EXHIBIT 4.2
Execution Copy
TRAVELCENTERS OF AMERICA, INC.
$125,000,000
10-1/4% Senior Subordinated Notes due 2007
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
March 27, 1997
CHASE SECURITIES INC.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
TravelCenters of America, Inc., a Delaware corporation (the
"COMPANY"), proposes to issue and sell to you (the "INITIAL PURCHASER"), upon
the terms and subject to the conditions set forth in a purchase agreement dated
March 24, 1997 (the "PURCHASE AGREEMENT"), $125,000,000 aggregate principal
amount of its 10-1/4% Senior Subordinated Notes due 2007 (the "SECURITIES") to
be unconditionally guaranteed on a senior subordinated basis by its principal
operating subsidiaries, TA Operating Corporation ("TA") and National
Auto/Truckstops, Inc. ("National"), each a Delaware corporation (together, the
"Subsidiary Guarantors"). Capitalized terms used but not defined herein shall
have the meanings given to such terms in the Purchase Agreement.
As an inducement to the Initial Purchaser to enter into the Purchase
Agreement and in satisfaction of a condition to your obligations thereunder, the
Company and each of the Subsidiary Guarantors agree with you, for the benefit of
the holders of the Securities (including the Initial Purchaser) (the "HOLDERS"),
as follows:
1. REGISTERED EXCHANGE OFFER. The Company and the Subsidiary
Guarantors shall (i) prepare and, not later than 60 days following the date of
original issuance of the Securities (the "ISSUE DATE"), file with the Commission
a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an
appropriate form under the Securities Act
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with respect to a proposed offer to the Holders (the "REGISTERED EXCHANGE
OFFER") to issue and deliver to such Holders, in exchange for the Securities, a
like aggregate principal amount of debt securities of the Company (the "EXCHANGE
SECURITIES") identical in all material respects to the Securities, except for
the transfer restrictions relating to the Securities, (ii) use their reasonable
best efforts to cause the Exchange Offer Registration Statement to become
effective under the Securities Act no later than 135 days after the Issue Date
and the Registered Exchange Offer to be consummated in respect of all Securities
tendered no later than 165 days after the Issue Date, and (iii) keep the
Exchange Offer Registration Statement effective for not less than 30 days (or
longer, if required by applicable law) after the date that notice of the
Registered Exchange Offer is mailed to the Holders (such period being called the
"EXCHANGE OFFER REGISTRATION PERIOD"). The Exchange Securities will be issued
under the Indenture or an indenture (the "EXCHANGE SECURITIES INDENTURE") among
the Company, the Subsidiary Guarantors and the Trustee or such other bank or
trust company reasonably satisfactory to you, as trustee (the "EXCHANGE
SECURITIES TRUSTEE"), such indenture to be identical in all material respects to
the Indenture except for the transfer restrictions relating to the Securities
(as described above).
Upon the effectiveness of the Exchange Offer Registration Statement,
the Company and each of the Subsidiary Guarantors shall commence the Registered
Exchange Offer as promptly as practicable, it being the objective of such
Registered Exchange Offer to enable each Holder electing to exchange Securities
for Exchange Securities (assuming that such Holder (a) is not an affiliate of
the Company or a Subsidiary Guarantor or an Exchanging Dealer (as defined below)
not complying with the requirements of the next sentence, (b) acquires the
Exchange Securities in the ordinary course of such Holder's business and (c) has
no arrangements or understandings with any person to participate in the
distribution of the Exchange Securities) and to trade such Exchange Securities
from and after their receipt without any limitations or restrictions under the
Securities Act and without material restrictions under the securities laws of
the several states of the United States. The Company, each of the Subsidiary
Guarantors and the Initial Purchaser and each Exchanging Dealer acknowledge
that, pursuant to current interpretations by the Commission's staff of Section 5
of the Securities Act, (i) each Holder which is a broker-dealer electing to
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exchange Securities, acquired for its own account as a result of market making
activities or other trading activities, for Exchange Securities (an "EXCHANGING
DEALER"), is required to deliver a prospectus containing the information set
forth in Annex A hereto on the cover, in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section and in Annex
C hereto in the "Plan of Distribution" section of such prospectus in connection
with a sale of any such Exchange Securities received by such Exchanging Dealer
pursuant to the Registered Exchange Offer and (ii) if the Initial Purchaser
elects to sell Exchange Securities acquired in exchange for Securities
constituting any portion of an unsold allotment, it is required to deliver a
prospectus containing the information required by Items 507 or 508 of Regulation
S-K under the Securities Act and the Exchange Act ("REGULATION S-K"), as
applicable, in connection with such a sale.
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30
days after the date that notice of the Registered Exchange Offer is mailed
to the Holders (or longer if required by applicable law);
(c) utilize the services of a Depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York City time, on the last business day on
which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all
laws applicable to the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
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(a) accept for exchange all Securities tendered
and not validly withdrawn pursuant to the Registered
Exchange Offer;
(b) deliver to the Trustee for cancellation all
Securities so accepted for exchange; and
(c) cause the Trustee or the Exchange Securities Trustee, as the
case may be, promptly to authenticate and deliver to each Holder of
Securities, Exchange Securities equal in principal amount to the
Securities of such Holder so accepted for exchange.
The Company shall make available, for a period of 180 days after the
consummation of the Registered Exchange Offer, a copy of the prospectus forming
part of the Exchange Offer Registration Statement to any broker-dealer for use
in connection with any resale of any Exchange Securities.
Interest on each Exchange Security issued pursuant to the Registered
Exchange Offer will accrue from the last interest payment date on which interest
was paid on the Securities surrendered in exchange therefor or, if no interest
has been paid on the Securities, from the Issue Date.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Securities received by such Holder
will be acquired in the ordinary course of business, (ii) such Holder will have
no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities within the meaning of
the Securities Act and (iii) such Holder is not an affiliate of the Company or
the Subsidiary Guarantors or, if it is such an affiliate, it will comply with
the registration and prospectus delivery requirements of the Securities Act to
the extent applicable.
Notwithstanding any other provisions hereof, the Company and each of
the Subsidiary Guarantors will ensure that (i) any Exchange Offer Registration
Statement and any amendment thereto and any prospectus forming part thereof and
any supplement thereto complies in all material respects with the Securities Act
and the rules and regulations of the Commission thereunder, (ii) any Exchange
Offer Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material
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fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading and (iii) any prospectus forming
part of any Exchange Offer Registration Statement, and any supplement to such
prospectus, does not include, as of the consummation of the Registered Exchange
Offer, an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
2. SHELF REGISTRATION. If (i) because of any change in law or
applicable interpretations of the Commission's staff the Company and the
Subsidiary Guarantors determine that they are not permitted to effect the
Registered Exchange Offer as contemplated by Section 1 hereof, or (ii) for any
other reason the Registered Exchange Offer is not consummated within 165 days
after the Issue Date, or (iii) any Initial Purchaser so requests with respect to
Securities not eligible to be exchanged for Exchange Securities in the
Registered Exchange Offer and held by it following the consummation of the
Registered Exchange Offer, or (iv) any applicable law or interpretations do not
permit any Holder to participate in the Registered Exchange Offer, or (v) any
Holder that participates in the Registered Exchange Offer does not receive
freely transferable Exchange Securities in exchange for tendered Securities, or
(vi) the Company so elects, then the following provisions shall apply:
(a) The Company and each of the Subsidiary Guarantors shall use
their reasonable best efforts to file as promptly as practicable with the
Commission, and thereafter shall use their reasonable best efforts to cause to
be declared effective, a shelf registration statement on an appropriate form
under the Securities Act relating to the offer and sale of the Transfer
Restricted Securities (as defined below) by the Holders from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such registration statement (hereafter, a "SHELF REGISTRATION
STATEMENT" and, together with any Exchange Offer Registration Statement, a
"REGISTRATION STATEMENT").
(b) The Company and each of the Subsidiary Guarantors shall use
their reasonable best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the prospectus forming part thereof to
be used by Holders for a period of two years from the Issue Date or such shorter
period that will terminate when all the
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Securities covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement or pursuant to Rule 144 under the Securities
Act (in any such case, such period being called the "SHELF REGISTRATION
PERIOD").
(c) Notwithstanding any other provisions hereof, the Company and the
Subsidiary Guarantors will ensure that (i) any Shelf Registration Statement and
any amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the Securities Act and the rules
and regulations of the Commission thereunder, (ii) any Shelf Registration
Statement and any amendment thereto (in either case, other than with respect to
information included therein in reliance upon or in conformity with written
information furnished to the Company by or on behalf of any Holder specifically
for use therein (the "HOLDERS' INFORMATION")) does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any prospectus forming part of any Shelf
Registration Statement, and any supplement to such prospectus (in either case,
other than with respect to Holders' Information), does not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
3. LIQUIDATED DAMAGES. (a) The parties hereto agree that the Holders
of Securities will suffer damages if the Company and the Subsidiary Guarantors
fail to fulfill their obligations under Section 1 or Section 2, as applicable,
and that it would not be feasible to ascertain the extent of such damages.
Accordingly, if (i) either an Exchange Offer Registration Statement or a Shelf
Registration Statement is not filed with the Commission on or prior to 60 days
after the Issue Date, (ii) either an Exchange Offer Registration Statement or a
Shelf Registration Statement is not declared effective within 135 days after the
Issue Date (or in the case of a Shelf Registration Statement required to be
filed in response to a change in law or the applicable interpretations of
Commission's staff, if later than 135 days after the Issue Date, within 60 days
after publication of the change in law or interpretation) or (iii) the
Registered Exchange Offer is not consummated in respect of all Securities
tendered on or prior to 165 days after the Issue Date and no Shelf
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Registration Statement has been declared effective or a Shelf Registration
Statement is filed and declared effective within 135 days after the Issue Date
(or in the case of a Shelf Registration Statement required to be filed in
response to a change in law or the applicable interpretations of Commission's
staff, if later than 135 days after the Issue Date, within 60 days after
publication of the change in law or interpretation) but shall thereafter cease
to be effective (at any time that the Company and the Subsidiary Guarantors are
obligated to maintain the effectiveness thereof) without being succeeded within
60 days by an additional or amended Registration Statement filed and declared
effective (each such event referred to in clauses (i) through (iii), a
"REGISTRATION DEFAULT"), the Company and each of the Subsidiary Guarantors will
be obligated jointly and severally to pay liquidated damages to each holder of
Transfer Restricted Securities, during the period of one or more such
Registration Defaults, in an amount equal to $ 0.192 per week per $1,000
principal amount of the Securities constituting Transfer Restricted Securities
held by such Holder until (i) either an Exchange Offer Registration Statement of
a Shelf Registration Statement is filed (in the case of (i) above), (ii) either
an Exchange Offer Registration Statement or a Shelf Registration Statement is
declared effective (in the case of (ii) above) or (iii) an Exchange Offer is
consummated in respect of all Securities tendered or a Shelf Registration
Statement is declared effective or again becomes effective, as the case may be
(in the case of (iii) above). Following the cure of all Registration Defaults,
the accrual of liquidated damages will cease. As used herein, the term "TRANSFER
RESTRICTED SECURITIES" means each Security until (i) the date on which such
Security has been exchanged for a freely transferable Exchange Security in the
Registered Exchange Offer, (ii) the date on which such Security has been
effectively registered under the Securities Act and disposed of in accordance
with the Shelf Registration Statement or (iii) the date on which such Security
is distributed to the public pursuant to Rule 144 under the Securities Act or is
saleable pursuant to Rule 144(k) under the Securities Act. Notwithstanding
anything to the contrary in this Section 3(a), the Company and the Subsidiary
Guarantors shall not be required to pay liquidated damages to the holder of
Transfer Restricted Securities if such holder failed to comply with its
obligations to make the representations set forth in the second to last
paragraph of Section 1 or failed to provide the information required to be
provided by it, if any, pursuant to Section 4(n).
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(b) The Company shall notify the Trustee and the Paying Agent under
the Indenture immediately upon the happening of each and every Registration
Default. The Company and/or the Subsidiary Guarantors, as the case may be, shall
pay the liquidated damages due on the Transfer Restricted Securities by
depositing with the Paying Agent (which may not be the Company or any of its
Subsidiaries for these purposes), in trust, for the benefit of the holders
thereof, prior to 10:00 a.m., New York City time, on the next interest payment
date specified by the Indenture and the Securities, sums sufficient to pay the
liquidated damages then due. The liquidated damages due shall be payable on each
interest payment date specified by the Indenture and the Securities to the
record holder entitled to receive the interest payment to be made on such date.
Each obligation to pay liquidated damages shall be deemed to accrue from and
including the date of the applicable Registration Default.
(c) The parties hereto agree that the liquidated damages provided
for in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by holders of Transfer
Restricted Securities by reason of the failure of (i) the Shelf Registration
Statement or the Exchange Offer Registration Statement to be filed, (ii) the
Shelf Registration Statement to be declared effective or to remain effective or
(iii) the Exchange Offer Registration Statement to be declared effective and the
Registered Exchange Offer to be consummated, in each case to the extent required
by this Agreement.
4. REGISTRATION PROCEDURES. In connection with
any Registration Statement, the following provisions shall
apply:
(a) The Company shall (i) furnish to you, prior to the filing
thereof with the Commission, a copy of the Registration Statement and each
amendment thereof and each supplement, if any, to the prospectus included
therein and, in the event that the Initial Purchaser (with respect to any
portion of an unsold allotment from the original offering) is participating in
the Registered Exchange Offer or the Shelf Registration, shall use reasonable
efforts to reflect in each such document, when so filed with the Commission,
such comments as you reasonably may propose; (ii) with respect to an Exchange
Offer Registration Statement include the information set forth in Annex A hereto
on the cover, in Annex B hereto in the "Exchange Offer Procedures" section
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and the "Purpose of the Exchange Offer" section and in Annex C hereto in the
"Plan of Distribution" section of the prospectus forming a part of the Exchange
Offer Registration Statement, and include the information set forth in Annex D
hereto in the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; and (iii) if requested by the Initial Purchaser, include the
information required by Items 507 or 508 of Regulation S-K, as applicable, in
the prospectus forming a part of the Exchange Offer Registration Statement.
(b) The Company shall advise you and, in the case of a Shelf
Registration Statement, the Holders and, if requested by you or any such Holder,
confirm such advice in writing (which advice pursuant to clauses (ii) through
(v) hereof shall be accompanied by an instruction to suspend the use of the
prospectus until the requisite changes have been made):
(i) when the Registration Statement and any amendment thereto has
been filed with the Commission and when such Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of the request by the Commission for
amendments or supplements to any Registration Statement
or the prospectus included therein or for additional
information;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of any Registration
Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities or the Exchange
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose; and
(v) of the happening of any event that requires the making of any
changes in any Registration Statement or the prospectus included therein
so that, as of such date, the statements therein are not misleading and do
not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
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(c) The Company and the Subsidiary Guarantors will use reasonable
efforts to obtain the withdrawal of any order suspending the effectiveness of
any Registration Statement at the earliest possible time.
(d) The Company will furnish to each holder of Transfer Restricted
Securities included within the coverage of any Shelf Registration Statement,
without charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
and, if the Holder so requests in writing, all exhibits (including those
incorporated by reference).
(e) The Company will, during the Shelf Registration Period, deliver
to each holder of Transfer Restricted Securities included within the coverage of
any Shelf Registration Statement, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and the Company consents to the use of such prospectus
or any amendment or supplement thereto by each of the selling holders of
Transfer Restricted Securities in connection with the offer and sale of the
Transfer Restricted Securities covered by such prospectus or any amendment or
supplement thereto.
(f) The Company will furnish to each Exchanging Dealer or the
Initial Purchaser, as applicable, upon such person's request in writing ,
without charge, at least one copy of the Exchange Offer Registration Statement
and any post-effective amendment thereto, including financial statements and
schedules and, if the Exchanging Dealer or the Initial Purchaser, as applicable,
so requests in writing, all exhibits (including those incorporated by
reference).
(g) The Company will, during the Exchange Offer Registration Period
or the Shelf Registration Period, as applicable, promptly deliver to each
Exchanging Dealer or the Initial Purchaser, as applicable, without charge, as
many copies of the prospectus included within the coverage of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as applicable, and
any amendment or supplement thereto as such Exchanging Dealer or the Initial
Purchaser, as applicable, may reasonably request for delivery by (i) such
Exchanging Dealer in connection with a sale of Exchange Securities received by
it pursuant to the
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Registered Exchange Offer or (ii) the Initial Purchaser in connection with a
sale of Exchange Securities received by it in exchange for Securities
constituting any portion of an unsold allotment; and the Company consents to the
use of such prospectus or any amendment or supplement thereto by any such
Exchanging Dealer or the Initial Purchaser, as applicable, as aforesaid.
(h) Prior to any public offering of Securities or Exchange
Securities pursuant to any Registration Statement, the Company will use its
reasonable best efforts to register or qualify, or cooperate with the Holders of
Securities included therein and their respective counsel in connection with the
registration or qualification of, such Securities or Exchange Securities for
offer and sale under the securities or blue sky laws of such jurisdictions as
any such Holder reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such jurisdictions
of the Securities or Exchange Securities covered by such Registration Statement;
PROVIDED that neither Company, or any subsidiary or affiliate of the Company
will be required to qualify generally to do business in any jurisdiction where
it is not then so qualified or to take any action which would subject it to
general service of process or to taxation in any such jurisdiction where it is
not then so subject.
(i) The Company and the Subsidiary Guarantors will cooperate with
the Holders of Securities or Exchange Securities to facilitate the timely
preparation and delivery of certificates representing Securities or Exchange
Securities to be sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations and registered in such names as
Holders may request in writing prior to sales of Securities or Exchange
Securities pursuant to such Registration Statement.
(j) If any event contemplated by paragraphs (b)(ii) through (v)
above occurs during the period for which the Company and the Subsidiary
Guarantors are required to maintain an effective Registration Statement, the
Company will promptly prepare a post-effective amendment to the Registration
Statement or a supplement to the related prospectus or file any other required
document so that, as so amended or supplemented, the prospectus will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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(k) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Securities or
Exchange Securities, as the case may be, and provide the applicable trustee with
printed certificates for the Securities or Exchange Securities, as the case may
be, in a form eligible for deposit with The Depository Trust Company.
(l) The Company and the Subsidiary Guarantors will comply with all
applicable rules and regulations of the Commission and will make generally
available to the Company's security holders not later than 90 days after the end
of the 12 month period beginning at the end of the fiscal quarter in which the
applicable Registration Statement first became effective under the Securities
Act, an earnings statement (which need not be audited) satisfying the provisions
of Section 11(a) of the Securities Act.
(m) The Company and the Subsidiary Guarantors will cause the
Indenture or the Exchange Securities Indenture, as the case may be, to be
qualified under the Trust Indenture Act as required by applicable law in a
timely manner.
(n) The Company and the Subsidiary Guarantors may require each
Holder of Securities to be sold pursuant to any Shelf Registration Statement to
furnish to the Company and the Subsidiary Guarantors such information concerning
the Holder and the distribution of such Securities as the Company may from time
to time reasonably require for inclusion in such Registration Statement, and the
Company may exclude from such registration the Securities of any Holder that
fails to furnish such information within a reasonable time after receiving such
request.
(o) In the case of a Shelf Registration Statement, each Holder of
Securities agrees by acquisition of such Securities that, upon receipt of any
notice of the Company or a Subsidiary Guarantor pursuant to Section 4(b)(ii)
through (v) hereof, such Holder will discontinue disposition of such Securities
covered by such Registration Statement until such Holder's receipt of copies of
the supplemental or amended prospectus contemplated by Section 4(j) hereof or
until advised in writing (the "ADVICE") by the Company that the use of the
applicable prospectus may be resumed. If the Company or a Subsidiary Guarantor
shall give any notice under Section 4(b)(ii) through (v) during the period that
the Company is required to maintain an effective Registration Statement (the
"EFFECTIVENESS
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PERIOD"), such Effectiveness Period shall be extended by the number of days
during such period from and including the date of the giving of such notice to
and including the date when each seller of Securities covered by such
Registration Statement shall have received (x) the copies of the supplemental or
amended prospectus contemplated by Section 4(j) (if an amended or supplemental
prospectus is required) or (y) the Advice (if no amended or supplemental
prospectus is required).
(p) In the case of a Shelf Registration Statement, the Company and
each of the Subsidiary Guarantors shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and take
all such other action, if any, as Holders of a majority in aggregate principal
amount of the Securities or Exchange Securities being sold or the managing
underwriters (if any) shall reasonably request in order to facilitate any
disposition of Securities pursuant to such Shelf Registration Statement.
(q) In the case of a Shelf Registration Statement, the Company and
each of the Subsidiary Guarantors shall (i) make reasonably available for
inspection by a representative of, and Special Counsel (as defined below) acting
for, Holders of a majority in aggregate principal amount of the Securities or
Exchange Securities (if any) being sold and any underwriter participating in any
disposition of Securities or Exchange Securities (if any) pursuant to such Shelf
Registration Statement, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries and (ii)
use reasonable efforts to have their officers, directors, employees, accountants
and counsel supply all relevant information reasonably requested by such
representative, Special Counsel (as defined below) or any such underwriter (an
"INSPECTOR") in connection with such Shelf Registration Statement as is
customary for similar due diligence examinations, subject to executing a
reasonable confidentiality undertaking in customary form with respect to
confidential or proprietary information of the Company or such Subsidiary
Guarantor.
(r) In the case of a Shelf Registration Statement, the Company and
each of the Subsidiary Guarantors shall, if requested by Holders of a majority
in aggregate principal amount of the Securities or Exchange Securities (if any)
being sold, their Special Counsel or the managing underwriters (if any) in
connection with such Shelf
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Registration Statement, use their reasonable efforts to cause (i) the Company's
counsel to deliver an opinion relating to the Shelf Registration Statement and
the Securities or Exchange Securities, as applicable, in customary form, (ii)
the Company's officers to execute and deliver all customary documents and
certificates requested by Holders of a majority in aggregate principal amount of
the Securities or Exchange Securities being sold, their Special Counsel or the
managing underwriters (if any) and (iii) the Company's independent public
accountants to provide a comfort letter in customary form, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by Statement
of Auditing Standards No. 72.
5. REGISTRATION EXPENSES. The Company and the Subsidiary Guarantors
will jointly and severally bear all expenses incurred in connection with the
performance of their obligations under Sections 1, 2, 3 and 4 and the Company
and the Subsidiary Guarantors, as the case may be, will reimburse the Initial
Purchaser and the Holders for the reasonable fees and disbursements of one firm
of attorneys (in addition to any appropriate local counsel) chosen by the
Holders of a majority in aggregate principal amount of the Securities and the
Exchange Securities to be sold pursuant to each Registration Statement (the
"SPECIAL COUNSEL") acting for the Initial Purchaser or Holders in connection
therewith.
6. INDEMNIFICATION. (a) In the event of a Shelf Registration
Statement or in connection with any prospectus delivery pursuant to an Exchange
Offer Registration Statement by an Exchanging Dealer or the Initial Purchaser,
as applicable, the Company and each of the Subsidiary Guarantors shall indemnify
and hold harmless each Holder, its affiliates, their respective officers,
directors, employees, representatives and agents, and each person, if any, who
controls such Holder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (collectively referred to for purposes of this
Section 6 and Section 7 as a Holder) from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including,
without limitation, any loss, claim, damage, liability or action relating to
purchases and sales of Securities or Exchange Securities), to which that Holder
may become subject, whether commenced or threatened, under the Securities Act,
the Exchange Act, any other federal or state statutory law or regulation, at
common law or otherwise, insofar as such loss, claim,
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damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in any such
Registration Statement or any prospectus forming part thereof or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and shall reimburse each Holder for any
legal or other expenses reasonably incurred by that Holder (upon presentation of
a statement or statements therefor in reasonable detail) in connection with
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; PROVIDED, HOWEVER, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, an untrue statement
or alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with any Holders' Information; and
PROVIDED, FURTHER, that with respect to any such untrue statement in or omission
from any related preliminary prospectus, the indemnity agreement contained in
this Section 6(a) shall not inure to the benefit of any Holder from whom the
person asserting any such loss, claim, damage, liability or action received
Securities or Exchange Securities to the extent that such loss, claim, damage,
liability or action of or with respect to such Holder results from the fact that
both (A) a copy of the final prospectus was not sent or given to such person at
or prior to the written confirmation of the sale of such Securities or Exchange
Securities to such person and (B) the untrue statement in or omission from the
related preliminary prospectus was corrected in the final prospectus unless, in
either case, such failure to deliver the final prospectus was a result of
non-compliance by the Company with Section 4(d), 4(e), 4(f) or 4(g).
(b) In the event of a Shelf Registration Statement, each Holder
shall indemnify and hold harmless the Company, its subsidiaries and affiliates,
their respective officers, directors, employees, representatives and agents, and
each person, if any, who controls the Company, its subsidiaries or its
affiliates within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 6(b) and Section 7 as the
Company), from and against any loss, claim, damage or liability, joint or
several, or any action in respect
16
thereof, to which the Company may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained in
any such Registration Statement or any prospectus forming part thereof or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with any Holders' Information
furnished to the Company by such Holder, and shall reimburse the Company for any
legal or other expenses reasonably incurred by the Company (upon presentation of
a statement or statements thereof in reasonable detail) in connection with
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; PROVIDED, HOWEVER, that no such Holder
shall be liable for any indemnity claims hereunder in excess of the amount of
net proceeds received by such Holder from the sale of Securities or Exchange
Securities pursuant to such Shelf Registration Statement.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 6(a) or 6(b), notify the indemnifying
party in writing of the claim or the commencement of that action; PROVIDED,
HOWEVER, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 6 except to the extent
that it has been materially prejudiced by such failure; and PROVIDED, FURTHER,
that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 6. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense
17
thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 6 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than the reasonable costs of investigation; PROVIDED,
HOWEVER, that an indemnified party shall have the right to employ its own
counsel in any such action, but the fees, expenses and other charges of such
counsel for the indemnified party will be at the expense of such indemnified
party unless (1) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the indemnified party has
reasonably concluded (based upon advice of counsel to the indemnified party)
that there may reasonably be legal defenses available to it or other indemnified
parties that are different from or in addition to those available to the
indemnifying party, (3) a conflict or potential conflict exists (based upon
advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party)
or (4) the indemnifying party has not in fact employed counsel reasonably
satisfactory to the indemnified party to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties,
or for fees or expenses that are not reasonable. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any appropriate local counsel) at any one time for all such
indemnified party or parties. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 6(a) and 6(b), shall use its
reasonable best efforts to cooperate with the indemnifying party in the defense
of any such action or claim. No indemnifying party shall be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by
18
reason of such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party(which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could reasonably have
been a party and indemnity could reasonably have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
7. CONTRIBUTION. If the indemnification provided for in Section 6 is
unavailable or insufficient to hold harmless an indemnified party under Section
6(a) or 6(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, in such proportion as shall be appropriate to reflect the relative
fault of the indemnifying party on the one hand and the indemnified party on the
other with respect to the actions, statements or omissions that resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact, has been taken or made by, or relates to information supplied by,
such indemnifying party or indemnified party, and the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such action, statement or omission. The parties hereto agree that it
would not be just and equitable if contributions pursuant to this Section 7 were
to be determined by PRO RATA allocation or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 7 shall be deemed to include, for purposes of this Section 7, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 7, an
indemnifying party that is a holder of Transfer Restricted Securities or
Exchange
19
Securities shall not be required to contribute any amount in excess of the
amount by which the total price at which the Transfer Restricted Securities or
Exchange Securities sold by such indemnifying party to any purchaser exceeds the
amount of any damages which such indemnifying party has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission to state a material fact. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
8. RULES 144 AND 144A. The Company shall use its reasonable best
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the written request of any holder
of Transfer Restricted Securities, make publicly available other information so
long as necessary to permit sales of their securities pursuant to Rules 144 and
144A. The Company and each of the Subsidiary Guarantors covenant that they will
take such further action as any holder of Transfer Restricted Securities may
reasonably request, all to the extent required from time to time to enable such
holder to sell Transfer Restricted Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rules 144 and
144A (including, without limitation, the requirements of Rule 144A(d)(4)). Upon
the written request of any holder of Transfer Restricted Securities, the
Company, as applicable, shall deliver to such holder a written statement as to
whether it or they have complied with such requirements. Notwithstanding the
foregoing, nothing in this Section 8 shall be deemed to require the Company to
register any of its securities pursuant to the Exchange Act.
9. UNDERWRITTEN REGISTRATIONS. If any of the Transfer Restricted
Securities covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the holders of
a majority in aggregate principal amount of such Transfer Restricted Securities
included in such offering, subject to the consent of the Company (which shall
not be unreasonably withheld or delayed), and such holders shall be responsible
for all
20
underwriting commissions and discounts in connection therewith.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
10. MISCELLANEOUS. (a) AMENDMENTS AND WAIVERS. The provisions of
this Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of Holders of a majority in aggregate
principal amount of the Securities and the Exchange Securities, taken as a
single class. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of the Holders of Securities or Exchange Securities whose Securities or
Exchange Securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect the rights of other Holders may be given
by Holders of a majority in aggregate principal amount of the Securities or
Exchange Securities being sold by such Holders pursuant to such Registration
Statement.
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier or air courier guaranteeing next-day delivery:
(i) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 10(b),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture, with a copy
in like manner to Chase Securities Inc.;
(ii) if to you, initially at your respective
addresses set forth in the Purchase Agreement; and
21
(iii) if to the Company, or either Subsidiary
Guarantor initially at the address of the Company set
forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; one business day
after being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) SUCCESSORS AND ASSIGNS. This Agreement
shall be binding upon the Company and its successors and
assigns.
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopier) and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) DEFINITION OF TERMS. For purposes of this Agreement, (a) the
term "business day" means any day on which the New York Stock Exchange, Inc. is
open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act and (c) except where otherwise expressly provided,
the term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act.
(f) HEADINGS. The headings in this Agreement
are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
22
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
(h) REMEDIES. In the event of a breach by the Company, by either of
the Subsidiary Guarantors or by any holder of Transfer Restricted Securities, of
any of their obligations under this Agreement, each holder of Transfer
Restricted Securities or the Company or the Subsidiary Guarantors, as the case
may be, in addition to being entitled to exercise all rights granted by law,
including recovery of damages (other than the recovery of damages for a breach
by the Company or a Subsidiary Guarantor of its obligations under Sections 1 or
2 hereof for which liquidated damages have been paid pursuant to Section 3
hereof), will be entitled to specific performance of its rights under this
Agreement. The Company, the Subsidiary Guarantors and each holder of Transfer
Restricted Securities agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agree that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(i) NO INCONSISTENT AGREEMENTS. The Company and each of the
Subsidiary Guarantors represent, warrant and agree that (i) they have not
entered into and shall not, on or after the date of this Agreement, enter into
any agreement that is inconsistent with the rights granted to the holders of
Transfer Restricted Securities in this Agreement or otherwise conflicts with the
provisions hereof, (ii) they have not previously entered into any agreement
which remains in effect granting any registration rights with respect to any of
the Company's debt securities to any person and (iii) without limiting the
generality of the foregoing, without the written consent of the Holders of a
majority in aggregate principal amount of the then outstanding Transfer
Restricted Securities, they shall not grant to any person the right to request
the Company to register any debt securities of the Company under the Securities
Act unless the rights so granted are not in conflict or inconsistent with the
provisions of this Agreement.
(j) NO PIGGYBACK ON REGISTRATIONS. Neither the
Company nor any of its security holders (other than the
holders of Transfer Restricted Securities in such capacity)
23
shall have the right to include any securities of the Company in any Shelf
Registration or Registered Exchange Offer other than Transfer Restricted
Securities.
(k) SEVERABILITY. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their reasonable best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
24
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Subsidiary Guarantors and you.
Very truly yours,
TRAVELCENTERS OF AMERICA, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President
TA OPERATING CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President
NATIONAL AUTO/TRUCKSTOPS, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President
Accepted:
CHASE SECURITIES INC.
By /s/ Xxxxx X. Xxxxx
----------------------------------
Authorized Signatory
Xxxxx X. Xxxxx
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Securities where such Securities were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period of 180 days after the Expiration Date, it will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until ,
---------------
199 , all dealers effecting transactions in the Exchange Securities may be
-
required to deliver a prospectus. /1/
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Registered Exchange Offer may be sold from
time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer or the
purchasers of any such Exchange Securities. Any broker-dealer that resells
Exchange Securities that were received by it for its own account pursuant to the
Registered Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Securities may be deemed to be an "underwriter"
within the meaning of the Securities Act and any profit on any such resale of
Exchange Securities and any commission or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities Act.
The Letter of Transmittal states that, by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that
--------
/1/ In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Registered Exchange Offer prospectus.
it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Registered Exchange Offer (including the expenses of one counsel
for the Holders of the Securities) other than commissions or concessions of any
broker-dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
ANNEX D
|_| CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS
OR SUPPLEMENTS THERETO.
Name:
---------------------------------------
Address:
------------------------------------
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If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities that were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
