EXHIBIT 10.17
[LETTERHEAD OF THE CLIPPER GROUP, L.P.]
December 10, 1993
TA Holdings Corporation
TA Operating Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Dear Sirs:
This letter confirms our agreement that The Clipper Group, L.P. and
Clipper Capital Partners, L.P. (collectively, "Clipper") have been engaged by TA
Holdings Corporation ("Holdings") and TA Operating Corporation ("TA") to act as
their exclusive financial advisors, upon the terms and subject to the conditions
set forth herein.
In connection with such engagement, if requested by TA or Holdings
from time to time during the term hereof, Clipper shall, if it determines in its
discretion that it is willing and able to do so, provide financial advisory
services to TA and Holdings, including, but not limited to:
(i) analysis of the business, operations, financial condition and
future prospects of TA;
(ii) advice to TA and Holdings with respect to strategy and tactics
to be employed in future transactions;
(iii) strategic and financial planning;
(iv) advice relating to analysis and financing of future investments;
(v) advice relating to future mergers, sales of assets or
recapitalization;
(vi) advice regarding public or private debt or equity financings,
including the selection of underwriters or placement agents;
(vii) analysis of acquisition candidates and the arranging of
financing necessary to effect such acquisitions; and
(viii) analysis of divestitures or other such material transactions.
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If Clipper shall determine to perform any such services, Holdings
and TA shall compensate Clipper for such services at such rates as Clipper shall
establish from time to time, consistent with those rates customarily charged at
the time by nationally recognized investment banking firms for similar services.
If Clipper shall determine that it is not willing or able to perform
any such services, Holdings and TA may retain another independent investment
banking firm to provide the requested services. In all other circumstances,
Clipper shall be the exclusive financial advisor to Holdings and National.
Upon consummation of TA's acquisition of the assets of the
Truckstops of America network (the "Acquisition"), Holdings will pay to Clipper
a fee of $975,000 for Clipper's services in arranging and negotiating debt and
equity financing for the Acquisition.
In partial consideration for entering into this agreement, TA and
Holdings will reimburse Clipper for all of its out-of-pocket expenses
(including, without limitation, the fees and expenses of its legal counsel)
incurred in connection with its engagement hereunder, including, without
limitation, in connection with the Acquisition and related financing (including,
without limitation, the formation of investment partnerships). Holdings and TA
will also indemnify Clipper pursuant to a letter agreement to be entered into
separately, a copy of which is attached as Exhibit A to this letter, and which
shall survive any termination of Xxxxxxx's engagement hereunder.
This agreement will continue from the date hereof until such time as
of Clipper and its affiliates, including the Clipper managed partnerships, no
longer own, directly or indirectly through National Auto/Truckstops Holdings
Corporation, in the aggregate, 5% or more of the equity securities of TA or
Holdings.
Please confirm your agreement with the foregoing by signing and
returning the enclosed duplicate of this letter.
Sincerely,
The Clipper Group, L.P.
Clipper Capital Partners, L.P.
By: /s/ Xxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
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Title:
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Accepted and Agreed to:
TA Holdings Corporation
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Controller
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TA Operating Corporation
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Controller
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Exhibit A
December 10, 1993
The Clipper Group, L.P.
Clipper Capital Partners, L.P.
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
In connection with your engagement to advise and assist us with the
acquisition of the Truckstops of America network, we hereby agree to indemnify
and hold harmless The Clipper Group, L.P. and Clipper Capital Partners, L.P.
(collectively, "Clipper") and its affiliates, the respective directors,
officers, partners, agents and employees of Clipper and its affiliates and each
other person, if any, controlling Clipper or any of its affiliates, to the full
extent lawful, from and against all losses, claims, damages, liabilities and
expenses incurred by them (including fees and disbursements of counsel) which
(A) are related to or arise out of (i) actions taken or omitted to be taken
(including any untrue statements made or any statements omitted to be made) by
the Company or (ii) actions taken or omitted to be taken by an indemnified
person with our consent or in conformity with our actions or omissions or (B)
are otherwise related to or arise out of Clipper's activities on our behalf
under Xxxxxxx's engagement, and we will reimburse Clipper and any other person
indemnified hereunder for all expenses (including fees and disbursements of
counsel) as they are incurred by Clipper or such other indemnified person in
connection with investigating, preparing or defending any such action or claim
whether or not in connection with pending or threatened litigation in which
Clipper or any other indemnified person is a party. We will not be responsible,
however, for any losses, claims, damages, liabilities or expenses pursuant to
clause (B) of the preceding sentence which are finally judicially determined to
have resulted exclusively from the willful misconduct or gross negligence of the
person seeking indemnification hereunder. We also agree that neither Clipper,
nor any of its affiliates, nor any director, officer, partner agent or employee
of Clipper or any of its affiliates, nor any person controlling Clipper or any
of its affiliates, shall have any liability to us for or in connection with such
engagement except for such liability for losses, claims, damages, liabilities or
expenses incurred by us which is finally judicially determined to have resulted
exclusively from Clipper's willful misconduct or gross negligence. We further
agree that we will not, without the prior written consent of Clipper, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action, suit or proceeding in respect of which indemnification may be
sought hereunder (whether or not Clipper or any indemnified person is an actual
or potential party to such claim,
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action, suit or proceeding) unless such settlement, compromise or consent
includes an unconditional release of Clipper and each other indemnified person
hereunder form all liability arising out of such claim, action, suit or
proceeding.
Promptly after receipt by an indemnified person of notice of any
complaint or the commencement of any action or proceeding with respect to which
indemnification is being sought hereunder, such person will notify us in writing
of such complaint or of the commencement of such action or proceeding, but
failure so to notify us will not relieve us from any liability which we may have
hereunder or otherwise, except to the extent that such failure materially
prejudices our rights. If we do elect or are requested by such indemnified
person, we will assume the defense of such action or proceeding, including the
employment of counsel reasonably satisfactory to Clipper and the payment of the
fees and disbursements of such counsel. In the event, however, such indemnified
person reasonably determines in its judgment that having common counsel would
present such counsel with a conflict of interest or if we fail to assume the
defense of the action or proceeding in a timely manner, then such indemnified
person may employ separate counsel to represent or defend it in any such action
or proceeding and we will pay the fees and disbursements of such counsel
provided that we will not be required to pay the fees and disbursements of more
than one separate counsel for all indemnified persons in any jurisdiction in any
single action or proceeding. In any action or proceeding the defense of which we
assume, the indemnified person will have the right to participate in such
litigation and to retain its own counsel at such indemnified person's own
expense.
We agree that if any indemnification sought by an indemnified person
pursuant to this letter agreement is held by a court to be unavailable for any
reason other than as specified in the second sentence of the first paragraph of
this letter agreement, we and the indemnified person will contribute to the
losses, claims, damages, liabilities and expenses for which such indemnification
is held unavailable in such proportion as is appropriate to reflect the relative
benefits to us, on the one hand, and Clipper, on the other hand, in connection
with Xxxxxxx's engagement referred to above, subject to the limitation that the
aggregate contribution of all indemnified persons to all losses, claims,
damages, liabilities and expenses with respect to which contribution is
available hereunder will not exceed the amount of fees actually received by
Clipper from us pursuant to Clipper's engagement referred to above. It is hereby
agreed that the relative benefits to us, on the one hand, and the indemnified
person, on the other hand, with respect to Clipper's engagement shall be deemed
to be in the same proportion as (i) the total value paid or proposed to be paid
or received by us or our stockholders, as the case may be, pursuant to the
transaction, whether or not consummated, for which you are engaged to render
financial advisory services bears to (ii) the fee paid or proposed to be paid to
Clipper in connection with such engagement.
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Our indemnity, reimbursement and contribution obligations under this
letter agreement shall be in addition to any rights that Clipper or any
indemnified person may have at common law or otherwise.
We hereby consent to personal jurisdiction and service and venue in
any court in which any claim which is subject to this letter agreement is
brought against Clipper or any other indemnified person.
It is understood that, in connection with Xxxxxxx's above-mentioned
engagement, Clipper may also be engaged to act in one or more additional
capacities, and that the terms of the original engagement or any such additional
engagement may be embodied in one or more separate written agreements. The
provisions of this letter agreement shall apply to the original engagement, any
such additional engagement and any modification of the original engagement or
such additional engagement and shall remain in full force and effect following
the completion or termination of Clipper's engagement(s).
This Indemnification Agreement, and all of the provisions and
protections hereof, shall survive and remain in full force and effect following
the completion or termination of Clipper's engagement(s), and Clipper's rights,
and the obligations of TA Holdings Corporation and TA Operating Corporation
hereunder, shall survive and remain in full force and effect following the
termination of Clipper's engagement for any reason.
Very truly yours,
TA HOLDINGS CORPORATION
By:
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TA OPERATING CORPORATION
By:
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Accepted:
THE CLIPPER GROUP, L.P.
By:
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CLIPPER CAPITAL PARTNERS, L.P.
By:
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