EXHIBIT 10.24
Execution Copy
TRAVELCENTERS OF AMERICA, INC.
$125,000,000
10-1/4% Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
------------------
March 24, 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 $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 the Company's
principal operating subsidiaries, TA Operating Corporation ("TA") and National
Auto/Truckstops, Inc. ("National"), each a Delaware corporation (together, the
"Subsidiary Guarantors"). The Securities will be issued pursuant to an Indenture
to be dated as of March 27, 1997 (the "INDENTURE") among the Company, the
Subsidiary Guarantors and Fleet National Bank, a national banking association,
as trustee (the "TRUSTEE"). The Company and each of the Subsidiary Guarantors
hereby confirms its agreement with Chase Securities Inc. ("CSI" or the "INITIAL
PURCHASER") concerning the purchase of the Securities from the Company by the
Initial Purchaser.
The Securities will be offered and sold to the Initial Purchaser
without being registered under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), in reliance upon exemptions therefrom. The Company has
prepared a preliminary offering memorandum dated March 10, 1997 (the
"PRELIMINARY OFFERING MEMORANDUM") and will prepare an offering memorandum dated
the date hereof (the "OFFERING MEMORANDUM") setting forth information concerning
the Company and the Securities. Copies of the Preliminary Offering Memorandum
have been, and copies of the Offering Memorandum will be, delivered by the
Company to the Initial Purchaser pursuant to the terms of this Agreement. Any
references herein to the Preliminary Offering Memorandum and the Offering
Memorandum shall be deemed to include all amendments and supplements thereto,
unless otherwise noted. The Company hereby confirms that it has authorized the
use of the Preliminary Offering Memorandum and the Offering Memorandum in
connection with the offering and resale of the Securities by the Initial
Purchaser in accordance with Section 2.
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Holders of the Securities (including the Initial Purchaser and its
direct and indirect transferees) will be entitled to the benefits of an Exchange
and Registration Rights Agreement, substantially in the form attached hereto as
Annex A (the "REGISTRATION RIGHTS AGREEMENT"), pursuant to which the Company and
the Subsidiary Guarantors will agree to file with the Securities and Exchange
Commission (the "COMMISSION") (i) a registration statement under the Securities
Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") registering an issue of senior
subordinated notes of the Company (the "EXCHANGE SECURITIES") which are
identical in all material respects to the Securities (except that the Exchange
Securities will not contain terms with respect to transfer restrictions) and
(ii) under certain circumstances, a shelf registration statement pursuant to
Rule 415 under the Securities Act (the "SHELF REGISTRATION STATEMENT").
Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Offering Memorandum.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND THE
SUBSIDIARY GUARANTORS. The Company and the Subsidiary Guarantors jointly and
severally represent and warrant to, and agree with, the Initial Purchaser on and
as of the date hereof and the Closing Date (as defined in Section 3) that:
(a) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, did not, and on the Closing Date
the Offering Memorandum will not, contain any untrue statement of a
material fact or omit to state 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; PROVIDED
that the Company makes no representation or warranty as to information
contained in or omitted from the Preliminary Offering Memorandum or the
Offering Memorandum in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Initial
Purchaser specifically for use therein (the "INITIAL PURCHASER'S
INFORMATION") (it being understood that changes in the Offering Memorandum
from the Preliminary Offering Memorandum not relating to the terms and
conditions of the Securities are not material).
(b) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, contains all of the information
that, if requested by a prospective purchaser of the Securities, would be
required to be provided to such prospective purchaser pursuant to Rule
144A(d)(4) under the Securities Act.
(c) Assuming the accuracy of the representations and warranties of
the Initial Purchaser contained in Section 2 and its compliance with the
agreements set forth therein, it is not necessary, in connection with the
issuance and sale of the Securities to the Initial Purchaser and the
offer, resale and delivery of the Securities by the Initial Purchaser in
the manner contemplated by this Agreement and the Offering Memorandum, to
register the Securities under the Securities Act or to qualify the
Indenture under the Trust Indenture Act of 1939, as amended (the "TRUST
INDENTURE ACT").
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(d) The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of Delaware, are duly qualified to do business and are in
good standing as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged, except where the failure
to so qualify or have such power or authority would not, singularly or in
the aggregate, have a material adverse effect on the condition (financial
or otherwise), results of operations, business or prospects of the Company
and its subsidiaries taken as a whole (a "MATERIAL ADVERSE EFFECT").
(e) The Company had an authorized capitalization on December 31,
1996, as set forth in the Offering Memorandum under the column "Actual"
under the heading "Capitalization;" all of the outstanding shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; and the capital stock of the
Company conforms in all material respects to the description thereof
contained in the Offering Memorandum. All of the outstanding shares of
capital stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
directly or indirectly by the Company, and after giving effect to the
Transactions shall be owned free and clear of any lien, charge,
encumbrance, security interest, restriction upon voting or transfer or any
other claim of any third party (collectively, "Liens") (other than Liens
created in connection with the Credit Agreement dated March 21, 1997,
among the Company, the Lenders party thereto and The Chase Manhattan Bank,
as agent (the "Credit Agreement") or in connection with the Senior Notes
and except as otherwise described in the Offering Memorandum).
(f) The Company has the requisite corporate power and authority to
execute and deliver this Agreement, the Indenture, the Registration Rights
Agreement and the Securities (the "TRANSACTION DOCUMENTS") and to perform
its obligations hereunder and thereunder; and all corporate actions
required to be taken by the Company for the due and proper authorization,
execution and delivery of each of the Transaction Documents and the
consummation of the transactions contemplated thereby have been duly and
validly taken. Each of the Subsidiary Guarantors has the requisite
corporate power and authority to execute and deliver this Agreement, the
Indenture and the Registration Rights Agreement and to perform its
obligations hereunder and thereunder; and all corporate actions required
to be taken by each of the Subsidiary Guarantors for the due and proper
authorization, execution, and delivery of each of this Agreement, the
Indenture and the Registration Rights Agreement and the consummation of
the transactions contemplated thereby have been duly and validly taken.
(g) This Agreement has been duly authorized, executed and delivered
by the Company and each of the Subsidiary Guarantors and constitutes a
valid
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and legally binding agreement of the Company and each of the Subsidiary
Guarantors enforceable in accordance with its terms, except to the extent
that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or at
law) and except to the extent that indemnification or contribution
provisions may be unenforceable.
(h) The Registration Rights Agreement has been duly authorized by
the Company and each of the Subsidiary Guarantors and, when duly executed
and delivered in accordance with its terms by each of the parties thereto,
will constitute a valid and legally binding agreement of the Company and
each of the Subsidiary Guarantors enforceable against the Company and each
of the Subsidiary Guarantors in accordance with its terms, except to the
extent that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or at
law) and except to the extent that indemnification or contribution
provisions may be unenforceable.
(i) The Indenture (including the Guarantees set forth therein) has
been duly authorized by the Company and each of the Subsidiary Guarantors
and, when duly executed and delivered in accordance with its terms by each
of the parties thereto, will constitute a valid and legally binding
agreement of the Company and each of the Subsidiary Guarantors enforceable
against the Company and each of the Subsidiary Guarantors in accordance
with its terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered
in a proceeding in equity or at law). On the Closing Date, the Indenture
will conform in all material respects to the requirements of the Trust
Indenture Act and the rules and regulations of the Commission applicable
to an indenture which is qualified thereunder.
(j) The Securities have been duly authorized by the Company and,
when duly executed, authenticated, issued and delivered as provided in the
Indenture and paid for as provided herein, will be duly and validly issued
and outstanding and will constitute valid and legally binding obligations
of the Company entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except to the extent
that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or at
law).
(k) Each Transaction Document conforms in all material respects to
the description thereof contained in the Offering Memorandum.
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(l) The execution, delivery and performance by the Company and each
of the Subsidiary Guarantors of each of the Transaction Documents, as
applicable, and the issuance, authentication, sale and delivery of the
Securities and compliance by the Company with the terms thereof and the
consummation of the transactions contemplated by the Transaction Documents
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to,
any material indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any
of its subsidiaries is subject, other than the agreements relating to
existing indebtedness of the Company and its subsidiaries that is being
refinanced in connection with the Transactions, nor will such actions
result in any violation of the provisions of the charter or by-laws of the
Company or any of its subsidiaries (each amended to date) or any statute
or any judgment, order, decree, rule or regulation of any court or
arbitrator or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties or assets;
except for such conflicts, breaches, violations, defaults, liens, charges
or encumbrances that would not, singularly or in the aggregate, have a
Material Adverse Effect; and no consent, approval, authorization or order
of, or filing or registration with, any such court or arbitrator or
governmental agency or body under any such statute, judgment, order,
decree, rule or regulation is required for (i) the execution, delivery and
performance by the Company and each of the Subsidiary Guarantors, as
applicable, of each of the Transaction Documents, (ii) the issuance,
authentication, sale and delivery of the Securities and compliance by the
Company with the terms thereof and (iii) the consummation of the
transactions contemplated by the Transaction Documents, except for such
consents, approvals, authorizations, filings, registrations or
qualifications (A) which shall have been obtained or made on or prior to
the Closing Date, (B) as may be required to be obtained or made under the
Securities Act and applicable state securities laws as provided in the
Registration Rights Agreement and (C) the failure of which to obtain or
make would not, singularly or in the aggregate, have a Material Adverse
Effect.
(m) Price Waterhouse LLP are independent certified public accoun
tants with respect to the Company and its subsidiaries within the meaning
of Rule 101 of the Code of Professional Conduct of the American Institute
of Certified Public Accountants ("AICPA") and its interpretations and
rulings thereunder. The historical financial statements (including the
related notes) contained in the Offering Memorandum (i) have been prepared
in accordance with generally accepted accounting principles consistently
applied throughout the periods covered thereby (other than the historical
financial statements of the TA Subsidiary for 1992 and 1993, which include
all adjustments, consisting only of normal recurring adjustments,
necessary for a fair presentation of such data and which were prepared on
a basis that is consistent with the audited financial statements for the
TA Subsidiary appearing in the
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Offering Memorandum; however, the financial data for the BP Predecessor
Business may not be comparable to the financial data for (i) the TA
Subsidiary for a number of reasons, including purchase accounting for the
TA Acquisition and the addition of significant interest expense following
the TA Acquisition) and (ii) fairly present in all material respects the
financial position of the entities purported to be covered thereby at the
respective dates indicated and the results of their operations and their
cash flows for the respective periods indicated; and the audited financial
information contained in the Offering Memorandum under the headings
"Summary--Summary Supplemental and Pro Forma Consolidated Financial Data,"
"Capitalization," "Selected Consolidated Financial Data," "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
and "Management--Executive Compensation" are derived from the accounting
records of the Company and its subsidiaries and fairly present in all
material respects the information purported to be shown thereby. The PRO
FORMA financial information contained in the Offering Memorandum has been
prepared on a basis consistent with the historical financial statements
contained in the Offering Memorandum (except for the PRO FORMA adjustments
specified therein), gives effect to assumptions made on a reasonable basis
and fairly presents in all material respects the historical and proposed
transactions contemplated by the Offering Memorandum and the Transaction
Documents. The other historical financial and statistical information and
data included in the Offering Memorandum are, in all material respects,
accurately presented.
(n) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its subsidiaries is the subject which,
singularly or in the aggregate, could reasonably be expected to have a
Material Adverse Effect; and to the knowledge of the Company, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(o) No action has been taken and no statute, rule, regulation or
order has been enacted, adopted or issued by any governmental agency or
body which prevents the issuance of the Securities or suspends the sale of
the Secu rities in any jurisdiction; no injunction, restraining order or
order of any nature by any federal or state court of competent
jurisdiction has been issued with respect to the Company or any of its
subsidiaries which would prevent or suspend the issuance or sale of the
Securities or the use of the Preliminary Offering Memorandum or the
Offering Memorandum in any jurisdiction; no action, suit or proceeding is
pending against or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries before any court or
arbitrator or any governmental agency, body or official, domestic or
foreign, which could reasonably be expected to inter fere with or
adversely affect the issuance of the Securities or in any manner draw into
question the validity or enforceability of any of the Transaction
Documents or any action taken or to be taken pursuant thereto; and the
Company has complied with any and all requests by any securities authority
in
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any jurisdiction for additional information to be included in the
Preliminary Offering Memorandum and the Offering Memorandum.
(p) Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws (as amended to date), (ii) in default
in any material respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in
any material indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which it is a party or by which it is
bound or to which any of its property or assets is subject or (iii) in
violation in any material respect of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets may
be subject, except any violation or default under clauses (ii) or (iii)
that would not have a Material Adverse Effect.
(q) The Company and each of its subsidiaries possess all material
licenses, certificates, authorizations and permits issued by, and have
made all declarations and filings with, the appropriate federal, state or
foreign regulatory agencies or bodies which are necessary for the
ownership of their respective properties or the conduct of their
respective businesses as described in the Offering Memorandum, except
where the failure to possess or make the same would not, singularly or in
the aggregate, have a Material Adverse Effect, and neither the Company nor
any of its subsidiaries has received notification of any revocation or
modification of any such license, certificate, authorization or permit or
has any reason to believe that any such license, certificate,
authorization or permit will not be renewed, except where such revocation,
modification or non renewal would not have a Material Adverse Effect.
(r) The Company and each of its subsidiaries have filed or requested
extensions with respect to all federal, state, local and foreign income
and franchise tax returns required to be filed through the date hereof and
have paid all taxes due thereon, other than returns or taxes being
contested in good faith or taxes currently payable without penalty or
interest, except where the failure to so file or make such payments would
not, singularly or in the aggregate, have a Material Adverse Effect, and
no tax deficiency has been determined adversely to the Company or any of
its subsidiaries which has had (nor does the Company or any of its
subsidiaries have any knowledge of any tax deficiency that could
reasonably be expected to have) a Material Adverse Effect.
(s) Neither the Company nor any of its subsidiaries is (i) required
to be registered as an "investment company" under the Investment Company
Act of 1940, as amended (the "INVESTMENT COMPANY ACT"), and the rules and
regulations of the Commission thereunder or (ii) a "holding company" or a
"subsidiary company" of a holding company or an "affiliate" thereof within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
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(t) The Company and each of its subsidiaries maintain a system of
internal accounting controls which the Company believes is sufficient to
provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are re corded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(u) The Company and each of its subsidiaries have insurance
(including self-insurance, pursuant to customary deductibles and
exclusions) covering their respective properties, operations, personnel
and businesses, which insurance is in the opinion of the Company in
amounts and insures against such losses and risks as are adequate to
protect their respective businesses.
(v) The Company and each of its subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service xxxx
registrations, copyrights, licenses and know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) necessary for the conduct of their
respective businesses as currently conducted, except where the failure to
so own or possess such rights would not reasonably be expected to have a
Material Adverse Effect; and the Company has no reason to believe that the
conduct of their respective businesses as currently conducted will
conflict in any material respect with, and the Company and its
subsidiaries have not received any notice of any claim of conflict with,
any such rights of others, in either case, which would reasonably be
expected to have a Material Adverse Effect.
(w) The Company and each of its subsidiaries have good and
marketable title in fee simple to, or have valid rights to lease or
otherwise use, all items of real and personal property which are material
to the business of the Company and its subsidiaries, in each case, after
giving effect to the Transactions, free and clear of all liens,
encumbrances, claims and defects and imperfections of title except such as
(i) do not materially interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries, (ii) are
contemplated by or permitted under the Credit Agreement or the Senior
Secured Note Exchange Agreements, each dated as of March 21, 1997, among
the Company and each purchaser of Senior Notes (the "SENIOR NOTE EXCHANGE
AGREEMENTS") or (iii) could not reasonably be expected to have a Material
Adverse Effect.
(x) No labor disturbance by or dispute with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the
Company, is contemplated or threatened, in either case which would
reasonably be expected to have a Material Adverse Effect.
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(y) No non-exempt "prohibited transaction" (as defined in Section
406 of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended from time to time (the "CODE")) or "accumulated funding
deficiency" (as defined in Section 302 of ERISA) or any of the events set
forth in Section 4043(b) of ERISA (other than events with respect to which
the 30-day notice requirement under Section 4043 of ERISA has been waived)
has occurred with respect to any employee benefit plan of the Company or
any of its subsidiaries which could reasonably be expected to have a
Material Adverse Effect; each such employee benefit plan is in compliance
in all material respects with applicable law, including ERISA and the
Code; the Company and each of its subsidiaries have not incurred and do
not expect to incur any material liability under Title IV of ERISA with
respect to the termination of, or withdrawal from, any pension plan for
which the Company or any of its subsidiaries would have any liability; and
each such pension plan that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing
has occurred, whether by action or by failure to act, which could
reasonably be expected to cause the loss of such qualification.
(z) Except as disclosed in the Offering Memorandum, there has been
no storage, generation, transportation, handling, treatment, disposal,
discharge, emission or other release of any kind of toxic or other wastes
or other hazardous substances by, due to or caused by the Company or any
of its subsidiaries (or, to the knowledge of the Company, any other entity
(including any predecessor) for whose acts or omissions the Company or any
of its subsidiaries is or could reasonably be expected to be liable) upon
any of the property now or previously owned or leased by the Company or
any of its subsidiaries, or upon any other property, in violation of any
statute or any ordinance, rule, regulation, order, judgment, decree or
permit or which would, under any statute or any ordinance, rule (including
rule of common law), regulation, order, judgment, decree or permit, give
rise to any liability, except for any violation or liability that could
not reasonably be expected to have, singularly or in the aggregate with
all such violations and liabilities, a Material Adverse Effect; and except
as disclosed in the Offering Memorandum, there has been no disposal,
discharge, emission or other release of any kind onto such property or
into the environment surrounding such property of any toxic or other
wastes or other hazardous substances with respect to which the Company has
knowledge, except for any such disposal, discharge, emission or other
release of any kind which could not reasonably be expected to have,
singularly or in the aggregate with all such discharges and other
releases, a Material Adverse Effect.
(aa) On and immediately after the Closing Date, the Company
together with its subsidiaries on a consolidated basis (after giving
effect to the issuance of the Securities and to the other
transactions related thereto as described in the Offering
Memorandum) will be Solvent. As used in this paragraph, the term
"Solvent" means, with respect to a particular date, that on such
date (i) the present fair saleable value of the assets of the
Company together with
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its subsidiaries on a consolidated basis is not less than the total
amount required to pay the probable liabilities of the Company
together with its subsidiaries on a consolidated basis on its total
existing debts and liabilities (including contingent liabilities) as
they become absolute and matured, (ii) the Company together with its
subsidiaries on a consolidated basis is able to realize upon its
assets and pay its debts and other liabilities, contingent
obligations and commitments as they mature and become due in the
normal course of business, (iii) assuming the sale of the Securities
as contemplated by this Agreement and the Offering Memorandum, the
Company together with its subsidiaries on a consolidated basis is
not incurring debts or liabilities beyond its ability to pay as such
debts and liabilities mature and (iv) the Company together with its
subsidiaries on a consolidated basis is not engaged in any business
or transaction, and is not about to engage in any business or
transaction, for which its property would constitute unreasonably
small capital after giving due consideration to the prevailing
practice in the industry in which the Company is engaged. In
computing the amount of such contingent liabilities at any time, it
is intended that such liabilities will be computed at the amount
that, in light of all the facts and circumstances existing at such
time, represents the amount that can reasonably be expected to
become an actual or matured liability.
(bb) Except as described in the Offering Memorandum, there are
no outstanding subscriptions, rights, warrants, calls or options to
acquire, or instruments convertible into or exchangeable for, or
agreements or understandings with respect to the issuance of, any
shares of capital stock of or other equity or other ownership
interest in the Company or any of its subsidiaries of the Company
other than those owned or held by the Company or another subsidiary
of the Company.
(cc) Neither the Company nor any of its subsidiaries owns any
"mar gin securities" as that term is defined in Regulations G and U
of the Board of Governors of the Federal Reserve System (the
"FEDERAL RESERVE BOARD"), and none of the proceeds of the sale of
the Securities will be used, directly or indirectly, for the purpose
of purchasing or carrying any margin security, for the purpose of
reducing or retiring any indebtedness which was originally in curred
to purchase or carry any margin security or for any other purpose
which might cause any of the Securities to be considered a "purpose
credit" within the meanings of Regulation G, T, U or X of the
Federal Reserve Board.
(dd) Other than this Agreement or as disclosed in the Offering
Memorandum under "Certain Transactions," neither the Company nor any of
its subsidiaries is a party to any contract, agreement or understanding
with any person that would give rise to a valid claim against the Company
or the Initial Purchaser for a brokerage commission, finder's fee or like
payment in connection with the offering and sale of the Securities.
(ee) The Securities satisfy the eligibility requirements of
Rule 144A(d)(3) under the Securities Act.
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(ff) Neither the Company nor any of its affiliates has, directly or
through any agent (except that no representation is made with respect to
the activities of the Initial Purchaser), sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any
security (as such term is defined in the Securities Act), which is or will
be integrated with the sale of the Securities in a manner that would
require registration of the Securities under the Securities Act.
(gg) None of the Company or any of its affiliates or any other
person acting on its or their behalf has engaged, in connection with the
offering of the Securities, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act.
(hh) There are no securities of the Company registered under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), or
listed on a national securities exchange or quoted in a U.S. automated
inter-dealer quotation system.
(ii) The Company has not taken and will not take, directly or
indirectly, any action prohibited by Regulation M under the Exchange Act
in connection with the offering of the Securities.
(jj) Since the date as of which information is given in the Offering
Memorandum, except as otherwise disclosed or stated therein, (i) there has
been no material adverse change or any development reasonably likely to
cause a material adverse change in the condition, financial or otherwise,
results of operations, business, management or prospects of the Company
and its subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, (ii) the Company has not incurred any
material liability or obligation, direct or contingent, other than in the
ordinary course of business, (iii) the Company has not entered into any
material transaction other than in the ordinary course of business and
(iv) there has not been any change in the capital stock or long-term debt
of the Company, or any dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
2. PURCHASE AND RESALE OF THE SECURITIES. (a) On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions set forth herein, the Company agrees to issue and sell to
the Initial Purchaser, and the Initial Purchaser agrees to purchase from the
Company, $125,000,000 principal amount of Securities at a purchase price equal
to 97% of the principal amount thereof, plus accrued unpaid interest, if any,
from the date of issuance. The Company shall not be obligated to deliver any of
the Securities except upon payment for all of the Securities to be purchased as
provided herein.
(b) The Initial Purchaser has advised the Company that it proposes
to offer the Securities for resale pursuant to the procedures upon the terms and
subject to the conditions set forth herein and in the Offering Memorandum. The
Initial Purchaser represents and warrants to, and agrees with, the Company and
each
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Subsidiary Guarantor that (i) it is purchasing the Securities pursuant to a
private sale exempt from registration under the Securities Act, (ii) it has not
solicited offers for, or offered or sold, and will not solicit offers for, or
offer or sell, the Securities by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) of Regulation D under the
Securities Act ("REGULATION D") or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act and (iii) it has
solicited and will solicit offers for the Securities only from, and has offered
or sold and will offer, sell or deliver the Securities, as part of its initial
offering, only to (A) persons whom it reasonably believes to be qualified
institutional buyers ("QUALIFIED INSTITUTIONAL BUYERS") as defined in Rule 144A
under the Securities Act, or if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or agent,
only when such person has represented to it that each such account is a
Qualified Institutional Buyer to whom notice has been given that such sale or
delivery is being made in reliance on Rule 144A and in each case, in
transactions in accordance with Rule 144A and (B) a limited number of other
accredited investors as defined in Rule 501(a)(1), (2), (3) or (7) under
Regulation D that are institutional investors ("INSTITUTIONAL ACCREDITED
INVESTORS") in private sales exempt from registration under the Securities Act.
The Initial Purchaser, represents, warrants and agrees to and with the Company
and the Subsidiary Guarantors that it is either a Qualified Institutional Buyer
or an Institutional Accredited Investor, in either case with such knowledge and
experience in financial and business matters as are necessary to evaluate the
merits and risks of an investment in the Securities, and is acquiring its
interest in the Securities not with a view to the distribution or resale
thereof, except in accordance with this Agreement and the Offering Memorandum.
The Initial Purchaser agrees that, prior to or simulta neously with the
confirmation of sale by the Initial Purchaser to any purchaser of any of the
Securities purchased by the Initial Purchaser from the Company pursuant hereto,
the Initial Purchaser shall furnish to that purchaser a copy of the Offering
Memorandum (including any amendment or supplement thereto that the Company shall
have furnished to the Initial Purchaser prior to the date of such confirmation
of sale). In addition to the foregoing, the Initial Purchaser acknowledges,
agrees and understands that the Company and, for purposes of the opinions to be
delivered to the Initial Purchaser pursuant to Sections 5(d) and (e), counsel
for the Company and for the Initial Purchaser, respectively, may rely upon the
accuracy of the representations and warranties of the Initial Purchaser and its
compliance with its agreements contained in this Section 2, and the Initial
Purchaser hereby consents to such reliance.
(c) The Company acknowledges and agrees that the Initial Purchaser
may sell Securities to any affiliate of the Initial Purchaser and that any such
affiliate may sell Securities purchased by it to the Initial Purchaser, to the
extent such sales are in compliance with the covenants, and do not conflict with
the representations and warranties, of the Initial Purchaser in this Section 2.
3. DELIVERY OF AND PAYMENT FOR THE SECURITIES. (a) Delivery of and
payment for the Securities shall be made at the offices of Xxxx, Weiss, Rifkind,
Xxxxxxx & Xxxxxxxx, New York, New York, or at such other place as shall be
agreed upon by the Initial Purchaser and the Company, at 10:00 A.M., New York
City time, on March 27, 1997, or at such other time or date, not later than
seven full business days thereafter, as shall be agreed upon by the Initial
Purchaser and the Company
13
(such date and time of payment and delivery being referred to herein as the
"CLOSING DATE").
(b) On the Closing Date, payment of the purchase price for the
Securities shall be made to the Company by wire or book-entry transfer of
immediately available same-day funds to such account or accounts as the Company
shall specify prior to the Closing Date or by such other means as the parties
hereto shall agree prior to the Closing Date against delivery to the Initial
Purchaser of the certificates evidencing the Securities. Upon delivery, the
Securities shall be in global form, registered in such names and in such
denominations as the Initial Purchaser shall have requested in writing not less
than two full business days prior to the Closing Date. The Company agrees to
make one or more global certificates evidencing the Securities available for
inspection by the Initial Purchaser in New York, New York at least 24 hours
prior to the Closing Date.
4. FURTHER AGREEMENTS OF THE COMPANY. The Company and each of
the Subsidiary Guarantors agree with the Initial Purchaser:
(a) to advise the Initial Purchaser promptly and, if requested,
confirm such advice in writing, of the happening of any event which makes
any statement of a material fact made in the Offering Memorandum untrue or
which requires the making of any additions (in respect of material
omissions) to or changes in the Offering Memorandum (as amended or
supplemented from time to time) in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; to advise the Initial Purchaser promptly of any order
preventing or suspending the use of the Preliminary Offering Memorandum or
the Offering Memorandum, of any suspension of the qualification of the
Securities for offering or sale in any jurisdiction and of the initiation
or threatening of any proceeding for any such purpose; and to use its
reasonable best efforts to prevent the issuance of any such order
preventing or suspending the use of the Preliminary Offering Memorandum or
the Offering Memorandum or suspending any such qualification and, if any
such suspension is issued, to use its reasonable best efforts to obtain
the lifting thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchaser and counsel
for the Initial Purchaser, without charge, as many copies of the Offering
Memorandum (and any amendments or supplements thereto) as may be
reasonably requested;
(c) prior to making any amendment or supplement to the Offering
Memorandum, to furnish a copy thereof to each of the Initial Purchaser and
counsel for the Initial Purchaser and not to effect any such amendment or
supplement to which the Initial Purchaser shall reasonably object by
notice to the Company after a reasonable period to review;
(d) if, at any time prior to completion of the resale of the
Securities by the Initial Purchaser, any event shall occur or condition
exist as a result of which it is necessary to amend or supplement the
Offering Memorandum in
14
order that the Offering Memorandum 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 existing at
the time it is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Offering Memorandum to comply with
applicable law, to promptly prepare such amendment or supplement as may be
necessary to correct such untrue statement or omission or so that the
Offering Memorandum, as so amended or supplemented, will comply with
applicable law;
(e) for so long as the Securities are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, to furnish to sellers or prospective sellers of the
Securities and prospective purchasers of the Securities designated by such
sellers or prospective sellers, upon request of such sellers or
prospective sellers or such prospective purchasers, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities
Act, unless the Company is then subject to and in compliance with Section
13 or 15(d) of the Exchange Act (the foregoing agreement being for the
benefit of the holders from time to time of the Securities that are
prospective sellers of the Securities and prospective purchasers of the
Securities designated by such holders);
(f) during the three-year period following the Closing Date, if the
Securities are then outstanding, to furnish to the Initial Purchaser
copies of any annual reports, quarterly reports and current reports filed
by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such
other similar forms as may be designated by the Commission, and such other
documents, reports and information as shall be furnished by the Company to
the Trustee or to the holders of the Securities pursuant to the Indenture
or the Exchange Act or any rule or regulation of the Commission
thereunder;
(g) to promptly take from time to time such actions as the Initial
Purchaser may reasonably request to qualify the Securities for offering
and sale under the securities or Blue Sky laws of such jurisdictions as
the Initial Purchaser may designate and to continue such qualifications in
effect for so long as required for the resale of the Securities; and to
arrange for the determination of the eligibility for investment of the
Securities under the laws of such jurisdictions as the Initial Purchaser
may reasonably request; PROVIDED that the Company and its subsidiaries
shall not be obligated to qualify as foreign corporations in any
jurisdiction in which they are not so qualified, to file a general consent
to service of process in any jurisdiction or to subject itself to taxation
in excess of a nominal dollar amount in any jurisdiction where it is not
so subject;
(h) to assist the Initial Purchaser in arranging for the Securities
to be designated Private Offerings, Resales and Trading through Automated
Linkages ("PORTAL") Market securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers,
Inc. ("NASD") relating to trading in the PORTAL Market and for the
Securities to
15
be eligible for clearance and settlement through the Depository Trust
Company ("DTC");
(i) not to, and to use its reasonable best efforts to cause its
affiliates not to, sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as such term is defined in
the Securities Act) which could be integrated with the sale of the
Securities in a manner which would require registration of the Securities
under the Securities Act;
(j) except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case
may be, not to, and to use its reasonable best efforts to cause its
affiliates not to, and not to authorize or knowingly permit any person
acting on their behalf to, solicit any offer to buy or offer to sell the
Securities by means of any form of general solicitation or general
advertising within the meaning of Regulation D or in any manner involving
a public offering within the meaning of Section 4(2) of the Securities
Act; and not to offer, sell, contract to sell or otherwise dispose of,
directly or indirectly, any securities under circumstances where such
offer, sale, contract or disposition would cause the exemption afforded by
Section 4(2) of the Securities Act to cease to be applicable to the
offering and sale of the Securities as contemplated by this Agreement and
the Offering Memorandum;
(k) for a period of 180 days from the date of the Offering
Memorandum, not to offer for sale, sell, contract to sell or otherwise
dispose of, directly or indirectly, or file a registration statement for,
or announce any offer, sale, contract for sale of or other disposition of
any debt securities issued or guaranteed by the Company or any of its
subsidiaries (other than the Securities or Exchange Securities; it being
understood that, for the purposes of this Section 4(k), the term debt
securities does not include: (i) indebtedness incurred pursuant to the
Credit Facilities, (ii) indebtedness incurred under any other term,
revolving credit or bank facility provided by banks or bank syndicates,
(iii) the Senior Notes, (iv) any other senior indebtedness incurred by the
Company pursuant to a private placement transaction (but not pursuant to
Rule 144A) or (v) indebtedness issued to Operators, Franchisee-Owners or
third-party sellers in connection with the termination of TravelCenter
leases or the acquisition by the Company of travel centers, as the case
may be, whether or not, in each case, evidenced by a note) without the
prior written consent of the Initial Purchaser (which consent shall not be
unreasonably withheld);
(l) during the period from the Closing Date until two years after
the Closing Date, without the prior written consent of the Initial
Purchaser, not to, and not permit any of its affiliates (as defined in
Rule 144 under the Securities Act) to, resell any of the Securities that
have been reacquired by them, except for Securities purchased by the
Company or any of its affiliates and resold in a transaction registered
under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or
become, or be or become owned by, an open-end investment company, unit
investment
16
trust or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act, and to not be or
become, or be or become owned by, a closed-end investment company required
to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until the
Initial Purchaser shall have notified the Company of the completion of the
resale of the Securities, not to, and to use its reasonable best efforts
to cause its affiliated purchasers (as defined in Rule 100 of Regulation M
under the Exchange Act) not to, directly or indirectly, either alone or
with one or more other persons, bid for, purchase, or attempt to induce
any person to bid for or purchase, a covered security during the
applicable restricted period;
(o) in connection with the offering of the Securities, to make its
officers, employees, independent accountants and legal counsel reasonably
available upon request by the Initial Purchaser;
(p) to furnish to the Initial Purchaser on the date hereof a copy of
the independent accountants' report included in the Offering Memorandum
signed by the accountants rendering such report;
(q) to do and perform all things required to be done and performed
by it under this Agreement that are within its control prior to or after
the Closing Date, and to use its reasonable best efforts to satisfy all
conditions precedent on its part to the delivery of the Securities;
(r) except as contemplated by or disclosed in the Offering
Memorandum, including, without limitation, the consummation of the
Transactions, to not take any action prior to the execution and delivery
of the Indenture which, if taken after such execution and delivery, would
have violated any of the covenants contained in the Indenture;
(s) to not take any action prior to the Closing Date which would
require the Offering Memorandum to be amended or supplemented pursuant to
Section 4(d);
(t) prior to the Closing Date, not to issue any press release or
other communication to the general public directly or indirectly or hold
any press conference with respect to the Company, its financial condition
or earnings or other results of operations or business prospects (except
for marketing communications in the ordinary course of business), without
the prior written consent of the Initial Purchaser, unless in the judgment
of the Company and its counsel, and after notification to the Initial
Purchaser, such press release or communication is required by law or
failure to issue such press release or communication could reasonably be
expected to have a Material Adverse Effect; and
(u) to apply the net proceeds from the sale of the Securities as
set forth in the Offering Memorandum under the heading "Use of Proceeds."
17
Notwithstanding any provision of Sections 4(a) or 4(d) to the
contrary, the Company's obligations under Sections 4(a) and 4(d) shall terminate
on the earliest to occur of (i) 180 days after the Closing Date, (ii) the
effective date of an Exchange Offer Registration Statement pursuant to the
Registration Rights Agreement, (iii) the effective date of a Shelf Registration
Statement pursuant to the Registration Rights Agreement and (iv) the date upon
which the Initial Purchaser and its affiliates cease to hold Securities acquired
as part of the initial distribution, the occurrence of which the Initial
Purchaser shall promptly notify the Company and the Subsidiary Guarantors.
5. CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS. The respective
obligations of the Initial Purchaser hereunder are subject to the accuracy in
all material respects, on and as of the date hereof and the Closing Date, of the
representations and warranties of the Company and the Subsidiary Guarantors
contained herein, to the accuracy in all material respects of the statements of
the Company and its Subsidiary Guarantors and their officers made in any
certificates delivered pursuant hereto, to the performance in all material
respects by the Company and the Subsidiary Guarantors of their obligations
hereunder, and to each of the following additional terms and conditions:
(a) The Offering Memorandum (including any amendments or supplements
thereto) shall have been printed and copies distributed to the Initial
Purchaser as promptly as practicable on or following the date of this
Agreement or at such other date and time as to which the Initial Purchaser
may agree; and no stop order suspending the sale of the Securities in any
ju risdiction shall have been issued and no proceeding for that purpose
shall have been commenced or shall be pending or threatened.
(b) On the date thereof, the Offering Memorandum did not and on the
Closing Date the Offering Memorandum shall not 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, in light of the
circumstances under which they were made, not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of each of the Transaction Documents
and the Offering Memorandum, and all other legal matters relating to the
Transaction Documents and the transactions contemplated thereby, shall be
reasonably satisfactory in all material respects to the Initial Purchaser,
and the Company shall have furnished to the Initial Purchaser all
documents and information that they or their counsel may reasonably
request to enable them to pass upon such matters.
(d) each of Xxxx, Weiss, Rifkind, Xxxxxxx & Garrison, Calfee, Halter
& Xxxxxxxx and Xxxxx X. Xxxxxxxxxx, Esq. shall have furnished to the
Initial Purchaser their written opinions, as counsel or special counsel to
the Company, addressed to the Initial Purchaser and dated the Closing
Date, substantially to the effect set forth in Annex X-0, Xxxxx X-0 and
Annex B-3 hereto, respectively.
18
(e) The Initial Purchaser shall have received from Xxxxxxx Xxxxxx &
Xxxxx, counsel for the Initial Purchaser, such opinion or opinions, dated
the Closing Date, with respect to such matters as the Initial Purchaser
may reasonably require, and the Company shall have furnished to such
counsel such documents and information as they reasonably request for the
purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Initial Purchaser a
letter (the "INITIAL LETTER") of Price Waterhouse LLP, addressed to the
Initial Purchaser and dated the date hereof, substantially to the effect
set forth in Annex C hereto.
(g) The Company shall have furnished to the Initial Purchaser a
letter (the "BRING-DOWN LETTER") of Price Waterhouse LLP, addressed to the
Initial Purchaser and dated the Closing Date (i) confirming that they are
independent public accountants with respect to the Company and its
subsidiaries within the meaning of Rule 101 of the Code of Professional
Conduct of the AICPA and its interpretations and rulings thereunder, (ii)
stating, as of the date of the Bring-Down Letter (or, with respect to
matters involving changes or developments since the respective dates as of
which specified financial information is given in the Offering Memorandum,
as of a date not more than three business days prior to the date of the
Bring-Down Letter), that the conclusions and findings of such accountants
with respect to the financial information and other matters covered by the
Initial Letter are accurate in all material respects and (iii) confirming
in all material respects the conclusions and findings set forth in the
Initial Letter.
(h) The Company and the Subsidiary Guarantors shall have furnished
to the Initial Purchaser a certificate, dated the Closing Date, executed
by its chief executive officer and its chief financial officer, in such
capacities and on behalf of the Company and the Subsidiary Guarantors and
stating that (A) such officers have carefully examined the Offering
Memorandum, (B) to such officers' knowledge, the Offering Memorandum, as
of its date, did not include any untrue statement of a material fact and
did not omit to state 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 since the
date of the Offering Memorandum, no event has occurred which should have
been set forth in a supplement or amendment to the Offering Memorandum so
that the Offering Memorandum (as so amended or supplemented) would not
include any untrue statement of a material fact and would not omit to
state 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 (C) to such officers' knowledge
as of the Closing Date, the representations and warranties of the Company
in this Agreement are true and correct in all material respects, the
Company has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder on or prior to the Closing Date, and subsequent to the date of
the most recent financial statements contained in the Offering Memorandum,
there has been no
19
event or development that could reasonably be expected to result in a
Material Adverse Effect.
(i) The Initial Purchaser shall have received a counterpart of the
Registration Rights Agreement which shall have been executed and delivered
by a duly authorized officer of the Company and by a duly authorized
officer of each of the Subsidiary Guarantors.
(j) The Indenture shall have been duly executed and delivered by the
Company, each of the Subsidiary Guarantors and the Trustee, and the
Securities shall have been duly executed and delivered by the Company and
duly authenticated by the Trustee.
(k) The Securities shall have been approved by the NASD for trading
in the PORTAL Market.
(l) If any event shall have occurred that requires the Company under
Section 4(d) to prepare an amendment or supplement to the Offering
Memorandum, such amendment or supplement shall have been prepared, the
Initial Purchaser shall have been given a reasonable opportunity to
comment thereon, and copies thereof shall have been delivered to the
Initial Purchaser.
(m) (i) The Company and each of the Subsidiary Guarantors shall have
entered into the Credit Facilities and agreements relating to the exchange
of the Senior Notes for the Existing Senior Notes and (ii) the
Transactions shall have been consummated or will be consummated
contemporaneously with the offering of the Securities in each case
substantially on the terms described in the Offering Memorandum.
(n) There shall not have occurred any invalidation of Rule 144A
under the Securities Act by any court or any withdrawal or proposed
withdrawal of any rule or regulation under the Securities Act or the
Exchange Act by the Commission or any amendment or proposed amendment
thereof by the Commission which in the reasonable judgment of the Initial
Purchaser would materially impair the ability of the Initial Purchaser to
purchase, hold or effect resales of the Securities as contemplated hereby.
(o) Subsequent to the execution and delivery of this Agreement or,
if earlier, the dates as of which information is given in the Offering
Memorandum (exclusive of any amendment or supplement thereto), there shall
not have been any change in the capital stock or long-term debt or any
change, event or development that would reasonably be expected to result
in a Material Adverse Effect, the effect of which is, in the reasonable
judgment of the Initial Purchaser, so material and adverse as to make it
impracticable to proceed with the sale or delivery of the Securities on
the terms and in the manner contemplated by this Agreement and the
Offering Memorandum (exclusive of any amendment or supplement thereto).
20
(p) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance
or sale of the Securities; and no injunction, restraining order or order
of any other nature by any federal or state court of competent
jurisdiction shall have been issued as of the Closing Date which would
prevent the issuance or sale of the Securi ties.
(q) Subsequent to the execution and delivery of this Agreement (i)
no downgrading shall have occurred in the rating accorded the Securities
or any of the Company's other debt securities or preferred stock by
Xxxxx'x Investors Service, Inc. or Standard & Poor's Ratings Services and
(ii) neither such organization shall have publicly announced that it has
under surveillance or review (other than an announcement with positive
implications of a possible upgrading), its rating of the Securities or any
of the Company's other debt securities or preferred stock.
(r) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or
the over-the-counter market shall have been suspended or limited, or
minimum prices shall have been established on any such exchange or market
by the Commission, by any such exchange or by any other regulatory body or
governmental authority having jurisdiction, or trading in any securities
of the Company on any exchange or in the over-the-counter market shall
have been suspended or (ii) any moratorium on commercial banking
activities shall have been declared by federal or New York state
authorities or (iii) an outbreak or escalation of hostilities or a
declaration by the United States of a national emergency or war or (iv) a
material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) the effect of which, in the
case of this clause (iv), is, in the reasonable judgment of the Initial
Purchaser, so material and adverse as to make it impracticable to proceed
with the sale or the delivery of the Securities on the terms and in the
manner contemplated by this Agreement and in the Offering Memorandum
(exclusive of any amendment or supplement thereto).
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchaser. Such opinions, letters, evidence and
certificates shall be deemed so satisfactory if they are substantially in the
form of the appropriate annex or exhibit to this Agreement.
6. TERMINATION. The obligations of the Initial Purchaser hereunder
may be terminated by the Initial Purchaser, in its absolute discretion, by
notice given to and received by the Company prior to delivery of and payment for
the Securities if, prior to that time, any of the events described in Section
5(n), (o), (p), (q) or (r) shall have occurred and be continuing.
21
7. REIMBURSEMENT OF INITIAL PURCHASER'S EXPENSES. If (a) this
Agreement shall have been terminated pursuant to Section 6 (other than in
respect of paragraphs (n), (p) or (r) of Section 5), (b) the Company shall fail
to tender the Securities for delivery to the Initial Purchaser for any reason
permitted under this Agreement (other than a breach of this Agreement by the
Initial Purchaser) or (c) the Initial Purchaser shall decline to purchase the
Securities for any reason permitted under this Agreement (other than as a result
of a termination of this Agreement pursuant to Section 6 in respect of
paragraphs (n), (p) or (r) of Section 5), the Company shall reimburse the
Initial Purchaser for such out-of-pocket expenses (including reasonable fees and
disbursements of counsel) as shall have been reasonably incurred by the Initial
Purchaser in connection with this Agreement and the proposed purchase and resale
of the Securities.
8. INDEMNIFICATION. (a) The Company and each of the Subsidiary
Guarantors shall jointly and severally indemnify and hold harmless the Initial
Purchaser, its affiliates, its respective officers, directors, employees,
representatives and agents, and each person, if any, who controls the Initial
Purchaser within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 8(a) and Section 9 as an
Initial Purchaser), 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 the
Securities), to which the Initial Purchaser 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 the Preliminary Offering Memorandum or the Offering Memorandum
or in any information provided by the Company pursuant to Section 4(e) 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 the Initial Purchaser for any legal or other expenses reasonably
incurred by the Initial Purchaser (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 the Initial Purchaser's Information; and
PROVIDED, FURTHER, that with respect to any such untrue statement in or omission
from the Preliminary Offering Memorandum, the indemnity agreement contained in
this Section 8(a) shall not inure to the benefit of the Initial Purchaser to the
extent that the sale to the person asserting any such loss, claim, damage,
liability or action was an initial resale by the Initial Purchaser and any such
loss, claim, damage, liability or action of or with respect to the Initial
Purchaser results from the fact that both (A) a copy of the Offering Memorandum
was not sent or given to such person at or prior to the written confirmation of
the sale of such Securities to such person and (B) the untrue statement in or
omission from the Preliminary Offering
22
Memorandum was corrected in the Offering Memorandum unless, in either case, such
failure to deliver the Offering Memorandum was a result of non-compliance by the
Company with Section 4(b).
(b) The Initial Purchaser, shall indemnify and hold harmless the
Company, its affiliates, their respective officers, directors, employees,
representatives and agents, and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act (collectively
referred to for purposes of this Section 8(b) and Section 9 as the Company),
from and against any loss, claim, damage or liability, joint or several, or any
action in respect 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 the Preliminary Offering Memorandum or the Offering Memorandum
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 Initial Purchaser's Information, and shall
reimburse the Company for any legal or other expenses reasonably incurred by the
Company (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.
(c) Promptly after receipt by an indemnified party under this
Section 8 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 8(a) or 8(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 8 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 8. 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 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 8 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than 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
23
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.
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, or for fees or expenses that
are not reasonable. Each indemnified party, as a condition of the indemnity
agreements contained in Sections 8(a) and 8(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 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
reasonably or could have been a party and indemnity reasonably could 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.
The obligations of the Company and the Initial Purchaser in this
Section 8 and in Section 9 are in addition to any other liability that the
Company or the Initial Purchaser, as the case may be, may otherwise have,
including in respect of any breaches of representations, warranties and
agreements made herein by any such party.
9. CONTRIBUTION. If the indemnification provided for in Section 8 is
unavailable or insufficient to hold harmless an indemnified party under Section
8(a) or 8(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, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Initial Purchaser on
the other from the offering of the Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on
24
the one hand and the Initial Purchaser on the other with respect to the
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 benefits received by the Company on the one hand
and the Initial Purchaser on the other with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Securities purchased under this Agreement (before deducting expenses)
received by or on behalf of the Company, on the one hand, and the total
discounts and commissions received by the Initial Purchaser with respect to the
Securities purchased under this Agreement, on the other, bear to the total gross
proceeds from the sale of the Securities under this Agreement, in each case as
set forth in the table on the cover page of the Offering Memorandum. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to the Company or information
supplied by the Company on the one hand or to the Initial Purchaser's
Information on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company, the Subsidiary Guarantors and the
Initial Purchaser agree that it would not be just and equitable if contributions
pursuant to this Section 9 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 9 shall be deemed to include, for
purposes of this Section 9, 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 9, the Initial Purchaser shall not be required to contribute any
amount in excess of the amount by which the total discounts and commissions
received by the Initial Purchaser with respect to the Securities purchased by it
under this Agreement exceeds the amount of any damages which the Initial
Purchaser 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 or a breach of a representation or warranty set forth in this Agreement. 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.
10. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchaser, the Company,
each of the Subsidiary Guarantors and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except as provided in Sections 8 and 9 with respect to
affiliates, officers, directors, employees, representatives, agents and
controlling persons of the Company and the Initial Purchaser and in Section 4(e)
with respect to holders and prospective purchasers of the Securities. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 10, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
25
11. EXPENSES. The Company agrees with the Initial Purchaser to pay
(a) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Securities and any taxes payable in that connection; (b) the
costs incident to the preparation, printing and distribution of the Preliminary
Offering Memorandum, the Offering Memorandum (including any amendments or
supplements thereto); (c) the costs of reproducing and distributing each of the
Transaction Documents; (d) the costs incident to the preparation, printing and
delivery of the certificates evidencing the Securities, including stamp duties
and transfer taxes, if any, payable upon issuance of the Securities to the
Initial Purchaser; (e) the fees and expenses of the Company's counsel and
independent accountants; (f) the fees and expenses of qualifying the Securities
under the securities laws of the several jurisdictions as provided in Section
4(h) and of preparing, printing and distributing Blue Sky Memoranda (including
related fees and expenses of counsel for the Initial Purchaser); (g) any fees
charged by rating agencies for rating the Securities; (h) the fees and expenses
of the Trustee and any paying agent (including related fees and expenses of any
counsel to such parties); (i) all expenses and application fees incurred in
connection with the application for the inclusion of the Securities on the
PORTAL Market and the approval of the Securities for book-entry transfer by DTC;
and (j) all other costs and expenses incident to the performance of the
obligations of the Company under this Agreement which are not otherwise
specifically provided for in this Section 11; PROVIDED, HOWEVER, that, except as
otherwise provided in this Section 11 and Section 7, the Initial Purchaser shall
pay its own costs and expenses including, without limitation, the costs of
travel and lodging, 50% of the costs of chartering aircraft in connection with
the roadshow, the costs and expenses of its counsel, any transfer taxes payable
by it on the Securities which it may sell and the expenses of advertising any
offering of the Securities made by the Initial Purchaser.
12. SURVIVAL. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, the Subsidiary
Guarantors and the Initial Purchaser contained in this Agreement or made by or
on behalf of the Company, the Subsidiary Guarantors or the Initial Purchaser
pursuant to this Agreement or any certificate delivered pursuant hereto shall
survive the delivery of and payment for the Securities and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any of them or any of
their respective affiliates, officers, directors, employees, representatives,
agents or controlling persons.
13. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchaser, shall be delivered or sent by mail
or telecopy transmission to Chase Securities Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xx. Xxxxxx X. Xxxxxx (telecopier no.:
(000) 000-0000); or
26
(b) if to the Company, shall be delivered or sent by mail or
telecopy transmission to the address of the Company set forth in the
Offering Memorandum,
00000 Xxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxxxx
(telecopier no.: (000) 000-0000)
With a copy to:
The Clipper Group, L.P.
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxx
Rowan X.X. Xxxxxx
(telecopier no.: (000) 000-0000)
Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof.
PROVIDED that any notice to the Initial Purchaser pursuant to Section 8(c) shall
also be delivered or sent by mail to the Initial Purchaser at its address set
forth on the signature page hereof. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof.
14. 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.
15. INITIAL PURCHASER'S INFORMATION. The parties hereto acknowledge
and agree that the Initial Purchaser's Information consists solely of the
following information in the Preliminary Offering Memorandum and the Offering
Memorandum: (i) the last paragraph on the front cover page concerning the terms
of the offering by the Initial Purchaser; (ii) the legend on the inside front
cover page concerning over-allotment and trading activities by the Initial
Purchaser; and (iii) the statements concerning the Initial Purchaser contained
in the third, fourth and sixth paragraphs under the heading "Plan of
Distribution".
16. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an
27
original, but all such counterparts shall together constitute one and the same
instrument.
18. AMENDMENTS. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
19. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among the Company, the Subsidiary
Guarantors and the Initial Purchaser in accordance with its terms.
Very truly yours,
TRAVELCENTERS OF AMERICA, INC.
By /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and
Assistant Secretary
TA OPERATING CORPORATION
By /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and
Assistant Secretary
NATIONAL AUTO/TRUCKSTOPS, INC.
By /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and
Assistant Secretary
Accepted:
CHASE SECURITIES INC.
By /s/ Xxxxx X. Xxxxx
---------------------------------
Authorized Signatory
Xxxxx X. Xxxxx
28
Address for notices pursuant to Section 8(c):
0 Xxxxx Xxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
