Exhibit 10.4
GUARANTY
AGREEMENT
THIS GUARANTY
AGREEMENT (this “AGREEMENT”) is made and given as of
January 31, 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”).
WITNESSETH:
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.
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 c
