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Exhibit 10.4
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "AGREEMENT") is made and given as of
_________, 2007 by TRAVELCENTERS OF AMERICA LLC, TRAVELCENTERS OF AMERICA
HOLDING COMPANY LLC and TA OPERATING LLC, each a Delaware limited liability
company (each a "GUARANTOR" and collectively, the "GUARANTORS"), for the
benefit of HPT TA PROPERTIES TRUST, a Maryland real estate investment trust,
and HPT TA PROPERTIES LLC, a Maryland limited liability company (together
with each of their successors and assigns, collectively, the "LANDLORD").
W I T N E S S E T H :
WHEREAS, pursuant to a Lease Agreement, dated as of the date hereof
(the "LEASE"), the Landlord has agreed to lease to TA Leasing LLC, an affiliate
of the Guarantors (the "TENANT"), and the Tenant has agreed to lease from the
Landlord, certain real property, together with certain related improvements and
other property, as more particularly described in the Lease; and
WHEREAS, it is a condition precedent to the Landlord's entering into
the Lease that the Guarantors guarantee all of the payment and performance
obligations of the Tenant with respect to the Lease; and
WHEREAS, the transactions contemplated by the Lease are of direct
material benefit to the Guarantors;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the mutual receipt and legal sufficiency of which
are hereby acknowledged, the Guarantors hereby agree as follows:
1. CERTAIN TERMS. Capitalized terms used and not otherwise defined in
this Agreement shall have the meanings ascribed to such terms in the Lease.
2. GUARANTEED OBLIGATIONS. For purposes of this Agreement, the term
"GUARANTEED OBLIGATIONS" shall mean the payment and performance of each and
every obligation of the Tenant to the Landlord under the Lease or relating
thereto, whether now existing or hereafter arising, and including, without
limitation, the payment of the full amount of the Rent payable under the Lease.
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3. REPRESENTATIONS AND COVENANTS. Each Guarantor, jointly and
severally, represents, warrants, covenants, and agrees that:
3.1 INCORPORATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Tenant and its Affiliated Persons set
forth in the Lease are true and correct on and as of the date hereof in all
material respects.
3.2 PERFORMANCE OF COVENANTS AND AGREEMENTS. Each Guarantor hereby
agrees to take all lawful action in its power to cause the Tenant duly and
punctually to perform all of the covenants and agreements set forth in the
Lease.
3.3 VALIDITY OF AGREEMENT. Each Guarantor has duly and validly
executed and delivered this Agreement; this Agreement constitutes the legal,
valid and binding obligation of such Guarantor, enforceable against such
Guarantor in accordance with its terms, except as the enforceability thereof may
be subject to bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights generally
and subject to general equitable principles, regardless of whether
enforceability is considered in a proceeding at law or in equity; and the
execution, delivery and performance of this Agreement have been duly authorized
by all requisite action of such Guarantor and such execution, delivery and
performance by such Guarantor will not result in any breach of the terms,
conditions or provisions of, or conflict with or constitute a default under, or
result in the creation of any lien, charge or encumbrance upon any of the
property or assets of such Guarantor pursuant to the terms of, any indenture,
mortgage, deed of trust, note, other evidence of indebtedness, agreement or
other instrument to which it may be a party or by which it or any of its
property or assets may be bound, or violate any provision of law, or any
applicable order, writ, injunction, judgment or decree of any court or any order
or other public regulation of any governmental commission, bureau or
administrative agency.
3.4 PAYMENT OF EXPENSES. Each Guarantor agrees, as principal obligor
and not as guarantor only, to pay to the Landlord forthwith, upon demand, in
immediately available federal funds, all costs and expenses (including
reasonable attorneys' fees and disbursements) incurred or expended by the
Landlord in connection with the enforcement of this Agreement, together with
interest on amounts recoverable under this Agreement from the time such amounts
become due until payment at the Overdue Rate. The Guarantors' covenants and
agreements set
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forth in this SECTION 3.4 shall survive the termination of this Agreement.
3.5 NOTICES. Each Guarantor shall promptly give notice to the
Landlord of any event known to it which might reasonably result in a material
adverse change in its financial condition.
3.6 REPORTS. Each Guarantor shall promptly provide to the Landlord
each of the financial reports, certificates and other documents required of it
under the Lease.
3.7 BOOKS AND RECORDS. Each Guarantor shall at all times keep proper
books of record and account in which full, true and correct entries shall be
made of its transactions in accordance with generally accepted accounting
principles and shall set aside on its books from its earnings for each fiscal
year all such proper reserves, including reserves for depreciation, depletion,
obsolescence and amortization of its properties during such fiscal year, as
shall be required in accordance with generally accepted accounting principles,
consistently applied, in connection with its business. Each Guarantor shall
permit access by the Landlord and its agents to the books and records maintained
by such Guarantor during normal business hours and upon reasonable notice.
3.8 TAXES, ETC. Each Guarantor shall pay and discharge promptly as
they become due and payable all taxes, assessments and other governmental
charges or levies imposed upon such Guarantor or the income of such Guarantor or
upon any of the property, real, personal or mixed, of such Guarantor, or upon
any part thereof, as well as all claims of any kind (including claims for labor,
materials and supplies) which, if unpaid, might by law become a lien or charge
upon any property and result in a material adverse change in the financial
condition of such Guarantor; PROVIDED, HOWEVER, that such Guarantor shall not be
required to pay any such tax, assessment, charge, levy or claim if the amount,
applicability or validity thereof shall currently be contested in good faith by
appropriate proceedings or other appropriate actions promptly initiated and
diligently conducted and if such Guarantor shall have set aside on its books
such reserves of such Guarantor, if any, with respect thereto as are required by
generally accepted accounting principles.
3.9 LEGAL EXISTENCE OF GUARANTORS. Each Guarantor shall do or cause
to be done all things necessary to preserve and keep in full force and effect
its legal existence.
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3.10 COMPLIANCE. Each Guarantor shall use reasonable business
efforts to comply in all material respects with all applicable statutes, rules,
regulations and orders of, and all applicable restrictions imposed by, all
governmental authorities in respect of the conduct of its business and the
ownership of its property (including, without limitation, applicable statutes,
rules, regulations, orders and restrictions relating to environmental, safety
and other similar standards or controls).
3.11 INSURANCE. Each Guarantor shall maintain, with financially
sound and reputable insurers, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
owners of established reputation engaged in the same or similar businesses and
similarly situated, in such amounts and by such methods as shall be customary
for such owners and deemed adequate by such Guarantor.
3.12 FINANCIAL STATEMENTS, ETC. The financial statements previously
delivered to the Landlord by each Guarantor, if any, fairly present the
financial condition of such Guarantor in accordance with generally accepted
accounting principles consistently applied and there has been no material
adverse change from the date thereof through the date hereof.
3.13 NO CHANGE IN CONTROL. No Guarantor shall permit the occurrence
of any direct or indirect Change in Control of the Tenant or of such Guarantor.
4. GUARANTEE. Each Guarantor jointly and severally hereby
unconditionally guarantees that the Guaranteed Obligations which are monetary
obligations shall be paid in full when due and payable, whether upon demand, at
the stated or accelerated maturity thereof pursuant to the Lease, or otherwise,
and that the Guaranteed Obligations which are performance obligations shall be
fully performed at the times and in the manner such performance is required by
the Lease. With respect to the Guaranteed Obligations which are monetary
obligations, this guarantee is a guarantee of payment and not of collectability
and is absolute and in no way conditional or contingent. In case any part of the
Guaranteed Obligations shall not have been paid when due and payable or
performed at the time performance is required, the Guarantors shall, within five
(5) Business Days after receipt of notice from the Landlord, pay or cause to be
paid to the Landlord the amount thereof as is then due and payable and unpaid
(including interest and other charges, if any, due thereon through the date
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of payment in accordance with the applicable provisions of the Lease) or perform
or cause to be performed such obligations in accordance with the Lease.
5. UNENFORCEABILITY OF GUARANTEED OBLIGATIONS, ETC. If the Tenant is
for any reason under no legal obligation to discharge any of the Guaranteed
Obligations (other than because the same have been previously discharged in
accordance with the terms of the Lease), or if any other moneys included in the
Guaranteed Obligations have become unrecoverable from the Tenant by operation of
law or for any other reason, including, without limitation, the invalidity or
irregularity in whole or in part of any Guaranteed Obligation or of the Lease or
any limitation on the liability of the Tenant thereunder not contemplated by the
Lease or any limitation on the method or terms of payment thereunder which may
now or hereafter be caused or imposed in any manner whatsoever, the guarantees
contained in this Agreement shall nevertheless remain in full force and effect
and shall be binding upon each Guarantor to the same extent as if each such
Guarantor at all times had been the principal debtor on all such Guaranteed
Obligations.
6. ADDITIONAL GUARANTEES. This Agreement shall be in addition to any
other guarantee or other security for the Guaranteed Obligations and it shall
not be prejudiced or rendered unenforceable by the invalidity of any such other
guarantee or security or by any waiver, amendment, release or modification
thereof.
7. CONSENTS AND WAIVERS, ETC. Each Guarantor hereby acknowledges
receipt of correct and complete copies of the Lease, and consents to all of the
terms and provisions thereof, as the same may be from time to time hereafter
amended or changed in accordance with the terms and conditions thereof, and,
except as otherwise provided herein, to the maximum extent permitted by
applicable law, waives (a) presentment, demand for payment, and protest of
nonpayment, of any of the Guaranteed Obligations, (b) notice of acceptance of
this Agreement and of diligence, presentment, demand and protest, (c) notice of
any default hereunder and any default, breach or nonperformance or
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Event of Default under any of the Guaranteed Obligations or the Lease, (d)
notice of the terms, time and place of any private or public sale of collateral
(if any) held as security for the Guaranteed Obligations, (e) demand for
performance or observance of, and any enforcement of any provision of, or any
pursuit or exhaustion of rights or remedies against the Tenant or any other
guarantor of the Guaranteed Obligations, under or pursuant to the Lease, or any
agreement directly or indirectly relating thereto and any requirements of
diligence or promptness on the part of the holders of the Guaranteed Obligations
in connection therewith, and (f) any and all demands and notices of every kind
and description with respect to the foregoing or which may be required to be
given by any statute or rule of law and any defense of any kind which it may now
or hereafter have with respect to this Agreement, or the Lease or the Guaranteed
Obligations (other than that the same have been discharged in accordance with
the Lease).
8. NO IMPAIRMENT, ETC. The obligations, covenants, agreements and
duties of each Guarantor under this Agreement shall not be affected or impaired
by any assignment or transfer in whole or in part of any of the Guaranteed
Obligations without notice to such Guarantor, or any waiver by the Landlord or
any holder of any of the Guaranteed Obligations or by the holders of all of the
Guaranteed Obligations of the performance or observance by the Tenant or any
other guarantor of any of the agreements, covenants, terms or conditions
contained in the Guaranteed Obligations or the Lease or any indulgence in or the
extension of the time for payment by the Tenant or any other guarantor of any
amounts payable under or in connection with the Guaranteed Obligations or the
Lease or any other instrument or agreement relating to the Guaranteed
Obligations or of the time for performance by the Tenant or any other guarantor
of any other obligations under or arising out of any of the foregoing or the
extension or renewal thereof (except that with respect to any extension of time
for payment or performance of any of the Guaranteed Obligations granted by the
Landlord or any other holder of such Guaranteed Obligations to the Tenant, such
Guarantor's obligations to pay or perform such Guaranteed Obligation shall be
subject to the same extension of time for performance), or the modification or
amendment (whether material or otherwise) of any duty, agreement or obligation
of the Tenant or any other guarantor set forth in any of the foregoing, or the
voluntary or involuntary sale or other disposition of all or substantially all
the assets of the Tenant or any other guarantor or insolvency, bankruptcy, or
other similar proceedings affecting the Tenant or any other guarantor or any
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assets of the Tenant or any such other guarantor, or the release or discharge of
the Tenant or any such other guarantor from the performance or observance of any
agreement, covenant, term or condition contained in any of the foregoing without
the consent of the holders of the Guaranteed Obligations by operation of law, or
any other cause, whether similar or dissimilar to the foregoing.
9. REIMBURSEMENT, SUBROGATION, ETC. Each Guarantor hereby covenants
and agrees that it will not enforce or otherwise exercise any rights of
reimbursement, subrogation, contribution or other similar rights against the
Tenant (or any other person against whom the Landlord may proceed) with respect
to the Guaranteed Obligations prior to the payment in full of all amounts owing
with respect to the Lease, and until all indebtedness of the Tenant to the
Landlord shall have been paid in full, no Guarantor shall have any right of
subrogation, and each Guarantor waives any defense it may have based upon any
election of remedies by the Landlord which destroys its subrogation rights or
its rights to proceed against the Tenant for reimbursement, including, without
limitation, any loss of rights such Guarantor may suffer by reason of any
rights, powers or remedies of the Tenant in connection with any anti-deficiency
laws or any other laws limiting, qualifying or discharging the indebtedness to
the Landlord. Until all obligations of the Tenant pursuant to the Lease shall
have been paid and satisfied in full, each Guarantor further waives any right to
enforce any remedy which the Landlord now has or may in the future have against
the Tenant, any other guarantor or any other person and any benefit of, or any
right to participate in, any security whatsoever now or in the future held by
the Landlord.
10. DEFEASANCE. This Agreement shall terminate at such time as the
Guaranteed Obligations have been paid and performed in full and all other
obligations of the Guarantors to the Landlord under this Agreement have been
satisfied in full; PROVIDED, HOWEVER, if at any time, all or any part of any
payment applied on account of the Guaranteed Obligations is or must be rescinded
or returned for any reason whatsoever (including, without limitation, the
insolvency, bankruptcy or reorganization of the Tenant), this Agreement, to the
extent such payment is or must be rescinded or returned, shall be deemed to have
continued in existence notwithstanding any such termination.
11. NOTICES. (a) Any and all notices, demands, consents, approvals,
offers, elections and other communications required or permitted under this
Agreement shall be deemed adequately
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given if in writing and the same shall be delivered either in hand, by
telecopier with written acknowledgment of receipt, or by mail or Federal Express
or similar expedited commercial carrier, addressed to the recipient of the
notice, postpaid and registered or certified with return receipt requested (if
by mail), or with all freight charges prepaid (if by Federal Express or similar
carrier).
(b) All notices required or permitted to be sent hereunder shall be
deemed to have been given for all purposes of this Agreement upon the date of
acknowledged receipt, in the case of a notice by telecopier, and, in all other
cases, upon the date of receipt or refusal, except that whenever under this
Agreement a notice is either received on a day which is not a Business Day or is
required to be delivered on or before a specific day which is not a Business
Day, the day of receipt or required delivery shall automatically be extended to
the next Business Day.
(c) All such notices shall be addressed,
if to the Landlord to the Landlord:
c/o Hospitality Properties Trust
400 Centre Street
Newton, Massachusetts 02458
Attn: Mr. John G. Murray
[Telecopier No. (617) 969-5730]
if to any Guarantor to such Guarantor:
c/o TravelCenters of America LLC
24601 Center Ridge Road
Westlake, Ohio 44145
Attn: Mr. John R. Hoadley
[Telecopier No. (617) 796-8349]
(d) By notice given as herein provided, the parties hereto and their
respective successors and assigns shall have the right from time to time and at
any time during the term of this Agreement to change their respective addresses
effective upon receipt by the other parties of such notice and each shall have
the right to specify as its address any other address within the United States
of America.
12. 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, including, without limitation, the
holders, from time to time,
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of the Guaranteed Obligations; and all representations, warranties, covenants
and agreements by or on behalf of the Guarantors which are contained in this
Agreement shall inure to the benefit of the Landlord's successors and assigns,
including, without limitation, said holders, whether so expressed or not.
13. APPLICABLE LAW. Except as to matters regarding the internal affairs
of the Landlord and issues of or limitations on any personal liability of the
shareholders and trustees or directors of the Landlord for obligations of the
Landlord, as to which the laws of the State of Maryland shall govern, this
Agreement, the Lease and any other instruments executed and delivered to
evidence, complete or perfect the transactions contemplated hereby and thereby
shall be interpreted, construed, applied and enforced in accordance with the
laws of The Commonwealth of Massachusetts applicable to contracts between
residents of Massachusetts which are to be performed entirely within
Massachusetts, regardless of (i) where any such instrument is executed or
delivered; or (ii) where any payment or other performance required by any such
instrument is made or required to be made; or (iii) where any breach of any
provision of any such instrument occurs, or any cause of action otherwise
accrues; or (iv) where any action or other proceeding is instituted or pending;
or (v) the nationality, citizenship, domicile, principal place of business, or
jurisdiction of organization or domestication of any party; or (vi) whether the
laws of the forum jurisdiction otherwise would apply the laws of a jurisdiction
other than The Commonwealth of Massachusetts; or (vii) any combination of the
foregoing. Notwithstanding the foregoing, the laws of the State shall apply to
the perfection and priority of liens upon and the disposition of any Property.
14. ARBITRATION. The Landlord, on the one hand, or the Guarantors, on
the other hand, may elect to submit to arbitration any dispute hereunder that
has an amount in controversy in excess of $250,000. Any such dispute shall be
conducted in Boston, Massachusetts and be resolved in accordance with the
Commercial Arbitration Rules of the American Arbitration Association then
pertaining and the decision of the arbitrators with respect to such dispute
shall be binding, final and conclusive on all of the parties.
In the event that any such dispute is submitted to arbitration
hereunder, the Landlord, on the one hand, and the Guarantors, on the other hand,
shall each appoint and pay all fees of a fit and impartial person as arbitrator
with at least ten (10) years' recent professional experience in the general
subject matter of the dispute. Notice of such appointment shall
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be sent in writing by each party to the other, and the arbitrators so appointed,
in the event of their failure to agree within thirty (30) days after the
appointment of the second arbitrator upon the matter so submitted, shall appoint
a third arbitrator. If either the Landlord or the Guarantors shall fail to
appoint an arbitrator as aforesaid for a period of twenty (20) days after
written notice from the other party to make such appointment, then the
arbitrator appointed by the party having made such appointment shall appoint a
second arbitrator and the two (2) so appointed shall, in the event of their
failure to agree upon any decision within thirty (30) days thereafter, appoint a
third arbitrator. If such arbitrators fail to agree upon a third arbitrator
within forty five (45) days after the appointment of the second arbitrator, then
such third arbitrator shall be appointed by the American Arbitration Association
from its qualified panel of arbitrators, and shall be a person having at least
ten (10) years' recent professional experience as to the subject matter in
question. The fees of the third arbitrator and the expenses incident to the
proceedings shall be borne equally between the Landlord and the Guarantors,
unless the arbitrators decide otherwise. The fees of respective counsel engaged
by the parties, and the fees of expert witnesses and other witnesses called for
the parties, shall be paid by the respective party engaging such counsel or
calling or engaging such witnesses.
The decision of the arbitrators shall be rendered within thirty (30)
days after appointment of the third arbitrator. Such decision shall be in
writing and in duplicate, one counterpart thereof to be delivered to Landlord
and one to the Guarantors. A judgment of a court of competent jurisdiction may
be entered upon the award of the arbitrators in accordance with the rules and
statutes applicable thereto then obtaining.
The Landlord and the Tenant acknowledge and agree that, to the extent
any such dispute shall involve any Manager and be subject to arbitration
pursuant to such Manager's Management Agreement, Landlord and Tenant shall
cooperate to consolidate any such arbitration hereunder and under such
Management Agreement into a single proceeding.
15. MODIFICATION OF AGREEMENT. No modification or waiver of any
provision of this Agreement, nor any consent to any departure by any of the
Guarantors therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Landlord, and such modification, waiver or consent
shall be effective only in the specific instances and for the purpose for which
given. No notice to or demand on any Guarantor in any
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case shall entitle such Guarantor to any other or further notice or demand in
the same, similar or other circumstances. This Agreement may not be amended
except by an instrument in writing executed by or on behalf of the party against
whom enforcement of such amendment is sought.
16. WAIVER OF RIGHTS BY THE LANDLORD. Neither any failure nor any delay
on the Landlord's part in exercising any right, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall a single or partial
exercise thereof preclude any other or further exercise or the exercise of any
other right, power or privilege.
17. 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, but this Agreement
shall be reformed and construed and enforced to the maximum extent permitted by
applicable law.
18. ENTIRE CONTRACT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and shall
supersede and take the place of any other instruments purporting to be an
agreement of the parties hereto relating to the subject matter hereof.
19. HEADINGS; COUNTERPARTS. Headings in this Agreement are for purposes
of reference only and shall not limit or otherwise affect the meaning hereof.
20. REMEDIES CUMULATIVE. No remedy herein conferred upon the Landlord
is intended to be exclusive of any other remedy, and each and every remedy shall
be cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity or by statute or otherwise.
21. NON-LIABILITY OF TRUSTEES. THE DECLARATION OF TRUST ESTABLISHING
HPT TA PROPERTIES TRUST, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO
(THE "DECLARATION"), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND
TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT, AND EACH GUARANTOR AGREES
THAT, THE NAME "HPT TA PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE
DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND
THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF HPT TA PROPERTIES
TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY
OBLIGATION OF
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OR CLAIM AGAINST, HPT TA PROPERTIES TRUST. ALL PERSONS DEALING WITH HPT TA
PROPERTIES TRUST, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF HPT TA PROPERTIES
TRUST FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
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WITNESS the execution hereof under seal as of the date above first
written.
TRAVELCENTERS OF AMERICA LLC,
By:
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Name:
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Title:
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TRAVELCENTERS OF AMERICA HOLDING
COMPANY LLC,
By:
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Name:
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Title:
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TA OPERATING LLC
By:
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Name:
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Title:
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