EXHIBIT 10.11
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TRAVELCENTERS OF AMERICA, INC.
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AMENDMENT AND WAIVER AGREEMENT
Dated as of March 1, 1998
amending the
Senior Secured Note Exchange Agreement
dated as of March 21, 1997
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8.94% Series I Senior Secured Notes due 2002
Series II Senior Secured Notes due 2005
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TRAVELCENTERS OF AMERICA, INC.
AMENDMENT AND WAIVER AGREEMENT
New York, New York
as of March 1, 1998
To the several Noteholders whose
names appear in the Acceptance
Form at the end hereof
Ladies and Gentlemen:
The undersigned, TRAVELCENTERS OF AMERICA, INC., a Delaware corporation
(the "COMPANY"), hereby agrees with you (the "NOTEHOLDER") as follows:
SECTION 1. SENIOR SECURED NOTE EXCHANGE AGREEMENT; PROPOSED WAIVERS AND
AMENDMENTS. Pursuant to the Senior Secured Note Exchange Agreement dated as
of March 21, 1997 (the "NOTE EXCHANGE AGREEMENT") entered into by the Company
with each of you, the Company issued and sold $35,500,000 aggregate principal
amount of its 8.94% Series I Senior Secured Notes due 2002 and $50,000,000
aggregate principal amount of its Series II Senior Secured Notes due 2005
(the "NOTES"), all of which remain outstanding on the date hereof. Unless
the context otherwise requires, capitalized terms used herein without
definition have the respective meanings ascribed thereto in the Note Exchange
Agreement.
The Company requests approval by the Noteholders of the formation of a
newly formed direct wholly-owned subsidiary of TA Operating Corporation
("TA") in a transaction that is briefly described in a letter to you dated
March 12, 1998 from the Company (the "AMENDMENT REQUEST LETTER") attached
hereto as EXHIBIT A. Because the transaction described in the Amendment
Request Letter will result in a breach of Sections 7.4, 7.8 and 7.12 of the
Note Exchange Agreement, the Company is requesting the waiver and amendment
described below.
SECTION 2. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to you that (a) after giving effect to this Agreement, the
representations and warranties set forth in Section 4 of the Note Exchange
Agreement are true and correct in all material respects on and as of the date
hereof with the same effect as though made on and as of the date hereof,
except to the extent such representations and warranties expressly relate to
an earlier date, and (b) after giving effect to this Agreement, no Default or
Event of Default has occurred and is continuing.
The Company has not, directly or indirectly, paid or caused to be paid
any consideration (as supplemental or additional interest, a fee or
otherwise) to any Noteholder in order to induce such holder to enter into
this Agreement or take any other action in connection with the transactions
contemplated hereby, nor has the Company agreed to make such payment.
SECTION 3. WAIVER OF SECTIONS 7.4 AND 7.12. By acceptance of this
Agreement, you agree to waive compliance by the Company and the Guarantors
with (a) the provisions of Section 7.4 of the Note Exchange Agreement to the
extent, but only to the extent, necessary to permit the Company and the
Guarantors to make investments (whether by means of capital contributions or
intercompany loans) in TA Travel, L.L.C., a Delaware limited liability
company ("TA TRAVEL") from time to time in an aggregate amount not to exceed
$10,000,000 at any time outstanding, which investments are to be used by TA
Travel solely for the purchase, operation and maintenance of an airplane (or
any airplane purchased in replacement thereof) owned by TA Travel, and (b)
the provisions of Section 7.12 of the Note Exchange Agreement to the extent,
but only to the extent necessary to permit TA to form and maintain as a
subsidiary, TA Travel.
SECTION 4. AMENDMENTS TO THE NOTE EXCHANGE AGREEMENT. The Note Exchange
Agreement is amended pursuant to Section 13 thereof:
A. by adding the following new paragraph to the end of Section 1.5 of
the Note Exchange Agreement:
"Pursuant to the Waiver and Amendment Agreement by the Noteholders
dated as of March 1, 1998 (the "WAIVER AND AMENDMENT AGREEMENT"), the
Notes will be unconditionally guaranteed by TA Travel, L.L.C.
("TA TRAVEL"), a Delaware limited liability company and wholly-owned
subsidiary of TA, pursuant to a guarantee agreement, substantially in
the form of Exhibit B-1 hereto between the Guarantors and the Collateral
Agent. TA Travel will execute a waiver to the Credit Agreement and a
security agreement, substantially in the form of Exhibit D-1 hereto
between the Company, the Guarantors, TAFSI and the Collateral Agent.
For purposes of this Agreement, all references to a "Guarantor" or the
"Guarantors" shall include TA Travel if the context so warrants and any
reference to the "Guarantee Agreement" and the "Security Agreement" shall
be deemed to reference the guarantee agreement and security agreement
executed by TA Travel."
B. by deleting clause (i) of paragraph (b) to Section 7.8 of the Note
Exchange Agreement in its entirety and by substituting in lieu thereof the
following:
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"(i) engage at any time in any activities other than the business
currently conducted by it and business activities reasonably incidental
thereto (including the operation of restaurants) on Truckstop premises
(other than the business relating to the acquisition, operation and
maintenance of an airplane (or airplane purchased in replacement thereof)
conducted by TA Travel as set forth in Section 3 of the Waiver and
Amendment Agreement), or"
C. by adding the following paragraph to the end of Part A of Schedule
I to the Pledge Agreement attached as Exhibit E thereto as follows:
"4. The membership interest of TA Operating Corporation, a Delaware
corporation, in TA Travel L.L.C., a Delaware limited liability
company ("TA Travel")."
SECTION 5. EFFECTIVENESS OF THIS WAIVER AGREEMENT. This Agreement will
become effective when counterparts of this Agreement shall have been executed
and delivered by the Company and the Required Holders.
SECTION 6. EXPENSES. Without limiting the generality of Section 16.1
of the Note Exchange Agreement, the Company agrees to pay the reasonable fees
and disbursements and other charges of Xxxxxxx Xxxx & Xxxxxxxxx, your special
counsel, for their services rendered in connection with the transactions
contemplated hereby and with respect to this Agreement and any other document
delivered pursuant to this Agreement and reimburse you for your out-of-pocket
expenses in connection with the foregoing.
SECTION 7. RATIFICATION. Except as modified hereby, the Note Exchange
Agreement is in all respects ratified and confirmed and the provisions
thereof shall remain in full force and effect.
SECTION 8. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 9. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
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If you are in agreement with the foregoing, please sign the form of
acceptance in the space below provided, whereupon this Agreement shall become
a binding agreement between you and the Company, subject to becoming
effective as hereinabove provided.
TRAVELCENTERS OF AMERICA, INC.
By XXXXX X. XXXXXX
Senior Vice President and
Chief Financial Officer
ACCEPTED AND AGREED:
NOTEHOLDERS:
THE TRAVELERS INDEMNITY COMPANY
By XXXXXX X. XXXXX
Investment Officer
Principal amount of Notes held: $12,000,000 (Series I)
THE TRAVELERS INSURANCE COMPANY
By XXXXXX X. XXXXX
Investment Officer
Principal amount of Notes held: $10,000,000 (Series I)
THE TRAVELERS LIFE AND ANNUITY COMPANY
By XXXXXX X. XXXXX
Investment Officer
Principal amount of Notes held: $5,000,000 (Series I)
OHIO NATIONAL LIFE ASSURANCE CORPORATION
By XXXXXXX X. XXXXXXXX
Authorized Representative
Principal amount of Notes held: $5,000,000 (Series I)
THE OHIO NATIONAL LIFE INSURANCE COMPANY
By XXXXXXX X. XXXXXXXX
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Vice President, Fixed Income Securities
Principal amount of Notes held: $3,500,000 (Series I)
MELLON BANK, N.A., SOLELY IN ITS CAPACITY
AS TRUSTEE FOR XXXX ATLANTIC MASTER TRUST
(AS DIRECTED BY XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY), AND NOT IN ITS
INDIVIDUAL CAPACITY
By XXXXXXXXXX XXXX
Authorized Signatory
Principal amount of Notes held: $2,000,000 (Series II)
XXXXXXX & CO.
By XXXXXXX XxXXXXXXX
Assistant Treasurer
Principal amount of Notes held: $10,000,000 (Series II)
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
By XXXXXXX X. XxXXXX
Investment Officer
Principal amount of Notes held: $11,000,000 (Series II)
COMMONWEALTH OF PENNSYLVANIA STATE EMPLOYEES'
RETIREMENT SYSTEM
By XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY,
AS INVESTMENT ADVISOR
By XXXXXXX X. XXXXXXX
Senior Investment Officer
Principal amount of Notes held: $2,000,000 (Series II)
KEYPORT LIFE INSURANCE COMPANY
By XXXXX XXX & XXXXXXX INCORPORATED,
AS AGENT
By XXXXXXX X. XXXXXXX
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Vice President
Principal amount of Notes held: $25,000,000 (Series II)
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