Exhibit 10.2
GUARANTY
AGREEMENT
THIS GUARANTY
AGREEMENT (this
“ Agreement ”) is made and given as of May 30,
2007 by TRAVELCENTERS OF AMERICA LLC , a Delaware
limited liability company (the “ Guarantor ”),
for the benefit of HPT PSC PROPERTIES TRUST, a Maryland real
estate investment trust and HPT PSC PROPERTIES LLC, a
Maryland limited liability company (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 Petro Stopping Centers, L.P., a
subsidiary of the Guarantor (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 Guarantor
guarantees 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
Guarantor;
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
Guarantor hereby agrees 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 . The Guarantor represents, warrants,
covenants, and agrees that:
3.1 Performance of Covenants
and Agreements . The 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.
3.2 Validity of Agreement
. The Guarantor has duly and validly executed and delivered
this Agreement; this Agreement constitutes the legal, valid and
binding obligation of the Guarantor, enforceable against the
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 the Guarantor and
such execution, delivery and performance by the 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 the 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.
3.3 Payment of Expenses
. The 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 Guarantor’s
covenants and agreements set forth in this Section 3.3 shall
survive the termination of this Agreement.
3.5 Notices . The
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.
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3.6 Reports . The
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
. The 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. The
Guarantor shall permit access by the Landlord and its agents to the
books and records maintained by the Guarantor during normal
business hours and upon reasonable notice. The Landlord shall
treat any non-public information which it receives from the
Guarantor pursuant to this Agreement as confidential.
3.8 Taxes, Etc . The
Guarantor shall pay and discharge promptly as they become due and
payable all taxes, assessments and other governmental charges or
levies imposed upon the Guarantor or the income of the Guarantor or
upon any of the property, real, personal or mixed, of the
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
the Guarantor; provided , however , that the
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 the Guarantor shall have set aside on
its books such reserves of the Guarantor, if any, with respect
thereto as are required by generally accepted accounting
principles.
3.9 Legal Existence of the
Guarantor . The Guarantor shall do or cause to be done
all things necessary to preserve and keep in full force and effect
its legal existence.
3.10 Compliance .
The 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
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statutes, rules,
regulations, orders and restrictions relating to environmental,
safety and other similar standards or controls).
3.11 Insurance . The
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 the Guarantor.
3.12 Financial Statements, Etc.
The financial statements previously delivered to the Landlord by
the Guarantor, if any, fairly present the financial condition of
the 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 . The Guarantor shall not permit the
occurrence of any direct or indirect Change in Control of the
Tenant or of the Guarantor.
4.
Guarantee
. The Guarantor
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 collectibility 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
Guarantor 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 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
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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 effec
