be constructed
thereon, the location of or access to the conveyed Land and the location
of any easements that will benefit the conveyed land and burden the
remaining Land, (C) the development plans with respect to such conveyed
Land along with a description of the proposed project, (D) information
(including financial information and "track record" information) with
respect to the Permitted Developer and (E) such other information as shall
be necessary or appropriate for the Collateral Agent, the Agent, the
holders of the Tranche A Exchange Notes and the Lenders to evaluate the
proposed development and operation of such conveyed Land, the Permitted
Developer and the Land ownership structure of the related Permitted
Development Entity;
(vi) the Land proposed to be conveyed to the Permitted Development
Entity shall be, after giving effect to such conveyance, unnecessary to
the Mortgaged Property's (including the remaining Land's) use, operation
or continued compliance with all approvals, permits, variances, orders,
licenses or other similar actions of applicable Governmental Authorities
as well as its continued compliance with all material laws, rules,
regulations or statutes of applicable Governmental Authorities (including
any zoning, building, Environmental and Safety Laws, ordinances, codes) or
any restrictions of record or agreement affecting the Mortgaged Property
(including the remaining Land);
10
(vii) the conveyance of such Land to the Permitted Development
Entity for development, the development of such Land and the proposed
operation of such Land as proposed to be developed:
(A) shall not result in the representations and warranties
contained in the related Mortgage, in this Agreement or in any other
Credit Transaction Documents to be untrue;
(B) shall not result in any material adverse effect on the
value or operations of the related Mortgaged Property as a
Truckstop:
(C) shall have no effect on the Collateral Agent's Lien in the
remaining Land under the related Mortgage;
(D) shall not restrict ingress and egress to, the operation of
or in anyway interfere with the business currently conducted on the
Mortgaged Property; and
(E) shall be done and conducted, as applicable, in accordance
with all material 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;
(viii) the Permitted Developer or the Permitted Development Entity
shall cause, at its cost and expense, the Land to be conveyed to the
Permitted Development Entity to be (A) subdivided as a separate legal lot
or lots pursuant to applicable zoning laws and (B) to be classified as a
tax lot separate and apart from the Mortgaged Property that is not to be
conveyed with such Land;
(ix) prior to each of the conveyance of the Land and the
commencement of the development of any conveyed Land, such Guarantor shall
deliver to the Collateral Agent such agreements, certificates (including a
certificate of a Financial Officer of such Guarantor as to the compliance
with the provisions of this paragraph (a)), including opinions of counsel
and endorsements to the mortgagee's title insurance policy and such other
information as the Collateral Agent may deem necessary or appropriate in
connection with such activities; and
(x) such Guarantor shall assign to the Collateral Agent, as
collateral for the benefit of the Secured Parties, all shares,
certificates or the like evidencing its ownership interest, if any, in the
Permitted Development Entity and the proceeds and rights thereto to be
held as Collateral in accordance with the terms of the Pledge Agreement.
(b) In connection with each permitted conveyance of real property
and the development thereof permitted pursuant to paragraph (a) above, the
applicable Guarantor agrees to use its best efforts (but consistent, if
applicable, with its status as a limited partner):
(i) to take or cause to be taken such actions as shall be necessary
or appropriate to continue to comply with the conditions set forth in
paragraph (a) above;
(ii) promptly to deliver to the Agent, the holders of the Tranche A
Exchange Notes and the Collateral Agent written notice if any of the
conditions of this Section 10 shall not be satisfied describing in
reasonable detail which condition shall not be satisfied and setting forth
such Guarantor's proposed actions with respect thereto; and
(iii) not to permit the contributed real property to be used in a
manner inconsistent with the use for which the related property was
contributed.
11
(c) In connection with the conveyance of any Land to a Permitted
Development Entity otherwise permitted pursuant to this Section 10, the
applicable Guarantor may also convey to the related Permitted Development Entity
an easement on the remaining Land, PROVIDED that after giving effect to any such
conveyance the condition, set forth in paragraphs (a)(vi) and (vii) above would
be satisfied.
(d) The provisions of this Section 10 are subject to the provisions
of the Intercreditor Agreement so long as any Tranche A Exchange Notes are or
any Indebtedness under the Credit Agreement is outstanding.
SECTION 11. REPRESENTATIONS AND WARRANTIES. Each Guarantor represents and
warrants to and with the Collateral Agent and each other Secured Party that all
representations and warranties contained in the Credit Transaction Documents
that relate to such Guarantor are true and correct.
SECTION 12. NOTICES. All communications and notices hereunder shall
(except as otherwise expressly permitted herein) be in writing and given as
provided in Section 10.01 of the Credit Agreement and Section 16.6 of the
Tranche A Exchange Note Purchase Agreements. All communications and notices
hereunder to the Collateral Agent shall be given to it at its address set forth
in Annex I hereto.
SECTION 13. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations, warranties and guarantees made by each Guarantor hereunder and
in any certificates or other instruments prepared or delivered in connection
with or pursuant to this Agreement or any other Credit Transaction Document
shall be considered to have been relied upon by the Secured Parties and shall
survive the making by the Lenders of the Loans, the making by the Swingline
Lender of the Swingline Loans and the acceptance by the Tranche A Exchange Note
Purchasers of the Tranche A Exchange Notes, the execution and delivery to the
Tranche A Exchange Note Purchasers of the Tranche A Exchange Notes, and the
issuance by the Fronting Bank of any Letter of Credit, regardless of any
investigation made by the Secured Parties or on their behalf, and shall continue
in full force and effect as long as the principal of or any accrued interest on,
or any other fee or amount payable under or in respect of, any Loan, Swingline
Loan, Tranche A Exchange Note or Letter of Credit, or this Agreement or, without
duplication of the foregoing, under any of the other Credit Transaction
Documents is outstanding and unpaid and so long as the Commitments and the LC
Commitment have not been terminated.
SECTION 14. BINDING EFFECT; ASSIGNMENTS. This Agreement shall become
effective as to either Guarantor when a counterpart hereof executed on behalf of
such Guarantor shall have been delivered to the Collateral Agent and a
counterpart hereof shall have been executed on behalf of the Collateral Agent,
and thereafter shall be binding upon such Guarantor and the Collateral Agent and
their respective successors and assigns, and shall inure to the benefit of such
Guarantor, the Collateral Agent and the other Secured Parties and their
respective successors and assigns, except that neither Guarantor shall have the
right to assign its rights hereunder or any interest herein or in the Collateral
(and any such attempted assignment shall be void) except as expressly
contemplated by this Agreement or the other Credit Transaction Documents.
SECTION 15. SUCCESSORS AND ASSIGNS. Whenever in this Agreement any of the
parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of each Guarantor or the Collateral Agent that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
SECTION 16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 17. WAIVERS; AMENDMENT. (a) No failure or delay of the Collateral
Agent or any other Secured Party in exercising any power or right hereunder and
no course of dealing between the parties hereto shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any
12
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 Collateral Agent hereunder and of
the other Secured Parties under the other Credit Transaction Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provisions of this Agreement or any other
Credit Transaction Document or consent to any departure by either Guarantor
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 any Guarantor in any case shall entitle the Guarantor to any other or further
notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to a written agreement entered into between each
Guarantor and the Collateral Agent, with the prior written consent of the
Required Lenders and the Required Holders; PROVIDED, HOWEVER, that except as
provided herein or in the other Credit Transaction Documents, no such agreement
shall amend, modify, waive or otherwise adversely affect a Secured Party's
rights and interests in any material amount of the Collateral without the prior
written consent of such Secured Party.
SECTION 18. 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 CREDIT TRANSACTION
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 CREDIT TRANSACTION DOCUMENTS,
AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 18.
SECTION 19. SEVERABILITY. In case any one or more of the provisions
contained in this Agreement or in any other Credit Transaction Document should
be held invalid, illegal or unenforceable in any respect with respect to either
Guarantor, the validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby (it being understood that the invalidity of a particular provision in a
particular jurisdiction shall not in and of itself affect the validity of such
provision in any other jurisdiction). 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 20. RIGHT OF SETOFF. Subject to the terms of the Intercreditor
Agreement, if an Event of Default shall have occurred and be continuing under
the Credit Agreement or the Tranche A Exchange Note Purchase Agreements, each
Secured Party is hereby authorized at any time and from time to time, to the
fullest extent permitted by 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 Secured Party to or for the credit
or the account of either Guarantor against any of and all the obligations of
such Guarantor now or hereafter existing under this Agreement irrespective of
whether or not such Secured Party shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each
Secured Party under this Section 20 are in addition to other rights and remedies
(including other rights of setoff) that such Secured Party may have and are
subject to the terms of the Intercreditor Agreement.
13
SECTION 21. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each
Guarantor 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 Credit Transaction 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 the Collateral Agent or any other Secured Party may otherwise have to
bring any action or proceeding relating to this Agreement or the other Credit
Transaction Documents against either Guarantor or its properties in the courts
of any jurisdiction.
(b) Each Guarantor 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 Credit Transaction
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 12. 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 22. TERMINATION. This Agreement and the security interests granted
hereby shall terminate when all the Obligations have been indefeasibly paid in
full and the Lenders and the Swingline Lender have no further commitment to lend
under the Credit Agreement, no Letters of Credit are outstanding and the
Fronting Bank has no further obligation to issue Letters of Credit under the
Credit Agreement.
SECTION 23. HEADINGS. Article and Section headings 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 24. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall constitute an original, but all of which, when taken
together, shall constitute but one instrument.
SECTION 25. INTERCREDITOR AGREEMENT. (a) The Collateral Agent agrees, for
itself and for each other Secured Party, that it and each other Secured Party
shall be bound by the terms of the Intercreditor Agreement in connection with
the administration of this Agreement.
(b) Each Guarantor hereby acknowledges receipt of a copy of and agrees to
be bound by the terms of the Intercreditor Agreement.
SECTION 26. REFERENCES TO CREDIT AGREEMENT. Upon the payment and discharge
in full of all outstanding Credit Agreement Obligations or all outstanding
Tranche A Exchange Note Obligations, all references herein to the terms of the
Credit Agreement or the Tranche A Exchange Note Purchase Agreements, as the case
may be, shall become null and void (other than references for the purpose of
incorporating herein definitions of terms used therein, which terms will
continue to have the meanings assigned thereto immediately prior to such payment
and discharge, subject to subsequent amendment or modifications in accordance
with the terms hereof).
14
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
TA OPERATING CORPORATION,
by
--------------------------------
Name:
Title:
NATIONAL AUTO/TRUCKSTOPS, INC.,
by
--------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as Collateral
Agent,
by
--------------------------------
Name:
Title:
15
EXHIBIT G
INDEMNITY AND SUBROGATION AGREEMENT dated as of March
27, 1997, among TRAVELCENTERS OF AMERICA, INC., a Delaware
corporation (the "BORROWER"), TA OPERATING CORPORATION, a
Delaware corporation ("TA"), NATIONAL AUTO/TRUCKSTOPS, INC., a
Delaware corporation ("NATIONAL" and, together with TA, the
"GUARANTORS"), and THE CHASE MANHATTAN BANK, a New York
banking corporation ("CHASE"), as collateral agent (in such
capacity, the "COLLATERAL AGENT") for the Secured Parties (as
defined in the Credit Agreement referred to below).
Reference is made to (a) the Master Collateral and Intercreditor
Agreement dated as of March 27, 1997 (as amended or modified from time to time,
the "INTERCREDITOR AGREEMENT"), among the Participating Creditors (as defined
therein) and the Collateral Agent and countersigned by the Borrower and the
Guarantors, (b) the Credit Agreement dated as of March 21, 1997 (as amended or
modified from time to time, the "CREDIT AGREEMENT"), among the Borrower, the
financial institutions party thereto, as lenders (the "LENDERS"), and Chase, as
agent (in such capacity, the "AGENT"), as fronting bank (in such capacity, the
"FRONTING BANK") and as swingline lender (in such capacity, the "SWINGLINE
LENDER"); and (c) the Senior Secured Note Exchange Agreements, each dated as of
March 21, 1997 (as amended or modified from time to time, the "TRANCHE A
EXCHANGE NOTE PURCHASE AGREEMENTS"), among the Borrower and the Tranche A
Exchange Note Purchasers named therein.
The Lenders, the Fronting Bank and the Swingline Lender,
respectively, have agreed to make Loans to the Borrower, to issue letters of
Credit for the account of the Borrower and to make Swingline Loans to the
Borrower pursuant to, and upon the terms and subject to the conditions specified
in, the Credit Agreement. The Tranche A Exchange Note Purchasers have agreed to
accept $35,500,000 aggregate principal amount of the Borrower's 8.94% Series I
Senior Secured Notes due 2002 (the "SERIES I TRANCHE A EXCHANGE NOTES") and
$50,000,000 aggregate principal amount of the Borrower's Series II Senior
Secured Notes due 2005 (the "SERIES II TRANCHE A EXCHANGE NOTES" and, together
with the Series I Tranche A Exchange Notes, the "TRANCHE A EXCHANGE NOTES") in
exchange for (i) $65,000,000 aggregate principal amount of the outstanding 8.76%
Senior Secured Notes due 2002 of National (the "NATIONAL SENIOR NOTES") and (ii)
$20,500,000 aggregate principal amount of the outstanding 8.63% Senior Secured
Notes due 2002 of TA (the "TA SENIOR NOTES" and, together with the National
Senior Notes, the "EXISTING SENIOR NOTES") held by them pursuant to, and upon
the terms and subject to the conditions specified in, the Tranche A Exchange
Note Purchase Agreements.
The obligations of the Lenders to make Loans and of the Fronting
Bank to issue Letters of Credit and of the Swingline Lender to make Swingline
Loans under the Credit Agreement and the obligations of the Tranche A Exchange
Note Purchasers to accept the Tranche A Exchange Notes in exchange for the
Existing Senior Notes held by them pursuant to the Tranche A Exchange Note
Purchase Agreements are conditioned upon, among other things, the execution and
delivery by the Guarantors of a guarantee agreement (the "GUARANTEE") and the
execution and delivery, by the Borrower and the Guarantors of an agreement in
the form hereof. Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Credit Agreement, the Tranche A Exchange Note
Purchase Agreements and the other Loan Documents.
Accordingly, the Borrower, the Guarantors and the Collateral Agent
agree as follow:
SECTION 1. INDEMNITY AND SUBROGATION. In addition to all such rights
of indemnity and subrogation as the Guarantors may have under applicable law
(but subject to Section 3), the Borrower agrees that (a) in the event a payment
shall be made by any Guarantor under the Guarantee, the Borrower shall indemnify
such Guarantor for the full amount of such payment and such Guarantor shall be
subrogated to the rights of the person to whom such payment shall have been made
to the extent of such payment and (b) in the event any asset of any Guarantor
shall be sold pursuant to any Security Document to satisfy a claim of any
Secured Party, the Borrower shall indemnify such Guarantor in an amount equal to
the greater of the book value or the fair market value of the assets so sold.
SECTION 2. CONTRIBUTION AND SUBROGATION. Each Guarantor (a
"CONTRIBUTING GUARANTOR") agrees (subject to Section 3) that, in the event a
payment shall be made by any other Guarantor under the Guarantee or assets of
any other Guarantor shall be sold pursuant to any Security Document to satisfy a
claim of any Secured Party and such other Guarantor (the "CLAIMING GUARANTOR")
shall not have been fully indemnified by the Borrower as provided in Section 1,
the Contributing Guarantor shall indemnify the Claiming Guarantor in an amount
equal to the amount of such payment or the greater of the book value
2
or the fair market value of such assets, as the case may be, in each case
multiplied by a fraction of which the numerator shall be the net worth of the
Contributing Guarantor on the date hereof and the denominator shall be the
aggregate net worth of all the Guarantors on the date hereof. Any Contributing
Guarantor making any payment to a Claiming Guarantor pursuant to this Section 2
shall be subrogated to the rights of such Claiming Guarantor under Section 1 to
the extent of such payment.
SECTION 3. SUBORDINATION. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantor under Sections 1 and 2
and all other rights or indemnity, contribution or subrogation under applicable
law, or otherwise shall be fully subordinated to the indefeasible payment in
full of the Obligations; PROVIDED, HOWEVER, that to the extent any right of
indemnity or subrogation that any Guarantor might have pursuant to this
Agreement or otherwise would render such Guarantor a "creditor" of the Borrower
within the meaning of Section 547 of Title II of the United States Code as now
in effect or hereafter amended or any comparable provision of any successor
statute, such Guarantor hereby irrevocably waives such right of indemnity or
subrogation. No failure on the part of the Borrower or any Guarantor to make the
payments required by Sections 1 and 2 (or any other payments required under
applicable law or otherwise) shall in any respect limit the obligations and
liabilities of any Guarantor with respect to the Guarantee, and each Guarantor
shall remain liable for the full amount of the obligations of such Guarantor
under the Guarantee.
SECTION 4. TERMINATION. This Agreement shall survive and be in full
force and effect so long as any Obligation is outstanding and has not been
indefeasibly paid in full in cash, and so long as the LC Exposure has not been
reduced to zero or any of the Commitments or the LC Commitment under the Credit
Agreement have not been terminated, and shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
principal of or interest on an), Obligation is rescinded or must otherwise be
restored by the Secured Party or any Guarantor upon the bankruptcy or
reorganization of the Borrower, any Guarantor or otherwise.
SECTION 5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. NO WAIVER. No failure on the part of the Collateral Agent
or the right, power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy by the
Collateral Agent or any Guarantor preclude any other to further exercise thereof
or the exercise of any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies provided by law. None the
Collateral Agent and the Guarantors shall be deemed to have exercised any rights
hereunder unless such waiver shall be in writing and signed by such parties.
SECTION 7. NOTICES. All communications, and notices hereunder shall
be in writing and given as provided in Section 12 of the Guarantee and addressed
as specified in Section 12.
SECTION 8. BINDING AGREEMENT; ASSIGNMENTS. Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successor and assigns of such party; and all covenants,
promises and agreements by or on behalf of the parties that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns. Neither the Borrower nor any Guarantor may assign or
transfer any of its rights or obligations hereunder (and any such attempted
assignment or transfer shall be void) without the prior written consent of the
Required Lenders and the Required Holders.
SECTION 9. SURVIVAL OF AGREEMENT; SEVERABILITY. (a) All covenants,
agreements, representations, warranties and guarantees made by the Borrower and
each Guarantor hereunder and in any 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 Secured Parties and
shall survive the making by the Lenders of the Loans, the making by the
Swingline Lender of the Swingline Loans and the purchase by the Tranche A
Exchange Note Purchasers of the Tranche A Exchange Notes, the execution and
delivery to the Tranche A Exchange Note Purchasers of the Tranche A Exchange
Notes, and the issuance by the Fronting Bank of any Letter of Credit, regardless
of any investigation made by the Secured Parties or on their behalf, and shall
continue in full force and effect as long as the principal of or any accrued
interest on, or any other fee or amount payable under or in respect of, any
Loan, Swingline Loan, Tranche A Exchange Note or Letter of Credit, or this
Agreement or, without duplication of the foregoing, under any of the other Loan
Documents, is outstanding and unpaid and so long as the Commitments and the LC
Commitment have not been terminated.
3
(b) In case any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, no
party hereto shall be required to comply with such provision for so long as such
provision is held to be invalid, illegal or unenforceable, but the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any 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. 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 instrument. This Agreement shall
be effective with respect to any Guarantor when a counterpart bearing the
signature of such Guarantor shall have been delivered to the Collateral Agent.
SECTION 11. RULES OF INTERPRETATION. The rules of interpretation
specified in Section 1.02 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 12. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each of
the Borrower and the Guarantors hereby irrevocably and unconditionally submits,
for itself and its property, to the 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 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.
Each of the parties hereto agrees that it will not institute or seek to
institute any action or proceeding arising
4
out of or relating to this Agreement (other than an action or proceeding seeking
enforcement of a judgment) in any forum other than a New York State court or
Federal court of the United States of America sitting in New York City.
(b) Each of the Borrower and the Guarantors hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection 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 in any
New York State or Federal court of the United States of America sitting in New
York. 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 7. 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 13. 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. 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 by,
among other things, the mutual waivers and certifications in this Section.
SECTION 14. REFERENCE TO CREDIT AGREEMENT. Upon the payment and
discharge in full of all outstanding Credit Agreement Obligations or all
outstanding Tranche A Exchange Note Obligations, all references herein to the
terms of the Credit Agreement or the Tranche A Exchange Note Agreements, as the
case may be, shall become null and void (other than references for the purpose
of incorporating herein definitions of terms used therein, which terms will
continue to have the meanings assigned thereto immediately prior to such payment
and discharge, subject to subsequent amendment or modifications in accordance
with the terms hereof).
5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers as of the date first appearing
above.
TRAVELCENTERS OF AMERICA, INC.,
by
----------------------------
Name:
Title:
TA OPERATING CORPORATION,
by
----------------------------
Name:
Title:
NATIONAL AUTO/TRUCKSTOPS, INC.,
by
----------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as Collateral
Agent,
by
----------------------------
Name:
Title:
EXHIBIT H
MASTER COLLATERAL AND INTERCREDITOR AGREEMENT dated
as of March 27, 1997, among the Participating Creditors (as
defined below) and The Chase Manhattan Bank, a New York
banking corporation ("CHASE"), as collateral agent (the
"COLLATERAL AGENT") for the Participating Creditors.
A. The Lenders (as defined below) have agreed to extend credit in an
aggregate principal amount of up to $120,000,000 to TravelCenters of America,
Inc., a Delaware corporation (the "COMPANY"), pursuant to the Credit Agreement
dated as of March 21, 1997 (as amended and in effect from time to time, the
"CREDIT AGREEMENT"), among the Company, the financial institutions party thereto
as lenders (the "LENDERS"), and Chase, as agent for the Lenders (in such
capacity the "AGENT"), as fronting bank (in such capacity, the "FRONTING BANK")
and as swingline lender (in such capacity, the "SWINGLINE LENDEr" and, together
with the Lenders, the Agent and the Fronting Bank, the "CREDIT AGREEMENT
CREDITORS").
B. The Tranche A Exchange Note Purchasers (as defined below) have agreed
to accept $35,500,000 aggregate principal amount of the Company's 8.94% Series I
Senior Secured Notes due 2002 (the "SERIES I TRANCHE A EXCHANGE NOTES") and
$50,000,000 aggregate principal amount of the Company's Series II Senior Secured
Notes due 2005 (the "SERIES II TRANCHE A EXCHANGE NOTES" and, together with the
Series I Tranche A Exchange Notes, the "TRANCHE A EXCHANGE NOTES") in exchange
for (i) $65,000,000 aggregate principal amount of the outstanding 8.76% Senior
Secured Notes due 2002 (the "NATIONAL SENIOR NOTES") of National
Auto/Truckstops, Inc., a Delaware corporation ("NATIONAL"), and (ii) $20,500,000
aggregate principal amount of the outstanding 8.63% Senior Secured Notes due
2002 (the "TA SENIOR NOTES" and together with the National Senior Notes, the
"EXISTING SENIOR NOTES") of TA Operating Corporation, a Delaware corporation
("TA"), pursuant to the Senior Secured Note Exchange Agreements, each dated as
of March 21, 1997 (as amended and in effect from time to time, the "TRANCHE A
EXCHANGE NOTE PURCHASE AGREEMENTS"), among the Company and the respective
financial institutional investors party thereto (collectively, the "TRANCHE A
EXCHANGE NOTE PURCHASERS").
C. Pursuant to the Credit Agreement and the Tranche A Exchange Note
Purchase Agreements, (i) the Company, TA, National and TA Franchise Systems
Inc., a Delaware corporation ("TAFSI"), are entering into certain Security
Documents (as defined below), under which they are granting to the Collateral
Agent a lien on and security interest in certain of their properties and assets
to secure the Obligations (as defined below), and (ii) TA and National are
entering into a Guarantee Agreement (as defined below) under which each is
guaranteeing the Obligations.
D. To induce the Tranche A Exchange Note Purchasers to accept the Tranche
A Exchange Notes in exchange for the Existing Senior Notes held by them pursuant
to the Tranche A Exchange Note Purchase Agreements, each of the Credit Agreement
Creditors is willing to enter into this Agreement. To induce each of the
Lenders, the Swingline Lender and the Fronting Bank to extend credit to the
Company pursuant to the Credit Agreement, each of the Tranche A Exchange Note
Purchasers is willing to enter into this Agreement. In extending credit to the
Company and in entering into this Agreement, each of the Credit Agreement
Creditors is relying on the undertakings of each of the Tranche A Exchange Note
Purchasers as set forth herein. In acquiring the Tranche A Exchange Notes and in
entering into this Agreement, each of the Tranche A Exchange Note Purchasers is
relying on the undertakings of each of the Credit Agreement Creditors as set
forth herein.
E. Each of the Participating Creditors (as defined below) desires to
provide for their respective rights in respect of the Collateral and certain
collections from the Company, TA, National and TAFSI and to make certain other
commitments and undertakings in connection with the Credit Agreement, the
Tranche A Exchange Note Purchase Agreements, the Security Documents, the
Guarantee Agreement, the obligations incurred by the Company, TA, National and
TAFSI under such agreements and the rights of the Participating Creditors under
such agreements.
Accordingly, each of the Participating Creditors and the Collateral Agent
hereby agrees as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS OF CERTAIN TERMS. As used herein, the following
terms shall have the meanings set forth below:
"ACTIONABLE DEFAULT" shall mean any Event of Default under and as defined
in the Credit Agreement or any Event of Default under and as defined in the
Tranche A Exchange Note Purchase Agreements.
"AFFILIATE" shall have the meaning set forth in the Credit Agreement and
the Tranche A Exchange Note Purchase Agreements.
"BUSINESS DAY" shall mean any day (other than a day that is a Saturday, a
Sunday or a legal holiday in the State of New York) on which banks are open for
business in New York City.
"COLLATERAL" shall mean all the properties and assets of whatever nature,
tangible or intangible, now owned or existing or hereafter acquired or arising,
of the Company, TA, National and TAFSI on or in which the Collateral Agent has
been granted a Lien or security interest pursuant to any of the Security
Documents.
"COLLATERAL ACCOUNTS" shall have the meaning set forth in Section 4.01.
"COMMITMENT" shall have the meaning set forth in the Credit Agreement.
"CREDIT AGREEMENT CREDITORS" shall have the meaning assigned in the
preamble to this Agreement.
"CREDIT AGREEMENT REFINANCING Indebtedness" shall have the meaning
assigned to such term in the Tranche A Exchange Note Purchase Agreements.
"CREDIT TRANSACTION DOCUMENTS" shall mean the Loan Documents (as defined
in the Credit Agreement) and the Financing Documents (as defined in the Tranche
A Exchange Note Purchase Agreements).
"GUARANTEE AGREEMENT" shall mean the Guarantee Agreement dated as of the
date hereof entered into by TA and National pursuant to the Credit Agreement and
the Tranche A Exchange Note Purchase Agreements, as amended and in effect from
time to time.
"LETTER OF CREDIT" shall mean any letter of credit issued by the Fronting
Bank pursuant to the Credit Agreement.
"LETTER OF CREDIT COLLATERAL ACCOUNT" shall have the meaning set forth in
Section 4.01.
"LC DISBURSEMENT" shall mean a payment or disbursement made by the
Fronting Bank pursuant to a Letter of Credit.
"LIEN" shall have the meaning set forth in the Credit Agreement and the
Tranche A Exchange Note Purchase Agreements.
"LOANS" shall have the meaning set forth in the Credit Agreement.
"LOC CREDITORS" shall mean the Fronting Bank and the Lenders that hold
participations in Letters of Credit.
"MAJORITY CREDITORS" shall mean Participating Creditors holding Voting
Obligations representing a majority of the Voting Obligations.
"NOTICE OF ACTIONABLE DEFAULT" shall mean a notice delivered by any
Participating Creditor to the Collateral Agent, stating that an Actionable
Default has occurred. A Notice of Actionable Default shall be
2
deemed to have been given when the notice referred to in the preceding sentence
has actually been received by the Collateral Agent and to have been rescinded
when the Collateral Agent has received satisfactory evidence that such
Actionable Default has been cured or when such Actionable Default has been
effectively waived for purposes of this Agreement. A Notice of Actionable
Default shall be deemed to be outstanding at all times after such Notice has
been given until such time, if any, as such Notice has been rescinded.
"OBLIGATIONS" shall mean all obligations defined as "Obligations" in the
Support Documents.
"OUTSTANDING CREDIT AGREEMENT OBLIGATIONS" shall mean, at any time, the
sum (without duplication) of Outstanding Revolving Credit Facility Obligations
and Outstanding Term Facility Obligations.
"OUTSTANDING REVOLVING CREDIT FACILITY OBLIGATIONS" shall mean, at any
time, the sum (without duplication) of (a) the aggregate principal amount of the
Revolving Credit Loans and the Swingline Loans outstanding at such time and the
aggregate amount of accrued and unpaid interest thereon at such time, (b) the
aggregate amount of all LC Disbursements not yet reimbursed to the LOC Creditors
and accrued and unpaid interest thereon at such time, (c) the aggregate amount
of accrued and unpaid fees payable to the Credit Agreement Creditors, or any of
them, under or in connection with the obligations set forth in clauses (a) and
(b) under the Credit Agreement and (d) the pro rata share (determined as
provided below) of the aggregate amount of all other monetary obligations of the
Company, TA, National and TAFSI that are accrued and owing at such time to the
Credit Agreement Creditors or any of them under the Credit Agreement and the
Support Documents, including indemnification and expense reimbursement
obligations (but excluding any Unfunded LOC Exposure). For purposes of
determining the pro rata share of the aggregate amount of monetary obligations
owed to the Lenders pursuant to clause (d) above, such amount shall be
determined on the basis of the ratio of (i) the amount owed to the Lenders
pursuant to clauses (a), (b) and (c) of this definition to (ii) the sum of (A)
the amount owed to the Lenders pursuant to clauses (a), (b) and (c) of this
definition and (B) the amounts owed to the Lenders pursuant to clauses (a) and
(b) of the definition of the term "OUTSTANDING TERM FACILITY OBLIGATIONs".
"OUTSTANDING TERM FACILITY OBLIGATIONS" shall mean, at any time, the sum
(without duplication) of (a) the aggregate principal amount of the Term Loans
outstanding at such time and the aggregate amount of accrued and unpaid interest
thereon at such time, (b) the aggregate amount of accrued and unpaid fees
payable to the Credit Agreement Creditors, or any of them, under or in
connection with the obligations set forth in clause (a) under the Credit
Agreement and (c) the pro rata share (determined as provided below) of the
aggregate amount of all other monetary obligations of the Company, TA, National
and TAFSI that are accrued and owing at such time to the Credit Agreement
Creditors or any of them under the Credit Agreement and the Support Documents,
including indemnification and expense reimbursement obligations. For purposes of
determining the pro rata share of the aggregate amount of monetary obligations
owed to the Lenders pursuant to clause (c) above, such amount shall be
determined on the basis of the ratio of (i) the amount owed to the Lenders
pursuant to clauses (a) and (b) of this definition to (ii) the sum of (A) the
amount owed to the Lenders pursuant to clauses (a) and (b) of this definition
and (B) the amounts owed to the Lenders pursuant to clauses (a), (b) and (c) of
the definition of the term "Outstanding Revolving Credit Facility Obligations".
"OUTSTANDING OBLIGATIONS" shall mean, at any time, the sum of (a) the
Outstanding Credit Agreement Obligations at such time, (b) the Outstanding
Tranche A Exchange Note Purchase Agreement Obligations at such time and (c) the
Unfunded LOC Exposure at such time.
"OUTSTANDING TRANCHE A EXCHANGE NOTE PURCHASE AGREEMENT OBLIGATIONS" shall
mean, at any time, the sum (without duplication) of (a) the aggregate principal
amount of the outstanding Tranche A Exchange Notes at such time and the
aggregate amount of accrued and unpaid interest thereon at such time and (b) the
aggregate amount of all other monetary obligations of the Company, TA, National
and TAFSI that are accrued and owing at such time to the Tranche A Exchange Note
Purchasers or any of them under the Tranche A Exchange Note Purchase Agreements
and the Support Documents, including indemnification and expense reimbursement
obligations and premium and any break funding cost, if any.
"PARTIAL MORTGAGE" shall have the meaning set forth in Section 4.01(h).
"PARTICIPATING CREDITORS" shall mean the Credit Agreement Creditors and
the Tranche A Exchange Note Purchasers and their respective successors and
permitted assigns under the Credit Agreement or the Tranche A Exchange Note
Purchase Agreements (including the holders from time to time of the Tranche A
Exchange Notes), as the case may be.
3
"PAYMENT DEFAULT" shall mean any Actionable Default arising from a failure
to pay any of the Outstanding Credit Agreement Obligations or Outstanding
Tranche A Exchange Note Purchase Agreement Obligations when and as due, but only
if such Obligations that have not been paid include principal, interest,
premium, fees or unreimbursed LC Disbursements.
"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
Investors Service, Inc.;
(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 Collateral 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 (A) has a
combined capital and surplus and undivided profits of not less than
$250,000,000 and (B) 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 Investors Service, Inc., or carry 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 Collateral Agent or (ii) the holding company of any other
commercial bank of recognized standing organized under the laws of the
United States of America or any state thereof that has (A) a combined
capital and surplus in excess of $250,000,000 and (B) commercial paper
rated at least A-1 or the equivalent thereof by Standard & Poor's or at
least P-1 or the equivalent thereof by Xxxxx'x Investors Service, Inc., 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 Agent or (ii) any domestic office of any
other commercial bank of recognized standing organized under the laws of
the United States of America or any state thereof that has a combined
capital and surplus and undivided profits of not less than $250,000,000
and which is rated (or the senior debt securities of the holding company
of such commercial bank are rated) A or better by Standard & Poor's or A2
by Xxxxx'x Investors Service, Inc., 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 on the order of the Collateral Agent; and
(f) other investment instruments approved in writing by the Required
Creditors and offered by financial institutions which have a combined
capital and surplus and undivided profits of not less than $250,000,000.
"REQUIRED CREDIT AGREEMENT CREDITORS" shall mean the Credit Agreement
Creditors holding a majority of the Voting Credit Agreement Obligations.
"REQUIRED CREDITORS" shall mean the Majority Creditors, so long as at the
time of determination such Majority Creditors shall include (a) Voting Credit
Agreement Obligations representing at least 33-1/3% of the Voting Credit
Agreement Obligations (excluding Voting Credit Agreement Obligations owed to any
Tranche A Exchange Note Purchaser or any Affiliate thereof) and (b) Voting
Tranche A Exchange Note Purchase Agreement Obligations representing at least
33-1/3% of the Voting Tranche A Exchange Note Purchase Agreement
4
Obligations (excluding Voting Tranche A Exchange Note Purchase Agreement
Obligations owed to any Credit Agreement Creditor or any Affiliate thereof).
"REVOLVING CREDIT FACILITY COLLATERAL ACCOUNT" shall have the meaning set
forth in Section 4.01.
"SECURITY DOCUMENTS" shall mean each of the documents and agreements
defined as a "Security Document" in the Tranche A Exchange Note Purchase
Agreements and the Credit Agreement.
"SPECIAL COLLATERAL ACCOUNT" shall have the meaning set forth in Section
7.02(b).
"SUBORDINATED NOTE INDENTURE" shall have the meaning set forth in the
Credit Agreement and the Tranche A Exchange Note Purchase Agreements.
"SUBORDINATED NOTE REFINANCING INDEBTEDNESS" shall have the meaning
assigned to such term in the Credit Agreement.
"SUPPORT DOCUMENTS" shall mean the Security Documents and the Guarantee
Agreement.
"TERM FACILITY COLLATERAL ACCOUNT" shall have the meaning set forth in
Section 4.01.
"TRANCHE A EXCHANGE NOTE PURCHASE AGREEMENT COLLATERAL ACCOUNT" shall have
the meaning set forth in Section 4.01.
"TRANCHE A EXCHANGE NOTE REFINANCING INDEBTEDNESS" shall have the meaning
assigned to such term in the Credit Agreement.
"UNFUNDED LOC EXPOSURE" shall mean, at any time, the aggregate undrawn
amount of all outstanding Letters of Credit at such time.
"VOTING ACTIONS" shall mean (a) all amendments and modifications to, and
waivers of any provisions of, and consents granted under, any of the Support
Documents and (b) any delivery of a notice, determination or any other action
whatsoever permitted to be taken or withheld by the Collateral Agent pursuant to
Section 7.08.
"VOTING CREDIT AGREEMENT OBLIGATIONS" shall mean, at any time, (a) the
aggregate principal amount of the Loans and the Swingline Loans outstanding at
such time, (b) the Unfunded LOC Exposure at such time, (c) the aggregate amount
of unreimbursed LC Disbursements at such time and (d) the aggregate unused
amount of the Commitments in effect at such time, PROVIDED that any of the
foregoing obligations owed to the Company, any Subsidiary or any Affiliate of
the Company at such time shall be deemed not to be outstanding for purposes of
this definition.
"VOTING OBLIGATIONS" shall mean the Voting Credit Agreement Obligations
and the Voting Tranche A Exchange Note Purchase Agreement Obligations.
"VOTING TRANCHE A EXCHANGE NOTE PURCHASE AGREEMENT OBLIGATIONS" shall
mean, at any time, the aggregate principal amount of the outstanding Tranche A
Exchange Notes at such time, PROVIDED that any Tranche A Exchange Notes owned by
the Company, any Subsidiary or any Affiliate of the Company at such time shall
be deemed not to be outstanding for the purposes of this definition.
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 and Sections shall be deemed references to Articles and
Sections of this Agreement unless the context shall otherwise require.
5
ARTICLE II
ACTS OF PARTICIPATING CREDITORS;
AMOUNTS OF OBLIGATIONS
SECTION 2.01. ACTS OF PARTICIPATING CREDITORS. Any request, demand,
authorization, direction, notice, consent, waiver or other action permitted or
required by this Agreement to be given or taken by the Participating Creditors
or any portion thereof (including the Required Creditors or the Majority
Creditors) may be and, at the request of the Collateral Agent, shall be embodied
in and evidenced by one or more instruments satisfactory in form to the
Collateral Agent and signed by or on behalf of such persons and, except as
otherwise expressly provided in any such instrument, any such action shall
become effective when such instrument or instruments shall have been delivered
to the Collateral Agent. The instrument or instruments evidencing any action
(and the action embodied therein and evidenced thereby) are sometimes referred
to herein as an "ACT" of the persons signing such instrument or instruments. The
Collateral Agent shall be entitled to rely absolutely upon an Act of any
Participating Creditor if such Act purports to be taken by or on behalf of such
Participating Creditor, and nothing in this Section 2.01 or elsewhere in this
Agreement shall be construed to require any Participating Creditor to
demonstrate that it has been authorized to take any action that it purports to
be taking, the Collateral Agent being entitled to rely conclusively, and being
fully protected in so relying, on any Act of such Participating Creditor.
SECTION 2.02. DETERMINATION OF AMOUNTS OF OBLIGATIONS. Whenever the
Collateral Agent is required to determine the existence or amount of any of the
Outstanding Obligations or Voting Obligations or any portion thereof or the
existence of any Actionable Default for any purposes of this Agreement, it shall
be entitled to make such determination on the basis of one or more certificates
of any Participating Creditor (with respect to the Obligations owed to such
Participating Creditor) or the Agent (with respect to the Obligations owed to
the Credit Agreement Creditors, or any of them); PROVIDED, HOWEVER, that if,
notwithstanding the request of the Collateral Agent, any Participating Creditor
shall fail or refuse within five business days of such request to certify as to
the existence or amount of any Outstanding Obligations or Voting Obligations or
any portion thereof owed to it or the existence of any Actionable Default, the
Collateral Agent shall be entitled to determine such existence or amount by such
method as the Collateral Agent may, in its sole discretion, determine, including
by reliance upon a certificate of the Company, TA, National or TAFSI; PROVIDED
FURTHER, HOWEVER, that, promptly following determination of any such amount, the
Collateral Agent shall notify such Participating Creditor of such determination
and thereafter shall correct any error that such Participating Creditor brings
to the attention of the Collateral Agent. In addition, the Collateral Agent may
rely on any certificate of the Company with respect to the amount of Notes
considered not outstanding for purposes of the definition of the terms "Voting
Tranche A Exchange Note Purchase Agreement Obligations" and "Voting Obligations"
as a result of such notes being owned by the Company, any Subsidiary or any
Affiliate of the Company. The Collateral Agent may rely conclusively, and shall
be fully protected in so relying, on any determination made by it in accordance
with the provisions of the preceding sentence (or as otherwise directed by a
court of competent jurisdiction) and shall have no liability to the Company, TA,
National or TAFSI, any Participating Creditor or any other person as a result of
any action taken by the Collateral Agent based upon such determination prior to
receipt of notice of any error in such determination. Upon any request of the
Collateral Agent, the Company will, and by countersigning this Agreement the
Company agrees to, as promptly as practicable furnish a certificate to the
Collateral Agent as to the existence or amount of any Outstanding Obligation or
Voting Obligation or as to the existence of any Actionable Default. For all
purposes of this Agreement to the extent any Outstanding Obligation has been
taken into account for purposes of determining the amount to which any
Participating Creditor is entitled in any distribution hereunder, any guarantee
of such Outstanding Obligation that is itself an Outstanding Obligation shall
not be taken into account for such purpose.
SECTION 2.03. RESTRICTIONS ON ACTIONS. Each Participating Creditor agrees
that, as long as any Outstanding Obligations exist, the provisions of this
Agreement shall provide the exclusive method by which any Participating Creditor
may exercise rights and remedies under the Support Documents. Therefore, each
Participating Creditor shall, for the mutual benefit of all Participating
Creditors, except as permitted under this Agreement:
(a) refrain from taking or filing any action, judicial or otherwise,
to enforce any rights or pursue any remedies under the Support Documents,
except for delivering notices hereunder; and
(b) refrain from exercising any rights or remedies under the Support
Documents that may be exercisable as a result of an Actionable Default;
6
PROVIDED, HOWEVER, that the foregoing shall not prevent (i) any Participating
Creditor from imposing a default rate of interest in accordance with the Credit
Agreement or the Tranche A Exchange Note Purchase Agreements, as applicable,
(ii) a Participating Creditor from raising any defenses in any action in which
it has been made a party defendant or has been joined as a third party, except
that the Collateral Agent may direct and control any defense to the extent
directly relating to the Collateral or any one or more of the Support Documents,
subject to and in accordance with the provisions of this Agreement, or (iii) a
Participating Creditor from exercising its rights and remedies as a general
creditor in accordance with the Credit Transaction Documents and applicable law,
including the right to commence legal proceedings to collect any Outstanding
Obligation due and payable to such Participating Creditor and remaining unpaid,
to obtain a judgment and to enforce such judgment, in each case to the same
extent as if such Participating Creditor were an unsecured creditor.
ARTICLE III
DUTIES OF COLLATERAL AGENT
SECTION 3.01. NOTICES TO PARTICIPATING CREDITORS. The Collateral Agent
shall promptly notify each Participating Creditor listed on Schedules I and II
in the event it shall receive any Notice of Actionable Default or certificate
rescinding a Notice of Actionable Default or any request by any party hereto or
by the Company, TA, National or TAFSI for any consent, waiver or amendment with
respect hereto or any other Credit Transaction Document.
SECTION 3.02. ACTIONS UNDER SUPPORT DOCUMENTS. (a) The Collateral Agent
shall not be obligated to take any action under this Agreement or any of the
Support Documents except for the performance of such duties as are specifically
set forth herein or therein. Subject to the provisions of Article V and Section
7.05, the Collateral Agent shall take any action under or with respect to the
Support Documents that is requested by the Required Creditors and which is not
inconsistent with or contrary to the provisions of this Agreement or the Support
Documents. The Collateral Agent may take, but shall have no obligation to take,
any and all such actions under the Support Documents or any of them or otherwise
as it shall deem to be in the best interests of the Participating Creditors in
order to maintain the Collateral and protect and preserve the Collateral and the
rights of the Participating Creditors; PROVIDED, HOWEVER, that, except as
provided in paragraph (b) below or the last sentence of Section 5.03(d), in the
absence of written instructions (which may relate to the exercise of specific
remedies or to the exercise of remedies in general) from the Required Creditors,
the Collateral Agent shall not foreclose any Lien on the Collateral or exercise
any other remedies available to it under any Support Documents with respect to
the Collateral or any part thereof.
(b) If the Collateral Agent has requested instructions from the Required
Creditors at a time when a Notice of Actionable Default shall be outstanding and
the Required Creditors have not responded to such request within 30 days
thereafter, the Collateral Agent may take, but shall have no obligation to take,
any and all actions under the Support Documents or any of them or otherwise,
including foreclosure of any Lien or any other exercise of remedies, as the
Collateral Agent, in good faith, shall determine to be in the interests of the
Participating Creditors and to maximize both the value of the Collateral and the
present value of the recovery by each of the Participating Creditors on the
Outstanding Obligations; PROVIDED, HOWEVER, that, if instructions are thereafter
received from the Required Creditors, then the actions of the Collateral Agent
shall be subject to paragraph (a) above.
SECTION 3.03. MEETINGS; VOTING. (a) When the Collateral Agent receives a
Notice of Actionable Default, the Collateral Agent shall give prompt notice
thereof to the Participating Creditors and, upon the request of any
Participating Creditor, shall schedule a meeting of all Participating Creditors
to be held at the offices of the Collateral Agent, or another mutually
convenient place, PROVIDED that any Participating Creditor may participate via
telephone. At such meeting the Participating Creditors shall consult with one
another in an attempt to determine a mutually acceptable course of conduct
regarding the Company, TA, National, TAFSI, the collection of the Outstanding
Obligations and the exercise of rights and remedies under the Support Documents.
(b) Whenever it is necessary to take any Voting Action, the Collateral
Agent shall notify each Participating Creditor entitled to participate therein
of the proposed Voting Action, shall collect instructions from the Participating
Creditors regarding such Voting Action and shall notify all Participating
Creditors entitled to participate in such Voting Action of the results thereof.
7
SECTION 3.04. RECORDS. The Collateral Agent shall maintain records
regarding Voting Actions, determinations of the amounts of the Outstanding
Obligations and Voting Obligations for any purpose, the allocation of deposits
to the Collateral Accounts and any distributions therefrom. The information
contained in such records shall be made available to any Participating Creditor
upon request.
ARTICLE IV
PROCEEDS RECEIVED UNDER SUPPORT DOCUMENTS
SECTION 4.01. COLLATERAL ACCOUNTS. (a) The Collateral Agent shall
establish and maintain at its principal banking office in New York City four
accounts into which it shall (except as otherwise explicitly provided in any
Support Document) deposit all amounts received by it in its capacity as
Collateral Agent (and not in any other capacity) in respect of the Collateral or
pursuant to enforcement of the Guarantee Agreement upon an Actionable Default,
including all monies received on account of any sale of or other realization
upon any of the Collateral pursuant to any Security Document; PROVIDED, HOWEVER,
that notwithstanding any other provision of this Agreement, amounts that Chase
shall receive on account of the Outstanding Credit Agreement Obligations in its
capacity as Agent, and not through enforcement of the Guarantee Agreement upon
an Actionable Default or through the sale of or other realization upon any
Collateral as provided herein and in the Security Documents, shall be
distributed by it in accordance with the provisions of the Credit Agreement and
shall not be deposited in the Collateral Accounts. One of the four accounts
referred to in the preceding sentence shall be established and maintained for
the benefit of the Credit Agreement Creditors in respect of the Outstanding
Revolving Credit Facility Obligations (the "REVOLVING CREDIT FACILITY COLLATERAL
ACCOUNT"), the second shall be established and maintained for the benefit of the
Credit Agreement Creditors in respect of the Outstanding Term Facility
Obligations (the "TERM FACILITY COLLATERAL ACCOUNT"), the third account shall be
established and maintained for the benefit of the Tranche A Exchange Note
Purchasers (the "TRANCHE A EXCHANGE NOTE PURCHASE AGREEMENT COLLATERAL ACCOUNT")
and the fourth shall be established and maintained for the benefit of the LOC
Creditors (the "LETTER OF CREDIT COLLATERAL ACCOUNT" and, together with the
Revolving Credit Facility Collateral Account, the Term Facility Collateral
Account and the Tranche A Exchange Note Purchase Agreement Collateral Account,
the "COLLATERAL ACCOUNTS"). All amounts deposited in the respective Collateral
Accounts shall be held by the Collateral Agent subject to the terms hereof and
of the Support Documents, it being understood that any such amounts may be
released to the Company to the extent required by any of the Security Documents
(any amounts so released to be released from the respective Collateral Accounts
pro rata in accordance with the aggregate amounts deposited in such accounts
during the term of this Agreement; PROVIDED, HOWEVER, that the aggregate amounts
deposited in the Letter of Credit Collateral Account shall be deemed to have
been reduced by any amounts released from such Account pursuant to paragraph (d)
below). The Company, TA, National and TAFSI shall have no rights with respect
to, and the Collateral Agent shall have exclusive dominion and control over, the
Collateral Accounts.
(b) Except as set forth in paragraphs (d), (g) and (h) below, and subject
to the provisions of paragraph (h) below, all amounts that the Collateral Agent
is required at any time to deposit in the respective Collateral Accounts
pursuant to paragraph (a) above shall be allocated between, and deposited in,
the Revolving Credit Facility Collateral Account, the Term Facility Collateral
Account, the Tranche A Exchange Note Purchase Agreement Collateral Account and
the Letter of Credit Collateral Account pro rata in accordance with the
aggregate amount of Outstanding Revolving Credit Facility Obligations,
Outstanding Term Facility Obligations, Outstanding Tranche A Exchange Note
Purchase Agreement Obligations and Unfunded LOC Exposure, respectively, at such
time.
(c) The Collateral Agent shall establish sub-accounts in the Letter of
Credit Collateral Account with respect to each outstanding Letter of Credit. All
amounts deposited in the Letter of Credit Collateral Account shall be allocated
between, and deposited in, the respective sub-accounts therein pro rata in
accordance with the Unfunded LOC Exposure with respect to the related Letters of
Credit. If, on or after the date on which any funds are deposited in the Letter
of Credit Collateral Account pursuant to paragraph (b) above, any
Letter of Credit is drawn upon by the beneficiary thereof, the Collateral Agent
shall, upon the written request of the Agent, apply any funds in the sub-account
with respect to such Letter of Credit to the reimbursement of such LC
Disbursement as if such reimbursement were being made by the Company pursuant to
the Credit Agreement (but not in an amount in excess of the amount of such
drawing).
(d) At the time of any expiration or cancellation of any outstanding
Letter of Credit, or any other reduction in the amount of Unfunded LOC Exposure
thereunder (other than as a result of an LC Disbursement),
8
the amount of funds in the sub-account with respect to such Letter of Credit
(or, in the case of any partial reduction in the amount of Unfunded LOC Exposure
thereunder, a pro rata portion of such funds) shall be released from such
sub-account, and the funds so released shall be allocated between, and deposited
in, the Revolving Credit Facility Collateral Account, the Term Facility
Collateral Account, the Tranche A Exchange Note Purchase Agreement Collateral
Account and the Letter of Credit Collateral Account pro rata in accordance with
the aggregate amount of the Outstanding Revolving Credit Facility Obligations,
Outstanding Term Facility Obligations, Outstanding Tranche A Exchange Note
Purchase Agreement Obligations and Unfunded LOC Exposure, respectively, at such
time.
(e) The Collateral Agent shall have the right at any time and from time to
time to apply any amounts in the Collateral Accounts to the payment of the
out-of-pocket costs and expenses (including reasonable attorney fees and
disbursements) incurred by the Collateral Agent in administering and carrying
out its obligations under this Agreement or any of the Support Documents, in
exercising or attempting to exercise any right or remedy hereunder or thereunder
or in taking possession of, protecting, preserving or disposing of any item of
Collateral, and all amounts against or for which the Collateral Agent is to be
indemnified or reimbursed hereunder (excluding any such costs, expenses or
amounts which have theretofore been reimbursed) until all of such costs,
expenses and amounts have been paid in full; PROVIDED, HOWEVER, that any such
application shall be allocated as between the Revolving Credit Facility
Collateral Account, Term Facility Collateral Account, the Letter of Credit
Collateral Account (provided that the aggregate amounts deposited in the Letter
of Credit Collateral Account shall be deemed to have been reduced by any amounts
released from such Account pursuant to paragraph (d) above) and the Tranche A
Exchange Note Purchase Agreement Collateral Account ratably in accordance with
the aggregate amounts deposited in such Accounts during the term of this
Agreement. The Collateral Agent shall reimburse any Credit Agreement Creditor or
Tranche A Exchange Note Purchaser, as the case may be, prior to applying any
amounts in the Collateral Accounts pursuant to Section 4.02 for any and all
losses with respect to any amounts expended with respect to any indemnity
provided in accordance with Section 5.03(e) by such Credit Agreement Creditor or
Tranche A Exchange Note Purchaser by application of funds in the Collateral
Accounts in the same manner as provided in the proviso to the preceding
sentence.
(f) For purposes of determining allocations and deposits of funds (but not
distributions of funds) pursuant to this Section 4.01 and Section 4.02, any
Outstanding Obligations shall be deemed to be reduced by the amount, if any,
held by the Collateral Agent in the Collateral Account (or sub-account therein)
from which distributions are to be paid in respect of such Outstanding
Obligations.
(g) If, at any time that the Collateral Agent receives any amounts to be
deposited in the Collateral Accounts, any portion of the Outstanding Obligations
consists of out-of-pocket costs and expenses (including attorney fees and
disbursements) or other claims in respect of any indemnification or expense
reimbursement obligations of the Company, TA, National or TAFSI under any of the
Credit Transaction Documents (collectively, "REIMBURSEMENT OBLIGATIONS"), then,
prior to allocating such amounts among the Collateral Accounts, the Collateral
Agent shall, to the extent it shall have received notice of such Reimbursement
Obligations, apply such amounts to pay such Reimbursement Obligations (pro rata
among such Reimbursement Obligations, in the event that the amount to be so
applied is insufficient to pay all such Reimbursement Obligations in full);
PROVIDED, HOWEVER, that the aggregate cumulative amount applied pursuant to this
paragraph (g) to pay Reimbursement Obligations to Participating Creditors (other
than the Collateral Agent or otherwise in respect of amounts referred to in
paragraph (e) above) shall not exceed $4,000,000.
(h) (i) If, at any time that the Collateral Agent receives any amounts to
be deposited in the Collateral Accounts in respect of any Mortgaged Property and
the related Mortgage omits as a secured obligation the Outstanding Revolving
Credit Facility Obligations (including Letters of Credit) (each such Mortgage
being a "PARTIAL MORTGAGE"), then, (A) all such amounts that the Collateral
Agent is required to deposit in the respective Collateral Accounts pursuant to
paragraph (a) above shall be allocated between, and deposited in, the Term
Facility Collateral Account and the Tranche A Exchange Note Purchase Agreement
Collateral Account pro rata in accordance with the aggregate amount of the
Outstanding Term Facility Obligations and the Outstanding Tranche A Exchange
Note Purchase Agreement Obligations and (B) none of the amounts so deposited in
the Term Facility Collateral Account and the Tranche A Exchange Note Purchase
Agreement Collateral Account shall be deposited in the Revolving Credit Facility
Collateral Account or the Letter of Credit Collateral Account pursuant to
Section 4.02(b) or 4.02(c), respectively.
(ii)It is the intent of the parties hereto that each of the Participating
Creditors shall share in all proceeds of the Collateral required to be deposited
in the Collateral Accounts pursuant to Section 4.01 on a pro rata basis.
Accordingly, on each occasion that proceeds in respect of Mortgaged Property
subject to a Partial Mortgage are not allocated to Outstanding Revolving Credit
Facility Obligations due to their omission as secured
9
obligations under the related Partial Mortgage, (i) each of the Participating
Creditors agrees (A) that the Collateral Agent shall be permitted to reallocate
FROM (I) the Term Facility Collateral Account and the Tranche A Exchange Note
Purchaser Collateral Account (on a pro rata basis based on the aggregate amounts
deposited in such accounts during the term of this Agreement (excluding
Collateral proceeds in respect of any Partial Mortgages)) TO (II) the Revolving
Credit Facility Collateral Account and the Letter of Credit Collateral Account
Collateral amounts then on deposit in the Term Facility Collateral Account and
the Tranche A Exchange Note Purchase Agreement Account (excluding Collateral
proceeds in respect of any Partial Mortgage) in an amount equal to the amounts
in respect of the Mortgaged Property subject to such Partial Mortgage that would
have been allocated to the Revolving Credit Facility Collateral Account and the
Letter of Credit Collateral Account but for the omission of Outstanding
Revolving Credit Facility Obligations as secured obligations under such Partial
Mortgage and (B) in allocating and depositing amounts to the respective
Collateral Accounts pursuant to paragraph (b) of this Section 4.01, the
Collateral Agent may give effect to and consider (I) any amounts that were
previously permitted to be reallocated to the Revolving Credit Facility
Collateral Account and the Letter of Credit Collateral Account pursuant to
clause (A) above but which have not theretofore been so reallocated and (II) if
the Collateral Agent deems it appropriate given the amount and nature of all the
remaining Collateral at such time, the number of and the expected proceeds in
respect of any remaining Partial Mortgages.
(iii)Consistent with the general intent that each of the Participating
Creditors shall share in the Collateral on a pro rata basis, if the aggregate
proceeds in respect of the Collateral shall be insufficient to satisfy all the
Outstanding Obligations, each of the Participating Creditors (other than the
Lenders in respect of the Outstanding Revolving Credit Facility Obligations)
agrees that they shall reimburse the Lenders in respect of the Outstanding
Revolving Credit Facility Obligations on a pro rata basis (based on the
aggregate amounts deposited in the Collateral Accounts during the term of this
Agreement for the benefit of such Participating Creditors) to the extent that
such Lenders shall have not received (after giving effect to the other
provisions of this paragraph (h)) their pro rata share of such aggregate
proceeds due to the omission of the Outstanding Revolving Credit Facility
Obligations as secured obligations under the Partial Mortgages.
(iv)In connection with the provisions of this paragraph (h), the
Collateral Agent agrees that it shall properly account for and keep accurate and
complete records of all amounts received in respect of the Partial Mortgages and
allocations and reallocations of Collateral proceeds pursuant to this paragraph
(h).
SECTION 4.02. APPLICATION OF PROCEEDS. (a) Amounts deposited in the
Revolving Credit Facility Collateral Account shall be applied in the following
order of priority:
FIRST, to the payment of all Outstanding Revolving Credit Facility
Obligations that consist of costs and expenses incurred in connection with
the enforcement or protection of the rights of the Credit Agreement
Creditors;
SECOND, to the Credit Agreement Creditors in respect of the
Outstanding Revolving Credit Facility Obligations pro rata in accordance
with the aggregate amounts of the Outstanding Revolving Credit Facility
Obligations at such time, until the Outstanding Revolving Credit Facility
Obligations shall have been paid in full;
THIRD, if there are any Outstanding Term Facility Obligations, or if
there are any Outstanding Tranche A Exchange Note Purchase Agreement
Obligations or if there is any Unfunded LOC Exposure, to the Term Facility
Collateral Account, the Tranche A Exchange Note Purchase Agreement
Collateral Account and the Letter of Credit Collateral Account pro rata in
accordance with the respective amounts of such Outstanding Obligations;
and
FOURTH, the balance, if any, to the Company or such other person or
persons as shall be entitled thereto.
(b) Subject to the provisions of Section 4.01(h) and paragraph (f) of this
Section 4.02 in respect of amounts in respect of Partial Mortgages, Amounts
deposited in the Term Facility Collateral Account shall be applied in the
following order of priority:
FIRST, to the payment of all Outstanding Term Facility Obligations
that consist of costs and expenses incurred in connection with the
enforcement or protection of the rights of the Credit Agreement Creditors;
10
SECOND, to the Credit Agreement Creditors in respect of the
Outstanding Term Facility Obligations pro rata in accordance with the
aggregate amounts of the Outstanding Term Facility Obligations at such
time, until the Outstanding Term Facility Obligations shall have been paid
in full;
THIRD, if there are any Outstanding Revolving Credit Facility
Obligations, or if there are any Outstanding Tranche A Exchange Note
Purchase Agreement Obligations or if there is any Unfunded LOC Exposure,
to the Revolving Credit Facility Collateral Account, the Tranche A
Exchange Note Purchase Agreement Collateral Account and the Letter of
Credit Collateral Account pro rata in accordance with the respective
amounts of such Outstanding Obligations; and
FOURTH, the balance, if any, to the Company or such other person or
persons as shall be entitled thereto.
(c) Subject to the provisions of Section 4.01(h) and paragraph (f) of this
Section 4.02 in respect of amounts in respect of Partial Mortgages, all amounts
deposited in the Tranche A Exchange Note Purchase Agreement Collateral Account
shall be applied in the following order of priority:
FIRST, to the payment of all Outstanding Tranche A Exchange Note
Purchase Agreement Obligations that consist of costs and expenses incurred
in connection with the enforcement or protection of the rights of the
Tranche A Exchange Note Purchasers;
SECOND, to the Tranche A Exchange Note Purchasers pro rata in
accordance with the aggregate amounts of the Outstanding Tranche A
Exchange Note Purchase Agreement Obligations at such time, until the
Outstanding Tranche A Exchange Note Purchase Agreement Obligations shall
have been paid in full;
THIRD, if there are any Outstanding Revolving Credit Facility
Obligations (or if the Lenders shall have any remaining commitments to
lend under the Credit Agreement), or if there are any Outstanding Term
Facility Obligations or if there is any Unfunded LOC Exposure (or if the
Lenders shall have any remaining commitments to participate in the
issuance of Letters of Credit), to the Revolving Credit Facility
Collateral Account, the Term Facility Collateral Account and the Letter of
Credit Collateral Account pro rata in accordance with the respective
amounts of such Outstanding Obligations; and
FOURTH, the balance, if any, to the Company or such other person or
persons as shall be entitled thereto.
(d) All amounts deposited in any sub-account in the Letter of Credit
Collateral Account shall be applied as provided in Sections 4.01(c) and (d).
(e) Each Participating Creditor agrees that, notwithstanding any provision
of this Agreement or the other Credit Transaction Documents, any sums and
amounts received by such Participating Creditor pursuant to this Section 4.02
shall be applied to the payment of its Outstanding Obligations as follows:
FIRST, to the payment of all Outstanding Obligations owed to such Participating
Creditor, other than principal, interest and obligations in respect of
reimbursement of LC Disbursements; SECOND, to the payment of all Outstanding
Obligations owed to such Participating Creditor consisting of accrued interest;
and THIRD, to the payment of all Outstanding Obligations owed to such
Participating Creditor consisting of principal and obligations in respect of
reimbursement of LC Disbursements.
(f) Each Lender in respect of the Outstanding Term Facility Obligations
and each Tranche A Exchange Note Purchaser agrees that, notwithstanding any
provision of this Agreement or the other Credit Transaction Documents, any sums
and amounts received by such Participating Creditor pursuant to this Section
4.02 in respect of any Mortgaged Property that is subject to a Partial Mortgage
shall be applied before the application of all other amounts received by such
Participating Creditor to the payment of its Outstanding Obligations in the
manner set forth in paragraph (e) above.
SECTION 4.03. TIME OF PAYMENTS. Unless the Collateral Agent shall have
received written instructions from the Majority Creditors as to the times at
which any amounts are to be distributed pursuant to Section 4.02, all
distributions under Section 4.02 shall be made at such times as the Collateral
Agent shall in its sole discretion determine, subject to Section 4.04; PROVIDED
that any distributions from the Revolving Credit Facility Collateral
11
Account, the Term Facility Collateral Account and the Tranche A Exchange Note
Purchase Agreement Collateral Account shall be made substantially
simultaneously.
SECTION 4.04. APPLICATION OF AMOUNTS NOT DISTRIBUTABLE. If any
Participating Creditor shall inform the Collateral Agent that there is no
provision under the Credit Agreement or the Tranche A Exchange Note Purchase
Agreements, as the case may be, for the application of amounts that are to be
distributed to the parties to such Agreement pursuant to Section 4.02 (whether
by virtue of the applicable Outstanding Obligations thereunder not being then
due and payable or otherwise) or for the holding of such amounts by or on behalf
of such parties pending application thereof, then the Collateral Agent shall
invest the amounts in the applicable Collateral Account in investments permitted
by Section 4.05 and shall hold such amounts and all proceeds of such investments
in such Collateral Account for the benefit of such Participating Creditor until
such Participating Creditor shall request the delivery thereof by the Collateral
Agent for application against such Outstanding Obligations or shall notify the
Collateral Agent that such Outstanding Obligations have been paid.
SECTION 4.05. INVESTMENT OF AMOUNTS IN COLLATERAL ACCOUNTS. Pending the
disbursement thereof pursuant to the terms of this Agreement, all amounts in the
Collateral Accounts shall (to the extent the Collateral Agent deems practical)
be invested by the Collateral Agent in Permitted Investments. The Collateral
Agent shall, to the extent that the timing of distributions to be made from any
Collateral Account is known or can be reasonably anticipated, select Permitted
Investments for such Collateral Account that mature prior to the anticipated
date of any distribution to be made from such Collateral Account. The Collateral
Agent shall not discriminate between Collateral Accounts in the selection of
Permitted Investments; PROVIDED that the foregoing shall not be construed to
prevent the selection of longer-term investments for the Letter of Credit
Collateral Account if distributions from such Account are expected to be made at
a later date than distributions from the other Collateral Accounts.
ARTICLE V
CONCERNING THE COLLATERAL AGENT
SECTION 5.01. APPOINTMENT OF COLLATERAL AGENT. Each of the Participating
Creditors appoints Chase to act as Collateral Agent pursuant to the terms of the
Support Documents and this Agreement and authorizes the Collateral Agent to
execute and perfect the Support Documents in the name of and for the benefit of
the Secured Parties, and Chase agrees to act as Collateral Agent for such
Participating Creditors, pursuant to the terms of the Support Documents and this
Agreement.
SECTION 5.02. LIMITATIONS ON RESPONSIBILITY OF COLLATERAL AGENT. The
Collateral Agent shall not be responsible in any manner whatsoever for the
correctness of any recitals, statements, representations or warranties contained
herein or in any other Credit Transaction Document, except for those expressly
made by it herein. The Collateral Agent makes no representation as to the value
or condition of the Collateral or any part thereof, as to the title of the
Company, TA, National or TAFSI to the Collateral, as to the security afforded by
this Agreement or any Support Document or, except as expressly set forth in
Article VI, as to the validity, execution, enforceability, legality or
sufficiency of this Agreement or any other Credit Transaction Document, and the
Collateral Agent shall incur no liability or responsibility in respect of any
such matters. The Collateral Agent shall not be responsible for insuring the
Collateral, for the payment of taxes, charges, assessments or liens upon the
Collateral or otherwise as to the maintenance of the Collateral, except as
provided in the immediately following sentence when the Collateral Agent has
possession of the Collateral. The Collateral Agent shall have no duty to the
Company, TA, National or TAFSI or to the Participating Creditors as to any
Collateral in its possession or control or in the possession or control of any
agent or nominee of the Collateral Agent or any income thereon or as to the
preservation of rights against prior parties or any other rights pertaining
thereto, except the duty to accord such of the Collateral as may be in its
possession substantially the same care as it accords its own assets and the duty
to account for monies received by it. The Collateral Agent shall not be required
to ascertain or inquire as to the performance by the Company, TA, National or
TAFSI of any of the covenants or agreements contained herein or in the other
Credit Transaction Documents. Neither the Collateral Agent nor any officer,
agent or representative thereof shall be personally liable for any action taken
or omitted to be taken by any such person in connection with this Agreement or
any other Credit Transaction Document except for its or such person's own gross
negligence or wilful misconduct. Neither the Collateral Agent nor any officer,
agent or representative thereof shall be personally liable for any action taken
by it or any such person in accordance with any notice given by the requisite
number of Participating Creditors hereunder entitled to give such notice, even
if, at the time such action is taken by it or any such person, the Participating
Creditors that gave the notice to take such action are no longer Participating
Creditors and if the Collateral Agent has not
12
received written notice of such fact. The Collateral Agent may execute any of
the powers granted under this Agreement or any of the Support Documents and
perform any duty hereunder or thereunder either directly or by or through agents
or attorneys-in-fact, and shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care and without gross negligence or wilful misconduct.
SECTION 5.03. RELIANCE BY COLLATERAL AGENT; INDEMNITY AGAINST LIABILITIES;
ETC. (a) Whenever in the performance of its duties under this Agreement the
Collateral Agent shall deem it necessary or desirable that a matter be proved or
established with respect to the Company, TA, National, TAFSI or any other person
in connection with the taking, suffering or omitting of any action hereunder by
the Collateral Agent, such matter may be conclusively deemed to be proved or
established by a certificate purporting to be executed by an officer of such
person, and the Collateral Agent shall have no liability with respect to any
action taken, suffered or omitted in reliance thereon.
(b) The Collateral Agent may consult with counsel and shall be fully
protected in taking any action hereunder in accordance with any advice of such
counsel. The Collateral Agent shall have the right but not the obligation at any
time to seek instructions concerning the administration of this Agreement, the
duties created hereunder or the Collateral from any court of competent
jurisdiction.
(c) The Collateral Agent shall be fully protected in relying upon any
resolution, statement, certificate, instrument, opinion, report, notice,
request, consent, order or other paper or document that it believes to be
genuine and to have been signed or presented by the proper party or parties. In
the absence of its gross negligence or wilful misconduct or actual notice to the
contrary, the Collateral Agent may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificate or opinions furnished to the Collateral Agent in connection with
this Agreement.
(d) The Collateral Agent shall not be deemed to have actual, constructive,
direct or indirect notice or knowledge of the occurrence of any Actionable
Default unless and until the Collateral Agent shall have received a Notice of
Actionable Default or a notice from the Company, TA, National or TAFSI to the
Collateral Agent in its capacity as Collateral Agent indicating that an
Actionable Default has occurred. The Collateral Agent shall have no obligation
whatsoever either prior to or after receiving such a notice to inquire whether
an Actionable Default has, in fact, occurred and shall be entitled to rely
conclusively, and shall be fully protected in so relying, on any notice so
furnished to it. The Collateral Agent may (but shall not be obligated to) take
action hereunder on the basis of an Actionable Default of the type specified in
clause (g) or (h) of Article VIII of the Credit Agreement or Section 10.01(g) or
(h) of the Tranche A Exchange Note Purchase Agreements regardless of whether the
Collateral Agent has received any Notice of Actionable Default stating that such
Actionable Default has occurred, PROVIDED that any such action taken by the
Collateral Agent without direction from the Required Creditors shall be limited
to actions that the Collateral Agent determines to be necessary to protect and
preserve the Collateral and the rights of the Participating Creditors.
(e) If the Collateral Agent has been requested to take any specific action
pursuant to any provision of this Agreement, the Collateral Agent shall not be
under any obligation to exercise any of the rights or powers vested in it by
this Agreement in the manner so requested unless it shall have been provided
indemnity satisfactory to it against the costs, expenses and liabilities that
may be incurred by it in compliance with such request or direction.
SECTION 5.04. RESIGNATION OF THE COLLATERAL AGENT. The Collateral Agent
may at any time, by giving 30 days' prior written notice to the Company and each
Participating Creditor, resign and be discharged from the responsibilities
hereby created, such resignation to become effective upon the earlier of (a) the
acceptance of the appointment of a successor pursuant to the next sentence of
this Section or (b) the appointment of a successor by the Required Creditors
(or, if a Co-Collateral Agent has been appointed pursuant to Section 5.07, then
by the Required Lenders, as defined in the Credit Agreement) and the acceptance
of such appointment by such successor. If no successor shall be appointed and
approved pursuant to clause (b) above within 30 days after the date of any such
resignation, the Collateral Agent may apply to any court of competent
jurisdiction to appoint a successor to act until a successor shall have been
appointed by the Required Creditors (or the Required Lenders, as applicable) as
above provided or may, on behalf of the Participating Creditors, appoint a
successor Collateral Agent. Any successor Collateral Agent shall be a bank with
an office in New York, New York, having a combined capital and surplus of at
least $500,000,000 that is authorized to perform the functions of the Collateral
Agent hereunder.
SECTION 5.05. EXPENSES AND INDEMNIFICATION BY COMPANY. By countersigning
this Agreement, the Company agrees (a) to reimburse the Collateral Agent, on
demand, for any expenses incurred by the Collateral
13
Agent, including counsel fees, other charges and disbursements and compensation
of agents, arising out of, in any way connected with, or as a result of, the
execution or delivery of this Agreement or any Support Document or any agreement
or instrument contemplated hereby or thereby or the performance by the parties
hereto or thereto of their respective obligations hereunder or thereunder or in
connection with the enforcement or protection of the rights of the Collateral
Agent and the Participating Creditors under this Agreement and the Support
Documents and (b) to indemnify and hold harmless the Collateral Agent and its
directors, officers, employees and agents, on demand, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against the Collateral Agent in its
capacity as the Collateral Agent or any of them in any way relating to or
arising out of this Agreement or any Support Document or any action taken or
omitted by them under this Agreement or any Support Document, PROVIDED that the
Company shall not be liable to the Collateral 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 Collateral Agent or any of its directors, officers, employees
or agents.
SECTION 5.06. EXPENSES AND INDEMNIFICATION BY LENDERS AND TRANCHE A
EXCHANGE NOTE PURCHASERS. Each Lender and Tranche A Exchange Note Purchaser
agrees (a) to reimburse the Collateral Agent, on demand, in the amount of its
pro rata share (based on the amount of its Voting Obligations), for any expenses
referred to in Section 5.05 that shall not have been reimbursed by the Company,
TA, National or TAFSI or paid from the proceeds of Collateral as provided herein
and (b) to indemnify and hold harmless the Collateral Agent and its directors,
officers, employees and agents, on demand, in the amount of such pro rata share,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements referred
to in Section 5.05, to the extent the same shall not have been reimbursed by the
Company, TA, National or TAFSI or paid from the proceeds of Collateral as
provided herein; PROVIDED that no Lender or Tranche A Exchange Note Purchaser
shall be liable to the Collateral 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 Collateral Agent or any of its directors, officers, employees
or agents.
SECTION 5.07. CO-COLLATERAL AGENT. (a) If an Actionable Default has
occurred and remains continuing for a period in excess of 30 days, then Tranche
A Exchange Note Purchasers holding 66-2/3% of the Voting Tranche A Exchange Note
Purchase Agreement Obligations may, by notice to the Collateral Agent, appoint a
co-collateral agent (a "CO-COLLATERAL AGENT"), which shall be an institution
that would otherwise qualify as a successor Collateral Agent. Except as set
forth below, any Co-Collateral Agent so appointed shall have all the rights,
powers, duties and obligations of the Collateral Agent. Upon the appointment of
a Co-Collateral Agent, except as expressly provided below, all rights, powers,
duties and obligations of the Collateral Agent hereunder shall be exercised and
performed jointly by the Collateral Agent and the Co-Collateral Agent (or by one
of such Agents with the consent of the other). The Collateral Agent shall
execute and deliver all such instruments and agreements as shall be necessary or
proper to provide to any Co-Collateral Agent joint rights and powers with
respect to the Collateral.
(b) Any Co-Collateral Agent shall, to the extent permitted by law, be
appointed and act as such, subject to the following provisions and conditions:
(i)all rights, powers, duties and obligations conferred upon the
Collateral Agent in respect of the custody, control and management of
moneys, papers or securities shall be exercised solely by the Collateral
Agent; and
(ii)all other rights, powers, duties and obligations conferred
upon the Collateral Agent or the Co-Collateral Agent shall be exercised
jointly by the Co-Collateral Agent and the Collateral Agent (or by one of
such Agents with the consent of the other).
(c) Neither the Collateral Agent nor the Co-Collateral Agent shall be
liable by reason of any act or omission of the other.
(d) If a Co-Collateral Agent is appointed, each reference to the
"COLLATERAL AGENT" in any Credit Transaction Document shall be deemed to refer
to the Collateral Agent and the Co-Collateral Agent jointly, unless the context
clearly indicates otherwise.
14
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Collateral Agent and each Participating Creditor represents and
warrants to the other parties hereto that (a) the execution, delivery and
performance of this Agreement (i) have been duly authorized by all requisite
corporate action on its part and (ii) will not contravene any provision of its
charter or by-laws or any order of any court or other Governmental Authority
having applicability to it or any applicable law and (b) this Agreement has been
duly executed and delivered by it and constitutes its legal, valid and binding
obligation.
ARTICLE VII
INTERCREDITOR ARRANGEMENTS
SECTION 7.01. SECURITY INTERESTS. The Collateral Agent and each of the
Participating Creditors hereby agrees that the liens and security interests
granted to the Collateral Agent under the Security Documents, and the guarantees
provided under the Guarantee Agreement, shall be treated, as among the
Participating Creditors, as having equal priority and shall at all times be
shared by the Participating Creditors as provided herein. Any and all amounts
required to be provided as cash collateral for Unfunded LOC Exposure pursuant to
Section 3.06 of the Credit Agreement shall be deemed to be Collateral for
purposes of this Agreement. In addition, amounts held in escrow with the
Collateral Agent as contemplated by Section 10.16 of the Credit Agreement and
Section 8 of the Tranche A Exchange Note Purchase Agreements shall be deemed to
be Collateral for purposes of this Agreement.
SECTION 7.02. TURNOVER OF COLLATERAL AND CERTAIN PAYMENTS. (a) If any
Participating Creditor (i) acquires custody, control or possession of any
Collateral or proceeds therefrom or (ii) receives any payment at any time that
an Actionable Default has occurred and is continuing pursuant to enforcement of
the Guarantee Agreement or the Subordinated Note Indenture (or any agreement
governing any Subordinated Note Refinancing Indebtedness), in each case other
than pursuant to the terms of this Agreement, then such Participating Creditor
shall promptly cause such Collateral, proceeds or payments to be delivered to or
put in the custody, possession or control of the Collateral Agent for
disposition or distribution in accordance with the provisions of Sections 4.01
and 4.02. Until such time as the provisions of the immediately preceding
sentence have been complied with, such Participating Creditor shall be deemed to
hold such Collateral, proceeds or payments in trust for the parties entitled
thereto hereunder. Notwithstanding the foregoing, subject to paragraph (b)
below, no Participating Creditor shall be required to deliver to or put in the
custody, possession or control of the Collateral Agent or to hold in trust as
specified in the preceding sentence any amount of any Outstanding Obligation
paid or prepaid by the Company to it (and not obtained by it through any sale of
or other realization upon any Collateral or by enforcement of its rights under
the Guarantee Agreement or the Subordinated Note Indenture (or any agreement
governing any Subordinated Note Refinancing Indebtedness) as provided herein and
in the Support Documents) in accordance with the terms of the Credit Agreement
or the Tranche A Exchange Note Purchase Agreements, as applicable.
(b) In the event that any Payment Default occurs and continues unremedied
for three Business Days, the Collateral Agent shall, promptly following receipt
of notice or actual knowledge thereof, notify all Participating Creditors of (i)
such Payment Default, (ii) the amount and nature thereof, (iii) the date on
which the payment was due that is the subject of such Payment Default and (iv)
their obligations under this paragraph (b). Each Participating Creditor agrees
that, in the event that it receives any payment (other than pursuant to this
Agreement) in respect of its Outstanding Obligations at any time that any other
Participating Creditor's Outstanding Obligations, or any part thereof, are due
and payable but have not been paid (any such payment so received being referred
to as a "NON-PRO-RATA PAYMENT"), then, promptly following receipt of any notice
pursuant to the preceding sentence (and thereafter promptly following any
receipt of a Non-Pro-Rata Payment), such Participating Creditor will deliver
such payment to the Collateral Agent for deposit in a special collateral account
(the "SPECIAL COLLATERAL ACCOUNT"), and such amounts shall be retained in the
Special Collateral Account until distributed as described below. In the event
that all Payment Defaults are cured, the Collateral Agent shall return all
amounts on deposit in the Special Collateral Account to the Participating
Creditors from which such amounts were received, together with their pro rata
share of any earnings thereon from the investment of such amounts. In the event
that, prior to the return of amounts on deposit in the Special Collateral
Account to the applicable Participating Creditors as provided herein, all the
Outstanding Credit Agreement Obligations or all the Outstanding Tranche A
Exchange Note Purchase Agreement Obligations are declared due and payable as
provided in Section 7.06, all amounts on deposit in the Special Collateral
Account shall be
15
allocated and applied as Collateral pursuant to Article IV. In the event that
any Payment Default occurs and remains continuing for more than 30 days without
all the Outstanding Credit Agreement Obligations and Outstanding Tranche A
Exchange Note Purchase Agreement Obligations having been declared due and
payable, then the Collateral Agent shall apply the amounts then on deposit in
the Special Collateral Account to pay (and shall continue to apply Non-Pro-Rata
Payments thereafter received by it to pay) Outstanding Obligations that are then
due and payable pro rata in accordance with the amounts so due and payable,
PROVIDED that the foregoing shall not relieve any Participating Creditor from
its obligation to deliver to the Collateral Agent any Non-Pro-Rata Payment
received by it while any Payment Default remains continuing. By its execution
hereof, the Company agrees that any amounts paid to a Participating Creditor in
respect of any Outstanding Obligation shall not relieve the Company from
liability in respect of such Outstanding Obligation to the extent that such
amounts are distributed to other Participating Creditors pursuant to this
paragraph.
SECTION 7.03. SETOFFS. If any Participating Creditor exercises any right
of setoff or similar right with respect to any assets (regardless of whether
such assets shall constitute Collateral) of the Company, TA, National or TAFSI
for payment of any Outstanding Obligations at any time that an Actionable
Default has occurred and is continuing, the amounts so set off shall constitute
Collateral for purposes of this Agreement and such Participating Creditor shall
promptly cause such amounts to be delivered to or put in the custody, possession
or control of the Collateral Agent for disposition or distribution in accordance
with the provisions of Sections 4.01 and 4.02. Until such time as the provisions
of the immediately preceding sentence have been complied with, such
Participating Creditor shall be deemed to hold such Collateral in trust for the
parties hereto entitled thereto hereunder.
SECTION 7.04. AMENDMENT OF CERTAIN PROVISIONS OF THE CREDIT AGREEMENT AND
THE TRANCHE A EXCHANGE NOTE PURCHASE AGREEMENTS. (a) The Lenders agree that,
after the date hereof, they shall not, without prior notice to the Tranche A
Exchange Note Purchasers and without the prior written consent of Tranche A
Exchange Note Purchasers holding Voting Tranche A Exchange Note Purchase
Agreement Obligations representing at least 51% of the Voting Tranche A Exchange
Note Purchase Agreement Obligations, amend or revise the Credit Agreement in any
manner that would:
(i)change the date or amount of any scheduled principal payment
or prepayment;
(ii)alter the provisions of Section 2.13 of the Credit Agreement
to provide for (A) any additional mandatory principal prepayment or (B)
the payment of any premium in connection with any mandatory prepayment;
(iii)adjust the method or formula by which the interest due on
the Loans is determined so as to increase the effective interest rate,
except for adjustments made pursuant to Sections 2.06, 2.07, 2.08, 2.14
and 2.15 of the Credit Agreement;
(iv)adjust the method of calculating any Commitment Fee or other
fee provided for in the Credit Agreement in any manner that would have the
effect of increasing the amount thereof;
(v)alter any of the covenants set forth in Article VI or Article
VII of the Credit Agreement in a manner that would make it materially more
difficult for the Company to comply with or remain in compliance with
those covenants, or add additional financial covenants in Article VII to
the Credit Agreement;
(vi)place restrictions upon the Company's making any payment or
prepayment on the Tranche A Exchange Notes, other than the restrictions
currently set forth in Sections 2.12 and 2.13 of the Credit Agreement;
(vii)alter the definition of the term "Pro Rata Share";
(viii)alter Article VIII of the Credit Agreement (or any defined
term used in such Article VIII) in a manner that would (A) make it
materially more likely that any of the events set forth therein will
occur, (B) add additional events thereto or (C) add additional rights or
remedies that would result from the occurrence of any of the events set
forth therein; or
(ix)alter the definition of the term "Required Lenders"; or
16
(x)alter the provisions of Section 2.13 of the Credit Agreement
in any manner adverse to the interests of the Tranche A Exchange Note
Purchasers including any amendment to lengthen the offering period, if
any, in respect of a Prepayment Event set forth therein or any amendment
to the treatment of rejected or deemed rejected offers contemplated
therein.
(b) The Tranche A Exchange Note Purchasers agree that, after the date
hereof, they shall not, without prior notice to the Lenders and without the
prior written consent of Lenders holding Voting Credit Agreement Obligations
representing at least 51% of the Voting Credit Agreement Obligations, amend or
revise any Tranche A Exchange Note Purchase Agreement in any manner that would:
(i) change the date or amount of any scheduled principal payment
or prepayment;
(ii) alter the provisions of Section 5 of the Tranche A Exchange
Note Purchase Agreements to provide for (A) any additional mandatory
principal prepayment or (B) the payment of any premium (including a
Make-Whole Premium or Break Funding Cost) in connection with any mandatory
prepayment;
(iii) increase the stated interest rate or default interest rate
borne by the Tranche A Exchange Notes except for adjustments made pursuant
to Section 1.4 of the Tranche A Exchange Note Purchase Agreements;
(iv) alter the definition of the term of "Make-Whole" Premium,
Break Funding Cost or "Additional Amount" provided for in the Tranche A
Exchange Note Purchase Agreements in any manner that would have the effect
of increasing the amount thereof;
(v) alter any of the covenants set forth in Section 6 or 7 of the
Tranche A Exchange Note Purchase Agreements in a manner that would make it
materially more difficult for the Company to comply with or remain in
compliance with those covenants or add additional financial covenants in
Section 7 of the Tranche A Exchange Note Purchase Agreements;
(vi) place restrictions upon the Company making any payment or
prepayment on the Loans or the Swingline Loans other than the restrictions
currently set forth in Section 7.9 of the Tranche A Exchange Note Purchase
Agreements;
(vii) alter the definition of the term "Pro Rata Share";
(viii) alter Section 10 of the Tranche A Exchange Note Purchase
Agreements (or any defined terms used in such section) in a manner that
would (A) make it materially more likely that any of the events set forth
therein will occur, (B) add additional events thereto or (C) add
additional rights or remedies that would result from the occurrence of any
of the events set forth therein;
(ix) alter the definition of the term "Required Holders";
(x) alter Section 5.3 of the Tranche A Exchange Note Purchase
Agreement in any manner adverse to the interests of the Credit Agreement
Creditors including any amendment to lengthen the offering period in
respect of a Prepayment Event set forth therein or any amendment to the
treatment of rejected or deemed rejected offers contemplated therein; or
(xi) alter Section 5.4 of the Tranche A Exchange Note Purchase
Agreements or the definition of the term "Change in Control" (or any
defined terms used in Section 5.4 or such definition) in a manner that
would make it materially more likely that any Change in Control or Change
in Control Prepayment Date will occur or that would add additional rights
or remedies that would result from the occurrence of any Change in
Control.
SECTION 7.05. RELEASE OF COLLATERAL. (a) In connection with any sale,
transfer or disposition of any Collateral that is permitted by the Credit
Agreement and the Tranche A Exchange Note Purchase Agreements (or is
contemplated in Section 7.12 of the Security Agreement and Section 3.05 of the
Mortgages), or approved by the Required Creditors, the Participating Creditors
agree that any Liens on such Collateral created pursuant to the Security
Documents will be released upon the delivery of evidence satisfactory to the
Collateral Agent that such sale, transfer or disposition is in compliance with
the requirements of such agreements (or the terms of any such approval by the
Required Creditors) and the proceeds of such transaction have been or will be
17
applied to the extent required as set forth in Section 2.13(b) of the Credit
Agreement and Section 5.3 of the Tranche A Exchange Note Purchase Agreements (or
any applicable terms of any such approval).
(b) Collateral may be released in connection with the exercise of any
rights, powers or remedies by the Collateral Agent pursuant to and in accordance
with Section 3.02 and such release shall not require any approval under this
Section 7.05.
(c) The Participating Creditors hereby authorize the Collateral Agent to
execute releases and other documents in form and substance satisfactory to the
Collateral Agent in respect of any release of Collateral permitted under this
Section 7.05.
SECTION 7.06. ACCELERATION. The Credit Agreement Creditors and the Tranche
A Exchange Note Purchasers hereby covenant and agree that, notwithstanding any
contrary provisions of the Credit Transaction Documents, as long as this
Agreement is in effect, (a) the Loans and the Swingline Loans may not be
declared to be due and payable and the Commitments may not be terminated
pursuant to Article VIII of the Credit Agreement unless (i) the Agent or the
Required Lenders shall notify the Company and the Collateral Agent of such
declaration and termination in writing at any time that an Actionable Default
under the Credit Agreement has occurred and is continuing and (ii) at least 10
days shall have passed since the time of the giving of such notice and (b) the
Tranche A Exchange Notes may not be declared to be due and payable pursuant to
Section 10.1 of the Tranche A Exchange Note Purchase Agreements unless (i) the
Required Holders (as defined in the Tranche A Exchange Note Purchase Agreements)
shall notify the Company, the Collateral Agent and the Agent of such declaration
in writing at any time that an Actionable Default under the Tranche A Exchange
Note Purchase Agreements has occurred and is continuing and (ii) at least 10
days shall have passed since the giving of such notice; PROVIDED, HOWEVER, that
(i) the foregoing shall not affect the consequences specified under the Credit
Agreement and the Tranche A Exchange Note Purchase Agreements in respect of an
Actionable Default with respect to the Company described in paragraph (g) or (h)
of Article VIII of the Credit Agreement or Section 10.1(g) or (h) of the Tranche
A Exchange Note Purchase Agreements, (ii) the foregoing shall not affect the
rights of any Tranche A Exchange Note Purchaser to declare its Tranche A
Exchange Notes to be due and payable in accordance with the Tranche A Exchange
Note Purchase Agreements in the event of a Payment Default in respect of such
Tranche A Exchange Notes or the obligation of the Company to purchase Tranche A
Exchange Notes in the event of a Change in Control, as defined in the Tranche A
Exchange Note Purchase Agreements, (iii) the foregoing shall not affect the
rights of the Agent to declare the Loans and the Swingline Loans or any of them
to be due and payable and to terminate the Commitments and the LC Commitment in
accordance with Article VIII of the Credit Agreement in the event of a Payment
Default in respect of any of the Outstanding Credit Agreement Obligations or in
the event of a Change in Control, as defined in the Credit Agreement, (iv) if
the Tranche A Exchange Notes, or any of them, or the Loans and the Swingline
Loans, or any of them, are declared to be due and payable in accordance herewith
as a result of any Actionable Default, then the foregoing shall not affect the
rights of any Tranche A Exchange Note Purchaser or the Agent to declare the
balance of the Tranche A Exchange Notes or any of them or the balance of the
Loans and the Swingline Loans or any of them to be due and payable and to
terminate the Commitments and the LC Commitment, (v) the Commitments and the LC
Commitment shall automatically terminate if and when the Loans and the Swingline
Loans are declared to be due and payable in accordance with this Section 7.06,
(vi) solely for purposes of an action under this Section 7.06 to declare the
Loans and the Tranche A Exchange Notes to be due and payable, the aggregate
unused amount of the Commitments shall not constitute Voting Credit Agreement
Obligations and (vii) the provisions of this Section 7.06 may be waived with the
consent of each Lender and Tranche A Exchange Note Purchaser.
SECTION 7.07. ADDITIONAL COLLATERAL. Each of the Participating Creditors
hereby covenants and agrees that it (a) will not accept any guarantee of any of
the Obligations by TA or National unless such guarantee is provided pursuant to
the Guarantee Agreement or otherwise guarantees the payment of all the
Obligations on a PARI PASSU basis and (b) will not take any security interest in
or Lien on any assets of TA, National or TAFSI or the Company to secure any of
the Obligations unless such security interest or Lien secures the payment of all
the Obligations on a PARI PASSU basis pursuant to the Security Documents.
SECTION 7.08. SUBORDINATED DEBT DOCUMENTS. (a) Each of the Participating
Creditors hereby covenants and agrees that the Collateral Agent shall be the
authorized representative of such Participating Creditor in respect of the
Subordinated Notes and Subordinated Note Refinancing Indebtedness.
(b) Each of the Participating Creditors covenants and agrees that the
Collateral Agent shall have the sole right (i) to give any notice under the
Subordinated Note Indenture and under any contract or agreement governing any
Subordinated Note Refinancing Indebtedness and (ii) to file proofs of claims
under the Subordi-
18
nated Note Indenture or any contract or agreement governing any Subordinated
Note Refinancing Indebtedness. The Collateral Agent agrees that it will not take
any action in respect of the Subordinated Note Indenture or any contract or
agreement governing any Subordinated Note Refinancing Indebtedness in an
aggregate unpaid principal amount of $[1,000,000], except in accordance with
instructions from the Required Creditors.
SECTION 7.09. PURCHASE OF COLLATERAL. Any Participating Creditor may
purchase Collateral at any public sale of such Collateral pursuant to any of the
Security Documents and may make payment on account thereof by using any
Outstanding Obligation then due and payable to such Participating Creditor from
the person that granted a security interest in such Collateral as a credit
against the purchase price to the extent, but only to the extent, approved by
the Required Creditors.
SECTION 7.10. FURTHER ASSURANCES, ETC. Each party hereto shall execute and
deliver such other documents and instruments, in form and substance reasonably
satisfactory to the other parties hereto, and shall take such other action, in
each case as any other party hereto may reasonably have requested (at the cost
and expense of the Company which, by countersigning this Agreement, agrees to
pay such costs and expenses), to effectuate and carry out the provisions of this
Agreement, including by recording or filing in such places as the requesting
party may deem desirable, this Agreement or such other documents or instruments.
SECTION 7.11. SOLICITATIONS. By countersigning this Agreement, the Company
agrees that it will not, and will not permit any person acting on its behalf to,
solicit, request or negotiate for or with respect to any proposed waiver or
amendment of any of the provisions of this Agreement or any other Credit
Transaction Document (other than in connection with matters not requiring the
consent or approval of any particular class or group of Participating Creditors,
in which case this sentence shall not apply to such class or group) unless each
Participating Creditor shall be informed thereof by the Company and shall be
afforded the opportunity of considering the same and shall be supplied by the
Company with sufficient information to enable it to make an informed decision
with respect thereto. Executed or true and correct copies of any amendment,
waiver or consent effected pursuant to the provisions of this Agreement shall be
delivered by the Company to each Participating Creditor forthwith following the
date on which the same shall have been executed and delivered by the required
percentage of the Participating Creditors. By countersigning this Agreement, the
Company agrees that it will not, and will not permit any person acting on its
behalf to, directly or indirectly, pay or cause to be paid any remuneration,
whether by way of purchase of all or any part of any Tranche A Exchange Note or
Loan or Swingline Loan or payment of any supplemental or additional interest,
fee or otherwise, to any Participating Creditor as consideration for or as an
inducement to the entering into by any Participating Creditor of any waiver or
amendment of any of the terms and provisions of this Agreement or any other
Credit Transaction Document (other than in connection with matters not requiring
the consent or approval of any particular class or group of Participating
Creditors, in which case this sentence shall not apply to such class or group)
unless such remuneration is concurrently paid, on the same terms, ratably to
each Participating Creditor that shall consent to such waiver or amendment.
ARTICLE VIII
APPROVAL BY THE COMPANY, TA, NATIONAL AND TAFSI
By entering into the Support Documents, each of the Company, TA, National
and TAFSI, although not a party hereto, acknowledges and consents to and agrees
to perform and be bound by the provisions hereof.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NO INDIVIDUAL ACTION. No Participating Creditor may require
the Collateral Agent to take or refrain from taking any action hereunder or
under any of the Support Documents or with respect to any of the Collateral
except as and to the extent expressly set forth in this Agreement.
SECTION 9.02. SUCCESSORS AND ASSIGNS. (a) This Agreement shall be binding
on and inure to the benefit of the Collateral Agent, each of the Participating
Creditors and their respective successors and permitted assigns (including any
assignee of any Lender in accordance with the Credit Agreement and the holders
from
19
time to time of the Tranche A Exchange Notes); PROVIDED, HOWEVER, that, except
as provided in the next sentence, no Credit Agreement Creditor or Tranche A
Exchange Note Purchaser may assign its rights or obligations hereunder. The
rights and obligations of any Credit Agreement Creditor or Tranche A Exchange
Note Purchaser under this Agreement shall be assigned automatically, without the
need for the execution of any document or any other action, to, and the term
"CREDIT AGREEMENT CREDITOR" or "TRANCHE A EXCHANGE NOTE PURCHASER" as used in
this Agreement shall include, any assignee, transferee or successor of such
Participating Creditor under the Credit Agreement or any Tranche A Exchange Note
Purchase Agreement, as the case may be, in accordance with the terms of and upon
the effectiveness of an assignment pursuant to Section 10.04 of the Credit
Agreement (in the case of a Lender), Article IX of the Credit Agreement (in the
case of the Agent), Section 3.09 of the Credit Agreement (in the case of the
Fronting Bank) or Section 2.21 of the Credit Agreement (in the case of the
Swingline Lender) or a transfer of Tranche A Exchange Notes pursuant to Section
11 of any Tranche A Exchange Note Purchase Agreement, as the case may be, and
any such assignee, transferee or successor shall automatically become a party to
this Agreement. In addition to the foregoing, the lender(s) or purchaser(s) in
respect of any Tranche A Exchange Note Refinancing Indebtedness or Credit
Agreement Refinancing Indebtedness shall be considered to be an assignee or
successor of the Tranche A Exchange Note Purchasers or the Credit Agreement
Creditors, as the case may be, in the event that such refinancing creditors
agree with the Credit Agreement Creditors or Tranche A Exchange Note Purchasers,
as the case may be, to continue the effectiveness of this Agreement in
connection with the issuance of any such refinancing Indebtedness. If required
by any party to this Agreement (including in connection with the issuance of any
refinancing Indebtedness as contemplated above), such assignee, transferee or
successor shall execute and deliver to the other parties to this Agreement a
written confirmation of its assumption of the obligations of the assignor or
transferor hereunder. Each of the Credit Agreement Creditors and the Tranche A
Exchange Note Purchasers agrees that it shall deliver a complete copy of this
Agreement to any potential assignee, transferee or successor of such Credit
Agreement Creditor or Tranche A Exchange Note Purchaser prior to the execution
of any such assignment or transfer. Any Lender or Tranche A Exchange Note
Purchaser may, without the consent of the other Credit Agreement Creditors and
Tranche A Exchange Note Purchasers, sell one or more participations in the
Loans, the Swingline Loans or Letters of Credit or the Tranche A Exchange Notes,
as the case may be, held by it or issued pursuant to the terms and conditions of
the Credit Agreement or the Tranche A Exchange Note Purchase Agreement, as the
case may be; PROVIDED, HOWEVER, that (except as otherwise specified herein) each
of the Credit Agreement Creditors and the Tranche A Exchange Note Purchasers
shall remain liable to each other for the full performance of their obligations
hereunder with the same effect as though no such participation had been sold and
as though any and all amounts, payments or security received by a participant
with whom it dealt in respect of the loan or note participation were received by
such party and shall continue to deal solely and directly with each other with
respect to their respective rights and obligations under this Agreement. Except
as specifically set forth above and in paragraph (b) below, this Agreement is
not intended to confer any benefit on, or create any obligation of the
Collateral Agent or any Participating Creditor to, the Company, TA, National,
TAFSI or any third party.
(b) The provisions of Sections 7.04, 7.05 and 7.06 (and the provisions of
this paragraph (b) and clause (iii) of Section 9.06) are intended to confer a
benefit upon the Company and shall be enforceable by the Company.
SECTION 9.03. NOTICES. Notices and other communications provided for
herein or in any Support Document shall be in writing and shall be delivered by
hand or overnight courier service, mailed or sent by telex, graphic scanning or
other telegraphic communications equipment of the sending party, as follows:
(a) if to any Credit Agreement Creditor, to it as set forth on
Schedule I;
(b) if to any Tranche A Exchange Note Purchaser, to it as set forth
on Schedule II;
(c) if to the Collateral Agent, to it as set forth with respect to
the Agent on Schedule I; and
(d) if to the Company, TA, National or TAFSI, to it as specified in
the Credit Agreement or the Tranche A Exchange Note Purchase Agreement.
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
telex, graphic scanning 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 9.03 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.03 (each such unrevoked direction
20
from any Credit Agreement Creditor or Tranche A Exchange Note Purchaser or any
assignee or successor of either shall be deemed to be an amendment of and to be
listed on Schedule I or II, as the case may be).
SECTION 9.04. TERMINATION. (a) This Agreement shall terminate
automatically upon the indefeasible payment in full of the Outstanding Credit
Agreement Obligations or the Outstanding Tranche A Exchange Note Purchase
Agreement Obligations; PROVIDED, HOWEVER, that (a) Articles I, II, III, IV, V,
VIII and IX, and Sections 7.01, 7.02, 7.03, 7.05, 7.07, 7.08 and 7.10, shall
survive, and remain operative and in full force and effect, as long as there are
any Outstanding Obligations that are secured by any of the Security Documents or
guaranteed pursuant to the Guarantee Agreement and (b) this Section 9.04 and
Sections 5.05, 5.06 and 9.05 of this Agreement shall survive, and remain
operative and in full force and effect, regardless of the termination of this
Agreement.
(b) Notwithstanding the provisions of paragraph (a) above, this Agreement
shall not terminate if (i) the Company shall have in connection with the
indefeasible payment in full of the Outstanding Credit Agreement Obligations or
the Outstanding Tranche A Exchange Note Purchase Agreement Obligations, as the
case may be, issued Credit Agreement Refinancing Indebtedness or Tranche A
Exchange Note Refinancing Indebtedness and (ii) the Company, TA, National,
TAFSI, the Tranche A Exchange Note Purchasers or the Credit Agreement Creditors,
as applicable, and such refinancing creditors shall have elected to continue the
effectiveness of this Agreement. For purposes of this Agreement, such
refinancing creditors as contemplated in Section 9.02(a) shall be considered to
be assignees or successors to the exiting creditors and all references herein to
the exiting creditors and the Obligations owed thereto shall be deemed to
constitute references to the related refinancing creditors and the Obligations
owed thereto.
SECTION 9.05. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.06. MODIFICATION OF AGREEMENT. No modification or amendment of
any provision of this Agreement shall in any event be effective unless the same
shall be in writing and signed by the Required Lenders (as defined in the Credit
Agreement) and the Required Holders (as defined in the Tranche A Exchange Note
Purchase Agreements); PROVIDED, HOWEVER, that (a) no such modification or
amendment shall adversely affect any of the Collateral Agent's rights,
immunities or rights to indemnification hereunder or under any Support Document
or expand its duties hereunder or under any Support Document, without the prior
written consent of the Collateral Agent, (b) no such modification or amendment
shall modify any provision hereof that is intended to provide for the equal and
ratable security of all Outstanding Obligations without the prior written
consent of all Participating Creditors, (c) no such modification or amendment
shall be made to Section 7.04, 7.05 or 7.06, or to the definition of the term
"Required Creditors" or "Majority Creditors" for purposes of such Sections, or
to Section 9.02(b) or to this clause (c), without the prior written consent of
the Company and (d) no such modification or amendment shall change the
definition of the term "Required Creditors" or "Majority Creditors" or this
Section or Section 3.02, 7.02, 7.03, 7.04, 7.05 or 7.06 without the prior
written consent of each Lender and Tranche A Exchange Note Purchaser. No waiver
of any provision of this Agreement and no consent to any departure by any party
hereto from the provisions hereof shall be effective unless such waiver or
consent shall be set forth in a written instrument executed by the party against
which it is sought to be enforced, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice to or demand on any party hereto in any case shall entitle such party to
any other or further notice or demand in the same, similar or other
circumstances.
SECTION 9.07. WAIVER OF RIGHTS. Neither any failure nor any delay on the
part of any party hereto in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, and a single or partial exercise thereof
shall not preclude any other or further exercise or the exercise of any other
right, power or privilege.
SECTION 9.08. SEVERABILITY. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein 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 9.09. 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 instrument.
21
SECTION 9.10. SECTION HEADINGS. The Article and Section headings used
herein are for convenience of reference only and are not to affect the
construction of or be taken into consideration in interpreting this Agreement.
SECTION 9.11 INCORPORATION BY REFERENCE. Section 2.13(g) of the Credit
Agreement and Section 5.3(e) of the Tranche A Exchange Note Purchase Agreements
are hereby incorporated by reference and the Collateral Agent and the
Participating Creditors hereby agree to be bound by such provisions as if such
provisions were included herein.
SECTION 9.12. COMPLETE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior representations, negotiations, writings, memoranda and
agreements. To the extent any provision of this Agreement conflicts with any
other Credit Transaction Document, the provisions of this Agreement shall be
controlling.
22
IN WITNESS WHEREOF, the Collateral Agent, the Credit Agreement Creditors
and the Tranche A Exchange Note Purchasers have caused this Agreement to be duly
executed by their duly authorized officers, all as of the day and year first
above written.
THE CHASE MANHATTAN BANK, as Agent,
Collateral Agent, Fronting Bank and a Lender,
by
---------------------------------
Name:
Title:
Countersigned by:
TRAVELCENTERS OF AMERICA, INC.,
by
------------------------------
Name:
Title:
TA OPERATING CORPORATION,
by
------------------------------
Name:
Title:
NATIONAL AUTO/TRUCKSTOPS, INC.,
by
------------------------------
Name:
Title:
TA FRANCHISE SYSTEMS INC.,
by
------------------------------
Name:
Title:
23
EXHIBIT I
MORTGAGE, SECURITY AGREEMENT
AND ASSIGNMENT OF LEASES AND RENTS
THIS MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF
LEASES AND RENTS dated as of March 27, 1997 (this "Mortgage"),
by [MORTGAGOR], a Delaware corporation, having an office at
[ ] (the "Mortgagor"), to THE CHASE MANHATTAN
BANK ("Chase"), as Collateral Agent for the Agent, the
Lenders, the Swingline Lender, the Fronting Bank and the
Tranche A Exchange Note Purchasers (all such terms as defined
herein), having an office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Mortgagee");
WITNESSETH THAT:
A. Pursuant to the Credit Agreement among TravelCenters of America,
Inc. (the "Borrower"), the Lenders and Chase, as Agent, as Swingline Lender and
as Fronting Bank, dated as of March 21, 1997 (the "Credit Agreement"), and
pursuant to the several Senior Secured Note Exchange Agreements, each dated as
of March 21, 1997, among the Borrower and the Tranche A Exchange Note Purchasers
listed on Schedule I thereto (the "Tranche A Exchange Note Purchase
Agreements"), (a) Mortgagee, the Lenders, the Swingline Lender and the Fronting
Bank, respectively, have loaned or agreed to loan or issue to the Borrower (i)
on a term basis by the Lenders, Term Loans in an aggregate principal amount not
to exceed $80,000,000, (ii) on a revolving basis by the Lenders, Revolving Loans
at any time and from time to time prior to the seventh anniversary of the date
hereof, an aggregate principal amount (subject to reduction pursuant to the
terms and provisions of the Credit Agreement) not in excess of $40,000,000 (less
the amount of any Swingline Loans and Letters of Credit), (iii) on a revolving
basis by the Swingline Lender, Swingline Loans in an aggregate principal amount
at any time not in excess of $5,000,000 and (iv) Letters of Credit by the
Fronting Bank, upon terms and subject to the conditions of the Credit Agreement,
in an aggregate face amount at any time outstanding not in excess of
$20,000,000, and (b) said Tranche A Exchange Note Purchasers have agreed to
accept $85,500,000 in aggregate principal amount of the Tranche A Exchange Notes
in exchange for (i) $65,000,000 aggregate principal amount of the outstanding
National Senior Notes and (ii) $20,500,000 aggregate principal amount of the
outstanding TA Senior Notes. Capitalized terms used herein and not defined
herein shall have the meanings set forth in the Credit Agreement.
B. Mortgagor is a wholly owned Subsidiary of the Borrower and will
derive substantial benefit from the making of the Loans by the Lenders, the
making of the Swingline Loans by the Swingline Lender, the issuance of Letters
of Credit by the Fronting Bank and the acceptance of the Tranche A Exchange
Notes by the Tranche A Exchange Note Purchasers. In order to induce the Lenders
to make Loans, the Swingline Lender to make Swingline Loans, the Fronting Bank
to issue Letters of Credit and the Tranche A Exchange Note Purchasers to accept
the Tranche A Exchange Notes, the Mortgagor has agreed to guarantee pursuant to
the Guarantee Agreement the Obligations (as defined in the Credit Agreement)(the
due and punctual payment and performance of the covenants, agreements,
obligations and liabilities of the Mortgagor under the Guarantee Agreement, this
Mortgage and the other Loan Documents are herein referred to as the "Guarantee
Obligations").
C. The proceeds of the Term Loans will be used by the Borrower (a)
to repay in full the Existing Indebtedness, including accrued interest, (b) to
fund certain operator lease repurchase costs (including the repurchase of all
shares of the Borrower's Class A Common Stock held by such operators), inventory
purchases and anticipated capital expenditures of the Borrower and its
Subsidiaries and (c) to pay the fees and expenses incurred in connection with
the Transactions and to pay certain other related expenses. The proceeds of the
Revolving Loans and the Swingline Loans will be used for the general corporate
purposes of the Borrower. Letters of Credit will be used by the Borrower for
general corporate purposes in the ordinary course of the Borrower's business.
The Tranche A Exchange Notes will be issued in exchange for (a) $65,000,000
aggregate principal amount of the outstanding National Senior Notes and (b)
$20,500,000 aggregate principal amount of the outstanding TA Senior Notes.
D. The obligations of the Lenders to make Loans, of the Fronting
Bank to issue Letters of Credit and of the Swingline Lender to make Swingline
Loans under the Credit Agreement and the obligations of the Tranche A Exchange
Note Purchasers to accept the Tranche A Exchange Notes under the Tranche A
Exchange Note Purchase Agreements are conditioned upon, among other things, the
execution and delivery by the Mortgagor of this Mortgage, in the form hereof, to
secure (a) the due and punctual payment of (i) the principal of, premium, if
any, and interest on the Loans and the Tranche A Exchange Notes, when and as
due, whether at maturity, by acceleration, upon one or more dates set for
prepayment or otherwise, (ii) each payment required to be made by the Borrower
under the Credit Agreement in respect of any Letter of Credit, when and as due,
including payments in respect of reimbursement of disbursements, interest
thereon and obligations to provide cash collateral and (iii) all other monetary
obligations of the Mortgagor (including the Guarantee Obligations) and the
Borrower to the Lenders, the Swingline Lender, the Fronting Bank, the Agent, the
Tranche A Exchange Note Purchasers or the Collateral Agent under the Credit
Agreement, the Tranche A Exchange Note Purchase Agreements, this Mortgage and
the other Loan Documents and Tranche A Exchange Note Documents to which the
Mortgagor or the Borrower is or is to be a party and (b) the due and punctual
performance of all covenants, agreements, obligations and liabilities of the
Mortgagor and the Borrower under or pursuant to the Credit Agreement, the
Tranche A Exchange Note Purchase Agreements, this Mortgage and the other Loan
Documents and Tranche A Exchange
-2-
Note Documents and (c) the due and punctual payment and performance of all
obligations of the Borrower, monetary or otherwise, under each Rate Protection
Agreement entered into with a counterparty that was a Lender (or an Affiliate of
a Lender) at the time such Rate Protection Agreement was entered into (all the
obligations referred to in the preceding clauses (a) through (c) being referred
to, collectively, as the "Secured Obligations").
E. Pursuant to the requirements of the Credit Agreement and the
Tranche A Exchange Note Purchase Agreements, the Mortgagor is entering into this
Mortgage to create a security interest in the Mortgaged Property (as defined
herein) to secure the performance and payment by the Mortgagor of the Secured
Obligations. The Credit Agreement and Tranche A Exchange Note Purchase
Agreements also require the granting by the Mortgagor and the other Grantors
under the Security Agreement of mortgages (the "Other Mortgages") that create
security interests in certain Mortgaged Properties other than the Mortgaged
Property to secure the performance of the Obligations.
GRANTING CLAUSES
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and in order to
secure (A) the due and punctual payment and performance of the Secured
Obligations by the Mortgagor, (B) the due and punctual payment by the Mortgagor
of all taxes, common area charges and insurance premiums relating to the
Mortgaged Property and (C) all disbursements made by Mortgagee for the payment
of taxes, common area charges or insurance premiums, all fees, expenses or
advances in connection with or relating to the Mortgaged Property, and interest
on such disbursements and other amounts not timely paid in accordance with the
terms of the Credit Agreement, the Tranche A Exchange Note Purchase Agreements,
this Mortgage, the Loan Documents and the Tranche A Exchange Note Documents,
Mortgagor hereby assigns and conveys as security, grants a security interest in,
hypothecates, mortgages, pledges and sets over unto Mortgagee, with mortgage
covenants, all the following described property (the "Mortgaged Property")
whether now owned or held or hereafter acquired:
(1) all of Mortgagor's right, title and interest in all the fee
estate in the land more particularly described on Exhibit A hereto (the
"Land"), together with all rights appurtenant thereto, including the
easements over certain other adjoining land granted by any easement
agreements, covenant or restrictive agreements and all air rights, mineral
rights, water rights, oil and gas rights and development rights, if any,
relating thereto, and also together with all of the other easements,
rights, privileges, interests, permits, hereditaments and appurtenances
thereunto belonging or in any wise appertaining and all of the estate,
right, title, interest, claim or demand whatsoever of Mortgagor therein
and in the streets and ways adjacent thereto, either in law or in equity,
in possession or expectancy, now or hereafter acquired (the "Premises");
-3-
(2) all of Mortgagor's right, title and interest in all buildings,
improvements, structures, paving, parking areas, walkways and landscaping
now or hereafter erected or located upon the Land, and all legal fixtures
of every kind and type affixed to the Premises or attached to or forming
part of any structures, buildings or improvements and replacements thereof
now or hereafter erected or located upon the Land (the "Improvements");
(3) all of Mortgagor's right, title and interest in all apparatus,
movable appliances, building materials, equipment, fittings, furnishings,
furniture, machinery and other articles of tangible personal property of
every kind and nature, and replacements thereof, now or at any time
hereafter placed upon or used in any way in connection with the use,
enjoyment, occupancy or operation of the Improvements or the Premises,
including all of Mortgagor's books and records relating thereto and
including all pumps, tanks, goods, machinery, tools, equipment, lifts
(including fire sprinklers and alarm systems, fire prevention or control
systems, cleaning rigs, air conditioning, heating, boilers, refrigerating,
electronic monitoring, water, loading, unloading, lighting, power,
sanitation, waste removal, entertainment, communications, computers,
recreational, window or structural, maintenance, truck or car repair and
all other equipment of every kind), restaurant, bar and all other indoor
or outdoor furniture (including tables, chairs, booths, serving stands,
planters, desks, sofas, racks, shelves, lockers and cabinets), bar
equipment, glasses, cutlery, uniforms, linens, memorabilia and other
decorative items, furnishings, appliances, supplies, inventory, rugs,
carpets and other floor coverings, draperies, drapery rods and brackets,
awnings, venetian blinds, partitions, chandeliers and other lighting
fixtures, freezers, refrigerators, walk-in coolers, signs (indoor and
outdoor), computer systems, cash registers and inventory control systems,
and all other apparatus, equipment, furniture, furnishings, and articles
used in connection with the use or operation of the Improvements or the
Premises, it being understood that the enumeration of any specific
articles of property shall in no way result in or be held to exclude any
items of property not specifically mentioned (the property referred to in
this paragraph (3) being hereinafter called the "Personal Property");
(4) all of Mortgagor's right, title and interest in all general
intangibles relating to design, development, operation, management and use
of the Premises or the Improvements, all certificates of occupancy, zoning
variances, building, use or other permits, approvals, authorizations and
consents obtained from and all materials prepared for filing or filed with
any governmental agency in connection with the development, use, operation
or management of the Premises and improvements, all construction, service,
engineering, consulting, leasing, architectural and other similar
contracts concerning the design, construction, management, operation,
occupancy and/or use of the Premises and Improvements, all architectural
drawings, plans, specifications, soil tests, feasibility studies,
appraisals, environmental studies, engineering reports and similar
materials relating to any portion of or all of the
Premises and Improvements, and all payment and performance bonds or
warranties or guarantees relating to the Premises or the Improvements, all
to the extent assignable (the "Permits, Plans and Warranties");
-4-
(5) Mortgagor's interest in and rights under each Operating Lease
(as hereinafter defined), if any, all other leases or licenses (under
which Mortgagor is landlord or licensor) and subleases (under which
Mortgagor is sublandlord), concession, management, mineral or other
agreements of a similar kind that permit the use or occupancy of the
Premises or the Improvements for any purpose in return for any payment, or
the extraction or taking of any gas, oil, water or other minerals from the
Premises in return for payment of any fee, rent or royalty (collectively,
"Leases"), and all agreements or contracts for the sale or other
disposition of all or any part of the Premises or the Improvements, now or
hereafter entered into by Mortgagor, together with all charges, fees,
income, issues, profits, receipts, rents, revenues or royalties payable
thereunder ("Rents");
(6) all of Mortgagor's right, title and interest in and to all real
estate tax refunds and all proceeds of the conversion, voluntary or
involuntary, of any of the Mortgaged Property into cash or liquidated
claims ("Proceeds"), including Proceeds of insurance maintained by the
Mortgagor or caused by the Mortgagor to be maintained by any operator (as
hereinafter defined) and condemnation awards, any awards which may become
due by reason of the taking by eminent domain or any transfer in lieu
thereof of the whole or any part of the Premises or Improvements or any
rights appurtenant thereto, and any awards for change of grade of streets,
together with any and all moneys now or hereafter on deposit for the
payment of real estate taxes, assessments or common area charges levied
against the Mortgaged Property, unearned premiums on policies of fire and
other insurance maintained by the Mortgagor or caused by the Mortgagor to
be maintained by any Operator covering any interest in the Mortgaged
Property or required by the Credit Agreement; and
(7) all right, title and interest of the Mortgagor in and to all
extensions, improvements, betterments, renewals, substitutes and
replacements of and all additions and appurtenances to, the Land, the
Premises, the Improvements, the Personal Property, the Permits, Plans and
Warranties and the Leases, hereinafter acquired by or released to the
Mortgagor or constructed, assembled or placed by the Mortgagor on the
Land, the Premises or the Improvements, and all conversions of the
security constituted thereby, immediately upon such acquisition, release,
construction, assembling, placement or conversion, as the case may be, and
in each such case, without any further mortgage, deed of trust,
conveyance, assignment or other act by the Mortgagor, all of which shall
become subject to the lien of this Mortgage as fully and completely, and
with the same effect, as though now owned by the Mortgagor and
specifically described herein.
TO HAVE AND TO HOLD by Mortgagee and its successors and assigns
forever, subject only to the Permitted Encumbrances (as hereinafter defined) and
to satisfaction and cancelation as provided in Section 3.05.
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ARTICLE I
REPRESENTATIONS, WARRANTIES AND COVENANTS OF MORTGAGOR
Mortgagor agrees, covenants, represents and/or warrants as follows:
SECTION 1.01. TITLE; OPERATING LEASES. (a) Mortgagor has good and
marketable title to an indefeasible fee estate in the Land and Improvements
subject to no lien, charge or encumbrance except for, and this Mortgage is and
will remain a valid and enforceable first and prior lien on the Premises,
Improvements and the Rents subject only to, in each case, Liens permitted by
Section 7.02 of the Credit Agreement and Section 7.02 of the Tranche A Exchange
Note Purchase Agreements and the exceptions and encumbrances referred to in
SCHEDULE A annexed hereto (collectively, the "Permitted Encumbrances").
(b) Mortgagor has good and marketable title to all the Personal
Property subject to no lien, charge or encumbrance other than this Mortgage and
the Permitted Encumbrances. The Personal Property constitutes and will
constitute all of such items as are necessary for the use of the Premises and
Improvements as a full service truckstop facility (or truckstop facilities in
the case where the Mortgaged Property is comprised of more than one independent,
fully integrated truckstop facility) of the type there conducted on the date
hereof (each a "Truckstop"). The Personal Property is not and will not (except
as expressly permitted by Section 7.08 of the Credit Agreement and Section 7.08
of the Tranche A Exchange Note Purchase Agreements) become the subject matter of
any lease or other arrangement that is not a Permitted Encumbrance whereby the
ownership of any Personal Property will be held by any person or entity other
than Mortgagor; except as expressly permitted by Section 7.05 of the Credit
Agreement and Section 7.05 of the Tranche A Exchange Note Purchase Agreements,
none of the Personal Property will be removed from the Premises or the
Improvements unless the same is no longer needed for the continued operation of
the Premises and the Improvements as currently operated (or as then operated, to
the extent that any change from the current manner of operation was permitted by
the Credit Agreement and the Tranche A Exchange Note Purchase Agreements) or is
replaced by other Personal Property of substantially equal or greater utility
and value; and, except as expressly permitted by Section 7.05 of the Credit
Agreement and Section 7.05 of the Tranche A Exchange Note Purchase Agreements,
Mortgagor will not create or cause to be created (other than Permitted
Encumbrances) any security interest covering any of the Personal Property other
than the security interest in the Personal Property created in favor of
Mortgagee by this Mortgage or any other agreement collateral hereto.
(c) Except as set forth on Schedule B hereto, there are no Leases
affecting a material portion of the Mortgaged Property. Each Lease is in full
force and effect, and, except as set forth on SCHEDULE B hereto, Mortgagor has
not given, nor has it received, any notice of default with respect to any
material obligation under any Lease. Each Lease is subject to no lien, charge or
encumbrance other than this Mortgage and the Permitted Encumbrances.
-6-
(d) All easement agreements, covenant or restrictive agreements,
supplemental agreements and any other instruments hereinabove referred to and
mortgaged hereby are and will remain valid, subsisting and in full force and
effect, unless the failure to remain valid, subsisting and in full force and
effect, individually or in the aggregate, would not have a material adverse
effect on the Mortgaged Property, and Mortgagor is not in default thereunder and
has fully performed the material terms thereof required to be performed through
the date hereof, and has no knowledge of any default thereunder or failure to
fully perform the terms thereof by any other party, nor of the occurrence of any
event which after notice or the passage of time or both will constitute a
default thereunder. Each Truckstop on the Mortgaged Property is fully served by
water, gas, electric, storm and sanitary sewage facilities, such utilities
serving the Premises and the Improvements are located in and in the future will
be located in, and adequate vehicular access to the Premises and the
Improvements is provided by, either a public right-of-way abutting and
contiguous with the Land or valid recorded unsubordinated easements.
(e) Mortgagor has good and lawful right and full power and authority
to mortgage the Mortgaged Property and will forever warrant and defend its title
to the Mortgaged Property, the rights of Mortgagee therein under this Mortgage
and the validity and priority of the lien of this Mortgage thereon against the
claims of all persons and parties except those having rights under Permitted
Encumbrances to the extent of those rights.
(f) This Mortgage, when duly recorded in the appropriate public
records and when financing statements are duly filed in the appropriate public
records, will create a valid, perfected and enforceable lien upon and security
interest in all the Mortgaged Property and there will be no defenses or offsets
to this Mortgage or to any of the Secured Obligations.
SECTION 1.02. CREDIT AGREEMENT AND TRANCHE A EXCHANGE NOTE PURCHASE
AGREEMENTS; CERTAIN AMOUNTS. (a) This Mortgage is given pursuant to the Credit
Agreement and Tranche A Exchange Note Purchase Agreements. Each and every term
and provision of the Credit Agreement and Tranche A Exchange Note Purchase
Agreements, including the rights, remedies, obligations, covenants, conditions,
agreements, indemnities, representations and warranties of the parties thereto
shall be considered as if a part of this Mortgage. Not in limitation of the
foregoing, Sections 9 and 10 of the Guarantee Agreement and Section 10.16 of the
Credit Agreement are hereby incorporated by reference and the Mortgagor hereby
agrees to be bound by such provisions as if such provisions were included
herein.
(b) If any remedy or right of Mortgagee pursuant hereto is acted
upon by Mortgagee or if any actions or proceedings (including any bankruptcy,
insolvency or reorganization proceedings) are commenced in which Mortgagee is
made a party and is obliged to defend or uphold or enforce this Mortgage or the
rights of Mortgagee hereunder or the terms of any Lease, or if a condemnation
proceeding is instituted affecting the Mortgaged Property, Mortgagor will pay
all sums, including reasonable attorneys' fees and disbursements, incurred by
Mortgagee related to the exercise of any remedy or right of Mortgagee pursuant
hereto or for the expense of any such action or proceeding together with all
statutory or other costs, disbursements and allowances, interest thereon from
the date of demand for payment thereof at the Default Rate,
-7-
and such sums and the interest thereon shall, to the extent permissible by law,
be a lien on the Mortgaged Property prior to any right, title to, interest in or
claim upon the Mortgaged Property attaching or accruing subsequent to the
recording of this Mortgage and shall be secured by this Mortgage to the extent
permitted by law. Any payment of amounts due under this Mortgage not made on or
before the due date for such payments shall accrue interest daily without notice
from the due date until paid at the Default Rate, and such interest at the
Default Rate shall be immediately due upon demand by Mortgagee.
SECTION 1.03. PAYMENT OF TAXES, LIENS AND CHARGES. (a) Except as may
be permitted by Section 6.03 of the Credit Agreement and by Section 6.03 of the
Tranche A Exchange Note Purchase Agreements, Mortgagor will pay and discharge
from time to time when the same shall become due and payable, and before any
interest or penalty accrues thereon or attaches thereto, all taxes of every kind
and nature, all general and special assessments, levies, permits, inspection and
license fees, all water and sewer rents, all vault charges, and all other public
charges, and all service charges, common area charges, private maintenance
charges, utility charges and all other private charges, whether of a like or
different nature, imposed upon or assessed against the Mortgaged Property or any
part thereof or upon the Rents from the Mortgaged Property or arising in respect
of the occupancy, use or possession thereof. At Mortgagee's option, Mortgagee
will enter into a contract, at Mortgagor's reasonable expense, with a tax
service firm who will provide to Mortgagee on or about the same times each year,
receipts evidencing the payment of all such taxes, assessments, levies, fees and
other public charges imposed upon or assessed against the Mortgaged Property.
(b) In the event of the passage of any state, Federal, municipal or
other governmental law, order, rule or regulation subsequent to the date hereof
(i) deducting from the value of real property for the purpose of taxation any
lien or encumbrance thereon or in any manner changing or modifying the laws now
in force governing the taxation of this Mortgage or debts secured by mortgages
(other than laws governing income, franchise and similar taxes generally) or the
manner of collecting taxes thereon and (ii) imposing a tax to be paid by
Mortgagee, either directly or indirectly, on this Mortgage, the Notes, the
Tranche A Exchange Notes or any of the Loan Documents or Tranche A Exchange Note
Documents or to require an amount of taxes to be withheld or deducted therefrom,
Mortgagor will promptly notify Mortgagee of such event. In such event Mortgagor
shall (i) agree to enter into such further instruments, including but not
limited to new notes or new senior notes to be issued in exchange for the Notes
or the Tranche A Exchange Notes theretofore issued, as may be reasonably
necessary or desirable to obligate Mortgagor to make any applicable additional
payments, and (ii) Mortgagor shall make such additional payments under the Notes
or the Tranche A Exchange Notes. If Mortgagor is not permitted by law to do that
which is required by the preceding sentence, Mortgagee shall be entitled to
exercise any or all of its rights and remedies under the Loan Documents and/or
the Tranche A Exchange Note Documents, including the right to accelerate the
Obligations.
(c) At any time that an Event of Default shall occur hereunder, or
if required by any law applicable to Mortgagor or to Mortgagee, Mortgagee shall
have the right to direct Mortgagor to make an initial deposit on account of real
estate taxes and assessments, insurance
-8-
premiums and common area charges, levied against or payable in respect of the
Mortgaged Property in advance and thereafter semiannually, each such deposit to
be equal to one-half of any such annual charges estimated by Mortgagee in order
to accumulate with Mortgagee sufficient funds to pay such taxes, assessments,
insurance premiums and charges.
SECTION 1.04. PAYMENT OF CLOSING COSTS. Mortgagor shall pay all
costs in connection with, relating to or arising out of the preparation,
execution and recording of this Mortgage, including title company premiums and
charges, inspection costs, survey costs, recording fees and taxes, attorneys',
engineers', appraisers' and consultants' fees and disbursements and all other
similar expenses of every kind.
SECTION 1.05. ALTERATIONS AND WASTE; PLANS. (a) No Improvements will
be materially altered or demolished or removed in whole or in part by Mortgagor
or any Operator except as provided by Section 7.05 of the Credit Agreement and
by Section 7.05 of the Tranche A Exchange Note Purchase Agreements. Mortgagor
will not erect any additions to the existing Improvements or other structures on
the Premises which will materially interfere with the Truckstop operation
conducted thereon on the date hereof, without the prior written consent of
Mortgagee. Mortgagor will not commit any waste on the Mortgaged Property or make
any alteration to, or change in the use of, the Mortgaged Property which will
diminish the fair market value thereof or materially increase any ordinary fire
or other hazard arising out of construction or operation, but in no event shall
any such alteration or change be contrary to the terms of any insurance policy
required to be kept pursuant to paragraph 1.06. Mortgagor will maintain and
operate (or cause each Operator, if any, to maintain and operate) the
Improvements and Personal Property in good repair, working order and condition,
reasonable wear and tear excepted.
(b) Mortgagor shall maintain a complete set of final plans,
specifications, blueprints and drawings for the Mortgaged Property either at the
Mortgaged Property or in a particular office at the headquarters of Mortgagor to
which Mortgagee shall have access upon reasonable advance notice.
SECTION 1.06. INSURANCE. Mortgagor will keep or cause to be kept the
Improvements and Personal Property insured against such risks, and in the
manner, required by Section 6.02 of the Credit Agreement and Section 6.02 of the
Tranche A Exchange Note Purchase Agreements.
SECTION 1.07. CASUALTY; RESTORATION OF CASUALTY DAMAGE. (a)
Mortgagor, in accordance with Section 9 of the Guarantee Agreement and Section
8.01 of the Tranche A Exchange Note Purchase Agreements, shall give Mortgagee
prompt written notice of any Casualty to the Mortgaged Property. Subject to the
provisions of Section 9 of the Guarantee Agreement and Section 8.01 of the
Tranche A Exchange Note Purchase Agreements, payment of any loss will be made
directly in its entirety to Mortgagee and any such proceeds relating to a
Casualty shall be held or applied by Mortgagee in accordance with Section 9 of
the Guarantee Agreement and Section 8.01 of the Tranche A Exchange Note Purchase
Agreements.
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SECTION 1.08. CONDEMNATION/EMINENT DOMAIN. The Mortgagor shall, in
accordance with Section 9 of the Guarantee Agreement and Section 8.01 of the
Tranche A Exchange Note Purchase Agreements, notify the Mortgagee promptly upon
obtaining knowledge of any pending or threatened Condemnation of the Mortgaged
Property. All Condemnation Proceeds shall be held and applied by Mortgagee in
accordance with Section 9 of the Guarantee Agreement and Section 8.01 of the
Tranche A Exchange Note Purchase Agreements.
SECTION 1.09. ASSIGNMENT OF LEASES AND RENTS. (a) Mortgagor hereby
irrevocably and absolutely grants, transfers and assigns all of its right, title
and interest in each Operating Lease, if any, and all other Leases, together
with any and all extensions and renewals thereof for purposes of securing and
discharging the performance by Mortgagor of the Secured Obligations. Mortgagor
has not assigned or executed any assignment of, and will not assign or execute
any assignment of, any Operating Lease or any other Lease or their respective
Rents to anyone other than Mortgagee.
(b) Without Mortgagee's prior written consent, Mortgagor will not
(1) modify, amend, terminate or consent to the cancelation or surrender of any
Operating Lease or any other Lease if such modification, amendment, termination
or consent would, in the reasonable judgment of the Mortgagee, be adverse in any
material respect to the Lenders, the value of the Mortgaged Property or the lien
created by this Mortgage or (2) consent to an assignment of any Operator's
interest in any Operating Lease or to a subletting thereof covering a material
portion of any Truckstop comprising a portion of the Mortgaged Property, except
as may be permitted by this Mortgage, the Credit Agreement or the Tranche A
Exchange Note Purchase Agreements.
(c) Subject to paragraph 1.09(d), Mortgagor has assigned and
transferred to Mortgagee all of Mortgagor's right, title and interest in and to
the Rents now or hereafter arising from each Operating Lease, if any, and all
other Leases heretofore or hereafter made or agreed to by Mortgagor, it being
intended that this assignment establish, subject to paragraph 1.09(d), an
absolute transfer and assignment of all Rents and each such Operating Lease, if
any, and all other Leases to Mortgagee and not merely to grant a security
interest therein. Subject to paragraph 1.09(d), Mortgagee may in Mortgagor's
name and stead (with or without first taking possession of any of the Mortgaged
Property personally or by receiver as provided herein) operate the Mortgaged
Property and rent, lease or let all or any portion of any of the Mortgaged
Property to any party or parties at such rental and upon such terms as Mortgagee
shall, in its sole discretion, determine, and may collect and have the benefit
of all of said Rents arising from or accruing at any time thereafter or that may
thereafter become due under each Lease.
(d) Until an Event of Default occurs or after an Event of Default
has occurred but is no longer continuing, Mortgagee will not exercise any of its
rights under paragraph 1.09(c), and Mortgagor shall receive and collect the
Rents accruing under any Operating Lease or any other Lease; but after the
happening of any Event of Default (but only while such Event of Default
continues), Mortgagee may, at its option, receive and collect all Rents and
enter upon the Premises and Improvements through its officers, agents, employees
or attorneys for such purpose and for the operation and maintenance thereof.
Upon the happening of an Event of Default, Mortgagor
-10-
hereby irrevocably authorizes and directs each operator, if any, each other
tenant, if any, and each successor, if any, to the interest of any Operator or
tenant under each Operating Lease, if any, or any other Lease, respectively, to
rely upon any notice of a claimed Event of Default sent by Mortgagee to any such
Operator, if any, or tenant or any of their successors in interest, and
thereafter to pay Rents to Mortgagee without any obligation or right to inquire
as to whether an Event of Default actually exists and even if some notice to the
contrary is received from the Mortgagor, who shall have no right or claim
against any such Operator, if any, or tenant or successor in interest for any
such Rents so paid to Mortgagee. Each Operator, if any, or tenant or any of
their successors in interest from whom Mortgagee or any officer, agent, attorney
or employee of Mortgagee shall have collected any Rents, shall be authorized to
pay Rents to Mortgagor only after such Operator, if any, or tenant or any of
their successors in interest shall have received written notice from Mortgagee
that the Event of Default is no longer continuing, which notice Mortgagee shall
be obligated to give if Mortgagee agrees that such Event of Default is no longer
continuing, unless and until a further notice of an Event of Default is given by
Mortgagee to such tenant or any of their successors in interest.
(e) Mortgagee will not become a mortgagee in possession so long as
it does not enter or take actual possession of the Mortgaged Property. In
addition, Mortgagee shall not be responsible or liable for performing any of the
obligations of the landlord under any Operating Lease or any other Lease, for
any waste by any Operator or any tenant, or others, for any dangerous or
defective conditions of any of the Mortgaged Property, for negligence in the
management, upkeep, repair or control of any of the Mortgaged Property or any
other act or omission by any other person.
(f) Mortgagor shall furnish to Mortgagee, within 30 days after a
request by Mortgagee to do so, a written statement containing the names of each
Operator, if any, all tenants, subtenants and concessionaires of the Premises or
Improvements, the terms of each Operating Lease, if any, or any other Lease, the
space occupied and the rentals or license fees payable thereunder.
SECTION 1.10. RESTRICTIONS ON TRANSFERS AND ENCUMBRANCES. (a) Except
as permitted hereby, by the Credit Agreement or by the Tranche A Exchange Note
Purchase Agreements, Mortgagor shall not directly or indirectly sell, convey,
alienate, assign, lease, sublease, license, mortgage, pledge, encumber or
otherwise transfer, create, consent to or suffer the creation of any lien,
charges or any form of encumbrance upon any interest in or any part of the
Mortgaged Property, or be divested of its title to the Mortgaged Property or any
interest therein in any manner or way, whether voluntarily or involuntarily
(other than resulting from a taking), or engage in any common, cooperative,
joint, time-sharing or other congregate ownership of all or part thereof;
PROVIDED, HOWEVER, that Mortgagor may in the ordinary course of business within
reasonable commercial standards, enter into easement or covenant agreements
which relate to and/or benefit the operation of the Mortgaged Property and which
do not materially or adversely affect the use and operation of the same (except
for customary utility easements which service the Mortgaged Property).
-11-
SECTION 1.11. SECURITY AGREEMENT. This Mortgage is both a mortgage
of real property and a grant of a security interest in personal property, and
shall constitute and serve as a "Security Agreement" within the meaning of the
uniform commercial code as adopted in the state wherein the Premises are
located. Mortgagor has hereby granted unto Mortgagee a security interest in and
to all the Mortgaged Property described in this Mortgage that is not real
property, and simultaneously with the recording of this Mortgage, Mortgagor has
filed or will file UCC financing statements, and will file continuation
statements prior to the lapse thereof, at the appropriate offices in the state
in which the Premises are located to perfect the security interest granted by
this Mortgage in all the Mortgaged Property that is not real property. Mortgagor
hereby appoints Mortgagee as its true and lawful attorney-in-fact and agent, for
Mortgagor and in its name, place and stead, in any and all capacities, to
execute any document and to file the same in the appropriate offices (to the
extent it may lawfully do so), and to perform each and every act and thing
requisite and necessary to be done to perfect the security interest contemplated
by the preceding sentence. Mortgagee shall have all rights with respect to the
part of the Mortgaged Property that is the subject of a security interest
afforded by the uniform commercial code as adopted in the state wherein the
Premises are located in addition to, but not in limitation of, the other rights
afforded Mortgagee hereunder.
SECTION 1.12. FILING AND RECORDING. Mortgagor will cause this
Mortgage, any other security instrument creating a security interest in or
evidencing the lien hereof upon the Mortgaged Property and each instrument of
further assurance to be filed, registered or recorded in such manner and in such
places as may be required by any present or future law in order to publish
notice of and fully to protect the lien hereof upon, and the security interest
of Mortgagee in, the Mortgaged Property. Mortgagor will pay all filing,
registration or recording fees, and all expenses incidental to the execution and
acknowledgment of this Mortgage, any mortgage supplemental hereto, any security
instrument with respect to the Personal Property, and any instrument of further
assurance and all Federal, state, county and municipal recording, documentary or
intangible taxes and other taxes, duties, imposts, assessments and charges
arising out of or in connection with the execution, delivery and recording of
this Mortgage, any mortgage supplemental hereto, any security instrument with
respect to the Personal Property or any instrument of further assurance.
SECTION 1.13. FURTHER ASSURANCES. Upon demand by Mortgagee,
Mortgagor will, at the cost of Mortgagor and without expense to Mortgagee, do,
execute, acknowledge and deliver all such further acts, deeds, conveyances,
mortgages, assignments, notices of assignment, transfers and assurances as
Mortgagee shall from time to time reasonably require for the better assuring,
conveying, assigning, transferring and confirming unto Mortgagee the property
and rights hereby conveyed or assigned or intended now or hereafter so to be, or
which Mortgagor may be or may hereafter become bound to convey or assign to
Mortgagee, or for carrying out the intention or facilitating the performance of
the terms of this Mortgage, or for filing, registering or recording this
Mortgage, and on demand, Mortgagor will also execute and deliver and hereby
appoints Mortgagee as its true and lawful attorney-in-fact and agent, for
Mortgagor and in its name, place and stead, in any and all capacities, to
execute and file to the extent it may lawfully do so, one or more financing
statements, chattel mortgages or comparable security instruments
-12-
reasonably requested by Mortgagee to evidence more effectively the lien hereof
upon the Personal Property and to perform each and every act and thing requisite
and necessary to be done to accomplish the same.
SECTION 1.14. ADDITIONS TO MORTGAGED PROPERTY. All right, title and
interest of Mortgagor in and to all extensions, improvements, betterments,
renewals, substitutes and replacements of, and all additions and appurtenances
to, the Mortgaged Property hereafter acquired by or released to Mortgagor or
constructed, assembled or placed by Mortgagor upon the Premises or the
Improvements, and all conversions of the security constituted thereby,
immediately upon such acquisition, release, construction, assembling, placement
or conversion, as the case may be, and in each such case without any further
mortgage, conveyance, assignment or other act by Mortgagor, shall become subject
to the lien and security interest of this Mortgage as fully and completely and
with the same effect as though now owned by Mortgagor and specifically described
in the grant of the Mortgaged Property above, but at any and all times Mortgagor
will execute and deliver to Mortgagee any and all such further assurances,
mortgages, conveyances or assignments thereof as Mortgagee may reasonably
require for the purpose of expressly and specifically subjecting the same to the
lien and security interest of this Mortgage.
SECTION 1.15. NO CLAIMS AGAINST MORTGAGEE. Nothing contained in
this Mortgage shall constitute any consent or request by Mortgagee, express or
implied, for the performance of any labor or services or the furnishing of any
materials or other property in respect of the Mortgaged Property or any part
thereof, nor as giving Mortgagor any right, power or authority to contract for
or permit the performance of any labor or services or the furnishing of any
materials or other property in such fashion as would permit the making of any
claim against Mortgagee in respect thereof.
ARTICLE II
DEFAULTS AND REMEDIES
SECTION 2.01. EVENTS OF DEFAULT. It shall be an Event of Default
under this Mortgage if any Event of Default (as therein defined) shall exist
pursuant to (1) the Credit Agreement, (2) the Tranche A Exchange Note Purchase
Agreements or (3) any Other Mortgage.
SECTION 2.02. DEMAND FOR PAYMENT. If an Event of Default as set
forth herein shall occur and be continuing, then, upon written demand of
Mortgagee, Mortgagor will pay to Mortgagee upon demand all amounts due hereunder
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including attorneys' fees, disbursements and expenses incurred by
Mortgagee. In case Mortgagor shall fail forthwith to pay such amounts or any
amounts due under any other Section of this Mortgage upon Mortgagee's demand,
Mortgagee shall be entitled and empowered to institute an action or proceedings
at law or in equity as advised by counsel for the collection of the sums so due
and unpaid, to prosecute any such action or proceedings to judgment or final
decree, to enforce any such judgment or final decree against
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Mortgagor and to collect, in any manner provided by law, all moneys adjudged or
decreed to be payable.
SECTION 2.03. RIGHTS TO TAKE POSSESSION, OPERATE AND APPLY REVENUES.
(a) If an Event of Default shall occur and be continuing, Mortgagor shall, upon
demand of Mortgagee, forthwith surrender to Mortgagee actual possession of the
Mortgaged Property and, if and to the extent permitted by law, Mortgagee itself,
or by such officers or agents as it may appoint, may then enter and take
possession of all the Mortgaged Property without the appointment of a receiver
or an application therefor, exclude Mortgagor and its agents and employees
wholly therefrom, and have access (with Mortgagor) to the books, papers and
accounts of Mortgagor.
(b) If Mortgagor shall for any reason fail to surrender or deliver
the Mortgaged Property or any part thereof after such demand by Mortgagee,
Mortgagee may obtain a judgment or decree conferring upon Mortgagee the right to
immediate possession or requiring Mortgagor to deliver immediate possession of
the Mortgaged Property to Mortgagee, to the entry of which judgment or decree
Mortgagor hereby specifically consents. Mortgagor will pay to Mortgagee, upon
demand, all expenses of obtaining such judgment or
decree, including compensation to Mortgagee's attorneys and agents with interest
thereon at the Default Rate, and all such expenses and compensation shall, until
paid, be secured by this Mortgage.
(c) Upon every such entry or taking of possession, Mortgagee may
hold, store, use, operate, manage and control the Mortgaged Property, conduct
the business thereof and, from time to time, (1) make all necessary and proper
maintenance, repairs, renewals, replacements, additions, betterments and
improvements thereto and thereon, (2) purchase or otherwise acquire additional
fixtures, personalty and other property, (3) insure or keep the Mortgaged
Property insured, (4) manage and operate the Mortgaged Property and exercise all
the rights and powers of Mortgagor to the same extent as Mortgagor could in its
own name or otherwise with respect to the same, or (5) enter into any and all
agreements with respect to the exercise by others of any of the powers herein
granted Mortgagee, all as may from time to time be directed or determined by
Mortgagee to be in its best interest and Mortgagor hereby appoints Mortgagee as
its true and lawful attorney-in-fact and agent, for Mortgagor and in its name,
place and stead, in any and all capacities, to perform any of the foregoing
acts. Mortgagee may collect and receive all the Rents, issues, profits and
revenues from the Mortgaged Property, including those past due as well as those
accruing thereafter, and, after deducting (i) all expenses of taking, holding,
managing and operating the Mortgaged Property (including compensation for the
services of all persons employed for such purposes), (ii) the costs of all such
maintenance, repairs, renewals, replacements, additions, betterments,
improvements, purchases and acquisitions, (iii) the costs of insurance, (iv)
such taxes, assessments and other similar charges as Mortgagee may at its option
pay, (v) other proper charges upon the Mortgaged Property or any part thereof
and (vi) the compensation, expenses and disbursements of the attorneys and
agents of Mortgagee, Mortgagee shall apply the remainder of the moneys and
proceeds so received first to the payment of the Mortgagee for the payment in
full of Indebtedness and satisfaction of the Secured Obligations, and second, if
there is any surplus, to Mortgagor, subject to the entitlement of others thereto
under applicable law.
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(d) Whenever, before any sale of the Mortgaged Property under
Section 2.06, all Secured Obligations which are then due shall have been paid
and all Events of Default fully cured, Mortgagee will surrender possession of
the Mortgaged Property back to Mortgagor, its successors or assigns. The same
right of taking possession shall, however, arise again if any subsequent Event
of Default shall occur and be continuing.
SECTION 2.04. RIGHT TO CURE MORTGAGOR'S FAILURE TO PERFORM. Prior to
the occurrence of an Event of Default upon five days' notice to Mortgagor
(except in the case of an emergency), or after the occurrence of an Event of
Default at any time and without notice, should Mortgagor fail in the payment,
performance or observance of any term, covenant or condition required by this
Mortgage, the Credit Agreement or the Tranche A Exchange Note Purchase
Agreements (with respect to the Mortgaged Property), Mortgagee may pay, perform
or observe the same, and all payments made or costs or expenses incurred by
Mortgagee in connection therewith shall be secured hereby and shall be, without
demand, immediately repaid by Mortgagor to Mortgagee with interest thereon at
the Default Rate. Mortgagee shall be the judge of the necessity for any such
actions and of the amounts to be paid. Subject to the notice provisions of the
first sentence of this paragraph 2.04, Mortgagee is hereby empowered to enter
and to authorize others to enter upon the Premises or the Improvements or any
part thereof for the purpose of performing or observing any such defaulted term,
covenant or condition without having any obligation to so perform or observe and
without thereby becoming liable to Mortgagor, to any person in possession
holding under Mortgagor or to any other person.
SECTION 2.05. RIGHT TO A RECEIVER. If an Event of Default shall
occur and be continuing, Mortgagee, upon application to a court of competent
jurisdiction, shall be entitled as a matter of right to the appointment of a
receiver to take possession of and to operate the Mortgaged Property and to
collect and apply the Rents. The receiver shall have all of the rights and
powers permitted under the laws of the state wherein the Mortgaged Property is
located. Mortgagor will pay to Mortgagee upon demand all expenses, including
receiver's fees, attorney's fees and disbursements, costs and agent's
compensation incurred pursuant to the provisions of this Section 2.05; and all
such expenses shall be secured by this Mortgage and shall be, without demand,
immediately repaid by Mortgagor to Mortgagee with interest thereon at the
Default Rate.
SECTION 2.06. FORECLOSURE AND SALE. (a) If an Event of Default shall
occur and be continuing, Mortgagee may elect to sell the Mortgaged Property or
any part of the Mortgaged Property by exercise of the power of foreclosure or of
sale granted to Mortgagee by applicable law or this Mortgage. In such case,
Mortgagee may commence a civil action to foreclose this Mortgage, or it may
proceed and sell the Mortgaged Property to satisfy any Secured Obligation.
Mortgagee or an officer appointed by a judgment of foreclosure to sell the
Mortgaged Property, may sell all or such parts of the Mortgaged Property as may
be chosen by Mortgagee at the time and place of sale fixed by it in a notice of
sale, either as a whole or in separate lots, parcels or items as Mortgagee shall
deem expedient, and in such order as it may determine, at public auction to the
highest bidder. Mortgagee or an officer appointed by a judgment of foreclosure
to sell the Mortgaged Property may postpone any foreclosure or other sale of all
or any portion of the Mortgaged Property by public announcement at such time and
place of sale, and
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from time to time thereafter may postpone such sale by public announcement or
subsequently noticed sale. Without further notice, Mortgagee or an officer
appointed to sell the Mortgaged Property may make such sale at the time fixed by
the last postponement, or may, in its discretion, give a new notice of sale. Any
person, including Mortgagor or Mortgagee or any designee or affiliate thereof,
may purchase at such sale.
(b) The Mortgaged Property may be sold subject to unpaid taxes and
Permitted Encumbrances, and after deducting all costs, fees and expenses of
Mortgagee, including costs of evidence of title in connection with the sale,
Mortgagee or an officer that makes any sale shall apply the proceeds of sale in
the manner set forth in Section 2.08.
(c) Any foreclosure or other sale of less than the whole of the
Mortgaged Property or any defective or irregular sale made hereunder shall not
exhaust the power of foreclosure provided for herein; and subsequent sales may
be made hereunder until the Secured Obligations have been satisfied, or the
entirety of the Mortgaged Property has been sold.
(d) Mortgagor waives, to the extent not prohibited by law, (1) the
benefit of all laws now existing or hereafter may be enacted providing for any
appraisement before sale of any portion of the Mortgaged Property, (2) the
benefit of all laws now existing or that may be hereafter enacted in any way
extending the time for the enforcement or the collection of amounts due under
any of the Secured Obligations or creating or extending a period of redemption
from any sale made in collecting said debt or any other amounts due Mortgagee,
(3) any right to at any time insist upon, plead, claim or take the benefit or
advantage of any law now or hereafter in force providing for any appraisement,
valuation, stay, extension or redemption, or sale of the Mortgaged Property as
separate tracts, units or estates or as a single parcel in the event of
foreclosure, and (4) all rights of redemption, valuation, appraisement, stay of
execution, notice of election to mature or declare due the whole of or each of
the Secured Obligations and marshalling in the event of foreclosure of this
Mortgage.
(e) To the extent not prohibited by law, the right of Mortgagee to
foreclose on and sell all or any part of the Mortgaged Property shall not be
affected or impaired by the cure of any Event of Default after the publication
of notice of or the commencement of any legal proceeding for such sale.
(f) If an Event of Default shall occur and be continuing, Mortgagee
may instead of, or in addition to, exercising the rights described in paragraph
2.06(a) above and either with or without entry or taking possession as herein
permitted, proceed by a suit or suits in law or in equity or by any other
appropriate proceeding or remedy (1) to specifically enforce payment of some or
all of the terms of the Loan Documents or the Tranche A Exchange Note Documents,
or the performance of any term, covenant, condition or agreement of this
Mortgage or any other right, or (2) to pursue any other remedy available to it,
all as Mortgagee shall determine most effectual for such purposes.
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SECTION 2.07. OTHER REMEDIES. (a) In case an Event of Default shall
occur and be continuing, Mortgagee may also exercise, to the extent not
prohibited by law, any or all of the remedies available to a secured party under
the uniform commercial code of the State wherein the Premises are located,
including, to the extent not prohibited by applicable law, the following:
(1) Either personally or by means of a court appointed receiver, to
take possession of all or any of the Personal Property and exclude
therefrom Mortgagor and all others claiming under Mortgagor, and
thereafter to hold, store, use, operate,
manage, maintain and control, make repairs, replacements, alterations,
additions and improvements to and exercise all rights and powers of
Mortgagor with respect to the Personal Property or any part thereof.
(2) To make such payments and do such acts as Mortgagee may deem
necessary to protect its security interest in the Personal Property
including paying, purchasing, contesting or compromising any encumbrance,
charge or lien which is prior or superior to the security interest granted
hereunder, and, in exercising any such powers or authority, paying all
expenses incurred in connection therewith.
(3) To assemble the Personal Property or any portion thereof at a
place designated by Mortgagee and reasonably convenient to both parties,
to demand prompt delivery of the Personal Property to Mortgagee or an
agent or representative designated by it, and to enter upon any or all of
the Premises or Improvements to exercise Mortgagee's rights hereunder.
(4) To sell or otherwise dispose of or purchase the Personal
Property at public sale, with or without having the Personal Property at
the place of sale, upon such terms and in such manner as Mortgagee may
determine, after Mortgagee shall have given Mortgagor at least ten days'
prior written notice of the time and place of any public sale or other
intended disposition of the Personal Property by mailing a copy to
Mortgagor at the address set forth in Section 3.02.
(b) In connection with a sale of the Mortgaged Property or any
Personal Property and the application of the proceeds of sale as provided in
Section 2.08 of this Xxxx xxxx, Mortgagee shall be entitled to enforce payment
of and to receive up to the principal amount of the Secured Obligations, plus
all other charges, payments and costs due under this Mortgage, and to recover a
deficiency judgment for any portion of the aggregate principal amount of the
Secured Obligations remaining unpaid, with interest.
SECTION 2.08. APPLICATION OF SALE PROCEEDS AND RENTS. After any
foreclosure sale of all or any of the Mortgaged Property, Mortgagee shall
receive the proceeds of sale, no purchaser shall be required to see to the
application of the proceeds and Mortgagee shall apply the
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proceeds of the sale together with any Rents that may have been collected and
any other sums which then may be held by Mortgagee under this Mortgage as
follows:
FIRST: to the payment of the costs and expenses of such sale,
including compensation to Mortgagee's attorneys and agents, and of any
judicial proceedings wherein the same may be made, and of all expenses,
liabilities and advances made or incurred by Mortgagee under this
Mortgage, together with interest at the Default Rate on all advances made
by Mortgagee, including all taxes or assessments (except any taxes,
assessments or other charges subject to which the Mortgaged Property shall
have been sold) and the cost of removing any Permitted Encumbrance (except
any Permitted Encumbrance subject to which the Mortgaged Property was
sold);
SECOND: to the Mortgagee for the payment in full of Indebtedness
and satisfaction of the Secured Obligations; and
THIRD: to the Mortgagor, its successors or assigns, or as a court
of competent jurisdiction may otherwise direct.
The Mortgagee shall have absolute discretion as to the time of application of
any such proceeds, moneys or balances in accordance with this Mortgage. Upon any
sale of the Mortgaged Property by the Mortgagee (including pursuant to a power
of sale granted by statute or under a judicial proceeding), the receipt of the
Mortgagee or of the officer making the sale shall be a sufficient discharge to
the purchaser or purchasers of the Mortgaged Property so sold and such purchaser
or purchasers shall not be obligated to see to the application of any part of
the purchase money paid over to the Mortgagee or such officer or be answerable
in any way for the misapplication thereof.
SECTION 2.09. MORTGAGOR AS TENANT HOLDING OVER. If Mortgagor remains
in possession of any of the Mortgaged Property after any foreclosure sale by
Mortgagee, at Mortgagee's election Mortgagor shall be deemed a tenant holding
over and shall forthwith surrender possession to the purchaser or purchasers at
such sale or be summarily dispossessed or evicted according to provisions of law
applicable to tenants holding over.
SECTION 2.10. WAIVER OF APPRAISEMENT, VALUATION, STAY, EXTENSION AND
REDEMPTION LAWS. (a) Mortgagor will not object to any sale of the Mortgaged
Property in its entirety pursuant to Section 2.06, and for itself and all who
may claim under it, Mortgagor waives, to the extent that it lawfully may, all
right to have the Mortgaged Property marshalled or to have the Mortgaged
Property sold as separate estates, parcels, tracts or units in the event of any
foreclosure of this Mortgage.
(b) To the full extent permitted by the law of the state wherein the
Mortgaged Property is located or other applicable law, neither Mortgagor nor
anyone claiming through or under it shall or will set up, claim or seek to take
advantage of any appraisement, valuation, stay, extension, homestead-exemption
or redemption laws now or hereafter in force in order to prevent or hinder the
enforcement or foreclosure of this Mortgage, the absolute sale of the Mortgaged
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Property or the final and absolute putting of the purchasers into possession
thereof immediately after any sale; and Mortgagor, for itself and all who may at
any time claim through or under it, hereby waives to the full extent that it may
lawfully do so, the benefit of all such laws and any and all right to have the
assets covered by the security interest created hereby marshalled upon any
foreclosure of this Mortgage.
SECTION 2.11. DISCONTINUANCE OF PROCEEDINGS. In case Mortgagee
shall proceed to enforce any right, power or remedy under this Mortgage by
foreclosure, entry or otherwise, and such proceedings shall be discontinued or
abandoned for any reason, or shall be determined adversely to Mortgagee, then
and in every such case Mortgagor and Mortgagee shall be restored to their former
positions and rights hereunder, and all rights, powers and remedies of Mortgagee
shall continue as if no such proceeding had been taken.
SECTION 2.12. SUITS TO PROTECT THE MORTGAGED PROPERTY. Mortgagee
shall have power (a) to institute and maintain suits and proceedings to prevent
any impairment of the Mortgaged Property by any acts which may be unlawful or in
violation of this Mortgage, (b) to preserve or protect its interest in the
Mortgaged Property and in the Rents arising therefrom and (c) to restrain the
enforcement of or compliance with any legislation or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of or compliance with such enactment, rule or order would impair
the security or be prejudicial to the interest of Mortgagee hereunder.
SECTION 2.13. FILING PROOFS OF CLAIM. In case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or
other proceedings affecting Mortgagor, Mortgagee shall, to the extent permitted
by law, be entitled to file such proofs of claim and other documents as may be
necessary or advisable in order to have the claims of Mortgagee allowed in such
proceedings for the Secured Obligations secured by this Mortgage at the date of
the institution of such proceedings and for any interest accrued, late charges
and additional interest or other amounts due or which may become due and payable
hereunder after such date.
SECTION 2.14. POSSESSION BY MORTGAGEE. Notwithstanding the
appointment of any receiver, liquidator or trustee of Mortgagor, any of its
property or the Mortgaged Property, Mortgagee shall be entitled, to the extent
not prohibited by law, to remain in possession and control of all parts of the
Mortgaged Property now or hereafter granted under this Mortgage to Mortgagee in
accordance with the terms hereof and applicable law.
SECTION 2.15. WAIVER. (a) No delay or failure by Mortgagee to
exercise any right, power or remedy accruing upon any breach or Event of Default
shall exhaust or impair any such right, power or remedy or be construed to be a
waiver of any such breach or Event of Default or acquiescence therein; and every
right, power and remedy given by this Mortgage to Mortgagee may be exercised
from time to time and as often as may be deemed expedient by Mortgagee. No
consent or waiver by Mortgagee to or of any breach or default by Mortgagor in
the performance of the Secured Obligations shall be deemed or construed to be a
consent or waiver to or of any other breach or Event of Default in the
performance of the same or any other
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Secured Obligations by Mortgagor hereunder. No failure on the part of Mortgagee
to complain of any act or failure to act or to declare an Event of Default,
irrespective of how long such failure continues, shall constitute a waiver by
Mortgagee of its rights hereunder or impair any rights, powers or remedies
consequent on any future Event of Default by Mortgagor.
(b) Even if Mortgagee (1) grants some forbearance or an extension of
time for the payment of any sums secured hereby, (2) takes other or additional
security for the payment of any sums secured hereby, (3) waives or does not
exercise some right granted herein or under the Loan Documents or Tranche A
Exchange Note Documents, (4) releases a part of the Mortgaged Property from this
Mortgage, (5) agrees to change some of the terms, covenants, conditions or
agreements of any of the Loan Documents or Tranche A Exchange Note Documents,
(6) consents to the filing of a map, plat or replat affecting the Premises, (7)
consents to the granting of an easement or other right affecting the Premises or
(8) makes or consents to an agreement subordinating Mortgagee's lien on the
Mortgaged Property hereunder; no such act or omission shall preclude Mortgagee
from exercising any other right, power or privilege herein granted or intended
to be granted in the event of any breach or Event of Default then made or of any
subsequent default; nor, except as otherwise expressly provided in an instrument
executed by Mortgagee, shall this Mortgage be altered thereby. In the event of
the sale or transfer by operation of law or otherwise of all or part of the
Mortgaged Property, Mortgagee is hereby authorized and empowered to deal with
any vendee or transferee with reference to the Mortgaged Property secured
hereby, or with reference to any of the terms, covenants, conditions or
agreements hereof, as fully and to the same extent as it might deal with the
original parties hereto and without in any way releasing or discharging any
liabilities, obligations or undertakings.
SECTION 2.16. REMEDIES CUMULATIVE. No right, power or remedy
conferred upon or reserved to Mortgagee by this Mortgage is intended to be
exclusive of any other right, power or remedy, and each and every such right,
power and remedy shall be cumulative and concurrent and in addition to any other
right, power and remedy given hereunder or now or hereafter existing at law or
in equity or by statute.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. PARTIAL INVALIDITY. In the event any one or more of
the provisions contained in this Mortgage shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such validity, illegality or
unenforceability shall, at the option of Mortgagee, not affect any other
provision of this Mortgage, and this Mortgage shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein or
therein.
SECTION 3.02. NOTICES. All notices to be sent and all documents to
be delivered hereunder shall be in writing, shall be delivered by hand or
overnight courier service, mailed or sent by telex, graphic scanning or other
telegraphic communications equipment of the
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sending party and shall be deemed to have been given on the date of receipt if
delivered by hand or overnight courier service or sent by telex, 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 any party hereto at the
address or addresses specified in Section 10.01 of the Credit Agreement or at
such other address or addresses of which it shall have notified the party giving
such notice in accordance with said Section 10.01.
SECTION 3.03. SUCCESSORS AND ASSIGNS. All of the grants, covenants,
terms, provisions and conditions herein shall run with the Premises and the
Improvements and shall apply to, bind and inure to, the benefit of the permitted
successors and assigns of Mortgagor and the successors and assigns of Mortgagee.
SECTION 3.04. COUNTERPARTS. This Mortgage may be executed in any
number of counterparts and all such counterparts shall together constitute but
one and the same mortgage.
SECTION 3.05. SATISFACTION AND CANCELATION. (a) The conveyance to
Mortgagee created and consummated by this Mortgage shall be null and void when
all the Obligations have been indefeasibly paid in full in accordance with the
terms of the Loan Documents and the Tranche A Exchange Note Documents and the
Lenders and the Swingline Lender have no further commitment to lend under the
Credit Agreement, no Letters of Credit are outstanding and the Fronting Bank has
no further obligation to issue Letters of Credit under the Credit Agreement.
(b) The lien of this conveyance shall be released from such portion
of the Mortgaged Property as is required by, pursuant to and in accordance with
the operative provisions of (i) Section 7.05 of the Credit Agreement and Section
7.05 of the Tranche A Exchange Note Purchase Agreements or (ii) Section 10 of
the Guarantee Agreement and Section 8.02 of the Tranche A Exchange Note Purchase
Agreements.
(c) In connection with any termination or release pursuant to
paragraph (a), the Mortgage shall be marked "satisfied" by the Mortgagee, and
this Mortgage may be canceled of record at the request and at the expense of the
Mortgagor. Mortgagee shall execute any documents reasonably requested by
Mortgagor to accomplish the foregoing or to accomplish any release contemplated
by paragraph (a) or (b) and Mortgagor will pay all costs and expenses, including
attorneys' fees and disbursements, incurred by Mortgagee in connection with the
preparation and execution of such documents.
SECTION 3.06. DEFINITIONS. As used in this Mortgage, the singular
shall include the plural as the context requires and the following words and
phrases shall have the following meanings: (a) "including" shall mean "including
but not limited to"; (b) "provisions" shall mean "provisions, terms, covenants
and/or conditions"; (c) "lien" shall mean "lien, charge, encumbrance, security
interest, mortgage or deed of trust"; (d) "obligation" shall mean "obligation,
duty, covenant and/or condition"; and (e) "any of the Mortgaged Property" shall
mean "the Mortgaged
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Property or any part thereof or interest therein". "Operating Lease" shall mean
each lease relating to the Truckstop hereafter entered into as permitted by
Section 7.08 of the Credit Agreement and Section 7.08 of the Tranche A Exchange
Note Purchase Agreements, as each such lease may be modified, supplemented,
amended and/or restated by the parties thereto. "Operator" shall mean each
operator who operates the Truckstop under an Operating Lease. Any act which
Mortgagee is permitted to perform hereunder may be performed at any time and
from time to time by Mortgagee or any person or entity designated by Mortgagee.
Any act which is prohibited to Mortgagor hereunder is also prohibited to all
lessees of any of the Mortgaged Property. Each appointment of Mortgagee as
attorney-in-fact for Mortgagor under the Mortgage is irrevocable, with power of
substitution and coupled with an interest. Subject to the applicable provisions
hereof, Mortgagee has the right to refuse to grant its consent, approval or
acceptance or to indicate its satisfaction, in its sole discretion, whenever
such consent, approval, acceptance or satisfaction is required hereunder.
SECTION 3.07. MULTISITE REAL ESTATE TRANSACTION. Mortgagor
acknowledges that this Mortgage is one of a number of Other Mortgages and
Security Documents which secure the Obligations. Mortgagor agrees that the lien
of this Mortgage shall be absolute and unconditional and shall not in any manner
be affected or impaired by any acts or omissions whatsoever of Mortgagee and
without limiting the generality of the foregoing, the lien hereof shall not be
impaired by any acceptance by the Mortgagee of any security for or guarantees of
any of the Secured Obligations hereby secured, or by any failure, neglect or
omission on the part of Mortgagee to realize upon or protect any Secured
Obligation or indebtedness hereby secured or any collateral security therefor
including the Other Mortgages and other Security Documents. The lien hereof
shall not in any manner be impaired or affected by any release (except as to the
property released), sale, pledge, surrender, compromise, settlement, renewal,
extension, indulgence, alteration, changing, modification or disposition of any
of the obligations secured or of any of the collateral security therefor,
including the Other Mortgages and other Security Documents or of any guarantee
thereof, and Mortgagee may at its discretion foreclose, exercise any power of
sale, or exercise any other remedy available to it under any or all of the Other
Mortgages and other Security Documents without first exercising or enforcing any
of its rights and remedies hereunder. Such exercise of Mortgagee's rights and
remedies under any or all of the Other Mortgages and other Security Documents
shall not in any manner impair the indebtedness hereby secured or the lien of
this Mortgage and any exercise of the rights or remedies of Mortgagee hereunder
shall not impair the lien of any of the Other Mortgages and other Security
Documents or any of Mortgagee's rights and remedies thereunder. The undersigned
specifically consents and agrees that Mortgagee may exercise its rights and
remedies hereunder and under the Other Mortgages and other Security Documents
separately or concurrently and in any order that it may deem appropriate and the
undersigned waives any rights of subrogation.
SECTION 3.08. REFERENCES TO CREDIT AGREEMENT. Upon the payment and
discharge in full of all outstanding Credit Agreement Obligations or Tranche A
Exchange Note Obligations (each such term as defined in the Intercreditor
Agreement), all references herein to the Credit Agreement or the Tranche A
Exchange Note Purchase Agreements, as the case may be, shall become null and
void (other than references for the purposes of incorporating herein
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definitions of terms used therein which terms will continue to have the meanings
assigned thereto immediately prior to such payment and discharge, subject to
subsequent amendment or modification in accordance with the terms hereof).
ARTICLE IV
PARTICULAR PROVISIONS
This Mortgage is subject to the following provisions relating to the
particular laws of the state wherein the Premises are located:
SECTION 4.01. APPLICABLE LAW; CERTAIN PARTICULAR PROVISIONS. This
Mortgage shall be governed by and construed in accordance with the internal law
of the State of New York; PROVIDED, HOWEVER, that the provisions of this
Mortgage relating to the creation, perfection and enforcement of the lien and
security interest created by this Mortgage in respect of the Mortgaged Property
and the exercise of each remedy provided hereby, including the power of
foreclosure or power of sale procedures set forth in this Mortgage, shall be
governed by and construed in accordance with the internal law of the state where
the Mortgaged Property is located, and Mortgagor and Mortgagee will submit to
jurisdiction and the laying of venue for any suit on this Mortgage in such
state. The terms and provisions set forth in Appendix A attached hereto are
hereby incorporated by reference as though fully set forth herein. In the event
of any conflict between the terms and provisions contained in the body of this
Mortgage and the terms and provisions set forth in Appendix A, the terms and
provisions set forth in Appendix A shall govern and control.
IN WITNESS WHEREOF, this Mortgage has been duly authorized and has
been executed and delivered to Mortgagee by Mortgagor on the date first written
above.
[MORTGAGOR], a Delaware corporation,
Witnesses:
By:
--------------------------- ----------------------------------
Name:
Title:
---------------------------
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EXHIBIT J
PLEDGE AGREEMENT dated as of March 27, 1997, among
TRAVELCENTERS OF AMERICA, INC., a Delaware corporation (the
"BORROWER"), TA OPERATING CORPORATION, a Delaware corporation
("TA"), NATIONAL AUTO/TRUCKSTOPS, INC., a Delaware corporation
("NATIONAL"), TA Franchise Systems Inc., a Delaware corporation
("TAFSI" and, together with the Borrower TA and National, the
"PLEDGORS"), and THE CHASE MANHATTAN BANK, a New York banking
corporation ("CHASE"), as collateral agent (in such capacity, the
"COLLATERAL AGENT") for the Secured Parties (as defined herein.)
Reference is made to (a) the Master Collateral and Intercreditor Agreement
dated as of March 27, 1997 (as amended or modified from time to time, the
"INTERCREDITOR AGREEMENt"), among the Participating Creditors (as defined
therein) and the Collateral Agent and countersigned by the Borrower and TA,
National and TAFSI (as defined therein); (b) the Credit Agreement dated as of
March 21, 1997 (as amended or modified from time to time, the "CREDIT
AGREEMENT"), among the Borrower, the financial institutions party thereto, as
lenders (the "LENDERS"), and Chase, as agent (in such capacity, the "AGENT"), as
fronting bank (in such capacity, the "FRONTING BANK"); and as swingline lender
(in such capacity, the "SWINGLINE LENDER"); (c) the Senior Secured Note Exchange
Agreements, each dated as of March 21, 1997 (as amended or modified from time to
time, the "TRANCHE A EXCHANGE NOTE PURCHASE AGREEMENTs"), among the Borrower and
the Tranche A Exchange Note Purchasers named therein.
The Lenders, the Fronting Bank and the Swingline Lender, respectively,
have agreed to make Loans to the Borrower to issue Letters of Credit for the
account of the Borrower and to make Swingline Loans to the Borrower pursuant to,
and upon the terms and subject to the conditions specified in, the Credit
Agreement. The Tranche A Exchange Note Purchasers have agreed to accept
$35,500,000 aggregate principal amount of the Borrower's 8.94% Series I Senior
Secured Notes due 2002 (the "SERIES I TRANCHE A EXCHANGE NOTES") and $50,000,000
aggregate principal amount of the Borrower's Series II Senior Secured Notes due
2005 (the "SERIES II TRANCHE A EXCHANGE NOTES" and, together with the Series I
Tranche A Exchange Notes, the "TRANCHE A EXCHANGE NOTES") in exchange for (i)
$65,000,000 aggregate principal amount of the outstanding 8.76% Senior Secured
Notes due 2002 of National (the "NATIONAL SENIOR NOTES") and (ii) $20,500,000
aggregate principal amount of the outstanding 8.63% Senior Secured Notes due
2002 of TA (the "TA SENIOR NOTES" and, together with the National Senior Notes,
the "EXISTING SENIOR NOTES") held by them pursuant to, and upon the terms and
subject to the conditions specified in, the Tranche A Exchange Note Purchase
Agreements.
The obligations of the Lenders to make Loans, of the Fronting Bank to
issue Letters of Credit and of the Swingline Lender to make Swingline Loans
under the Credit Agreement and the obligations of the Tranche A Exchange Note
Purchasers to accept the Tranche A Exchange Notes in exchange for the Existing
Senior Notes held by them pursuant to the Tranche A Exchange Note Purchase
Agreements are conditioned upon, among other things, the execution and delivery
by the Pledgor of a pledge agreement in the form hereof to secure (a) the due
and punctual payment of (i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, the Swingline Loans and the Tranche
A Exchange Notes, when and as due, whether at maturity, by acceleration, upon
one or more dates set for prepayment or otherwise, (ii) each payment required to
be made by the Borrower under the Credit Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral and
(iii) all other monetary obligations, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed or otherwise,
(including monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) of the Borrower to the Secured Parties
under the Credit Agreement, the Tranche A Exchange Note Purchase Agreements,
this Agreement and the other Credit Transaction Documents, (b) the due and
punctual performance of all covenants, agreements, obligations and liabilities
of the Borrower under or pursuant to the Credit Agreement, the Tranche A
Exchange Note Purchase Agreements and the other Credit Transaction Documents,
(c) the due and punctual payment and performance of all the covenants,
agreements, obligations and liabilities of each Grantor under or pursuant to the
Credit Transaction Documents to which such Grantor is a party and (d) the due
and punctual payment and performance of all obligations of the Borrower,
monetary or otherwise, under each Rate Protection Agreement entered into with a
counterparty that was a Lender (or an Affiliate of a Lender) at the time such
Rate Protection Agreement was entered into (all the obligations referred to in
the preceding clauses (a) through (d) being referred to collectively as the
"OBLIGATIONS"). All capitalized terms used but not defined herein shall have the
meanings set forth in the other Transaction Documents.
Accordingly, the Pledgors and the Collateral Agent, on behalf of itself,
and each other Secured Party (and each of their successors or assigns), hereby
agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. DEFINITION OF CERTAIN TERMS USED HEREIN. As used herein, the
following terms shall have the following meanings:
"COLLATERAL" shall have the meaning assigned to such term in Section 2.01.
"CREDIT AGREEMENT" shall have the meaning assigned to such term in the
preliminary statement of this Agreement.
"CREDIT TRANSACTION DOCUMENTS" shall mean the Loan Documents (as defined
in the Credit Agreement) and the Financing Documents (as defined in the Tranche
A Exchange Note Purchase Agreements).
"EVENT OF DEFAULT" shall mean any "Event of Default" as defined in the
Credit Agreement and any "Event of Default" as defined in the Tranche A Exchange
Note Purchase Agreements.
"FEDERAL SECURITIES LAWS" shall have the meaning assigned to such term in
Section 4.03.
"GUARANTORS" shall have the meaning assigned to such term in the Credit
Agreement.
"INDEMNITEE" shall mean any "Indemnitee" as defined in the Credit
Agreement and any "Indemnitee" as defined in the Tranche A Exchange Note
Purchase Agreements.
"OBLIGATIONS" shall have the meaning assigned to such term in the
preliminary statement of this Agreement.
"PLEDGED DEBT SECURITIES" shall have the meaning assigned to such term in
Section 2.01.
"PLEDGED SECURITIES" shall mean the Pledged Stock, the Pledged Debt
Securities, all other shares of capital stock, debt securities and other
securities (including warrants, options and similar rights to acquire
securities) now or hereafter included in the Collateral and all stock
certificates, promissory notes and other instruments evidencing any such
securities.
"PLEDGED STOCK" shall have the meaning assigned to such term in Section
2.01.
"SECURED PARTIES" shall mean (a) the Lenders, (b) the Fronting Bank, (c)
the Agent, (d) the Collateral Agent, (e) the Tranche A Exchange Note Purchasers,
(f) the Swingline Lender and (g) the successors and assigns of each of the
foregoing.
SECTION 1.02. RULES OF INTERPRETATION. The rules of interpretation
specified in Section 1.02 of the Credit Agreement shall be applicable to this
Agreement.
ARTICLE II. PLEDGE
SECTION 2.01. PLEDGE. As security for the payment or performance, as the
case may be, in full of the Obligations, the Pledgors hereby bargain, sell,
convey, assign, set over, mortgage, pledge, hypothecate and transfer to the
Collateral Agent, its successors and its assigns, for the benefit of the Secured
Parties, and hereby grant to the Collateral Agent, its successors and assigns,
for the benefit of the Secured Parties, a security interest in (a) the shares of
capital stock owned by the Pledgor and listed on Schedule I hereto and the
certificates representing or evidencing all such shares and (b)(i) in the case
of Guarantors, all of the interest of such Guarantor in any Permitted
Development Entity (as such term is defined in the Credit Agreement and the
Tranche A Exchange Note Purchase Agreements) and (ii) in the case of the
Guarantors and TAFSI, all of the interest of such Guarantor or TAFSI, as the
case may be, in any Permitted Joint Venture, including, in each case, (A) if
such entity is a corporation, all shares, certificates or the like evidencing of
such Guarantor's ownership therein, and (B) if such entity is a partnership, (I)
all of such Guarantor's rights as a partner in such entity, (II) all documents
and certificates representing or evidencing such Guarantor's partnership
interest in the
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entity, (III) all of such Guarantor's interest in and to the profits and losses
of the entity and the right of such Guarantor as a partner of the entity to
receive distributions from the entity in respect of interests therein, (IV) all
distributions, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of, or in exchange for, such
Guarantor's interest in the entity and (V) any other right, title, interest,
privilege, authority and power of such Guarantor Borrower in or relating to the
entity (the items referred to in this clause (b) and in the preceding clause (a)
being collectively called the "PLEDGED STOCK"), (c) the debt securities listed
on Schedule I hereto and the instruments representing or evidencing such
securities and any debt securities hereafter obtained in the future that are
payable to any Pledgor and the instruments representing or evidencing such
securities (other than debt securities or instruments representing investments,
loans or advances to employees and members of management of either Guarantor or
TAFSI pursuant to Section 7.04(d) or (e) of the Credit Agreement and Section
7.04(d) or (e) of the Tranche A Exchange Note Purchase Agreements) (the "PLEDGED
DEBT SECURITIES"), (d) all other property that may be delivered to and held by
the Collateral Agent pursuant to the terms hereof, (e) subject to Section 2.04,
all payments of principal or interest, dividends, cash, instruments, shares of
stock resulting from stock splits, warrants, options, non-cash dividends and
other property from time to time received, receivable or otherwise distributed,
in respect of, in exchange for or upon the conversion of the securities and
instruments referred to in clauses (a), (b), (c) and (d) above and (f) all
proceeds of any of the foregoing (the items referred to in clauses (a) through
(f) being collectively called the "COLLATERAL").
TO HAVE AND TO HOLD the Collateral, together with all right, title,
interest, powers, privileges and preferences pertaining or incidental thereto,
unto the Collateral Agent, its successors and its assigns, for the benefit of
the Secured Parties, forever, SUBJECT, HOWEVER, to the terms, covenants and
conditions hereinafter set forth.
SECTION 2.02. DELIVERY OF THE COLLATERAL. (a) Each Pledgor agrees to
promptly deliver or cause to be delivered to the Collateral Agent any and all
Pledged Securities, and any and all certificates or other instruments or
documents representing the Collateral.
(b) Upon delivery to the Collateral Agent, (i) the Pledged Securities
shall be accompanied by stock powers duly executed in blank or other instruments
of transfer satisfactory to the Collateral Agent and by such other instruments
and documents as the Collateral Agent may reasonably request and (ii) all other
property comprising part of the Collateral, including uncertificated Pledge
Securities, shall be accompanied by proper instruments of assignment duly
executed by the applicable Pledgor and such other instruments or documents as
the Collateral Agent may reasonably request. Each delivery of Pledged Securities
shall be accompanied by a schedule describing the securities theretofore and
then being pledged hereunder, which schedule shall be attached hereto as
Schedule I and made a part hereof. Each schedule so delivered shall supersede
any prior schedules so delivered.
SECTION 2.03. REGISTRATION IN NOMINEE NAME; DENOMINATIONS. The Collateral
Agent shall have the right (in its sole and absolute discretion) to hold the
Pledged Securities in its own name as pledgee, the name of its nominee or the
name of the applicable Pledgor, endorsed or assigned in blank or in favor of the
Collateral Agent. Each Pledgor will promptly give to the Collateral Agent copies
of any notices or other communications received by it with respect to Pledged
Securities registered in the name of such Pledgor. The Collateral Agent shall at
all times have the right to exchange the certificates representing Pledged
Securities for certificates of smaller or larger denominations for any purpose
consistent with this Agreement.
SECTION 2.04. VOTING RIGHTS; DIVIDENDS AND INTEREST, ETC. (a) Unless and
until an Event of Default shall have occurred and be continuing:
(i) Each Pledgor shall be entitled to exercise any and all voting
and/or other consensual rights and powers accruing to an owner of Pledged
Securities or any part thereof for any purpose consistent with the terms
of this Agreement and the other Credit Transaction Documents; PROVIDED,
HOWEVER, that no such action shall be permitted (regardless of whether an
Event of Default has occurred and is continuing under the Credit Agreement
or the Tranche A Exchange Note Purchase Agreements) if such action would
materially and adversely affect the rights inuring to a holder of the
Pledged Securities or the rights and remedies of the Collateral Agent or
the other Secured Parties under this Agreement or any other Credit
Transaction Document or the ability of the Collateral Agent or the other
Secured Parties to exercise the same.
(ii) The Collateral Agent shall execute and deliver to each Pledgor,
or cause to be executed and delivered to such Pledgor, all such proxies,
powers of attorney and other instruments as such Pledgor may reasonably
request for the purpose of enabling such Pledgor to exercise the voting
and/or consensual rights and powers that it is entitled to exercise
pursuant to subparagraph (i) above.
3
(iii) Each Pledgor shall be entitled to receive and retain any and
all dividends, interest and prin cipal paid in cash on the Pledged
Securities pledged by it to the extent and only to the extent that such
cash dividends, interest and principal are permitted by, and otherwise
paid in accordance with, the terms and conditions of the Credit
Transaction Documents and applicable laws. Other than pursuant to the
first sentence of this paragraph (a)(iii), all principal, all noncash
dividends, interest and principal, and all dividends, interest and
principal paid or payable in cash or otherwise in connection with a
partial or total liquidation or dissolution, return of capital, capital
surplus or paid-in surplus, and all other distributions made on or in
respect of Pledged Securities, whether paid or payable in cash or
otherwise, whether resulting from a subdivision, combination or
reclassification of the outstanding capital stock of the issuer of any
Pledged Securities or received in exchange for Pledged Securities or any
part thereof, or in redemption thereof, or as a result of any merger,
consolidation, acquisition or other exchange of assets to which such
issuer may be a party or otherwise, shall be and become part of the
Collateral, and, if received by a Pledgor, shall not be commingled by such
Pledgor with any of its other funds or property but shall be held separate
and apart therefrom, shall be held in trust for the benefit of the
Collateral Agent and shall be forthwith delivered to the Collateral Agent
in the same form as so received (with any necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event of Default,
all rights of any Pledgor to dividends, interest and principal payments that
such Pledgor is authorized to receive pursuant to paragraph (a)(iii) above shall
cease, and all such rights shall thereupon become vested in the Collateral
Agent, which shall have the sole and exclusive right and authority to receive
and retain such dividend, interest and principal payments. All divi dends,
interest and principal that are received by any Pledgor contrary to the
provisions of this Section 2.04 shall be received in trust for the benefit of
the Collateral Agent, shall be segregated from other property or funds of such
Pledgor and shall be forthwith delivered to the Collateral Agent in the same
form as so received (with any necessary endorsement). Any and all money and
other property paid over to or received by the Collateral Agent pursuant to the
provisions of this paragraph (b) shall be retained by the Collateral Agent in an
account to be established by the Collateral Agent upon receipt of such money or
other property and shall be applied in accordance with the provisions of Section
4.02. After all Events of Default under the Credit Agreement and the Tranche A
Exchange Note Purchase Agreements have been cured or waived, the Collateral
Agent shall, within five Business Days after all such Events of Default have
been cured or waived, repay to the Pledgors all cash dividends, interest or
principal that such Pledgors would otherwise be permitted to retain pursuant to
the terms of paragraph (a)(iii) above, but only to the extent such cash
dividends, interest or principal remain in such account.
(c) Upon the occurrence and during the continuance of an Event of Default,
all rights of the Pledgors to exercise the voting and consensual rights and
powers that they are entitled to exercise pursuant to paragraph (a)(i) of this
Section 2.04, and the obligations of the Collateral Agent under paragraph
(a)(ii) of this Section 2.04, shall cease, and all such rights shall thereupon
become vested in the Collateral Agent, which shall have the sole and exclusive
right and authority to exercise such voting and consensual rights and powers.
ARTICLE III. REPRESENTATIONS, WARRANTIES AND COVENANTS
The Pledgors jointly and severally represent, warrant and covenant to and
with the Collateral Agent and each other Secured Party that:
(a) the Pledged Stock set forth on Schedule I hereto represents all
the issued and outstanding shares of each class of the capital stock of
each Guarantor and TAFSI;
(b) the Pledged Securities have been duly and validly authorized and
issued by the issuers thereof and (i) in the case of Pledged Stock, are
fully paid and nonassessable and (ii) in the case of Pledged Debt
Securities, are legal, valid and binding obligations of the issuers
thereof;
(c) except for the security interest granted hereunder, each Pledgor
(i) is and will at all times continue to be the direct owner, beneficially
and of record, of the Pledged Securities indicated on Sched ule I to be
owned by such Pledgor, (ii) holds the same free and clear of all Liens,
(iii) will make no assign ment, pledge, hypothecation or transfer of, or
create any security interest in, the Collateral, other than pursuant
hereto and (iv) subject to Section 2.04, will cause any and all
Collateral, whether for value paid by either Pledgor or otherwise, to be
forthwith deposited with the Collateral Agent and pledged or assigned
hereunder;
4
(d) except for restrictions and limitations imposed by securities
laws generally, the Collateral pledged hereunder is and will be freely
transferable and assignable, and no portion of such Collateral is or will
be subject to any option, right of first refusal, shareholders agreement,
charter or by-law provision or contractual restriction of any nature that
might prohibit, impair, delay or otherwise affect the pledge of such
Collateral hereunder, the sale or disposition of the Collateral pursuant
hereto after the occurrence of an Event of Default or the exercise by the
Collateral Agent of its rights and remedies hereunder;
(e) each Pledgor (i) has the power and authority to pledge the
Collateral pledged by it hereunder in the manner hereby done or
contemplated and (ii) will defend its and the Collateral Agent's title or
interest thereto or therein (and in the proceeds thereof) against any and
all Liens (other than the Lien of this Agreement), however arising, of all
persons whomsoever;
(f) no consent or approval of any Governmental Authority or any
securities exchange was or is necessary to the validity of the pledge
effected hereby;
(g) by virtue of the execution and delivery by the Pledgors of this
Agreement, when the Pledged Securities, certificates, instruments or other
documents representing or evidencing the Collateral are delivered to the
Collateral Agent in accordance with this Agreement, the Collateral Agent
will obtain a legal, valid and perfected first priority security interest
in the Pledged Securities and the proceeds thereof, as security for the
payment and performance of the Obligations; and
(h) the pledge effected hereby is effective to vest in the
Collateral Agent, on behalf of the Secured Parties, the rights of the
Collateral Agent in the Collateral as set forth herein.
ARTICLE IV. REMEDIES
SECTION 4.01. REMEDIES UPON DEFAULT. If an Event of Default shall have
occurred and be continuing, the Collateral Agent may exercise, to the extent
permitted by law, all the rights of a secured party under the Uniform Commercial
Code of the State of New York (whether or not the Code is in effect in the
jurisdiction where such rights are exercised) and, in addition, the Collateral
Agent may, without being required to give any notice, except as herein provided
or as may be required by mandatory provisions of law, sell the Collateral, or
any part thereof, at public or private sale or at any broker's board or on any
securities exchange, for cash, upon credit or for future delivery as the
Collateral Agent shall deem appropriate. The Collateral Agent shall be
authorized at any such sale (if it deems it advisable to do so) to restrict the
prospective bidders or purchasers to persons who will represent and agree that
they are purchasing the Collateral for their own account for investment and not
with a view to the distribution or sale thereof, and upon consummation of any
such sale the Collateral Agent shall have the right to assign, transfer and
deliver to the purchaser or purchasers thereof the Collateral so sold. Each such
purchaser at any such sale shall hold the property sold absolutely free from any
claim or right on the part of either Pledgor, and each Pledgor hereby waives (to
the extent permitted by law) all rights of redemption, stay, valuation and
appraisal that such Pledgor now has or may at any time in the future have under
any rule of law or statute now existing or hereafter enacted.
The Collateral Agent shall give each Pledgor at least 10 days' prior
written notice (which each Pledgor agrees is reasonable notice within the
meaning of Section 9-504(3) of the Uniform Commercial Code as in effect in the
State of New York or its equivalent in other jurisdictions) of the Collateral
Agent's intention to make any sale of Collateral owned by such Pledgor. Such
notice, in the case of a public sale, shall state the time and place for such
sale and, in the case of a sale at a broker's board or on a securities exchange,
shall state the board or exchange at which such sale is to be made and the day
on which the Collateral, or portion thereof, will first be offered for sale at
such board or exchange and, in the case of a private sale, shall state the time
after which any such sale is to be made. Any such public sale shall be held at
such time or times within ordinary business hours and at such place or places as
the Collateral Agent may fix and state in the notice of such sale. At any such
sale, the Collateral, or portion thereof, to be sold may be sold in one lot as
an entirety or in separate parcels, as the Collateral Agent may (in its sole and
absolute discretion) determine. The Collateral Agent shall not be obligated to
make any sale of any Collateral if it shall determine not to do so, regardless
of the fact that notice of sale of such Collateral shall have been given. The
Collateral Agent may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement
at the time and place fixed for sale, and such sale may, without further notice,
be made at the time and place to which the same was so adjourned. In case any
sale of all or any part of the Collateral is made on credit or for future
delivery, the Collateral so sold may be retained by the Collateral Agent until
the sale price is paid in full by the purchaser or purchasers thereof, but the
Collateral Agent shall not incur any liability in case any such purchaser or
purchasers shall fail to take up and pay for the
5
Collateral so sold and, in case of any such failure, such Collateral may be sold
again upon like notice. Subject to the terms of the Intercreditor Agreement, at
any public sale made pursuant to this Section 4.01, any Secured Party may bid
for or purchase, free (to the extent permitted by law) from any right of
redemption, stay, valuation or appraisal on the part of either Pledgor (all said
rights being also hereby waived and released to the extent permitted by law),
the Collateral or any part thereof offered for sale and may make payment on
account thereof by using any claim then due and payable to it from any Pledgor
as a credit against the purchase price, and the Collateral Agent may, upon
compliance with the terms of sale, hold, retain and dispose of such property
without further account ability to any Pledgor therefor. For purposes hereof, a
written agreement to purchase the Collateral or any portion thereof shall be
treated as a sale thereof; the Collateral Agent shall be free to carry out such
sale pursuant to such agreement, and none of the Pledgors shall be entitled to
the return of the Collateral or any portion thereof subject thereto,
notwithstanding the fact that after the Collateral Agent shall have entered into
such an agreement all Events of Default shall have been remedied and the
Obligations paid in full; PROVIDED, HOWEVER, that in the event the Obligations
shall have been paid in full, the Pledgors shall be entitled to the return of
the proceeds of the sale of any such Collateral to the extent not applied to
payment of the Obligations. As an alternative to exercising the power of sale
herein conferred upon it, the Collateral Agent may proceed by a suit or suits at
law or in equity to foreclose this Agreement and to sell the Collateral or any
portion thereof pursuant to a judgment or decree of a court or courts having
competent jurisdiction or pursuant to a proceeding by a court-appointed
receiver. Any sale pursuant to the provisions of this Section 4.01 shall be
deemed to conform to the commercially reasonable standards as provided in
Section 9-504(3) of the Uniform Commercial Code as in effect in the State of New
York or its equivalent in other jurisdictions.
SECTION 4.02. APPLICATION OF PROCEEDS OF SALE. The proceeds of any sale of
Collateral pursuant to Section 4.01, as well as any Collateral consisting of
cash, shall be applied by the Collateral Agent as follows:
FIRST, to the payment of all costs and expenses incurred by the
Agent or the Collateral Agent (in its capacity as such hereunder or under
any other Credit Transaction Document) in connection with such sale or
otherwise in connection with this Agreement, any other Credit Transaction
Document or any of the Obligations, including all court costs and the
fees, other charges and expenses of its agents and legal counsel, the
repayment of all advances made by the Collateral Agent hereunder or under
any other Credit Transaction Document on behalf of either of the Pledgors
and any other costs or expenses incurred in connection with the exercise
of any right or remedy hereunder or under any other Credit Transaction
Document;
SECOND, subject to the provisions of the Intercreditor Agreement, to
the Collateral Agent for distribution to the Participating Creditors as
provided in Article IV of the Intercreditor Agreement for the payment in
full of Indebtedness and satisfaction of the Obligations owed to the
Participating Creditors; and
THIRD, to the Pledgors, their successors or assigns, or as a court
of competent jurisdiction may otherwise direct.
Subject to the terms of the Intercreditor Agreement, the Collateral Agent shall
have absolute discretion as to the time of application of any such proceeds,
moneys or balances in accordance with this Agreement. Upon any sale of the
Collateral by the Collateral Agent (including pursuant to a power of sale
granted by statute or under a judicial proceeding), the receipt of the
Collateral Agent or of the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold and such
purchaser or purchasers shall not be obligated to see to the application of any
part of the purchase money paid over to the Collateral Agent or such officer or
be answerable in any way for the misapplication thereof.
SECTION 4.03. SECURITIES ACT, ETC. In view of the position of the Pledgors
in relation to the Pledged Securities, or because of other current or future
circumstances, a question may arise under the Securities Act of 1933, as now or
hereafter in effect, or any similar statute hereafter enacted analogous in
purpose or effect (such Act and any such similar statute as from time to time in
effect being called the "Federal Securities Laws") with respect to any
disposition of the Pledged Securities permitted hereunder. The Pledgors
understand that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Collateral Agent if the Collateral Agent were
to attempt to dispose of all or any part of the Pledged Securities, and might
also limit the extent to which or the manner in which any subsequent transferee
of any Pledged Securities could dispose of the same. Similarly, there may be
other legal restrictions or limitations affecting the Collateral Agent in any
attempt to dispose of all or part of the Pledged Securities under applicable
Blue Sky or other state securities laws or similar laws analogous in purpose or
effect. The Pledgors recognize that in light of the foregoing restrictions and
limitations the Collateral Agent may, with respect to any sale of Pledged
Securities, limit the purchasers to those
6
who will agree, among other things, to acquire Pledged Securities for their own
account, for investment, and not with a view to the distribution or resale
thereof. The Pledgors acknowledge and agree that, in light of the foregoing
restrictions and limitations, the Collateral Agent, in its sole and absolute
discretion, (a) may proceed to make such a sale whether or not a registration
statement for the purpose of registering the Pledged Securities or part thereof
shall have been filed under the Federal Securities Laws and (b) may approach and
negotiate with a single possible purchaser to effect such sale. The Pledgors
acknowledge and agree that any such sale might result in prices and other terms
less favorable to the seller than if such sale were a public sale without such
restrictions. In the event of any such sale, the Collateral Agent shall incur no
responsibility or liability for selling all or any part of the Pledged
Securities at a price that the Collateral Agent, in its sole and absolute
discretion, may in good xxxxx xxxx reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid or
if more than a single purchaser were approached. The provisions of this Section
4.03 will apply notwithstanding the existence of a public or private market upon
which the quotations or sales prices may exceed substantially the price at which
the Collateral Agent sells.
SECTION 4.04. REGISTRATION, ETC. Each Pledgor agrees that, upon the
occurrence and during the continuance of an Event of Default, if for any reason
the Collateral Agent desires to sell any of the Pledged Securities at a public
sale, it will, at any time and from time to time, upon the written request of
the Collateral Agent, take or cause the issuer of such Pledged Securities to
take such action and prepare, distrib ute and/or file such documents, as are
required or advisable in the reasonable opinion of counsel for the Collateral
Agent, to permit the public sale of such Pledged Securities. Each Pledgor
jointly and severally agrees to (a) indemnify, defend and hold harmless the
Collateral Agent, the other Secured Parties and their respective officers,
directors, affiliates and controlling persons from and against all losses,
liabilities, expenses, costs (including the reasonable fees and expenses of
legal counsel to the Collateral Agent and the Agent) and claims (including the
costs of investigation) that they may incur insofar as any such loss, liability,
expense, cost or claim arises out of or is based upon any alleged untrue
statement of a material fact contained in any prospectus, offering circular or
similar document (or any amendment or supplement thereto), or arises out of or
is based upon any alleged omission to state a material fact required to be
stated therein or necessary to make the statements in any thereof not
misleading, except insofar as the same may have been caused by any untrue
statement or omission based upon information furnished in writing to any Pledgor
or the issuer of such Pledged Securities by the Collateral Agent or any other
Secured Party expressly for use therein, and (b) enter into an indemnification
agreement with any underwriter of or placement agent for any Pledged Securities,
on its standard form, to substantially the same effect. Each Pledgor further
agrees to use all reasonable efforts to qualify, file or register, or cause the
issuer of such Pledged Securities to qualify, file or register, any of the
Pledged Securities under the Blue Sky or other securities laws of such states as
may be requested by the Collateral Agent and keep effective, or cause to be kept
effective, all such qualifications, filings or registrations. The Pledgors will
jointly and severally bear all costs and expenses of carrying out their
obligations under this Section 4.04. The Pledgors acknowledge that there is no
adequate remedy at law for failure by them to comply with the provisions of this
Section 4.04 and that such failure would not be
7
adequately compensable in damages, and therefore agree that their agreements
contained in this Section 4.04 may be specifically enforced.
ARTICLE V. MISCELLANEOUS
SECTION 5.01. NOTICES. All communications and notices hereunder shall
(except as otherwise expressly permitted herein) be in writing and given as
provided in Section 10.01 of the Credit Agreement and Section 16.06 of the
Tranche A Exchange Note Purchase Agreements. All communications and notices
hereunder to the Collateral Agent shall be given to it at the address set forth
in Schedule II hereto.
SECTION 5.02. SECURITY INTEREST ABSOLUTE. All rights of the Collateral
Agent hereunder, the security interests granted hereunder and all obligations of
the Pledgors hereunder shall be absolute and unconditional irrespective of (a)
any lack of validity or enforceability of any Credit Transaction Document, any
agreement with respect to any of the Obligations or any other agreement or
instrument relating to any of the foregoing, (b) any change in the time, manner
or place of payment of, or in any other term of, all or any of the Obligations,
or any other amendment or waiver of or any consent to any departure from any
Credit Transaction Document or any other agreement or instrument, (c) any
exchange, release or non-perfection of any Lien on other collateral, or any
release or amendment or waiver of or consent under or departure from any
guarantee, securing or guaranteeing all or any of the Obligations or (d) any
other circumstance which might otherwise constitute a defense available to, or a
discharge of, any Pledgor in respect of the Obligations or in respect of this
Agreement (other than the indefeasible payment in full of all the Obligations by
any of the Pledgors).
SECTION 5.03. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by any Pledgor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Credit Transaction Document shall be
considered to have been relied upon by the Secured Parties and shall survive the
making by the Lenders of the Loans, the making by the Swingline Lender of the
Swingline Loans and the acceptance by the Tranche A Exchange Note Purchasers of
the Tranche A Exchange Notes, and the execution and delivery to the Tranche A
Exchange Note Purchasers of the Tranche A Exchange Notes, and the issuance by
the Fronting Bank of any Letter of Credit, regardless of any investigation made
by the Secured Parties or on their behalf, and shall continue in full force and
effect as long as the principal of or any accrued interest on, or any other fee
or amount payable under or in respect of any Loan, Swingline Loan, Tranche A
Exchange Note or Letter of Credit, or this Agreement or, without duplication of
the foregoing, under any of the other Credit Transaction Documents is
outstanding and unpaid and so long as the Commitments and the LC Commitment have
not been terminated.
SECTION 5.04. BINDING EFFECT; ASSIGNMENTS. This Agreement shall become
effective as to any Pledgor when a counterpart hereof executed on behalf of any
Pledgor shall have been delivered to the Collateral Agent and a counterpart
hereof shall have been executed on behalf of the Collateral Agent, and
thereafter shall be binding upon such Pledgor and the Collateral Agent and their
respective successors and assigns, and shall inure to the benefit of the parties
hereto, and their respective successors and assigns, except that the Pledgors
shall not have the right to assign their rights hereunder or any interest herein
or in the Collateral, or any part thereof (and any such attempted assignment
shall be void), or otherwise pledge, encumber or grant any option with respect
to the Collateral, or any part thereof, or any cash or property held by the
Collateral Agent as Collateral under this Agreement except as expressly
contemplated by this Agreement or the other Credit Transaction Documents.
SECTION 5.05. SUCCESSORS AND ASSIGNS. Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of any Pledgor or the Collateral Agent that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
SECTION 5.06. POWER OF ATTORNEY. The Collateral Agent is hereby appointed
by the Pledgors, as the true and lawful agent and attorney-in-fact of each
Pledgor, and in such capacity the Collateral Agent shall have the right, with
power of substitution for the Pledgors and in each Pledgor's name or otherwise,
for the use and benefit of the Collateral Agent and the other Secured Parties,
upon the occurrence and during the continuance of an Event of Default, (a) to
receive, endorse, assign and/or deliver any and all notes, acceptances, checks,
drafts, money orders or other evidences of payment representing any interest or
8
dividend or other distribution payable in respect of the Collateral or any part
thereof; (b) to demand, collect, receive payment of, give receipt for and give
discharges and releases of all or any of the Collateral; (c) to commence and
prosecute any and all suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect or otherwise realize on all or any of
the Collateral or to enforce any rights in respect of any Collateral; (d) to
settle, compromise, compound, adjust or defend any actions, suits or proceedings
relating to all or any of the Collateral; (e) to use, sell, assign, transfer,
pledge, make any agreement with respect to or otherwise deal with all or any of
the Collateral, and to do all other acts and things necessary to carry out the
purposes of this Agreement, as fully and completely as though the Collateral
Agent were the absolute owner of the Collateral for all purposes; PROVIDED,
HOWEVER, that nothing herein contained shall be construed as requiring or
obligating the Collateral Agent or any other Secured Party to make any
commitment or to make any inquiry as to the nature or sufficiency of any payment
received by the Collateral Agent or any other Secured Party, or to present or
file any claim or notice, or to take any action with respect to the Collateral
or any part thereof or the moneys due or to become due in respect thereof or any
property covered thereby, and no action taken or omitted to be taken by the
Collateral Agent or any other Secured Party with respect to the Collateral or
any part thereof shall give rise to any defense, counterclaim or offset in favor
of any Pledgor or to any claim or action against the Collateral Agent or any
other Secured Party.
SECTION 5.07. COLLATERAL AGENT'S FEES AND EXPENSES; INDEMNIFICATION. (a)
Each Pledgor jointly and severally agrees to pay upon demand to the Collateral
Agent the amount of any and all reasonable expenses, including the reasonable
fees and expenses of its counsel and of any experts or agents, that the
Collateral Agent may incur in connection with (i) the administration of this
Agreement, (ii) the custody or preservation of, or the sale of, collection from
or other realization upon any of the Collateral, (iii) the exercise, enforcement
or protection of any of the rights of the Collateral Agent hereunder or (iv) the
failure of the Pledgors to perform or observe any of the provisions hereof. If
the Pledgors shall fail to do any act or thing that they have covenanted to do
hereunder or any representation or warranty of the Pledgors hereunder shall be
breached, the Collateral Agent may (but shall not be obligated to) do the same
or cause it to be done or remedy any such breach and there shall be added to the
Obligations the cost or expense incurred by the Collateral Agent in so doing.
(b) Without limitation of their indemnification obligations under the
other Credit Transaction Documents, each Pledgor jointly and severally agrees to
indemnify the Collateral Agent and the other Indemnities against, and hold each
of them harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees and expenses, incurred by or
asserted against any of them arising out of, in any way connected with, or as a
result of, the execution, delivery or performance of this Agreement or any
claim, litigation, investigation or proceeding relating hereto or to the
Collateral, 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, claims, damages, liabilities or related expenses 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) Any amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The provisions
of this Section 5.07 shall remain operative and in full force and effect
regardless of the termination of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Obligations, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Credit Transaction Document or any investigation made by or on behalf of
the Collateral Agent or any other Secured Party. All amounts due under this
Section shall be payable on written demand therefor and shall bear interest at
the Alternate Base Rate (as defined in the Credit Agreement) plus 2%.
SECTION 5.08. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 5.09. WAIVERS; AMENDMENT. (a) No failure or delay of the
Collateral Agent or any other Secured Party 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 Collateral Agent hereunder and of the other Secured Parties under the other
Credit Transaction Documents are cumulative and are not exclusive of any rights
or remedies that they would otherwise have. No waiver of any provisions of this
Agreement or any other Credit
9
Transaction Document or consent to any departure by any Pledgor 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 any Pledgor
in any case shall entitle such Pledgor or any other Pledgor to any other or
further notice or demand in similar or other circumstances.
(b) Subject to the provisions of the Intercreditor Agreement, neither this
Agreement nor any provision hereof may be waived, amended or modified except
pursuant to a written agreement entered into among the Pledgors and the
Collateral Agent, with the prior written consent of the Required Lenders and the
Required Holders; PROVIDED, HOWEVER, that except as provided herein or in the
other Credit Transaction Documents, no such agreement shall amend, modify, waive
or otherwise adversely affect a Secured Party's rights and interests in any
material amount of the Collateral without the prior written consent of such
Secured Party.
SECTION 5.10. 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 CREDIT
TRANSACTION 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 CREDIT TRANSACTION
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 5.10.
SECTION 5.11. SEVERABILITY. In the event any one or more of the provisions
contained in this Agreement or in any other Credit Transaction 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 (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other
jurisdiction). 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 5.12. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each
Pledgor 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 Credit Transaction 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 the Collateral Agent or any other Secured Party may otherwise have to
bring any action or proceeding relating to this Agreement or the other Credit
Transaction Documents against any Pledgor or its properties in the courts of any
jurisdiction.
(b) Each Pledgor 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 Credit Transaction
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 5.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
10
SECTION 5.13. TERMINATION. This Agreement and the security interests
granted hereby shall terminate when all the Obligations have been indefeasibly
paid in full and the Lenders and the Swingline Lender have no further commitment
to lend under the Credit Agreement, no Letters of Credit are outstanding and the
Fronting Bank has no further obligation to issue Letters of Credit under the
Credit Agreement.
SECTION 5.14. HEADINGS. Article and Section headings 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 5.15. 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 5.04.
SECTION 5.16. INTERCREDITOR AGREEMENT. (a) The Collateral Agent agrees,
for itself and for each other Secured Party, that it and each other Secured
Party shall be bound by the terms of the Intercreditor Agreement in connection
with the administration of this Agreement.
(b) Each Pledgor hereby acknowledges receipt of a copy of and agrees to be
bound by the terms of the Intercreditor Agreement.
SECTION 5.17. REFERENCES TO CREDIT AGREEMENT. Upon the payment and
discharge in full of all outstanding Credit Agreement Obligations or all
outstanding Tranche A Exchange Note Purchase Obligations, all references herein
to the terms of the Credit Agreement or the Tranche A Exchange Note Purchase
Agreements, as the case may be, shall become null and void (other than
references for the purposes of incorporating herein definitions of terms used
therein, which terms will continue to have the meanings assigned thereto
immediately prior to such payment and discharge, subject to subsequent amendment
or modifications in accordance with the terms hereof).
11
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
TRAVELCENTERS OF AMERICA, INC.
by
-----------------------------
Name:
Title:
TA OPERATING CORPORATION,
by
-----------------------------
Name:
Title:
NATIONAL AUTO/TRUCKSTOPS, INC.,
by
-----------------------------
Name:
Title:
TA FRANCHISE SYSTEMS INC.,
by
-----------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as Collateral
Agent,
by
-----------------------------
Name:
Title:
12
EXHIBIT K
SECURITY AGREEMENT dated as of March 27, 1997, among
TRAVELCENTERS OF AMERICA, INC., a Delaware corporation (the
"BORROWER"), TA OPERATING CORPORATION, a Delaware corporation
("TA"), NATIONAL AUTO/TRUCKSTOPS, INC., a Delaware corporation
("NATIONAL"), and TA FRANCHISE SYSTEMS, INC., a Delaware corporation
("TAFSI", and, together with TA, National and the Borrower, the
"GRANTORS"), and THE CHASE MANHATTAN BANK, a New York banking
corporation ("CHASE"), as collateral agent (in such capacity, the
"COLLATERAL AGENT") for the Secured Parties (as defined herein).
Reference is made to (a) the Master Collateral and Intercreditor Agreement
dated as of March 27, 1997 (as amended or modified from time to time, the
"INTERCREDITOR AGREEMENT"), among the Participating Creditors (as defined in the
Intercreditor Agreement) and the Collateral Agent and countersigned by the
Grantors; (b) the Credit Agreement dated as of March 21, 1997 (as amended or
modified from time to time, the "CREDIT AGREEMENT"), among the Borrower, the
financial institutions party thereto, as lenders (the "LENDERS"), and Chase, as
agent (in such capacity, the "AGENT"), and as fronting bank (in such capacity,
the "FRONTING BANK") and as swingline lender (in such capacity, the "SWINGLINE
LENDER"; and (c) the Senior Secured Note Exchange Agreements, each dated as of
March 21, 1997 (as amended or modified from time to time, the "TRANCHE A
EXCHANGE NOTE PURCHASE AGREEMENTS"), among the Borrower and the Tranche A
Exchange Note Purchasers named therein.
The Lenders, the Fronting Bank and the Swingline Lender, respectively,
have agreed to make Loans to the Borrower, to issue Letters of Credit for the
account of the Borrower and to make Swingline Loans to the Borrower pursuant to,
and upon the terms and subject to the conditions specified in, the Credit
Agreement. The Tranche A Exchange Note Purchasers have agreed to accept
$35,500,000 aggregate principal amount of the Borrower's 8.94% Series I Senior
Secured Notes due 2002 (the "SERIES I TRANCHE A EXCHANGE NOTES") and $50,000,000
aggregate principal amount of the Borrower's Series II Senior Secured Notes due
2005 (the "SERIES II TRANCHE A EXCHANGE NOTES" and, together with the Series I
Tranche A Exchange Notes, the "TRANCHE A EXCHANGE NOTES") in exchange for (i)
$65,000,000 aggregate principal amount of the outstanding 8.76% Senior Secured
Notes due 2002 of National (the "NATIONAL SENIOR NOTES") and (ii) $20,500,000
aggregate principal amount of the outstanding 8.63% Senior Secured Notes due
2002 of TA (the "TA SENIOR NOTES" and, together with the National Senior Notes,
the "EXISTING SENIOR NOTES") held by them pursuant to, and upon the terms and
conditions specified in, the Tranche A Exchange Note Purchase Agreements.
The obligations of the Lenders to make Loans, of the Fronting Bank to
issue Letters of Credit and of the Swingline Lender to make Swingline Loans
under the Credit Agreement and the obligations of the Tranche A Exchange Note
Purchasers to accept the Tranche A Exchange Notes in exchange for the Existing
Senior Notes held by them pursuant to the Tranche A Exchange Note Purchase
Agreements are conditioned upon, among other things, the execution and delivery
by the Grantors of a security agreement in the form hereof to secure (a) the due
and punctual payment of (i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, the Swingline Loans and the Tranche
A Exchange Notes, when and as due, whether at maturity, by acceleration, upon
one or more dates set for prepayment or otherwise, (ii) each payment required to
be made by the Borrower under the Credit Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral and
(iii) all other monetary obligations, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed or otherwise,
(including monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) of the Borrower to the Secured Parties
under the Credit Agreement, the Tranche A Exchange Note Purchase Agreements,
this Agreement and the other Credit Transaction Documents, (b) the due and
punctual performance of all covenants, agreements, obligations and liabilities
of the Borrower under or pursuant to the Credit Agreement, the Tranche A
Exchange Note Purchase Agreements and the other Credit Transaction Documents,
(c) the due and punctual payment and performance of all the covenants,
agreements, obligations and liabilities of each Grantor under or pursuant to the
Credit Transaction Documents to which such Grantor is a party and (d) the due
and punctual payment and performance of all obligations of the Borrower,
monetary or otherwise, under each Rate Protection Agreement entered into with a
counterparty that was a Lender (or an Affiliate of a Lender) at the time such
Rate Protection Agreement was entered into (all the obligations referred to in
the preceding clauses (a) through (d) being referred to collectively as the
"OBLIGATIONS"). All capitalized terms used but not defined herein shall have the
meanings set forth in the other Transaction Documents.
Accordingly, the Grantors and the Collateral Agent, on behalf of itself,
and each Secured Party (and each of their respective successors or assigns),
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITION OF CERTAIN TERMS USED HEREIN. As used herein, the
following terms shall have the following meanings:
"ACCOUNT DEBTOR" shall mean any person who is or who may become obligated
to the Grantors under, with respect to or on account of an Account.
"ACCOUNTS" shall mean, with respect to the Grantors, any and all right,
title and interest of any Grantor to payment for goods and services sold or
leased (exclusive of any liabilities of the Grantors with respect thereto),
including any such right evidenced by chattel paper, whether due or to become
due, whether or not it has been earned by performance, and whether now or
hereafter acquired or arising in the future, including, without limitation,
accounts receivable from Affiliates of the Grantors.
"ACCOUNTS RECEIVABLE" shall mean, with respect to the Grantors, all right,
title and interest of any Grantor to Accounts and all of any Grantor's right,
title and interest in any returned goods, together with all rights, titles,
securities and guaranties with respect thereto, including any rights to stoppage
in transit, replevin, reclamation and resales, and all related security
interests, liens and pledges, whether voluntary or involuntary and any and all
right, title and interest of any Grantor (i) to all payments arising out of the
Franchise Agreements and (ii) to rents receivable arising out of the operating
leases entered into between Network Operators and any Grantor pursuant to
Section 7.08 of the Credit Agreement and Section 7.8 of the Tranche A Exchange
Note Purchase Agreements, whether due or to become due, whether now or hereafter
arising in the future.
"ASSIGNED CONTRACTS" shall have the meaning assigned to such term in the
Collateral Assignment.
"COLLATERAL" shall mean all (a) Accounts Receivable, (b) Documents, (c)
Equipment (including, without limitation, Fixtures), (d) General Intangibles,
(e) Inventory, (f) Proceeds and (g) Collection Deposit Accounts and all other
cash and cash accounts.
"COLLATERAL ASSIGNMENT" shall have the meaning assigned to such term in
the Credit Agreement.
"COLLECTION DEPOSIT ACCOUNT" shall mean a lockbox account of any Grantor
maintained for the benefit of the Secured Parties with the Collateral Agent
pursuant to Article V or with a Sub-Agent pursuant to a Lockbox Agreement.
"CREDIT AGREEMENT" shall have the meaning assigned to such term in the
preliminary statement of this Agreement.
"CREDIT TRANSACTION DOCUMENTS" shall mean the Loan Documents (as defined
in the Credit Agreement) and the Financing Documents (as defined in the Tranche
A Exchange Note Purchase Agreements).
"DEFAULT" shall mean any "Default" as defined in the Credit Agreement and
any "Default" as defined in the Tranche A Exchange Note Purchase Agreements.
"DOCUMENTS" shall mean all instruments, files, records, ledger sheets and
documents covering or relating to any of the Collateral.
"EQUIPMENT" shall mean all equipment, furniture and furnishings, storage
and handling equipment, automotive equipment, motor vehicles, trucks, trailers,
and parts thereof and all tangible personal property similar to any of the
foregoing, including tools, parts and supplies of every kind and description,
and all improvements, accessions or appurtenances thereto, that are now or
hereafter owned by any Grantor. The term "Equipment" shall include Fixtures.
2
"EVENT OF DEFAULT" shall mean any "Event of Default" as defined in the
Credit Agreement and any "Event of Default" as defined in the Tranche A Exchange
Note Purchase Agreement.
"FIXTURES" shall mean all items of Equipment, whether now owned or
hereafter acquired, of any Grantor that become so related to particular real
estate that an interest in them arises under any real estate law applicable
thereto.
"FRANCHISE AGREEMENTS" shall have the meaning assigned to such term in the
Credit Agreement and the Tranche A Exchange Note Purchase Agreements.
"GENERAL INTANGIBLES" shall mean all choses in action and causes of action
and all other assignable intangible personal property of any Grantor of every
kind and nature (other than Accounts Receivable) now owned or hereafter acquired
by any Grantor, including corporate or other business records, indemnification
claims, contract rights (including rights under leases, whether entered into as
lessor or lessee, Rate Protection Agreements, the Assigned Contracts and other
agreements (including the right to deliver any notice required under the
Subordinated Note Intercreditor Agreement in the event that the Borrower fails
to do so), but excluding rights under any agreement (other than the Assigned
Contracts and the Rate Protection Agreements) in existence on the date hereof as
to which the granting of the securing interest granted hereby would constitute a
breach), Intellectual Property, goodwill, registrations, franchises, tax refund
claims and any letter of credit, guarantee, claim, security interest or other
security held by or granted to any Grantor to secure payment by an account
debtor of any of the Accounts Receivable.
"INDEMNITEE" shall mean any "Indemnitee" as defined in the Credit
Agreement and any "Indemnitee" as defined in the Tranche A Exchange Note
Purchase Agreements.
"INVENTORY" shall mean all goods of any Grantor, whether now owned or
hereafter acquired, held for sale or lease, or furnished or to be furnished by
any Grantor under contracts of service, or consumed in any Grantor's business,
including raw materials, intermediates, work in process, packaging materials,
finished goods, semi-finished inventory, scrap inventory, manufacturing supplies
and spare parts, and all such goods that have been returned to or repossessed by
or on behalf of any Grantor.
"INTELLECTUAL PROPERTY" shall mean all intellectual and similar property
of any Grantor of every kind and nature now owned or hereafter acquired by any
Grantor, including inventions, designs, patents, patent applications,
copyrights, copyright registrations, applications to register copyrights,
Licenses, trademarks (including service marks), trademark or service xxxx
applications, trade names, trade secrets, confidential or proprietary technical
and business information, know-how, show-how or other data or information,
software and databases and all embodiments or fixations thereof and related
documentation, registrations and franchises, and all additions, improvements and
accessions to, and books and records describing or used in connection with, any
of the foregoing.
"LICENSE" shall mean any patent license, copyright license or other
license or sublicense to which any Grantor is or becomes a party, including
those listed on Schedule I (other than those license agreements in existence as
of the date hereof and listed on Schedule I, and those license agreements
entered into after the date hereof, that by their terms prohibit assignment or a
grant of a security interest by such Grantor as licensee thereun der).
"LOCKBOX AGREEMENTS" shall mean the lockbox agreements among any Grantor,
the Collateral Agent and a Sub-Agent (as defined in each Lockbox Agreement),
substantially in the form of Annex 1 hereto or in such other form as the
Collateral Agent may specify.
"NETWORK OPERATORS" shall have the meaning assigned thereto in the Credit
Agreement and the Tranche A Exchange Note Purchase Agreements.
"OBLIGATIONS" shall have the meaning assigned to such term in the
preliminary statement of this Agreement.
"PERFECTION CERTIFICATE" shall mean the Perfection Certificate
substantially in the form of Annex 2 hereto, prepared by the Grantors.
3
"PROCEEDS" shall mean any consideration received from the sale, exchange,
license, lease or other disposition of any asset or property that constitutes
Collateral, any value received as a consequence of the possession of any
Collateral and any payment received from any insurer or other person or entity
as a result of the destruction, loss, theft, damage or other involuntary
conversion of whatever nature of any asset or property that constitutes
Collateral, and shall include (a) all cash and negotiable instruments received
or held on behalf of the Collateral Agent pursuant to the Lockbox Agreements or
any other lockbox or similar arrangement relating to the payment of Accounts
Receivable and Inventory and (b) any claim of any Grantor against any third
party for (and the right to xxx and recover for and the rights to damages or
profits due or accrued arising out of or in connection with) (i) past, current
or future infringement of any patent now or hereafter owned by any Grantor or
licensed under a patent license, (ii) past, current or future breach of any
License, (iii) past, current or future infringement of any copyright now or
hereafter owned by any Grantor or licensed under a copyright license and (iv)
any and all other amounts from time to time paid or payable under or in
connection with any of the Collateral.
"REQUIRED HOLDERS" shall have the meaning set forth in the Tranche A
Exchange Note Purchase Agreements.
"REQUIRED LENDERS" shall have the meaning set forth in the Credit
Agreement.
"SECURED PARTIES" shall mean (a) the Lenders, (b) the Fronting Bank, (c)
the Agent, (d) the Collateral Agent, (e) the Tranche A Exchange Note Purchasers,
(f) the Swingline Lender and (g) the successors and assigns of each of the
foregoing.
"SECURITY INTEREST" shall have the meaning assigned to such term in
Section 2.01.
"SUB-AGENT" shall mean a financial institution that shall have delivered
to the Collateral Agent an executed Lockbox Agreement.
SECTION 1.02. RULES OF INTERPRETATION. The rules of interpretation
specified in Section 1.02 of the Credit Agreement shall be applicable to this
Agreement.
ARTICLE II
SECURITY INTEREST
SECTION 2.01. SECURITY INTEREST. As security for the payment or
performance, as the case may be, of the Obligations, each Grantor hereby
bargains, sells, conveys, assigns, sets over, mortgages, pledges, hypothecates
and transfers to the Collateral Agent, its successors and its assigns, for the
ratable benefit of the Secured Parties, and hereby grants to the Collateral
Agent, its successors and assigns, for the benefit of the Secured Parties, a
security interest in, all of such Grantor's right, title and interest in, to and
under the Collateral (the "SECURITY INTEREST"). Without limiting the foregoing,
the Collateral Agent is hereby authorized to file one or more financing
statements (including fixture filings), continuation statements, filings with
the United States Patent and Trademark Office or United States Copyright Office
(or any successor office or any similar office in any other country) or other
documents for the purpose of perfecting, confirming, continuing, enforcing or
protecting the Security Interest granted by each Grantor, without the signature
of any Grantor, naming any Grantor or the Grantors as debtors and the Collateral
Agent as secured party.
Each Grantor agrees at all times to keep accurate and complete accounting
records with respect to the Collateral, including a record of all payments and
Proceeds received in respect thereof.
SECTION 2.02. NO ASSUMPTION OF LIABILITY. The Security Interest is granted
as security only and shall not subject the Collateral Agent or any other Secured
Party to, or in any way alter or modify, any obligation or liability of any
Grantor with respect to or arising out of any of the Collateral.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Grantors jointly and severally represent and warrant to and with the
Collateral Agent and each other Secured Party that:
SECTION 3.01. TITLE AND AUTHORITY. Each Grantor has good and valid rights
in and title to the Collateral with respect to which it has purported to grant a
Security Interest hereunder and has full power and authority to grant to the
Collateral Agent the Security Interest in such Collateral pursuant hereto and to
execute, deliver and perform its obligations in accordance with the terms of
this Agreement, without the consent or approval of any other person other than
any consent or approval that has been obtained.
SECTION 3.02. FILINGS. The Perfection Certificate has been duly prepared,
completed and executed and the information set forth therein is correct and
complete. Fully executed Uniform Commercial Code financing statements (including
fixture filings, as applicable) or other appropriate filings, recordings or
registrations containing a description of the Collateral have been delivered to
the Collateral Agent for filing in each governmental, municipal or other office
specified in Schedule 6 to the Perfection Certificate, which are all the
filings, recordings and registrations that are necessary to publish notice of
and protect the validity of and to establish a legal, valid and perfected
security interest in favor of the Collateral Agent (for the benefit of the
Secured Parties) in respect of all Collateral in which the Security Interest may
be perfected by filing, recording or registration in the United States (or any
political subdivision thereof) and its territories and possessions, and no
further or subsequent filing, refiling, recording, rerecording, registration or
reregistration is necessary in any such jurisdiction, except as provided under
applicable law with respect to the filing of continuation statements.
SECTION 3.03. VALIDITY OF SECURITY INTEREST. The Security Interest
constitutes (a) a legal and valid security interest in all the Collateral
securing the payment and performance of the Obligations and (b) subject to the
filings described in Section 3.02 above, a perfected security interest in all
Collateral in which a security interest may be perfected by filing, recording or
registering a financing statement or analogous document in the United States (or
any political subdivision thereof) and its territories and possessions pursuant
to the Uniform Commercial Code or other applicable law in such jurisdictions.
The Security Interest is and shall be prior to any other Lien on any of the
Collateral, other than Liens expressly permitted to be prior to the Security
Interest pursuant to Section 7.02 of the Credit Agreement and Section 7.2 of the
Tranche A Exchange Note Purchase Agreements.
SECTION 3.04. ABSENCE OF OTHER LIENS. The Collateral is owned by the
Grantors free and clear of any Lien, except for Liens expressly permitted
pursuant to Section 7.02 of the Credit Agreement and Section 7.2 of the Tranche
A Exchange Note Purchase Agreements. Other than as contemplated hereby or by the
Trademark Security Agreement, no Grantor has filed or consented to the filing of
(a) any financing statement or analogous document under the Uniform Commercial
Code or any other applicable laws covering any Collateral, (b) any assignment in
which any Grantor assigns any Collateral or any security agreement or similar
instrument covering any Collateral with the United States Patent and Trademark
Office or the United States Copyright Office nor (c) any assignment in which any
Grantor assigns any Collateral or any security agreement or similar instrument
covering any Collateral with any foreign governmental, municipal or other
office.
ARTICLE IV
COVENANTS
SECTION 4.01. CHANGE OF NAME; LOCATION OF COLLATERAL; RECORDS; PLACE OF
BUSINESS. (a) Each Grantor agrees promptly to notify the Collateral Agent of any
change (i) in its corporate name or in any trade name used to identify it in the
conduct of its business or in the ownership of its properties, (ii) in the
location of its chief executive office, its principal place of business, any
office in which it maintains books or records relating to Collateral owned by it
or any office or facility at which Collateral owned by it is located (including
the establishment of any such new office or facility) or (iii) in its identity
or corporate structure. Each Grantor agrees not to effect or permit any change
referred to in the preceding sentence unless all filings have been made under
the Uniform Commercial Code or otherwise that are required in order for the
Collateral Agent to continue at all times following such change to have a valid,
legal and perfected security interest in all the Collateral. Each Grantor agrees
promptly to notify the Collateral Agent if any material portion of the
Collateral is damaged or destroyed.
5
(b) Each Grantor agrees to maintain, at its own cost and expense, complete
and accurate records with respect to the Collateral owned by it and, at such
time or times as the Collateral Agent may request, promptly to prepare and
deliver to the Collateral Agent a duly certified schedule or schedules in form
and detail satisfactory to the Collateral Agent showing the identity, amount and
location of any and all Collateral.
SECTION 4.02. PERIODIC CERTIFICATION. Each year, at the time of delivery
of annual financial statements with respect to the preceding fiscal year
pursuant to Section 6.04 of the Credit Agreement and Section 6.4 of the Tranche
A Exchange Note Purchase Agreements, each Grantor shall deliver to the
Collateral Agent a certificate executed by a Financial Officer and the chief
legal officer of such Grantor (a) setting forth the information required
pursuant to Section 2 of the Perfection Certificate, (b) certifying that all
Uniform Commercial Code financing statements (including fixture filings, as
applicable) or other appropriate filings, recordings or registrations, including
all refilings, rerecordings and reregistrations, containing a description of the
Collateral have been filed of record in each governmental, municipal or other
appropriate office in each jurisdiction identified pursuant to clause (a) above
to the extent necessary to protect and perfect the Security Interest for a
period of not less than 18 months after the date of such certificate, (c)
setting forth, with respect to each filing, recording or registration (including
each refiling, rerecording or reregistration) made since the date of the
Perfection Certificate or the most recent certificate delivered pursuant to this
Section 4.02, the filing office, date and file number thereof and (d) attaching
true, correct and complete acknowledgement copies of each such filing, recording
or registration not theretofore delivered to the Collateral Agent.
SECTION 4.03. PROTECTION OF SECURITY. Each Grantor shall, at its own cost
and expense, take any and all actions necessary to defend title to the
Collateral against all persons and to defend the Security Interest of the
Collateral Agent in the Collateral and the priority thereof against any Lien not
expressly permitted under the Credit Agreement and the Tranche A Exchange Note
Purchase Agreements.
SECTION 4.04. FURTHER ASSURANCES. Each Grantor agrees, at its expense, to
execute, acknowledge, deliver and cause to be duly filed all such further
instruments and documents and take all such actions as the Collat eral Agent or
any of the other Secured Parties may from time to time request to better assure,
preserve, protect and perfect the Security Interest and the rights and remedies
created hereby, including the payment of any fees and taxes required in
connection with the execution and delivery of this Agreement, the granting of
the Security Interest and the filing of any financing statements (including
fixture filings) or other documents in connection herewith. If any amount
payable under or in connection with any of the Collateral shall be or become
evidenced by any promissory note or other instrument, such note or instrument
shall (to the extent not previously pledged and delivered pursuant to the Pledge
Agreement) be immediately pledged and delivered to the Collateral Agent, duly
endorsed in a manner satisfactory to the Collateral Agent.
SECTION 4.05. INSPECTION AND VERIFICATION. The Collateral Agent and such
persons as the Collateral Agent may reasonably designate shall have the right,
at any reasonable time or times and at the Grantor's own cost and expense, to
inspect the Collateral, all records related thereto (and to make extracts and
copies from such records) and the premises upon which any of the Collateral is
located, to discuss any of the Grantors' affairs with the officers of such
Grantor and its independent accountants and to verify under reasonable
procedures the validity, amount, quality, quantity, value, condition and status
of or any other matter relating to, the Collateral, including, in the case of
Accounts or Collateral in the possession of any third party, by contacting
Account Debtors or the third party possessing such Collateral for the purpose of
making such a verification. The Collateral Agent shall have the absolute right
to share any information it gains from such inspection or verification with any
other Secured Party.
SECTION 4.06. TAXES; ENCUMBRANCES. At its option, the Collateral Agent may
discharge past due taxes, assessments, charges, fees, liens, security interests
or other encumbrances at any time levied or placed on the Collateral and not
permitted under the Credit Transaction Documents, and may pay for the
maintenance and preservation of the Collateral to the extent any Grantor fails
to do so as required by this Agreement or the other Credit Transaction
Documents, and such Grantor agrees to reimburse the Collateral Agent on demand
for any payment made or any expense incurred by the Collateral Agent pursuant to
the foregoing authorization; PROVIDED, HOWEVER, that nothing in this Section
4.06 shall be interpreted as excusing any Grantor from the performance of, or
imposing any obligation on, the Collateral Agent or any other Secured Party to
cure or perform, any covenants or other promises of the Grantors with respect to
taxes, assessments, charges, fees, liens, security interests or other
encumbrances and maintenance as set forth herein or in the other Credit
Transaction Documents.
SECTION 4.07. ASSIGNMENT OF SECURITY INTEREST. If at any time any Grantor
shall take and perfect a secu rity interest in any property of an Account Debtor
or any other person to secure payment and performance of an Account, such
Grantor shall promptly assign such security interest to the Collateral Agent.
Such assignment need
6
not be filed of public record unless necessary to continue the perfected status
of the security interest against creditors of and transferees from the Account
Debtor or other person granting the security interest.
SECTION 4.08. CONTINUING OBLIGATIONS OF THE GRANTORS. The Grantors shall
remain liable to, at their own cost and expense, duly and punctually, observe
and perform all the conditions and obligations to be observed and performed by
them under each contract, agreement or instrument relating to the Collateral,
all in accordance with the terms and conditions thereof, and each Grantor agrees
to indemnify and hold harmless the Collateral Agent and the other Secured
Parties from and against any and all liability for such performance.
SECTION 4.09. USE AND DISPOSITION OF COLLATERAL. The Grantors may use but
not dispose of the Collateral in any lawful manner not inconsistent with the
provisions of this Agreement, the Credit Agreement, the Tranche A Exchange Note
Purchase Agreements or any other Credit Transaction Document, except that the
Grantors may dispose of Collateral to the extent expressly permitted by
provisions of the Credit Transaction Documents. Without limiting the generality
of the foregoing, each Grantor agrees that it shall not permit any Inventory to
be in the possession or control of any warehouseman, bailee, agent or processor
at any time unless such warehouseman, bailee, agent or processor shall have been
notified of the Security Interest and shall have agreed in a writing in form and
substance reasonably satisfactory to the Collateral Agent to hold the Inventory
subject to the Security Interest and the instructions of the Collateral Agent
and to waive and release any Lien held by it with respect to such Inventory,
whether arising by operation of law or otherwise.
SECTION 4.10. LIMITATION ON MODIFICATION OF ACCOUNTS. No Grantor will,
without the Collateral Agent's prior written consent, grant any extension of the
time of payment of any of the Accounts Receivable, compromise, compound or
settle the same for less than the full amount thereof, release, wholly or
partly, any person liable for the payment thereof or allow any credit or
discount whatsoever thereon, other than extensions, credits, discounts,
compromises or settlements granted or made in the ordinary course of business.
After a Default or an Event of Default shall have occurred and during the
continuance thereof, the Collateral Agent may notify the Grantors not to grant
or make any such extension, credit, discount, compromise, or settlement under
any circumstances without its prior written consent.
ARTICLE V
COLLECTIONS
SECTION 5.01. COLLECTION DEPOSIT ACCOUNTS. (a) On and after the Closing
Date, each Grantor agrees to establish and maintain one or more Collection
Deposit Accounts with the Collateral Agent or with any financial institution
that (i) is satisfactory to the Collateral Agent and (ii) enters into a Lockbox
Agreement.
(b) Unless and until the Collection Deposit Accounts are converted to
closed lockbox accounts pursuant to paragraph (c) below, each Grantor may at any
time withdraw any of the funds contained in a Collection Deposit Account of such
Grantor for use, subject to the provisions of the Credit Transaction Documents,
for general corporate purposes.
(c) Effective upon notice to the Grantors from the Collateral Agent after
the occurrence and during the continuance of an Event of Default (which notice
may be given by telephone if promptly confirmed in writing), each Collection
Deposit Account will, without any further action on the part of any Grantor, the
Collateral Agent or any Sub-Agent, convert into a closed lockbox account under
the exclusive dominion and control of the Collateral Agent in which funds are
held subject to the rights of the Collateral Agent hereunder. No Grantor shall
thereafter have any right or power to withdraw any funds from any Collection
Deposit Account without the prior written consent of the Collateral Agent until
all Events of Default are cured or waived. The Grantors irrevocably authorize
the Collateral Agent to notify each Sub-Agent (i) of the occurrence of an Event
of Default and (ii) of the matters referred to in this paragraph (c). Following
the occurrence of an Event of Default, the Collateral Agent may instruct each
Sub-Agent to transfer immediately all funds held in each Collection Deposit
Account to an account maintained with the Collateral Agent.
SECTION 5.02. COLLECTIONS. (a) From and after the Closing Date, each
Grantor agrees to notify and direct promptly each Account Debtor and every other
person obligated to make payments with respect to the Accounts Receivable,
Inventory and Assigned Contracts to make all such payments to a Collection
Deposit Account established by it. Each Grantor shall use all reasonable efforts
to cause each Account Debtor and every other person
7
identified in the preceding sentence to make all payments with respect to the
Accounts Receivable, Inventory and Assigned Contracts directly to such
Collection Deposit Account.
(b) In the event that any Grantor directly receives any remittances on
Accounts Receivable, Inventory, or with respect to the Assigned Contracts,
notwithstanding the arrangements for payment directly into the Collection
Deposit Accounts, such remittances shall be held in trust for the benefit of the
Collateral Agent and the other Secured Parties and shall be segregated from
other funds of such Grantor, subject to the Security Interest granted hereby,
and such Grantor shall cause such remittances and payments to be deposited into
the applicable Collection Deposit Account as soon as practicable after such
Grantor's receipt thereof.
SECTION 5.03. POWER OF ATTORNEY. The Collateral Agent is hereby appointed
by the Grantors as the true and lawful agent and attorney-in-fact of each
Grantor, and in such capacity the Collateral Agent shall have the right, with
power of substitution for the Grantors and in each Grantor's name or otherwise,
for the use and benefit of the Collateral Agent and the other Secured Parties,
upon the occurrence and during the continuance of an Event of Default, (a) to
receive, endorse, assign and/or deliver any and all notes, acceptances, checks,
drafts, money orders or other evidences of payment relating to the Collateral or
any part thereof; (b) to demand, collect, receive payment of, give receipt for
and give discharges and releases of all or any of the Collateral; (c) to sign
the name of any Grantor on any invoice or xxxx of lading relating to any of the
Collateral; (d) to send verifications of Accounts Receivable to any Account
Debtor; (e) to commence and prosecute any and all suits, actions or proceedings
at law or in equity in any court of competent jurisdiction to collect or
otherwise realize on all or any of the Collateral or to enforce any rights in
respect of any Collateral; (f) to settle, compromise, compound, adjust or defend
any actions, suits or proceedings relating to all or any of the Collateral; (g)
to notify, or to require the Grantors to notify, Account Debtors to make payment
directly to the Collateral Agent; and (h) to use, sell, assign, transfer,
pledge, make any agreement with respect to or otherwise deal with all or any of
the Collateral, and to do all other acts and things necessary to carry out the
purposes of this Agreement, as fully and completely as though the Collateral
Agent were the absolute owner of the Collateral for all purposes; PROVIDED,
HOWEVER, that nothing herein contained shall be construed as requiring or
obligating the Collateral Agent or any other Secured Party to make any
commitment or to make any inquiry as to the nature or sufficiency of any payment
received by the Collateral Agent or any other Secured Party, or to present or
file any claim or notice, or to take any action with respect to the Collateral
or any part thereof or the moneys due or to become due in respect thereof or any
property covered thereby, and no action taken or omitted to be taken by the
Collateral Agent or any other Secured Party with respect to the Collateral or
any part thereof shall give rise to any defense, counterclaim or offset in favor
of any Grantor or to any claim or action against the Collateral Agent or any
other Secured Party. It is understood and agreed that the appointment of the
Collateral Agent as the agent and attorney-in-fact of the Grantors for the
purposes set forth above is coupled with an interest and is irrevocable. The
provisions of this Section 5.03 shall in no event relieve any Grantor of any of
its obligations hereunder or under the other Credit Transaction Documents with
respect to the Collateral or any part thereof or impose any obligation on the
Collateral Agent or any other Secured Party to proceed in any particular manner
with respect to the Collateral or any part thereof, or in any way limit the
exercise by the Collateral Agent or any other Secured Party of any other or
further right that it may have on the date of this Agreement or hereafter,
whether hereunder, under any other Credit Transaction Document, by law or
otherwise. Any sale pursuant to the provisions of this Section 5.03 shall be
deemed to conform to the commercially reasonable standards as provided in
Section 9-504(3) of the Uniform Commercial Code as in effect in the State of New
York or its equivalent in other jurisdictions.
ARTICLE VI
REMEDIES
SECTION 6.01. REMEDIES UPON DEFAULT. Upon the occurrence and during the
continuance of an Event of Default, each Grantor agrees to deliver each item of
Collateral to the Collateral Agent on demand, and it is agreed that the
Collateral Agent shall have the right (subject to applicable law) to take any of
or all the following actions at the same or different times: (a) with respect to
any Collateral consisting of Intellectual Property, on demand, to cause the
Security Interest to become an assignment, transfer and conveyance of any of or
all such Collateral by such Grantor to the Collateral Agent, or to license or,
to the extent permitted by applicable law, sublicense, whether general, special
or otherwise, and whether on an exclusive or non-exclusive basis, any such
Collateral throughout the world on such terms and conditions and in such manner
as the Collateral Agent shall determine (other than in violation of any
then-existing licensing arrangements to the extent that waivers cannot be
obtained), and (b) with or without legal process and with or without previous
notice or demand for performance, to take possession of the Collateral (and
temporary possession of any non-Collateral in connection with any such
8
repossession, with the right to store, at the Grantors' expense and risk, such
non-Collateral) and without liability for trespass to enter any premises where
the Collateral may be located for the purpose of taking possession of or
removing the Collateral and, generally, to exercise any and all rights afforded
to a secured party under the Uniform Commercial Code or other applicable law.
Without limiting the generality of the foregoing, each Grantor agrees that the
Collateral Agent shall have the right, subject to the mandatory requirements of
applicable law, to sell or otherwise dispose of all or any part of the
Collateral, at public or private sale or at any broker's board or on any
securities exchange, for cash, upon credit or for future delivery as the
Collateral Agent shall deem appropriate. The Collateral Agent shall be
authorized at any such sale (if it deems it advisable to do so) to restrict the
prospective bidders or purchasers to persons who will represent and agree that
they are purchasing the Collateral for their own account for investment and not
with a view to the distribution or sale thereof, and upon consummation of any
such sale the Collateral Agent shall have the right to assign, transfer and
deliver to the purchaser or purchasers thereof the Collateral so sold. Each such
purchaser at any such sale shall hold the property sold absolutely free from any
claim or right on the part of such Grantors, and each Grantor hereby waives (to
the fullest extent permitted by applicable law) all rights of redemption, stay
and appraisal that such Grantor now has or may at any time in the future have
under any rule of law or statute now existing or hereafter enacted.
The Collateral Agent shall give the Grantors 10 days' written notice
(which each Grantor agrees is reason able notice within the meaning of Section
9-504(3) of the Uniform Commercial Code as in effect in the State of New York or
its equivalent in other jurisdictions) of the Collateral Agent's intention to
make any sale of Collateral. Such notice, in the case of a public sale, shall
state the time and place for such sale and, in the case of a sale at a broker's
board or on a securities exchange, shall state the board or exchange at which
such sale is to be made and the day on which the Collateral, or portion thereof,
will first be offered for sale at such board or exchange. Any such public sale
shall be held at such time or times within ordinary business hours and at such
place or places as the Collateral Agent may fix and state in the notice (if any)
of such sale. At any such sale, the Collateral, or portion thereof, to be sold
may be sold in one lot as an entirety or in separate parcels, as the Collateral
Agent may (in its sole and absolute discretion) determine. The Collateral Agent
shall not be obligated to make any sale of any Collateral if it shall determine
not to do so, regardless of the fact that notice of sale of such Collateral
shall have been given. The Collateral Agent may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for sale, and such sale may,
without further notice, be made at the time and place to which the same was so
adjourned. In case any sale of all or any part of the Collateral is made on
credit or for future delivery, the Collateral so sold may be retained by the
Collateral Agent until the sale price is paid by the purchaser or purchasers
thereof, but the Collateral Agent shall not incur any liability in case any such
purchaser or purchasers shall fail to take up and pay for the Collateral so sold
and, in case of any such failure, such Collateral may be sold again upon like
notice. At any public sale made pursuant to this Section 6.01, any Secured Party
may bid for or purchase, free (to the fullest extent permitted by applicable
law) from any right of redemption, stay, valuation or appraisal on the part of
any Grantor (all said rights being also hereby waived and released to the extent
permitted by law), the Collateral or any part thereof offered for sale and may
make payment on account thereof by using any claim then due and payable to such
Secured Party from any Grantor as a credit against the purchase price, and such
Secured Party may, upon compliance with the terms of sale, hold, retain and
dispose of such property without further accountability to such Grantor
therefor. For purposes hereof, a written agreement to purchase the Collateral or
any portion thereof shall be treated as a sale thereof; the Collateral Agent
shall be free to carry out such sale pursuant to such agreement and no Grantor
shall be entitled to the return of the Collateral or any portion thereof subject
thereto, notwithstanding the fact that after the Collateral Agent shall have
entered into such an agreement all Events of Default shall have been remedied
and the Obligations paid in full; PROVIDED, HOWEVER, that in the event the
obligations shall have been paid in full, the Grantors shall be entitled to the
return of the proceeds of the sale of any such Collateral to the extent not
applied to payment of the Obligations. As an alternative to exercising the power
of sale herein conferred upon it, the Collateral Agent may proceed by a suit or
suits at law or in equity to foreclose this Agreement and to sell the Collateral
or any portion thereof pursuant to a judgment or decree of a court or courts
having competent jurisdiction or pursuant to a proceeding by a court-appointed
receiver. Any sale pursuant to the provisions of this Section 6.01 shall be
deemed to conform to the commercially reasonable standards as provided in
Section 9-504(3) of the Uniform Commercial Code as in effect in the State of New
York or its equivalent in other jurisdictions.
SECTION 6.02. APPLICATION OF PROCEEDS. The Collateral Agent shall apply
the proceeds of any collection or sale of the Collateral, as well as any
Collateral consisting of cash, as follows:
FIRST, to the payment of all costs and expenses incurred by the
Agent or the Collateral Agent (in its capacity as such hereunder or under
any other Credit Transaction Document) in connection with such collection
or sale or otherwise in connection with this Agreement or any of the
Obligations, includ ing all court costs and the fees, other charges and
expenses of its agents and legal counsel, the repayment
9
of all advances made by the Collateral Agent hereunder or under any other
Credit Transaction Document on behalf of the Grantors and any other costs
or expenses incurred in connection with the exercise of any right or
remedy hereunder or under any other Credit Transaction Document;
SECOND, subject to the provisions of the Intercreditor Agreement, to
the Collateral Agent for distribution to the Participating Creditors (as
defined in the Intercreditor Agreement) as provided in Article IV of the
Intercreditor Agreement for the payment in full of Indebtedness and
satisfaction of the Obligations owed to the Participating Creditors; and
THIRD, to the Grantors, their successors or assigns, or as a court
of competent jurisdiction may otherwise direct.
Subject to the terms of the Intercreditor Agreement, the Collateral Agent shall
have absolute discretion as to the time of application of any such proceeds,
moneys or balances in accordance with this Agreement. Upon any sale of the
Collateral by the Collateral Agent (including pursuant to a power of sale
granted by statute or under a judicial proceeding), the receipt by the
Collateral Agent or of the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold and such
purchaser or purchasers shall not be obligated to see to the application of any
part of the purchase money paid over to the Collateral Agent or such officer or
be answerable in any way for the misapplication thereof.
SECTION 6.03. GRANT OF LICENSE TO USE INTELLECTUAL PROPERTY. For the
purpose of enabling the Collateral Agent to exercise rights and remedies under
this Section 6.03 at such time as the Collateral Agent shall be lawfully
entitled to exercise such rights and remedies, each Grantor hereby grants to the
Collateral Agent an irrevocable, non-exclusive license (exercisable without
payment of royalty or other compensation to such Grantor) to use, license or
sub-license any of the Collateral consisting of Intellectual Property now owned
or hereafter acquired by such Grantor, and wherever the same may be located, and
including in such license reasonable access to all media in which any of the
licensed items may be recorded or stored and to all computer software and
programs used for the compilation or printout thereof. The use of such license
by the Collateral Agent shall be exercised, at the option of the Collateral
Agent, upon the occurrence and during the continuation of an Event of Default,
provided that any license, sub-license or other transaction entered into by the
Collateral Agent in accordance herewith shall be binding upon the Grantors
notwithstanding any subsequent cure of an Event of Default.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. NOTICES. All communications and notices hereunder shall
(except as otherwise expressly permitted herein) be in writing and given as
provided in Section 10.01 of the Credit Agreement and Section 16.6 of the
Tranche A Exchange Note Purchase Agreements. All communications and notices
hereunder to the Collateral Agent shall be given to it at its address set forth
in Schedule II hereto.
SECTION 7.02. SECURITY INTEREST ABSOLUTE. All rights of the Collateral
Agent hereunder, the Security Interest and all obligations of the Grantors
hereunder shall be absolute and unconditional irrespective of (a) any lack of
validity or enforceability of any Credit Transaction Document, any agreement
with respect to any of the Obligations or any other agreement or instrument
relating to any of the foregoing, (b) any change in the time, manner or place of
payment of, or in any other term of, all or any of the Obligations or any other
amendment or waiver of or any consent to any departure from any Credit
Transaction Document or any other agreement or instrument, (c) any exchange,
release or non-perfection of any Lien on other Collateral, or any release or
amendment or waiver of or consent under or departure from any Guarantee,
securing or guaranteeing all or any of the Obligations or (d) any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, any Grantor in respect of the Obligations or in respect of this
Agreement (other than the indefeasible payment in full of all the Obligations by
such Grantor).
SECTION 7.03. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by any Grantor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Credit Transaction Document shall be
considered to have been relied upon by the Secured Parties and shall survive the
making by the Lenders of the Loans, the making by the Swingline Lender of the
Swingline Loans and the acceptance by the Tranche A Exchange Note Purchasers of
the Tranche A Exchange Notes, the execution and delivery to the Tranche A
Exchange Note Purchasers of the Tranche A
10
Exchange Notes, and the issuance by the Fronting Bank of any Letter of Credit,
regardless of any investigation made by the Secured Parties or on their behalf,
and shall continue in full force and effect as long as the principal of or any
accrued interest on, or any other fee or amount payable under or in respect of,
any Loan, Swingline Loan, Tranche A Exchange Note or Letter of Credit, or this
Agreement or, without duplication of the foregoing, under any of the other
Credit Transaction Documents is outstanding and unpaid and so long as the
Commitments and the LC Commitment have not been terminated.
SECTION 7.04. BINDING EFFECT; ASSIGNMENTS. This Agreement shall become
effective as to any Grantor when a counterpart hereof executed on behalf of such
Grantor shall have been delivered to the Collateral Agent and a counterpart
hereof shall have been executed on behalf of the Collateral Agent, and
thereafter shall be binding upon such Grantor and the Collateral Agent and their
respective successors and assigns, and shall inure to the benefit of such
Grantor, the Collateral Agent and the other Secured Parties and their respective
successors and assigns, except that no Grantor shall have the right to assign
its rights hereunder or any interest herein or in the Collateral (and any such
attempted assignment shall be void) except as expressly contemplated by this
Agreement or the other Credit Transaction Documents.
SECTION 7.05. SUCCESSORS AND ASSIGNS. Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of any Grantor or the Collateral Agent that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
SECTION 7.06. COLLATERAL AGENT'S FEES AND EXPENSES; INDEMNIFICATION. (a)
Each Grantor jointly and severally agrees to pay upon demand to the Collateral
Agent the amount of any and all reasonable expenses, including the reasonable
fees and expenses of its counsel and of any experts or agents, that the
Collateral Agent may incur in connection with (i) the administration of this
Agreement, (ii) the custody or preservation of, or the sale of, collection from
or other realization upon any of the Collateral, (iii) the exercise, enforcement
or protection of any of the rights of the Collateral Agent hereunder or (iv) the
failure of the Grantors to perform or observe any of the provisions hereof. If
any Grantor shall fail to do any act or thing that it has covenanted to do
hereunder or any representation or warranty of any Grantor hereunder shall be
breached, the Collateral Agent may (but shall not be obligated to) do the same
or cause it to be done or remedy any such breach and there shall be added to the
Obligations the cost or expense incurred by the Collateral Agent in so doing.
(b) Without limitation of its indemnification obligations under the other
Credit Transaction Documents, each Grantor jointly and severally agrees to
indemnify the Collateral Agent and the other Indemnitees against, and hold each
of them harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees and expenses, incurred by or
asserted against any of them arising out of, in any way connected with, or as a
result of, the execution, delivery or performance of this Agreement or any
claim, litigation, investigation or proceeding relating hereto or to the
Collateral, 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, claims, damages, liabilities or related expenses 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) Any amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The provisions
of this Section 7.06 shall remain operative and in full force and effect
regardless of the termination of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Obligations, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Credit Transaction Document or any investigation made by or on behalf of
the Collateral Agent or any other Secured Party. All amounts due under this
Section 7.06 shall be payable on written demand therefor and shall bear interest
at the Alternate Base Rate (as defined in the Credit Agreement) plus 2%.
SECTION 7.07. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.08. WAIVERS; AMENDMENT. (a) No failure or delay of the
Collateral Agent or any other Secured Party 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 Collateral Agent hereunder and of the other Secured Parties under the other
Credit Transaction Documents are cumulative and are not exclusive of any rights
or remedies that they would otherwise have. No waiver of any provisions of this
Agreement or any other Credit Transaction Document or consent to any departure
11
by the Grantors 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 any Grantor in any case shall entitle such Grantor or the
any other Grantor to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to a written agreement entered into by the Grantors
and the Collateral Agent, with the prior written consent of the Required Lenders
and the Required Holders; PROVIDED, HOWEVER, that except as provided herein or
in the other Credit Transaction Documents, no such agreement shall amend,
modify, waive or otherwise adversely affect a Secured Party's rights and
interests in any material amount of the Collateral without the prior written
consent of such Secured Party.
SECTION 7.09. 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 CREDIT
TRANSACTION 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 CREDIT TRANSACTION
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 7.09.
SECTION 7.10. SEVERABILITY. In the event any one or more of the provisions
contained in this Agreement or in any other Credit Transaction 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 (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other
jurisdiction). 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 7.11. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each
Grantor 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 Credit Transaction 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 the Collateral Agent or any other Secured Party may otherwise have to
bring any action or proceeding relating to this Agreement or the other Credit
Transaction Documents against any Grantor or its properties in the courts of any
jurisdiction.
(b) Each Grantor 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 Credit Transaction
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 7.01. 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 7.12. TERMINATION OR RELEASE. (a) This Agreement and the Security
Interest shall terminate when all the Obligations have been indefeasibly paid in
full and the Lenders and the Swingline Lender have no further commitment to lend
under the Credit Agreement, no Letters of Credit are outstanding and the
Fronting Bank has no further obligation to issue Letters of Credit under the
Credit Agreement.
12
(b) Upon any sale by any Grantor of any Collateral that is permitted under
the Credit Agreement and the Tranche A Exchange Note Purchase Agreements
(including releases in connection with any disposition of Collateral pursuant to
Sections 7.03 and 7.05 of the Credit Agreement, Sections 9 and 10 of the
Guarantee Agreement and Sections 7.3 and 7.5 of the Tranche A Exchange Note
Purchase Agreements), or, subject to the terms of the Intercreditor Agreement,
upon the effectiveness of any written consent to the release of the Security
Interest in any Collateral pursuant to Section 10.08 of the Credit Agreement and
Section 13 of the Tranche A Exchange Note Purchase Agreements, the Security
Interest in such Collateral shall be automatically released.
(c) In connection with any termination or release pursuant to paragraphs
(a) and (b), the Collateral Agent shall execute and deliver to such Grantor, at
such Grantor's expense, all Uniform Commercial Code termination statements and
similar documents that such Grantor shall reasonably request to evidence such
termination or release. Any execution and delivery of termination statements or
documents pursuant to this Section 7.12 shall be without recourse to or warranty
by the Collateral Agent.
SECTION 7.13. HEADINGS. Article and Section headings 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 7.14. 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 7.04.
SECTION 7.15. INTERCREDITOR AGREEMENT. (a) The Collateral Agent agrees,
for itself and for each other Secured Party, that it and each other Secured
Party shall be bound by the terms of the Intercreditor Agreement in connection
with the administration of this Agreement.
(b) Each Grantor hereby acknowledges receipt of a copy of and agrees to be
bound by the terms of the Intercreditor Agreement.
SECTION 7.16. REFERENCES TO CREDIT AGREEMENT. Upon the payment and
discharge in full of all outstanding Credit Agreement Obligations or all
outstanding Tranche A Exchange Note Obligations, all references herein to the
terms of the Credit Agreement or the Tranche A Exchange Note Purchase
Agreements, as the case may be, shall become null and void (other than
references for the purpose of incorporating herein definitions of terms used
therein, which terms will continue to have the meanings assigned thereto
immediately prior to such payment and discharge, subject to subsequent amendment
or modifications in accordance with the terms hereof).
13
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
TRAVELCENTERS OF AMERICA, INC.,
by
---------------------------------------
Name:
Title:
TA OPERATING CORPORATION,
by
---------------------------------------
Name:
Title:
NATIONAL AUTO/TRUCKSTOPS, INC.,
by
---------------------------------------
Name:
Title:
TA FRANCHISE SYSTEMS INC.,
by
---------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as Collateral
Agent,
by
---------------------------------------
Name:
Title:
14
EXHIBIT L
TRADEMARK SECURITY AGREEMENT dated as of March 27, 1997,
among TRAVELCENTERS OF AMERICA, INC., a Delaware corporation
(the "BORROWER"), TA OPERATING CORPORATION, a Delaware
corporation ("TA"), NATIONAL AUTO/TRUCKSTOPS, INC., a Delaware
corporation ("NATIONAL"), TA FRANCHISE SYSTEMS, INC., a
Delaware corporation ("TAFSI", and, together with the
Borrower, TA and National, the "GRANTORS"), and THE CHASE
MANHATTAN BANK, a New York banking corporation ("CHASE"), as
collateral agent (in such capacity, the ("COLLATERAL AGENT")
for the Secured Parties (as defined herein).
Reference is made to (a) the Master Collateral and Intercreditor
Agreement dated as of March 27, 1997 (as amended or modified from time to time,
the "INTERCREDITOR AGREEMENT"), among the Participating Creditors (as defined
therein) and the Collateral Agent and countersigned by the Grantors; (b) the
Credit Agreement dated as of March 21, 1997 (as amended or modified from time to
time, the "CREDIT AGREEMENT"), among the Borrower, the financial institutions
party thereto, as lenders (the "LENDERS") and Chase, as agent (in such capacity,
the "AGENT"), as fronting bank (in such capacity the "FRONTING BANK"), as
swingline lender (in such capacity, the "SWINGLINE LENDER"); and (c) the Senior
Secured Note Exchange Agreements, each dated as of March 21, 1997 (as amended or
modified from time to time, the "TRANCHE A EXCHANGE NOTE PURCHASE AGREEMENTS"),
among the Borrower and the Tranche A Exchange Note Purchasers named therein.
The Lenders, the Fronting Bank and the Swingline Lender,
respectively, have agreed to make Loans to the Borrower, to issue Letters of
Credit for the account of the Borrower and to make Swingline Loans to the
Borrower pursuant to, and upon the terms and subject to the conditions specified
in, the Credit Agreement. The Tranche A Exchange Note Purchasers have agreed to
accept $35,500,000 aggregate principal amount of the Borrower's 8.94% Series I
Senior Secured Notes due 2002 (the "SERIES I TRANCHE A EXCHANGE NOTES") and
$50,000,000 aggregate principal amount of the Borrower's Series II Senior
Secured Notes due 2005 (the "SERIES II TRANCHE A EXCHANGE NOTES" and, together
with the Series I Tranche A Exchange Notes, the "TRANCHE A EXCHANGE NOTES") in
exchange for (i) $65,000,000 aggregate principal amount of the outstanding 8.76%
Senior Secured Notes due 2002 of National (the "NATIONAL SENIOR NOTES") and (ii)
$20,500,000 aggregate principal amount of the outstanding 8.63% Senior Secured
Notes due 2002 of TA (the "TA SENIOR NOTES" and, together with the National
Senior Notes, the "EXISTING SENIOR NOTES") held by them pursuant to, and upon
the terms and subject to the conditions specified in, the Tranche A Exchange
Note Purchase Agreements.
The obligations of the Lenders to make Loans, of the Fronting Bank to
issue Letters of Credit and of the Swingline Lender to make Swingline Loans
under the Credit Agreement and the obligations of the Tranche A Exchange Note
Purchasers to accept the Tranche A Exchange Notes in exchange for the Existing
Senior Notes held by them pursuant to the Tranche A Exchange Note Purchase
Agreements are conditioned upon, among other things, the execution and delivery
by the Grantors of a security agreement in the form hereof to secure (a) the due
and punctual payment of (i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, the Swingline Loans and the Tranche
A Exchange Notes, when and as due, whether at maturity, by acceleration, upon
one or more dates set for prepayment or otherwise, (ii) each payment required to
be made by the Borrower under the Credit Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral and
(iii) all other monetary obligations, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed or otherwise,
(including monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) of the Borrower to the Secured Parties
under the Credit Agreement, the Tranche A Exchange Note Purchase Agreements,
this Agreement and the other Credit Transaction Documents, (b) the due and
punctual performance of all covenants, agreements, obligations and liabilities
of the Borrower under or pursuant to the Credit Agreement, the Tranche A
Exchange Note Purchase Agreements and the other Credit Transaction Documents,
(c) the due and punctual payment and performance of all the covenants,
agreements, obligations and liabilities of each Grantor under or pursuant to the
Credit Transaction Documents to which such Grantor is a party and (d) the due
and punctual payment and performance of all obligations of the Borrower,
monetary or otherwise, under each Rate Protection Agreement entered into with a
counterparty that was a Lender (or an Affiliate of a Lender) at the time such
Rate Protection Agreement was entered into (all the obligations referred to in
the preceding clauses (a) through (d) being referred to collectively as the
"OBLIGATIONS"). All capitalized terms used but not defined herein shall have the
meanings set forth in the other Credit Transaction Documents.
2
Accordingly, the Grantors and the Collateral Agent, on behalf of
itself, and each other Secured Party (and each of their successors or assigns),
hereby agree as follows:
SECTION 1. DEFINITION OF CERTAIN TERMS USED HEREIN. As used herein,
the following terms shall have the following meanings:
"COLLATERAL" shall mean all the following, whether now owned or
hereafter acquired by any Grantor: (a) Trademark Licenses, (b) Trademarks,
including registrations, recordings and applications listed on Schedule I
attached hereto and (c) all products and Proceeds (including insurance proceeds)
of, and additions, improvements and accessions to, and books and records
describing or used in connection with, any and all the property described above.
"CREDIT TRANSACTION DOCUMENTS" shall mean the Loan Documents (as
defined in the Credit Agreement) and the Financing Documents (as defined in the
Tranche A Exchange Note Purchase Agreements).
"EVENT OF DEFAULT" shall mean any "Event of Default" as defined in
the Credit Agreement and any "Event of Default" as defined in the Tranche A
Exchange Note Purchase Agreements.
"INDEMNITEE" shall mean any "Indemnitee" as defined in the Credit
Agreement and any "INDEMNITEE" as defined in the Tranche A Exchange Note
Purchase Agreements.
"PROCEEDS" shall mean any consideration received from the sale,
exchange or other disposition of any asset or property that constitutes
Collateral, any value received as a consequence of the possession of any
Collateral and any payment received from any insurer or other person or entity
as a result of the destruction, loss, theft, damage or other involuntary
conversion of whatever nature of any asset or property that constitutes
Collateral, any claims of any Grantor against third parties for past, current or
future infringement or dilution of any Trademark or Trademark License or for
injury to the goodwill associated with any Trademark or Trademark licensed under
any Trademark License and any and all other amounts from time to time paid or
payable under or in connection with any of the Collateral.
"SECURED PARTIES" shall mean (a) the Lenders, (b) the Fronting Bank,
(c) the Agent, (d) the Collateral Agent, (e) the Tranche A Exchange Note
Purchasers, (f) the Swingline Lender and (g) the successors and assigns of each
of the foregoing.
"TRADEMARK LICENSES" shall mean any written agreement granting to
any third party any right to use any Trademark now or hereafter owned by any
Grantor, or granting to any Grantor any right to use any Trademark now or
hereafter owned by any third party.
"TRADEMARKS" shall mean all of the following now or hereafter owned:
(a) all trademarks, service marks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, logos, other source or
business identifiers, prints and labels on which any of the foregoing have
appeared or appear, designs and general intangibles of like nature, now existing
or hereafter adopted or acquired, all registrations and recordings thereof, and
all applications in connection therewith, including registrations, recordings
and applications in the United States Patent and Trademark Office, any State of
the United States or any other country or any political subdivision thereof, (b)
all goodwill of the business symbolized by and/or associated therewith and (c)
all extensions or renewals thereof.
SECTION 2. RULE OF INTERPRETATION. The rules of interpretation
specified in Section 1.02 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 3. SECURITY INTEREST. As security for the payment or
performance, as the case may be, of the Obligations, each Grantor hereby
bargains, sells, conveys, assigns, sets over, mortgages, pledges, hypothecates
and transfers to the Collateral Agent, its successors and its assigns, for the
benefit of the Secured Parties, and hereby grants to the Collateral Agent, its
successors and assigns, for the benefit of the Secured Parties, a security
interest in, all of such Grantor's right, title and interest in, to and under
the Collateral (the "SECURITY INTEREST"). Without limiting the foregoing, the
Collateral Agent is hereby authorized to file one or more financing statements,
continuation statements, filings with the United States Patent and Trademark
Office, or other documents for the purpose of perfecting, confirming,
continuing, enforcing or protecting the Security Interest without the signature
of any Grantor, naming any Grantor or the Grantors as debtors and the Collateral
Agent as secured party.
3
Each Grantor at all times to keep accurate and complete accounting
records with respect to the Collateral, including a record of all payments and
proceeds received in respect thereof.
SECTION 4. FURTHER ASSURANCES. Each Grantor agrees, at its expense,
to execute, acknowledge, deliver and cause to be duly filed all such further
instruments and documents and take all such actions as the Collateral Agent or
the other Secured Parties may from time to time reasonably request for the
better assuring and preserving of the Security Interest and the rights and
remedies created hereby, including the payment of any fees and taxes required in
connection with the execution and delivery of this Agreement, the granting of
the Security Interest and the rights and remedies created hereby, including the
payment of any fees and taxes required in connection with the execution and
delivery of this Agreement, the granting of the Security Interest created hereby
and the filing of any financing statements or other documents (including filings
with the United States Patent and Trademark Office) in connection herewith, and
the execution and delivery of any document required to supplement this Agreement
with respect to any Trademarks acquired, registered or issued after the date
hereof. If any amount payable under or in connection with any of the Collateral
shall be or become evidenced by any promissory note or other instrument, such
note or instrument shall (to the extent not previously pledged and delivered
pursuant to the Pledge Agreement) be immediately pledged and delivered to the
Collateral Agent, duly endorsed in a manner reasonably satisfactory to the
Collateral Agent.
SECTION 5. INSPECTION AND VERIFICATION. The Collateral Agent and
such persons as the Collateral Agent may reasonably designate shall have the
right, at any reasonable time or times, to inspect the Collateral, all records
related thereto (and to make extracts and copies from such records) and the
premises upon which any of the Collateral is located, to discuss any Grantor's
affairs with the officers of such Grantor and its independent accountants and to
verify under reasonable procedures the validity, amount, quality, quantity,
value, conditions and status of, or any other matter relating to, the
Collateral, including, in the case of Collateral in the possession of any third
party, by contacting such person possessing such Collateral for the purpose of
making such a verification. The Collateral Agent shall have the absolute right
to share any information it gains from such inspection or verification with any
other Secured Party.
SECTION 6. TAXES; ENCUMBRANCES. At its option, the Collateral Agent
may discharge past due taxes, assessments, charges, fees, liens, security
interests or other encumbrances at any time levied or
4
placed on the Collateral and not permitted under the Credit Transaction
Documents, and may pay for the maintenance and preservation of the Collateral to
the extent any Grantor fails to do so as required by this Agreement or the other
Credit Transaction Documents, and such Grantor agrees to reimburse the
Collateral Agent on demand for any payment made or any expense incurred by it
pursuant to the foregoing authorization; PROVIDED, HOWEVER, that nothing in this
Section 6 shall be interpreted as excusing any Grantor from the performance of,
or imposing any obligation on, the Collateral Agent or any other Secured Party
to cure or perform, any covenants or other promises of any Grantor with respect
to taxes, assessments, charges, fees, liens, security interests or other
encumbrances and maintenance as set forth herein or in the other Credit
Transaction Documents.
SECTION 7. REPRESENTATIONS AND WARRANTIES. The Grantors jointly and
severally represent, warrant and covenant to and with the Collateral Agent and
each other Secured Party that:
(a) TITLE AND AUTHORITY. Each Grantor has rights in such Collateral
and good title to the United States registrations of the Trademarks shown
on Schedule I with respect to which it has purported to grant the Security
Interest hereunder and has full corporate power and authority to grant to
the Collateral Agent the Security Interest in such Collateral pursuant
hereto and to execute, deliver and perform its obligations in accordance
with the terms of this Agreement, without the consent or approval of any
other person other than any consent or approval that has been obtained.
(b) FILINGS. Fully executed Uniform Commercial Code financing
statements containing a description of the Collateral have been delivered
to the Collateral Agent for filing in every governmental, municipal or
other office in every jurisdiction in which any portion of the Collateral
is located necessary to establish a valid, legal and perfected security
interest in favor of the Collateral Agent in respect of the Collateral in
which a security interest may be perfected by filing in the United States
and its territories and possessions, and, except for the filing of this
Agreement with the United States Patent and Trademark Office, no further
or subsequent filing, refiling, recording, rerecording, registration or
reregistration is necessary in any such jurisdiction, except as provided
under applicable law with respect to the filing of continuation statements
and except to record notice of the Security Interest with the United
States Patent and Trademark Office with respect to applications for
registration and registrations of such Trademarks that are filed or
acquired after the date hereof.
(c) VALIDITY OF SECURITY INTEREST. The Security Interest constitutes
a valid, legal and, upon the filing of the Uniform Commercial Code
financing statements and the filing in the United States Patent and
Trademark Office referred to in paragraph (b) above, perfected security
interest in all the Collateral for payment and performance of the
Obligations. Such Security Interest constitutes a valid, legal and (upon
filing financing statements and filings with the United States Patent and
Trademark Office and appropriate state offices with respect to state
registered trademarks) perfected first priority security interest in all
such Collateral in which a security interest may be perfected by filing in
the United States and its territories and possession.
(d) INFORMATION REGARDING NAMES AND LOCATIONS. Each Grantor has
disclosed in writing to the Collateral Agent on Schedule II the material
trade names used to identify it in its business or in the ownership of its
properties.
(e) ABSENCE OF OTHER LIENS. Such Collateral is owned by the Grantors
free and clear of any Lien of any nature whatsoever (except for Liens
expressly permitted by Section 7.02 of the Credit Agreement, Section 7.2
of the Tranche A Exchange Note Purchase Agreements or hereby and any liens
or licenses listed on Schedule III). No Grantor has filed a financing
statement under the Uniform Commercial Code covering any such Collateral
used in the United States, nor has any Grantor filed any assignment in
which it assigns such Collateral, any security agreement or any similar
instrument
5
covering such Collateral with the United States Patent and Trademark
Office, other than as contemplated hereby.
(f) LICENSES. To each Grantor's best knowledge, on the date hereof,
there is no default by any Licensee under the Trademark Licenses listed on
Schedule III hereto.
SECTION 8. COVENANTS REGARDING TRADEMARK COLLATERAL. (a) Each
Grantor (either itself or through licensees) will, for each Trademark material
to the conduct of such Grantor's business, (i) to the extent consistent with
past practice, continue to use such Trademark currently in use on each and every
trademark class of goods applicable to its current line of products and/or
services as currently reflected in order to maintain such Trademark in full
force free from any claim of abandonment for nonuse, provided that such Grantor
may modify or abandon its logos, change advertising campaign slogan and
discontinue or abandon the use of any Trademark, in each case consistent with
its ordinary business practice, (ii) maintain as in the past (or as future
business requirements may dictate) the quality of products and services offered
under such Trademark, (iii) with respect to Trademarks used in the United States
or as otherwise required by law, employ such Trademark with the notice of
application or Federal registration as the case may be, except where the failure
to do so would not materially impair such Grantor's rights to or in such
Trademark, (iv) not knowingly use such Trademark in violation of any third party
rights (which shall not be construed to include any of the liens listed on
Schedule III or expressly permitted by Section 7.02 of the Credit Agreement and
Section 7.2 of the Tranche A Exchange Note Purchase Agreements), (v) not (and
not knowingly permit any licensee or sub-licensee thereof to) do any act or omit
to do any act whereby such Trademark may become or be deemed to have been
abandoned or invalidated except as provided in the proviso to clause (i) above
and (vi) comply with all terms and conditions of the Trademark Assignment.
(b) Each Grantor shall notify the Collateral Agent immediately if it
knows or has reason to know that any Trademark material to the conduct of its
business may become abandoned or dedicated to the public, or of any adverse
determination or development (including the institution of, or any such
determination or development in, any proceeding in the United States Patent and
Trademark Office or any court) regarding the Grantor's ownership of any such
material Trademark, its right to register the same, or to keep and maintain the
same.
(c) In no event shall any Grantor, either itself or through any
agent, employee, licensee or designee, file an application for any Trademark
material to the conduct of its business with the United States Patent and
Trademark Office or any similar office or agency in any other country or any
political subdivision thereof, unless it promptly informs the Collateral Agent
and, upon request of the Collateral Agent, executes and delivers to the
Collateral Agent any and all agreements, instruments, documents and papers as
the Collateral Agent may reasonably request to evidence and, in the case of
applications for Trademarks with the United States Patent and Trademark Office,
perfect the Collateral Agent's security interest in such Trademark and the
goodwill and general intangibles of such Grantor relating thereto or represented
thereby.
(d) Each Grantor will take all necessary steps (except as provided
in Section 8(a)(i)) that are consistent with the practice in any proceeding
before the United States Patent and Trademark Office or any similar office or
agency in any other country or any political subdivision thereof, to maintain
and pursue each material application relating to the Trademarks material to the
conduct of its business (and to obtain the relevant grant or registration) and
to maintain each material registration of the Trademarks that is material to the
conduct of such Grantor's business, including, filing of applications for
renewal, affidavits of use, affidavits of incontestability and maintenance fees,
and, if consistent with good business judgment of such Grantor, to initiate
opposition, interference and cancellation proceedings against third parties.
(e) In the event that any Collateral consisting of a Trademark
material to the conduct of such Grantor's business is believed by such Grantor
to have been infringed, misappropriated or diluted by a third
6
party in a manner that materially impairs such Grantor's rights in and to the
Trademarks, such Grantor shall notify the Collateral Agent within 15 days after
it learns thereof and shall, if consistent with good business judgment or, if
reasonably requested by the Collateral Agent, promptly xxx for infringement,
misappropriate or dilution and to cover any and all damages for such
infringement, misappropriation or dilution, or take such other actions as are
appropriate under the circumstances to protect such Collateral.
SECTION 9. PROTECTION OF SECURITY. Each Grantor shall, at its own
cost and expense, take any and all actions necessary to defend title to the
Collateral which is material to the conduct of its business against all persons
and to defend the Security Interest of the Collateral Agent in the Collateral
and the priority thereof, against any adverse Lien not permitted under the
Credit Agreement and the Tranche A Exchange Note Purchase Agreement.
SECTION 10. CONTINUING OBLIGATIONS OF THE GRANTORS. Each Grantor
shall remain liable to observe and perform all the conditions and obligations to
be observed and performed by it under each contract, agreement, interest or
obligation relating to the Collateral, all in accordance with the terms and
conditions thereof, and shall indemnify and hold harmless the Collateral Agent
and the other Secured Parties and each of them severally, from any and all such
liabilities.
SECTION 11. GRANT OF LICENSE TO USE TRADEMARK COLLATERAL. For the
purpose of enabling the Collateral Agent to exercise rights and remedies under
Sections 13 and 14 hereof at such time as the Collateral Agent, without regard
to this Section 11, shall be lawfully entitled to exercise such rights and
remedies, each Grantor hereby grants to the Collateral Agent an irrevocable,
nonexclusive license (exercisable without payment of royalty or other
compensation to such Grantor), upon the occurrence and during the continuance of
any Event of Default, to use, license or sub-license any Trademark now owned or
hereafter acquired by such Grantor to the extent of the interest of such Grantor
therein at such time, and wherever the same may be located, and including in
such license reasonable access to all media in which any of the licenses items
may be recorded or stored and to all computer software and programs used for the
compilation or printout thereof. The Collateral Agent agrees to apply the net
proceeds received from any license towards payment of the Obligations as set
forth in Section 14.
SECTION 12. POWER OF ATTORNEY. The Collateral Agent is hereby
appointed by the Grantors as the true and lawful agent and attorney in fact of
each Grantor, and in such capacity the Collateral Agent shall have the right,
with power of substitution for each Grantor and in each Grantor's name or
otherwise, for the use and benefit of the Collateral Agent and the other Secured
Parties, upon the occurrence and during the continuance of an Event of Default:
(a) to receive, endorse, assign and/or deliver any and all notes, acceptances,
checks, drafts, money orders or other evidences of payment relating to the
Collateral or any part thereof; (b) to demand, collect, receive payment of, give
receipt for and give discharges and releases of all or any of the Collateral;
(c) to sign the name of any Grantor on any invoice or xxxx of lading relating to
any of the Collateral; (d) to commence and prosecute any and all suits, actions
or proceedings at law or in equity in any court of competent jurisdiction to
collect or otherwise realize on all or any of the Collateral or to enforce any
rights in respect of any Collateral; (e) to settle, compromise, compound, adjust
or defend any actions, suits or proceedings relating to or pertaining to all or
any of the Collateral; and (f) to use, sell, assign, transfer, pledge, make any
agreement with respect to or otherwise deal with all or any of the Collateral
and to do all other acts and things necessary to carry out the purposes of this
Agreement, as fully and completely as though the Collateral Agent were the
absolute owner of the Collateral for all purposes; PROVIDED, HOWEVER, that
nothing herein contained shall be construed as requiring or obligating the
Collateral Agent or any other Secured Party to make any commitment or to make
any inquiry as to the nature or sufficiency of any payment received by the
Collateral Agent or any other Secured Party, or to present or file any claim or
notice, or to take any action with respect to the Collateral or any part thereof
or the moneys due or to become due in respect thereof or any property covered
thereby, and no action taken or omitted to be taken by the Collateral Agent or
any other Secured Party with respect to the Collateral or any part thereof shall
give rise to any defense, counterclaim or
7
offset in favor of the Grantors, or to any claim or action against the
Collateral Agent or any other Secured Party. It is understood and agreed that
the appointment of the Collateral Agent as the agent of each Grantor for the
purposes set forth above in this Section 12 is coupled with an interest and is
irrevocable. The provisions of this Section 12 shall in no event relieve any
Grantor of any of its obligations hereunder or under any other Credit
Transaction Document with respect to the Collateral or any part thereof or
impose any obligation on the Collateral Agent or any other Secured Party to
proceed in any particular manner with respect to the Collateral or any part
thereof, or in any way limit the exercise by the Collateral Agent or any other
Secured Party of any other or further right that it may have on the date of this
Agreement or hereafter, whether hereunder, under any other Credit Transaction
Document, by-law or otherwise. Any sale pursuant to the provisions of this
Section 12 shall be deemed to conform to the commercially reasonable standards
as provided in Section 9-504(3) of the Uniform Commercial Code as in effect in
the State of New York as its equivalent in other jurisdictions.
SECTION 13. REMEDIES UPON DEFAULT. Upon the occurrence and during
the continuance of an Event of Default, each Grantor agrees to deliver each item
of Collateral to the Collateral Agent on demand, and it is agreed that the
Collateral Agent shall have the right to take any or all of the following
actions at the same or different times; with or without legal process and with
or without previous notice or demand for performance, to take possession of the
Collateral and without liability for trespass to enter any premises where the
Collateral may be located for the purposes of taking possession of or removing
the Collateral and, generally, to exercise any and all rights afforded to a
secured party under the Uniform Commercial Code or other applicable law. Without
limiting the generality of the foregoing, each Grantor agrees that the
Collateral Agent shall have the right, subject to the mandatory requirements of
applicable law, to sell or otherwise dispose of all or any part of the
Collateral, at public or private sale or at any broker's board or on any
securities exchange, for cash, upon credit or for future delivery as the
Collateral Agent shall deem appropriate. The Collateral Agent shall be
authorized at any such sale (if it deems it advisable to do so) to restrict the
prospective bidders or purchasers to persons who will represent and agree that
they are purchasing the Collateral for their own account for investment and not
with a view to the distribution or sale thereof, and upon consummation of any
such sale the Collateral Agent shall have the right to assign, transfer and
deliver to the purchaser or purchasers thereof the Collateral so sold. Each such
purchaser at any such sale shall hold the property sold absolutely, free from
any claim or right on the part of any Grantor, and such Grantor hereby waives
(to the fullest extent permitted by applicable law) all rights of redemption,
stay and appraisal which such Grantor now has or may at any time in the future
have under any rule of law or statute now existing or hereafter enacted.
The Collateral Agent shall give the Grantors 10 days' prior written
notice (which each Grantor agrees is reasonable notice within the meaning of
Section 9-504(3) of the Uniform Commercial Code as in effect in the State of New
York or its equivalent in other jurisdictions) of the Collateral Agent's
intention to make any sale of Collateral. Such notice, in the case of a public
sale, shall state the time and place for such sale and, in the case of a sale at
a broker's board or on a securities exchange, shall state the board or exchange
at which such sale is to be made and the day on which the Collateral, or portion
thereof, will first be offered for sale at such board or exchange. Any such
public sale shall be held at such time or times within ordinary business hours
and at such place or places as the Collateral Agent may fix and state in the
notice (if any) of such sale. At any such sale, the Collateral, or portion
thereof, to be sold may be sold in one lot as an entirety or in separate
parcels, as the Collateral Agent may (in its sole and absolute discretion)
determine. The Collateral Agent shall not be obligated to make any sale of any
Collateral if it shall determine not to do so, regardless of the fact that
notice of sale of such Collateral shall have been given. The Collateral Agent
may, without notice or publication, adjourn any public or private sale or cause
the same to be adjourned from time to time by announcement at the time and place
fixed for sale, and such sale may, without further notice, be made at the time
and place to which the same was so adjourned. In case any sale of all or any
part of the Collateral is made on credit or for future delivery, the Collateral
so sold may be retained by the Collateral Agent until the sale price is paid by
the purchaser or purchasers thereof, but the Collateral Agent shall not incur
any liability in case any such purchaser or purchasers shall fail to take up and
pay for the Collateral so sold and, in case of any such failure, such Collateral
may be sold again upon like notice. At any public sale made pursuant to this
Section 13, the
8
Collateral Agent or, subject to the Intercreditor Agreement, any other Secured
Party may bid for or purchase, free from any right of redemption, stay,
valuation or appraisal on the part of any Grantor (all said rights being also
hereby waived and released to the fullest extent permitted by applicable law),
the Collateral or any part thereof offered for sale and may make payment on
account thereof by using any claim then due and payable to such Secured Party
from any Grantor as a credit against the purchase price, and such Secured Party
may, upon compliance with the terms of sale, hold, retain and dispose of such
property without further accountability to such Grantor therefor. For purposes
hereof, a written agreement to purchase the Collateral or any portion thereof
shall be treated as a sale thereof; the Collateral Agent shall be free to carry
out such sale pursuant to such agreement, and no Grantor shall be entitled to
the return of the Collateral or any portion thereof subject thereto,
notwithstanding the fact that after the Collateral Agent shall have entered into
such an agreement all Events of Default shall have been remedied and the
Obligations paid in full. As an alternative to exercising the power of sale
herein conferred upon it, the Collateral Agent may proceed by a suit or suits at
law or in equity to foreclose this Agreement and to sell the Collateral or any
portion thereof pursuant to a judgment or decree of a court or courts having
competent jurisdiction or pursuant to a proceeding by a court-appointed
receiver. Any sale pursuant to the provisions of this Section 13 shall be deemed
to conform to the commercially reasonable standards as provided in Section
9-504(3) of the Uniform Commercial Code as in effect in the State of New York or
its equivalent in other jurisdictions.
SECTION 14. APPLICATION OF PROCEEDS OF SALE. The proceeds of any
sale of Collateral pursuant to this Section 14, as well as any Collateral
consisting of cash, shall be applied by the Collateral Agent as follows:
FIRST, to the payment of all costs and expenses incurred by the
Agent or the Collateral Agent (in its capacity as such hereunder or under
any other Credit Transaction Document) in connection with such sale or
otherwise in connection with this Agreement, any other Credit Transaction
Document or any of the Obligations, including all court costs and the
fees, other charges and expenses of its agents and legal counsel, the
repayment of all advances made by the Collateral Agent hereunder or under
any other Credit Transaction Document on behalf of any Grantor and any
other costs or expenses incurred in connection with the exercise of any
right or remedy hereunder or under any other Credit Transaction Document;
SECOND, subject to the provisions of the Intercreditor Agreement as
shall be in force and in effect, to the Collateral Agent for distribution
to the Participating Creditors as provided in Article IV of the
Intercreditor Agreement for the payment in full of Indebtedness and
satisfaction of the Obligations owed to the Participating Creditors; and
THIRD, to the Grantors, their successors or assigns, or as a court
of competent jurisdiction may otherwise direct.
Subject to the terms of the Intercreditor Agreement, the Collateral Agent shall
have absolute discretion as to the time of application of any such proceeds,
moneys or balances in accordance with this Agreement. Upon any sale of the
Collateral by the Collateral Agent (including pursuant to a power of sale
granted by statute or under a judicial proceeding), the receipt of the
Collateral Agent or of the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold and such
purchaser or purchasers shall not be obligated to see to the application of any
part of the purchase money paid over to the Collateral Agent or such officer or
be answerable in any way for the misapplication thereof.
SECTION 15. LOCATIONS OF COLLATERAL; PLACE OF BUSINESS. (a) Each
Grantor agrees, at such time or times as the Collateral Agent may reasonably
request, promptly to prepare and deliver to the Collateral Agent a duly
certified schedule or schedules in form reasonably satisfactory to the
Collateral Agent, showing the identity, amount and location of any and all
material Collateral.
9
(b) Each Grantor agrees not to change, or permit to be changed, the
location of its chief executive office or the name or names used to identify it
in its business or in the ownership of its properties unless all filings under
the Uniform Commercial Code or otherwise that are required by the Credit
Agreement to be made have been made and the Collateral Agent has a valid, legal
and perfected security interest in the Collateral subject to no Liens, other
than Liens permitted by Section 7.02 of the Credit Agreement and Section 7.02 of
the Tranche A Exchange Note Purchase Agreements and any liens or licenses listed
on Schedule III.
SECTION 16. NOTICES. All communications and notices hereunder shall
be in writing and given as provided in Section 10.01 of the Credit Agreement and
Section 16.06 of the Tranche A Exchange Note Purchase Agreements. All
communications and notices hereunder to the Collateral Agent shall be given to
them at the address set forth on Schedule IV hereto.
SECTION 17. SECURITY INTEREST ABSOLUTE. All rights of the Collateral
Agent hereunder, the security interests granted hereunder and all obligations of
the Grantors hereunder shall be absolute and unconditional irrespective of (a)
any lack of validity or enforceability of the Credit Agreement, the Tranche A
Exchange Note Purchase Agreements or any other Credit Transaction Document, any
agreement with respect to any of the Obligations or any other agreement or
instrument relating to any of the foregoing, (b) any change in the time, manner
or place of payment of, or in any other term of, all or any of the Obligations,
or any other amendment or waiver of or any consent to any departure from the
Credit Agreement, any other Credit Transaction Document or any other agreement
or instrument, (c) any exchange, release or non-perfection of any Lien on other
Collateral, or any release or amendment or waiver of or consent under or
departure from any guarantee, securing or guaranteeing all or any of the
Obligations or (d) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, any Grantor in respect of the
Obligations of this Agreement.
SECTION 18. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by any Grantor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Credit Transaction Document shall be
considered to have been relied upon by the Secured Parties and shall survive the
making by the Lenders of the Loans, the making by the Swingline Lender of the
Swingline Loans and the acceptance by the Tranche A Exchange Note Purchasers of
the Tranche A Exchange Notes, and the execution and delivery to the Tranche A
Exchange Note Purchasers of the Tranche A Exchange Notes, and the issuance by
the Fronting Bank of any Letter of Credit, regardless of any investigation made
by the Secured Parties or on their behalf, and shall continue in full force and
effect as long as the principal of or any accrued interest on, or any other fee
or amount payable under or in respect of, any Loan, Swingline Loan, any Tranche
A Exchange Note or any Letter of Credit, or this Agreement or, without
duplication of the foregoing, under any of the other Credit Transaction
Documents is outstanding and unpaid and so long as the Commitments and the LC
Commitment have not been terminated.
SECTION 19. BINDING AGREEMENT; ASSIGNMENTS. This Agreement shall
become effective as to the Grantors when a counterpart hereof executed on behalf
of such Grantor shall have been delivered to the Collateral Agent and a
counterpart hereof shall have been executed on behalf of the Collateral Agent,
and thereafter shall be binding upon such Grantor and the Collateral Agent and
their respective successors and assigns, and shall inure to the benefit of such
Grantors, the Collateral Agent and the other Secured Parties, and their
respective successors and assigns, except that no Grantor shall have the right
to assign its rights hereunder or any interest herein or in the Collateral (and
any such attempted assignment shall be void), except as expressly contemplated
by this Agreement or the other Credit Transaction Documents.
SECTION 20. SUCCESSORS AND ASSIGNS. Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the successors and assigns of such party; and all
10
covenants, promises and agreements by or on behalf of any Grantor or the
Collateral Agent that are contained in this Agreement shall bind and inure to
the benefit of their respective successors and assigns.
SECTION 21. COLLATERAL AGENT'S FEES AND EXPENSES; INDEMNIFICATION.
(a) Each Grantor jointly and severally agrees to pay upon demand to the
Collateral Agent the amount of any and all reasonable expenses and its fully
allocated internal costs, including the reasonable fees and expenses of its
counsel and of any experts or agents, that the Collateral Agent may incur in
connection with (i) the administration of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from or other realization upon any
of the Collateral, (iii) the exercise, enforcement or protection of any of the
rights of the Collateral Agent hereunder or (iv) the failure of any Grantor to
perform or observe any of the provisions hereof. If the Grantors shall fail to
do any act or thing that they have covenanted to do hereunder or any
representation or warranty of the Grantors hereunder shall be breached, the
Collateral Agent may (but shall not be obligated to) do the same or cause it to
be done or remedy any such breach and there shall be added to the Obligations
the cost or expense incurred by the Collateral Agent in so doing.
(b) Without limitation of their indemnification obligations under
the other Credit Transaction Documents, each Grantor jointly and severally
agrees to indemnify the Collateral Agent and the Indemnitees against, and hold
each of them harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees and expenses, incurred by or
asserted against any of them arising out of, in any way connected with, or as a
result of, of the execution, delivery or performance of this Agreement or any
claim, litigation, investigation or proceeding relating hereto or to the
Collateral, 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, claims, damages, liabilities or related expenses 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) Any amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The provisions
of this Section 21 shall remain operative and in full force and effect
regardless of the termination of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Obligations, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Credit Transaction Document or any investigation made by or on behalf of
the Collateral Agent or any other Secured Party. All amounts due under this
Section 21 shall be payable on written demand therefor and shall bear interest
at the Alternate Base Rate (as defined in the Credit Agreement) plus 2%.
SECTION 22. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE
EXTENT THAT FEDERAL LAW OR LAWS OF ANOTHER STATE MAY APPLY TO THE TRADEMARKS.
SECTION 23. WAIVERS; AMENDMENT. (a) No failure or delay of the
Collateral Agent 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 Collateral Agent hereunder
and of the other Secured Parties under the other Credit Transaction Documents
are cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provisions of this Agreement or any other
Credit Transaction Document or consent to any departure by any Grantor 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
any Grantor in any case shall entitle such Grantor to any other or further
notice or demand in similar or other circumstances.
11
(b) Subject to the provisions of the Intercreditor Agreement,
neither this Agreement nor any provision hereof may be waived, amended or
modified except pursuant to a written agreement entered into between any Grantor
and the Collateral Agent, with the prior written consent of the Required Lenders
and the Required Holders; PROVIDED, HOWEVER, that except as provided herein or
in the other Credit Transaction Documents, no such agreement shall amend,
modify, waive or otherwise adversely affect a Secured Party's rights and
interests in any material amount of the Collateral without the prior written
consent of such Secured Party.
SECTION 24. 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 CREDIT
TRANSACTION 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 CREDIT TRANSACTION
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS THE MUTUAL WAIVERS AND
CERTIFICATIONS OF THIS SECTION 24.
SECTION 25. SEVERABILITY. In the event any one or more of the
provisions contained in this Agreement or in any other Credit Transaction
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 (it
being understood that the invalidity of a particular provision in a particular
jurisdiction shall not in and of itself affect the validity of such provision in
any other jurisdiction). 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 26. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each
Grantor 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 Credit Transaction 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 the Collateral Agent or any other Secured Party may otherwise have to
bring any action or proceeding relating to this Agreement or the other Credit
Transaction Documents against any Grantor or its properties in the courts of any
jurisdiction.
(b) Each Grantor 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 Credit
Transaction Documents in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
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(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 16. 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 27. TERMINATION; RELEASE. (a) This Agreement and the
security interests granted hereby shall terminate when all the Obligations have
been indefeasibly paid in full and the Lenders and the Swingline Lender have no
further commitment to lend under the Credit Agreement, no Letters of Credit are
outstanding and the Fronting Bank has no further obligation to issue Letters of
Credit under the Credit Agreement.
(b) Upon any sale by any Grantor of any Collateral that is permitted
under the Credit Agreement and the Tranche A Exchange Note Purchase Agreements
(including releases in connection with any disposition of Collateral pursuant to
Sections 7.03 and 7.05 of the Credit Agreement, Sections 9 and 10 of the
Guarantee Agreement and Sections 7.3 and 7.5 of the Tranche A Exchange Note
Purchase Agreements), or, subject to the terms of the Intercreditor Agreement,
upon the effectiveness of any written consent to the release of the Security
Interest in any Collateral pursuant to Section 10.08 of the Credit Agreement and
Section 12 of the Tranche A Exchange Note Purchase Agreements, the Security
Interest in such Collateral shall be automatically released.
(c) In connection with any termination or release pursuant to
paragraphs (a) and (b), the Collateral Agent shall execute and deliver to such
Grantor, at such Grantor's expense, all Uniform Commercial Code termination
statements, documents in order to terminate any United States Patent and
Trademark Office filings and similar documents that such Grantor shall
reasonably request to evidence such termination or release. Any execution and
delivery of termination statements or documents pursuant to this Section 27
shall be without recourse to or warranty by the Collateral Agent.
SECTION 28. HEADINGS. Article and Section headings 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 29. 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 instrument, and shall become
effective as provided in Section 19.
SECTION 30. INTERCREDITOR AGREEMENT. (a) The Collateral Agent
agrees, for itself and for each of the other Secured Parties, that it and each
other Secured Party shall be bound by the terms of the Intercreditor Agreement
in connection with the administration of this Agreement.
(b) Each Grantor hereby acknowledges receipt of a copy of and agrees
to be bound by the terms of the Intercreditor Agreement.
SECTION 31. REFERENCES TO CREDIT AGREEMENT. Upon the payment and
discharge in full of all outstanding Credit Agreement Obligations or all
outstanding Tranche A Exchange Note Obligations, all references herein to the
terms of the Credit Agreement or the Tranche A Exchange Note Purchase
Agreements, as the case may be, shall become null and void (other than
references for the purposes of incorporating herein definitions of terms used
therein, which terms will continue to have the meanings assigned thereto
immediately
13
prior to such payment and discharge, subject to subsequent amendment or
modifications in accordance with the terms hereof).
IN WITNESS WHEREOF, the parties hereto have duly executed this
Trademark Security Agreement as of the day and year first above written.
TRAVELCENTERS OF AMERICA, INC.,
by /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and
Assistant Secretary
THE CHASE MANHATTAN BANK,
by /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE,
by /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Head of Corporate Banking
Chicago
KEYPORT LIFE INSURANCE COMPANY,
by /s/ Xxxxxx T. H. Yin
----------------------------------
Name: Xxxxxx T. H. Yin
Title: Assistant Vice President
CRESCENT/MACH I PARTNERS, L.P.,
By TCW Asset Management Company
its Investment Manager
by /s/ Xxxx X. Gold
----------------------------------
Name: Xxxx X. Gold
Title: Managing Director
TCW Asset Management Company,
as Attorney-in-Fact for
Integon Life Insurance Corporation
by /s/ Xxxx X. Gold
----------------------------------
Name: Xxxx X. Gold
Title: Managing Director
TCW Asset Management Company,
as Attorney-in-Fact for
United Companies Life Insurance Company
by /s/ Xxxx X. Gold
----------------------------------
Name: Xxxx X. Gold
Title: Managing Director
KZH HOLDING CORPORATION,
by /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
THE LONG-TERM CREDIT BANK OF JAPAN
LIMITED, New York Branch
by /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Deputy General Manager
MANUFACTURERS AND TRADERS TRUST
COMPANY,
by /s/ C. Xxxxxxx Xxxxxxxxx
----------------------------------
Name: C. Xxxxxxx Xxxxxxxxx
Title: Banking Officer
NATIONAL CITY BANK,
by /s/ Xxxxxxx X. Xxxxxxxx, Xx.
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Vice President
PILGRIM AMERICA PRIME RATE TRUST,
by /s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Portfolio Analyst
PROTECTIVE LIFE INSURANCE COMPANY,
by /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signator
SOCIETE GENERALE,
by /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST,
by /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President & Director
OAK HILL SECURITIES FUND, L.P.,
by Oak Hill Securities GenPar., L.P.,
its General Partner
by Oak Hill Securities MGP, Inc.,
its General Partner
by /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
SENIOR FLOATING RATE FUND, INC.,
by /s/ Xxxx XxXxxxxx
----------------------------------
Name: Xxxx XxXxxxxx
Title: Authorized Signatory
