Exhibit 10.2
AMENDMENT AND WAIVER dated as of January 23, 2004, to
the Amended and Restated Credit Agreement dated as of November
14, 2000, as amended (the "Credit Agreement"), among
TRAVELCENTERS OF AMERICA, INC. (the "Borrower"), the Lenders
party thereto, , JPMORGAN SECURITIES INC. and CREDIT SUISSE
FIRST BOSTON, as co-lead arrangers, JPMORGAN CHASE BANK
(successor to THE CHASE MANHATTAN BANK), as administrative
agent (the "Administrative Agent") CREDIT SUISSE FIRST BOSTON,
as syndication agent and U.S. BANK, N.A. (successor to FIRSTAR
BANK, N.A.), as documentation agent.
A. The Lenders have extended credit to the Borrower, and have agreed
to extend credit to the Borrowers, in each case pursuant to the terms and
subject to the conditions set forth in the Credit Agreement.
B. The Borrower has requested that certain provisions of the Credit
Agreement be amended and waived as set forth herein.
C. The undersigned Lenders are willing to amend and waive certain
provisions of the Credit Agreement pursuant to the terms and subject to the
conditions set forth herein (a) to increase the LC Commitment and (b) to settle
certain past, present and future claims and terminate any and all remaining
obligations of Union Oil Company of California ("Unocal") to the Borrower and
certain of its affiliates pursuant to the terms and conditions of the
Environmental Agreement dated as of November 23, 1992 (as amended, supplemented
or otherwise modified from time to time, the "Unocal Environmental Agreement")
between Unocal and TA Operating Corporation, a wholly owned subsidiary of the
Borrower.
D. Capitalized terms used but not defined herein have the meanings
assigned to them in the Credit Agreement, as amended hereby.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, and subject to the conditions set forth
herein, the parties hereto hereby agree as follows:
SECTION 1. Amendment to Section 1.01. Section 1.01 of the Credit
Agreement is hereby amended by deleting the dollar amount of "$25,000,000" in
the defined term "LC Commitment" immediately following the words "`LC
Commitment' shall mean" and replacing it with the dollar amount of $50,000,000.
SECTION 2. Amendment to Section 10.04(b). Clause (i) of Section
10.04(b) of the Credit Agreement is hereby amended by replacing it in its
entirety with the following:
each of the Borrower and the Administrative Agent must
give their prior written consent to such assignment (which
consent shall not be unreasonably withheld), provided further
that (A) no consent of the Borrower shall be required for any
assignment to a Lender, any Lender Affiliate of a Lender or
any Federal Reserve Bank and (B) no consent of the
Administrative Agent shall be required in the case of an
assignment of (1) a Revolving Credit Commitment or a Revolving
Loan to a Lender or a Lender Affiliate with a Revolving Credit
Commitment or a Revolving Loan immediately prior to giving
effect to such assignment and (2) any Term Loan to a Lender, a
Lender Affiliate or any Federal Reserve Bank.
SECTION 3. Waiver of Section 7.10(g). The Required Lenders hereby
waive compliance with Section 7.10(g) of the Credit Agreement to the extent
necessary to permit the consummation of the settlement and termination of the
Unocal Environmental Agreement contemplated by the Borrower and Unocal, in
accordance with the Buyout Agreement attached hereto as Exhibit A.
SECTION 4. Representations and Warranties. The Borrower hereby
represents and warrants to the Administrative Agent and to each of the Lenders
that:
(a) This Amendment has been duly authorized, executed and delivered
by the Borrower and constitutes a legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
(b) The representations and warranties of the Borrower set forth in
the Loan Documents are true and correct on and as of the date hereof with the
same effect as though made on the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date 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 Amendment 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 giving effect
to this Amendment no Event of Default or Default shall have occurred and be
continuing.
SECTION 5. Conditions to Effectiveness. This Amendment shall become
effective when the Administrative Agent shall have received (a) counterparts of
this Amendment that, when taken together, bear the signature of the Borrower and
the Required Lenders and (b) payment of all reasonable out-of-pocket expenses
incurred by the Administrative Agent, including the reasonable charges, fees and
disbursements of
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Cravath, Swaine & Xxxxx LLP, counsel for the Administrative Agent, to the extent
invoiced prior to the date hereof.
SECTION 6. Credit Agreement. Except as specifically amended hereby,
the Credit Agreement shall continue in full force and effect in accordance with
the provisions thereof as in existence on the date hereof. After the date
hereof, any reference to the Credit Agreement shall mean the Credit Agreement as
amended or modified hereby. This Amendment shall be a Loan Document for all
purposes.
SECTION 7. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. 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 AMENDMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.
SECTION 9. Counterparts. This Amendment 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. Delivery of an executed
signature page to this Amendment by facsimile or other electronic transmission
shall be effective as delivery of a manually signed counterpart of this
Amendment.
SECTION 10. Headings. The Section headings used herein are for
convenience of reference only, are not part of this Amendment and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and year
first written above.
TRAVELCENTERS OF AMERICA, INC.,
By
/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
JPMORGAN CHASE BANK, individually
and as Administrative Agent,
by
/s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
[Lender Signature Pages Omitted]
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