Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Travelcenters of America, Inc. 226 1.24M
2: EX-1.1 Purchase Agreement 21 106K
3: EX-2.2 Amend. #1 to Recapitalization Agreement 7 37K
4: EX-3.1 Amended and Restated Certificate of Incorporation 4 22K
11: EX-3.10 By-Laws 10 42K
12: EX-3.11 Certificate of Formation 1 12K
13: EX-3.12 Operating Agreement 10 41K
5: EX-3.2 By-Laws 3 19K
6: EX-3.5 Amended & Restated Certificate of Incorporation 2 17K
7: EX-3.6 By-Laws 12 44K
8: EX-3.7 Certificate of Limited Partnership 1 13K
9: EX-3.8 Agreement of Limited Partnership 44 168K
10: EX-3.9 Certificate of Incorporation 2 15K
14: EX-4.1 Indenture 156 473K
15: EX-4.3 Exchange and Registration Rights Agreement 20 101K
16: EX-5.1 Opinion of Simpson Thacher & Bartlett 4 19K
17: EX-10.1 Amended and Restated Credit Agreement 121 525K
22: EX-10.10 Employment Agreement 28 74K
23: EX-10.11 Employment Agreement 28 73K
24: EX-10.12 Amendment No. 1 to Employment Agreement 3 17K
25: EX-10.13 Amendment No. 1 to Employment Agreement 3 17K
26: EX-10.14 Amendment No. 1 to Employment Agreement 3 17K
27: EX-10.15 Amendment #1 to Employment Agreement 3 17K
18: EX-10.2 Stockholders Agreement 33 144K
28: EX-10.20 Warrant Agreement 62 199K
29: EX-10.21 Contingent Warrant Agreement 10 38K
19: EX-10.4 Amendment #1 to Operating Agreement 3 19K
20: EX-10.8 Employment Agreement 28 74K
21: EX-10.9 Employment Agreement 28 74K
30: EX-12.1 Computation of Ratio of Earnings to Fixed Charges 2± 17K
31: EX-21.1 Subsidiaries of Registrants 1 12K
32: EX-23.2 Consent of Pricewaterhousecoopers LLP 1 12K
33: EX-25.1 Form T-1 6 31K
34: EX-99.1 Form of Letter of Transmittal 14 76K
35: EX-99.2 Form of Notice of Guaranteed Delivery 3 20K
EX-1.1 — Purchase Agreement
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Exhibit 1.1
TRAVELCENTERS OF AMERICA, INC.
190,000 UNITS
CONSISTING OF
$190,000,000 PRINCIPAL AMOUNT OF
12 3/4% SENIOR SUBORDINATED NOTES DUE MAY 1, 2009
AND INITIAL WARRANTS TO PURCHASE
207,874 SHARES OF COMMON STOCK
AND CONTINGENT WARRANTS TO PURCHASE
69,291 SHARES OF COMMON STOCK
PURCHASE AGREEMENT
November 9, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION
CHASE SECURITIES INC.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. TravelCenters of America, Inc., a Delaware corporation
(the "COMPANY"), proposes, subject to the terms and conditions stated herein, to
issue and sell to Credit Suisse First Boston Corporation ("CSFBC"), Chase
Securities Inc. and Donaldson, Lufkin & Jenrette Securities Corporation (the
"PURCHASERS") 190,000 units (the "UNITS"), each Unit consisting of one of the
Company's 12 3/4% Senior Subordinated Notes Due May 1, 2009 (the "NOTES") in a
principal amount of $1,000 and three initial warrants (each, an "INITIAL
WARRANT") each to purchase approximately 0.36469 shares of common stock, par
value $.00001 per share, of the Company ("COMMON STOCK") and one contingent
warrant (a "CONTINGENT WARRANT") to purchase approximately 0.36469 shares of
Common Stock upon the occurrence of certain events (the Contingent Warrants and
the Initial Warrants are collectively referred to herein as the "WARRANTS"). The
Notes will be issued under an indenture, dated as of November 14, 2000 (the
"INDENTURE"), among the Company, TA Operating Corporation, TA Travel, L.L.C., TA
Licensing, Inc., TravelCenters Realty, Inc. and TravelCenters Properties, L.P.
(collectively, the "GUARANTORS") and State Street Bank and Trust Company, as
Trustee (the "TRUSTEE"). The Warrants will be issued under a warrant agreement,
dated as of November 14, 2000 (the "WARRANT AGREEMENT"), between the Company and
State Street Bank and Trust Company, as warrant agent (the "WARRANT AGENT"). The
Contingent Warrants will be placed in escrow pursuant to a warrant escrow
agreement dated as of November 14, 2000 (the "WARRANT
ESCROW AGREEMENT"). The Units, the Notes and the Warrants are collectively
referred to herein as the "OFFERED SECURITIES." The United States Securities Act
of 1933 is herein referred to as the "SECURITIES ACT."
The Company and the Guarantors jointly and severally agree with the
several Purchasers as follows:
2. Representations and Warranties of the Company and the Guarantors.
The Company and the Guarantors represent and warrant to, and agree with, the
several Purchasers that:
(a) A preliminary offering circular dated October 19, 2000
(the "PRELIMINARY OFFERING CIRCULAR") and an offering circular dated
the date hereof (the "OFFERING CIRCULAR") relating to the Offered
Securities to be offered by the Purchasers have been prepared by the
Company. Such Preliminary Offering Circular and Offering Circular, as
supplemented as of the date of this Agreement, together with any other
document approved by the Company for use in connection with the
contemplated resale of the Offered Securities are hereinafter
collectively referred to as the "OFFERING DOCUMENT". On the date of
this Agreement, the Offering Document does not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Offering
Document based upon written information furnished to the Company by any
Purchaser through CSFBC specifically for use therein, it being
understood and agreed that the only such information is that described
as such in Section 7(b) hereof. Except as disclosed in the Offering
Document, on the date of this Agreement, the Company's Annual Report on
Form 10-K most recently filed with the Securities and Exchange
Commission (the "COMMISSION") and all subsequent reports (collectively,
the "EXCHANGE ACT REPORTS") which have been filed by the Company with
the Commission or sent to shareholders pursuant to the Securities
Exchange Act of 1934 (the "EXCHANGE ACT") do not include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such
documents, when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Offering Document; and the Company
does not own or lease property or conduct its business in any other
state, local or foreign jurisdiction in a manner that would require it
to be qualified to do business in such other jurisdiction.
(c) Each Guarantor that guarantees the obligations of the
Company under the Offered Securities pursuant to a guarantee (a
"GUARANTEE") has been duly incorporated or organized, as the case may
be, and is an existing corporation, limited liability company or
limited partnership, as the case may be, in good standing under the
laws of the State of Delaware, with power and authority (corporate or
other) to own its properties and conduct its business as described in
the Offering Document; and each Guarantor is duly qualified to do
business as a foreign corporation, limited liability company or limited
partnership, as the case may be, in good standing in all other
jurisdictions in which its ownership or leasing of property or the
conduct of its business requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on the condition (financial or
other), business, properties or results of operations of the Company
and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT");
all of the issued and outstanding capital stock, ownership interests or
partnership interests, as the case may be, of each Guarantor has been
duly authorized and validly issued and, in the case of capital stock,
is fully paid and nonassessable; and the capital stock or ownership
interests, as the case may be, of each subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens,
encumbrances and defects, except as disclosed in the Offering Document.
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(d) On the Closing Date (as defined below), the Indenture
shall have been duly authorized by the Company and each of the
Guarantors; the Notes shall have been duly authorized by the Company;
the Guarantees shall have been duly authorized by each Guarantor; and
when the Notes are delivered and paid for pursuant to this Agreement on
the Closing Date, the Indenture will have been duly executed and
delivered (assuming due authorization and delivery by the Trustee),
such Notes will have been duly executed, authenticated, issued and
delivered (assuming authentication by the Trustee in accordance with
the provisions of the Indenture) and will conform to the description
thereof contained in the Offering Document and the Indenture and such
Notes will constitute valid and legally binding obligations of the
Company and the Guarantors, enforceable in accordance with their terms,
subject to (i) the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, (ii) general equitable
principles (whether considered in a proceeding in equity or at law) and
(iii) an implied covenant of good faith and fair dealing.
(e) On the Closing Date, the Units shall have been authorized
by the Company. When the Units are delivered and paid for in accordance
with the terms of this Agreement on the Closing Date, the Units will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms subject to (i) the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, (ii) general equitable principles (whether considered
in a proceeding in equity or at law) and (iii) an implied covenant of
good faith and fair dealing.
(f) The Warrants delivered on the Closing Date are convertible
into shares of Common Stock in accordance with the terms of the Warrant
Agreement; on the Closing Date, the Contingent Warrants will be placed
in escrow pursuant to the Warrant Escrow Agreement; the shares of
Common Stock initially issuable upon exercise of the Warrants shall
have been duly authorized and reserved for issuance upon such exercise
and, when issued upon such exercise, will be validly issued, fully paid
and nonassessable; the outstanding shares of Common Stock have been
duly authorized and validly issued, are fully paid and nonassessable
and conform in all material respects to the description thereof
contained in the Offering Circular; and the stockholders of the Company
have no preemptive rights with respect to the Warrants or the shares of
Common Stock, except as disclosed in the Offering Circular.
(g) On the Closing Date, the Warrant Agreement shall have been
duly authorized by the Company; and when the Warrants are delivered and
paid for pursuant to this Agreement on the Closing Date, the Warrant
Agreement will have been duly executed and delivered by the Company,
such Warrants will conform to the description thereof contained in the
Offering Document and the Warrant Agreement and the Warrants will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to (i) the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, (ii) general equitable principles (whether considered
in a proceeding in equity or at law) and (iii) an implied covenant of
good faith and fair dealing.
(h) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company or any of
its subsidiaries and any person that would give rise to a valid claim
against the Company, its subsidiaries or any Purchaser for a brokerage
commission, finder's fee or other like payment in connection with the
Offered Securities.
(i) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this Agreement
and the Registration Rights Agreement dated the date hereof, between
the Company and the Purchasers (the "REGISTRATION RIGHTS AGREEMENT") in
connection with the issuance and sale of the Offered Securities by the
Company except as may be required under the Securities Act, the
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Trust Indenture Act of 1939, as amended (the "TIA"), and the rules and
regulations of the Commission thereunder with respect to the Exchange
Offer Registration Statement or the Shelf Registration Statement (each
as defined in the Registration Rights Agreement) and the transactions
contemplated by the Registration Rights Agreement, or any state or
foreign securities laws or by the regulations of the National
Association of Securities Dealers, Inc. (the "NASD").
(j) Assuming the accuracy of the representations and the
performance of the agreements of the Purchasers contained herein, the
execution, delivery and performance of the Indenture, the Warrant
Agreement, this Agreement and the Registration Rights Agreement, and
the issuance and sale of the Offered Securities to the Purchasers in
the manner contemplated herein and compliance with the terms and
provisions thereof by the Company or any Guarantor will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, (i) any statute, rule or regulation or
order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any subsidiary of the
Company or any of their properties, (ii) any agreement or instrument to
which the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject or (iii)
the charter or by-laws (or similar organizational document) of the
Company or any such subsidiary (except, in the case of clauses (i) and
(ii), where such breach, violation or default would not, individually
or in the aggregate, have a Material Adverse Effect), and the Company
has full power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement.
(k) On the Closing Date, this Agreement and the Registration
Rights Agreement shall have been duly authorized, executed and
delivered by the Company and, in the case of this Agreement, by each of
the Guarantors.
(l) Except as disclosed in the Offering Document, the Company
and its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each
case free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or
to be made thereof by them; and except as disclosed in the Offering
Document, the Company and its subsidiaries hold any leased real or
personal property under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to be made thereof
by them.
(m) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(n) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
would reasonably be expected to have a Material Adverse Effect.
(o) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the business now
operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
4
(p) Except as disclosed in the Offering Document, neither the
Company nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates
any real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not aware
of any pending investigation which might lead to such a claim.
(q) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under the Indenture, this Agreement, or the
Registration Rights Agreement, or which are otherwise material in the
context of the sale of the Offered Securities; and no such actions,
suits or proceedings are, to the Company's knowledge, threatened or
contemplated.
(r) The financial statements included in the Offering Document
present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and, except as
otherwise disclosed in the Offering Document, such financial statements
have been prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis; and the
assumptions used in preparing the pro forma financial statements
included in the Offering Document provide a reasonable basis for
presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
(s) Except as disclosed in the Offering Document, since the
date of the latest audited financial statements included in the
Offering Document, there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as a whole,
and, except as disclosed in or contemplated by the Offering Document,
there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(t) The Company is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the United States
Investment Company Act of 1940 (the "INVESTMENT COMPANY ACT"); and the
Company is not and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as
described in the Offering Document, will not be an "investment company"
as defined in the Investment Company Act.
(u) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Offered Securities are
listed on any national securities exchange registered under Section 6
of the United States Securities Exchange Act of 1934 or quoted in a
U.S. automated inter-dealer quotation system.
(v) Assuming the accuracy of the representations and the
performance of the agreements by the Purchasers contained herein, the
offer and sale of the Offered Securities in the manner
5
contemplated by this Agreement will be exempt from the registration
requirements of the Securities Act by reason of Section 4(2) thereof
and Regulation S thereunder; and it is not necessary to qualify an
indenture in respect of the Notes under the United States Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT").
(w) Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf (i) has, within the six-month
period prior to the date hereof, offered or sold in the United States
or to any U.S. person (as such terms are defined in Regulation S under
the Securities Act) the Offered Securities or any security of the same
class or series as the Offered Securities or (ii) has offered or will
offer or sell the Offered Securities (A) in the United States by means
of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act or (B) with respect to
any such securities sold in reliance on Rule 903 of Regulation S
("REGULATION S") under the Securities Act, by means of any directed
selling efforts within the meaning of Rule 902(c) of Regulation S. The
Company, its affiliates and any person acting on its or their behalf
have complied and will comply with the offering restrictions
requirement of Regulation S. Neither the Company nor any of the
Guarantors has entered or will enter into any contractual arrangement
with respect to the distribution of the Offered Securities except for
this Agreement.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of $934.07 per Unit plus accrued interest
(if any) from November 14, 2000 to the Closing Date, the respective number of
Units set forth opposite the names of the several Purchasers in Schedule A
thereto.
The Company will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent global securities in
definitive form (the "GLOBAL SECURITIES") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Securities
will be held only in book- entry form through DTC, except in the limited
circumstances described in the Offering Document. Payment for the Offered
Securities shall be made by the Purchasers in Federal (same day) funds by
official check or checks or wire transfer to an account at a bank acceptable to
CSFBC drawn to the order of TravelCenters of America, Inc., at the office of
Simpson Thacher & Bartlett at 9:30 a.m. New York time, on November 14, 2000, or
at such other time not later than seven full business days thereafter as
CSFBC and the Company determine, such time being herein referred to as the
"CLOSING DATE", against delivery to the Trustee as custodian for DTC of the
Global Securities representing all of the Offered Securities. The Global
Securities will be made available for checking at the above office of Simpson
Thacher & Bartlett at least 24 hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers. (a) Each
Purchaser severally represents and warrants to the Company and to each Guarantor
that it is an "accredited investor" within the meaning of Regulation D under the
Securities Act.
(b) Each Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may
not be offered or sold within the United States or to, or for the
account or benefit of U.S. persons except in accordance with Regulation
S or pursuant to an exemption from the registration requirements of the
Securities Act. Each Purchaser severally represents and agrees that it
has offered and sold the Offered Securities and will offer and sell the
Offered Securities only in accordance with Rule 903 or Rule 144A under
the Securities Act ("RULE 144A"). Accordingly, neither such Purchaser
nor its affiliates, nor any persons acting on its or their behalf, have
engaged or will engage in any directed selling efforts with respect to
the Offered Securities, and such Purchaser, its affiliates and all
persons acting on its or their behalf have complied and will comply
with the offering restrictions requirements of Regulation S and Rule
144A. Each Purchaser agrees that during the one year restricted period
(required by Regulation S), it will
6
not cause any advertisement with respect to the Offered Securities
(including any "tombstone" advertisement) to be published in any
newspaper periodical or posted in any public place and will not issue
any circular relating to the Offered Securities, except such
advertisements or circulars as are permitted by and include statements
required by Regulation S.
(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities
except for any such arrangements with the other Purchasers or
affiliates of the other Purchasers or with the prior written consent of
the Company.
(d) Each Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities in the United
States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act,
including, but not limited to (i) any advertisement, article, notice or
other communication published in any newspaper, magazine or similar
media or broadcast over television or radio, or (ii) any seminar or
meeting whose attendees have been invited by any general solicitation
or general advertising. Each Purchaser severally agrees, with respect
to resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such resale or
otherwise prior to settlement of such resale a notice to the effect
that the resale of such Offered Securities has been made in reliance
upon the exemption from the registration requirements of the Securities
Act provided by Rule 144A.
(e) Each of the Purchasers severally represents and agrees
that (i) it has not offered or sold and prior to the date six months
after the date of issue of the Offered Securities will not offer or
sell any Offered Securities to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services Act 1986 with respect
to anything done by it in relation to the Offered Securities in, from
or otherwise involving the United Kingdom; and (iii) it has only issued
or passed on and will only issue or pass on in the United Kingdom any
document received by it in connection with the issue of the Offered
Securities to a person who is of a kind described in Article 11(3) of
the Financial Services Act 1986 (Investment Advertisements)
(Exemptions) Order 1996 or is a person to whom such document may
otherwise lawfully be issued or passed on.
(f) Each Purchaser agrees that it will not offer, sell or
deliver any of the Offered Securities in any jurisdiction outside of
the United States except under circumstances that will result in
compliance with the applicable laws thereof, and that it will take at
its own expense whatever action is required to permit its purchase and
resale of the Offered Securities in such jurisdiction except for such
costs that the Company has agreed to pay pursuant to this Agreement.
(g) Each Purchaser agrees not to engage in hedging
transactions with respect to the units, warrants or the common stock
underlying the warrants sold in reliance on Regulation S during the one
year restricted period (required by Regulation S) unless in compliance
with the Securities Act.
5. Certain Agreements of the Company. The Company agrees with the
several Purchasers that:
(a) The Company will advise the Purchasers promptly of any
proposal to amend or supplement the Offering Document and will not
effect any such amendment or supplementation without the Purchasers'
consent, which consent shall not be unreasonably withheld or delayed.
If, at any time prior to the completion of the resale of the Offered
Securities by the Purchasers, any event occurs as a result of which the
Offering Document as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the
7
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any such time to
amend or supplement the Offering Document to comply with any applicable
law, the Company promptly will notify the Purchasers of such event and
promptly will prepare, at its own expense, an amendment or supplement
which will correct such statement or omission or effect such
compliance. Neither the Purchasers' consent to, nor the Purchasers'
delivery to offerees or investors of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6.
(b) The Company will furnish to each Purchaser copies of any
Preliminary Offering Circular, the Offering Document and all amendments
and supplements to such documents, in each case as soon as available
and in such quantities as such Purchaser reasonably requests, and the
Company will furnish to CSFBC on the date hereof three copies of the
Offering Document signed by a duly authorized officer of the Company.
At any time when the Company is not subject to Section 13 or 15(d) of
the Exchange Act, the Company will promptly furnish or cause to be
furnished to CSFBC (and, upon request, to each of the other Purchasers)
and, upon request of holders and prospective purchasers of the Offered
Securities, to such holders and purchasers, copies of the information
required to be delivered to holders and prospective purchasers of the
Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto) in order to permit compliance with
Rule 144A in connection with resales by such holders of the Offered
Securities. The Company will pay the expenses of printing and
distributing to the Purchasers all such documents.
(c) The Company will arrange for the qualification of the
Offered Securities for sale and the determination of their eligibility
for investment under the laws of such jurisdictions in the United
States and Canada as the Purchasers designate and will continue such
qualifications in effect so long as required for the resale of the
Offered Securities by the Purchasers; provided, however, that the
Company will not be required to qualify as a foreign corporation or to
file a general consent to service of process or to subject itself to
taxation in respect of doing business in any such state or province
where it is not then so qualified or subject to taxation.
(d) During the period of three years hereafter, the Company
will furnish to CSFBC and, upon request, to each of the other
Purchasers, as soon as practicable after the end of each fiscal year a
copy of its annual report to stockholders for such year or Form 10-K of
the Company filed with the SEC; and the Company will furnish to CSFBC
and, upon request, to each of the other Purchasers, as soon as
available a copy of each report and any definitive proxy statement of
the Company filed with the Commission under the Exchange Act or mailed
to stockholders.
(e) During the period of two years after the Closing Date, the
Company will, upon request, furnish to each Purchaser and any holder of
Offered Securities a copy of the restrictions on transfer applicable to
the Offered Securities.
(f) During the period of two years after the Closing Date, the
Company will not, and will not permit any of its affiliates (as defined
in Rule 144 under the Securities Act) to, resell any of the Offered
Securities that have been reacquired by any of them.
(g) During the period of two years after the later of the
Closing Date, the Company will not be or become, an open-end investment
company, unit investment trust or face-amount certificate company that
is or is required to be registered under Section 8 of the Investment
Company Act.
(h) The Company will pay all expenses incidental to the
performance of its obligations under this Agreement, the Warrant
Agreement, the Indenture and the Registration Rights Agreement
including (i) the fees and expenses of the Trustee, the Warrant Agent
and their professional advisers; (ii) all expenses in connection with
the execution, issue, authentication, packaging and initial delivery
8
of the Offered Securities and, as applicable, the Exchange Securities
(as defined in the Registration Rights Agreement), the preparation and
printing of this Agreement, the Registration Rights Agreement, the
Offered Securities, the Indenture, the Warrant Agreement, the Offering
Document and amendments and supplements thereto, and any other document
relating to the issuance, offer, sale and delivery of the Offered
Securities and as applicable, the Exchange Securities; (iii) the cost
of listing the Offered Securities and qualifying the Offered Securities
for trading in The Portal(SM) Market ("PORTAL") and any expenses
incidental thereto; (iv) the cost of any advertising approved by the
Company in connection with the issue of the Offered Securities; (v) for
any expenses (including reasonable fees and disbursements of counsel)
incurred in connection with qualification of the Offered Securities or
the Exchange Securities for sale under the laws of such jurisdictions
in the United States and Canada as the Purchasers designate and the
printing of memoranda relating thereto, (vi) for any fees charged by
investment rating agencies for the rating of the Securities or the
Exchange Securities; and (vii) for expenses incurred in distributing
Preliminary Offering Circulars and the Offering Document (including any
amendments and supplements thereto) to the Purchasers. Each party will
pay its own expenses in connection with attending or hosting meetings
with prospective purchasers of the Offered Securities from the
Purchasers; provided, however, that the Company will not charge the
Purchasers for the costs incurred by the Company connected with the use
of the Company's airplane for such purposes to the extent it is so
used.
(i) In connection with the offering, until CSFBC shall have
notified the Company and the other Purchasers of the completion of the
resale of the Offered Securities, neither the Company nor any of its
affiliates has or will, either alone or with one or more other persons,
bid for or purchase for any account in which it or any of its
affiliates has a beneficial interest any Offered Securities or attempt
to induce any person to purchase any Offered Securities; and neither it
nor any of its affiliates will make bids or purchases for the purpose
of creating actual, or apparent, active trading in, or of raising the
price of, the Offered Securities.
(j) For a period of 120 days after the date of the initial
offering of the Offered Securities by the Purchasers, neither the
Company nor any of its subsidiaries will offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, any United
States dollar-denominated debt securities issued or guaranteed by the
Company or any of its subsidiaries and having a maturity of more than
one year from the date of issue. Neither the Company nor any of its
subsidiaries will at any time offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any securities under
circumstances where such offer, sale, pledge, contract or disposition
would cause the exemption afforded by Section 4(2) of the Securities
Act or the safe harbor of Regulation S thereunder to cease to be
applicable to the offer and sale of the Offered Securities.
6. Conditions of the Obligations of the Purchasers. The obligations of
the several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the
date of this Agreement, of PricewaterhouseCoopers LLP ("PWC") in agreed
form confirming that they are independent public accountants within the
meaning of the Securities Act and the applicable published rules and
regulations thereunder ("RULES AND REGULATIONS") and to the effect
that:
(i) in their opinion the financial statements
examined by them and included in the Offering Document and in
the Exchange Act Reports comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the related published Rules and
Regulations;
9
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included in
the Offering Document and in the Exchange Act Reports;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements
included in the Offering Document or in the Exchange
Act Reports do not comply as to form in all material
respects with the applicable accounting requirements
of the Securities Act and the related published Rules
and Regulations or any material modifications should
be made to such unaudited financial statements for
them to be in conformity with generally accepted
accounting principles;
(B) the unaudited consolidated revenues from
operations and net income (loss) amounts for the
six-and twelve-month periods ended June 30, 2000,
included in the Offering Document do not agree with
the amounts set forth in the unaudited consolidated
financial statements for those same periods or were
not determined on a basis substantially consistent
with that of the corresponding amounts in the audited
statements of income;
(C) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net assets, as compared with amounts
shown on the latest balance sheet included in the
Offering Document; or
(D) for the period from the closing date of
the latest income statement included in the Offering
Document to the closing date of the latest available
income statement read by such accountants there were
any decreases, as compared with the corresponding
period of the previous year and with the period of
corresponding length ended the date of the latest
income statement included in the Offering Document,
in consolidated income from operations or net income
(loss) or in the ratio of earnings to fixed charges;
except in all cases set forth in clauses (iii) (C) and (iii) (D) above
for changes, increases or decreases which the Offering Document
discloses have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Offering Document and
the Exchange Act Reports (in each case to the extent that such
dollar amounts, percentages and other financial information
are derived from the general accounting records of the Company
and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained
from inquiries, a reading of such general accounting records
and other procedures specified in such letter and have found
such dollar amounts, percentages
10
and other financial information to be in agreement with such
results, except as otherwise specified in such letter.
(b) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) a change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls that would, in the judgment of the
Purchasers, be likely to prejudice materially the success of the
proposed issue, sale or distribution of the Offered Securities, whether
in the primary market or in respect of dealings in the secondary
market, or (ii) (A) any change, or any development or event involving a
prospective change, in the condition (financial or other), business,
properties or results of operations of the Company or its subsidiaries
which, in the judgment of a majority in interest of the Purchasers
including CSFBC, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the offering or the sale of
and payment for the Offered Securities; (B) any downgrading in the
rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Securities Act), or any public announcement that
any such organization has under surveillance or review its rating of
any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (C) any suspension or limitation
of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (D) any banking moratorium declared
by U.S. Federal or, New York authorities; or (E) any outbreak or
escalation of major hostilities in which the United States is involved,
any declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Purchasers including CSFBC, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the offering
or sale of and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated the
Closing Date, of Simpson Thacher & Bartlett, counsel for the Company,
that:
(i) The Company and its subsidiaries (including the
Guarantors) have been duly incorporated or organized, as the
case may be, and are validly existing and in good standing as
corporations or limited liability companies, as the case may
be, under the laws of the State of Delaware and have full
power and authority to conduct their businesses as described
in the Offering Circular;
(ii) Each of the Indenture and the Warrant Agreement
has been duly authorized, executed and delivered by the
Company and, if applicable, the Guarantors; assuming that the
Indenture and the Warrant Agreement are the valid and legally
binding obligations of the Trustee and the Warrant Agent,
respectively, each of the Indenture and the Warrant Agreement
constitutes a valid and legally binding obligation of the
Company and, if applicable, the Guarantors, enforceable
against the Company and, if applicable, each Guarantor in
accordance with its terms, subject to (a) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, (b) general equitable principles
(whether considered in a proceeding in equity or at law) and
(c) an implied covenant of good faith and fair dealing;
(iii) The Units have been duly authorized by the
Company. When the Units are delivered and paid for in
accordance with the terms of this Agreement on the Closing
Date, the Units will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms and the holders thereof will be
entitled to the benefits of the certificate evidencing the
Units and, as holders of the Notes and the
11
Warrants, will be entitled to the benefits of the Indenture
and the Warrant Agreement, subject to (a) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, (b) general equitable principles
(whether considered in a proceeding in equity or at law) and
(c) an implied covenant of good faith and fair dealing;
(iv) The Notes have been duly authorized, executed
and issued by the Company and, assuming due authentication
thereof by the Trustee and upon payment and delivery in
accordance with this Agreement, the Notes will constitute
valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms
and entitled to the benefits of the Indenture, subject to (a)
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, (b) general
equitable principles (whether considered in a proceeding in
equity or at law) and (c) an implied covenant of good faith
and fair dealing;
(v) The Guarantees have been duly authorized,
executed and issued by each Guarantor and, assuming due
authentication of the Notes by the Trustee and upon payment
for and delivery of the Notes in accordance with this
Agreement, will constitute valid and legally binding
obligations of the Guarantors, enforceable against them in
accordance with their terms and entitled to the benefits of
the Indenture, subject to (a) the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors'
rights generally, (b) general equitable principles (whether
considered in a proceeding in equity or at law) and (c) an
implied covenant of good faith and fair dealing;
(vi) The shares of Common Stock initially issuable
upon exercise of the Warrants have been duly authorized and
reserved for issuance upon such exercise and, when issued and
delivered in accordance with the Warrants and the Warrant
Agreement upon such exercise, will be validly issued, fully
paid and nonassessable; the outstanding shares of Common Stock
have been duly authorized and validly issued, are fully paid
and nonassessable; and the stockholders of the Company have no
preemptive rights with respect to the Warrants or the shares
of Common Stock, under United States federal or New York law
or the Company's certificate of incorporation or by-laws or
the Stockholders' Agreement among the Company, Oak Hill
Capital Partners, L.P., Oak Hill Capital Management Partners,
L.P., Olympus Growth Fund III, L.P., Olympus Executive Fund,
L.P., Monitor Clipper Equity Partners, L.P., Monitor Clipper
Equity Partners (Foreign), L.P., UBS Capital Americas II, LLC,
Credit Suisse First Boston LFG Holdings 2000, LLC and
Freightliner LLC, except as disclosed in the Offering
Circular;
(vii) The execution, delivery and performance by the
Company and the Guarantors of this Agreement, the Indenture,
the Warrant Agreement and the Registration Rights Agreement,
and the issuance, sale and delivery of the Offered Securities
by the Company to the Purchasers (A) will not breach, or
result in a default under, any of the agreements or
instruments identified on the annexed schedule furnished to us
by the Company, (B) nor will such action violate the
certificate of incorporation or by-laws of the Company or the
certificate of incorporation or by-laws or certificate of
formation or limited liability company agreement, as the case
may be, of any Guarantor, or any federal or New York statute
or the Delaware General Corporation Law or the Delaware
Limited Liability Company Law, or any rule or regulation that
has been issued pursuant to any federal or New York statute or
the Delaware General Corporation Law or the Delaware Limited
Liability Company Law or any order known to us issued pursuant
to any federal or New York statute or the Delaware General
Corporation Law or the Delaware Limited Liability
12
Company Law by any court or governmental agency or body or
court having jurisdiction over the Company or any Guarantor or
any of its or their properties;
(viii) The statements made in the Offering Circular
under the captions "Description of the Units", "Description of
the Warrants" and "Description of the Notes", insofar as they
purport to constitute summaries of certain terms of documents
referred to therein, constitute accurate summaries of the
terms of such documents in all material respects; the
statements made in the Offering Circular under the caption
"Description of Capital Stock", insofar as they purport to
constitute summaries of the terms of the Company's Common
Stock, constitute accurate summaries of the terms of such
Common Stock in all material respects;
(ix) This Agreement and the Registration Rights
Agreement have each been duly authorized, executed and
delivered by the Company and, if applicable, the Guarantors;
(x) No consent, approval, authorization, order,
registration or qualification of or with any federal or New
York governmental agency or body or any Delaware governmental
agency or body acting pursuant to the Delaware General
Corporation Law or Delaware Limited Liability Company Law or,
to such counsel's knowledge, any Federal or New York court or
any Delaware court acting pursuant to the Delaware General
Corporation Law or the Delaware Limited Liability Company Law
is required for the issue and sale of the Offered Securities
by the Company and the issue of the Guarantees by the
Guarantors and the compliance by the Company and the
Guarantors with all of the provisions of this Agreement,
except for such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Offered Securities by the Purchasers
(except, other than as set forth in paragraph (ix) below, such
counsel gives no opinion as to registration of the Offered
Securities under the Securities Act and the qualification of
the Indenture under the Trust Indenture Act);
(xi) No registration under the Securities Act of the
Offered Securities or the Guarantees and no qualification of
the Indenture under the Trust Indenture Act is required for
the offer and sale of the Offered Securities by the Company
and the issue of the Guarantees by the Guarantors to the
Purchasers or the reoffer and resale of the Offered Securities
and the Guarantees by the Purchasers to the initial purchasers
therefrom solely in the manner contemplated by the Offering
Circular, this Agreement and the Indenture;
(xii) Based upon such counsel's examination of the
Offering Circular, which incorporates by reference the Annual
Report on Form 10-K of the Company for the fiscal year ended
December 31, 1999; the Quarterly Reports on Form 10-Q of the
Company for the quarters ended March 31, 2000 and June 30,
2000 and the Current Reports on Form 8-K of the Company filed
June 1, 2000, October 6, 2000 and October 20, 2000 (the
"Exchange Act Documents"), each as filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), such
counsel's investigations made in connection with the
preparation of the Offering Circular and such counsel's
participation in conferences with certain officers and
employees of the Company, with representatives of PWC and with
counsel to the Company, such counsel has no reason to believe
that either the Offering Circular or any Exchange Act Document
contains any untrue statement of a material fact or omits to
state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, except that such counsel
shall express no belief with respect to the financial
statements or other financial data contained in the Offering
Circular or any Exchange Act Document; and
13
(xiii) The Company is not an "investment company" or
a company "controlled" by an "investment company" within the
meaning of and subject to regulation under the Investment
Company Act of 1940, as amended;
(d) The Purchasers shall have received an opinion, dated the
Closing Date and subject to customary exceptions of Steven C. Lee, the
General Counsel of the Company, that:
(i) Each Guarantor is duly qualified to do business
and is in good standing as a foreign corporation or limited
liability company, as the case may be, in each jurisdiction
listed below the name of such Guarantor in a schedule attached
to such opinion letter;
(ii) To such counsel's knowledge, except as disclosed
in the Offering Circular, there are no pending or threatened
actions, suits or proceedings against the Company or the
Guarantors or any of their respective properties or assets
that, if determined adversely to the Company or any Guarantor,
would have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company or any Guarantor
to perform their respective obligations under this Agreement,
the Registration Rights Agreement, the Offered Securities, the
Guarantees, the Warrant Agreement or the Indenture; and
(iii) Based upon such counsel's examination of the
Offering Circular, such counsel's investigations made in
connection with the preparation of the Offering Circular and
such counsel's participation in conferences with certain
officers and employees of the Company, with representatives of
PWC and with counsel to the Company, such counsel has no
reason to believe that the Offering Circular contains any
untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading, except that such counsel shall
express no belief with respect to the financial statements or
other financial data contained in the Offering Circular.
(e) The Purchasers shall have received from Cravath, Swaine &
Moore, counsel for the Purchasers, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities, the Offering Circular, the
exemption from registration for the offer and sale of the Offered
Securities by the Company to the several Purchasers and the resales by
the several Purchasers as contemplated hereby and other related matters
as CSFBC may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters with reference to same in the Offering
Circular. In rendering such opinion, Cravath, Swaine & Moore may rely
as to the incorporation of the Company and all other matters governed
by Delaware law upon the opinion of Simpson Thacher & Bartlett referred
to above.
(f) The Purchasers shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date, and that, subsequent to the date of the most recent financial
statements in the Offering Document there has been no material adverse
change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole except as set forth in or contemplated by the Offering
Document or as described in such certificate.
14
(g) The Purchasers shall have received a letter, dated the
Closing Date, of PWC which meets the requirements of subsection (a) of
this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to the Closing
Date for the purposes of this subsection.
(h) Concurrently with or prior to the issue and sale of the
Offered Securities by the Company, the Transactions (as such term is
defined in the Offering Circular), other than the tender offer and
consent solicitation for the Company's 10 1/4% Senior Subordinated
Notes due 2007 (the "EXISTING SUBORDINATED NOTES"), shall be
consummated on terms that conform in all material respects to the
description thereof in the Offering Documents.
(i) Concurrently with or prior to the issuance and sale of the
Offered Securities by the Company, the Company and certain subsidiaries
of the Company shall have entered into a credit agreement (the "CREDIT
AGREEMENT") among the Company and a syndicate of banks and other
financial institutions led by The Chase Manhattan Bank, as
administrative agent, and Chase Securities Inc. and Credit Suisse First
Boston, New York branch, as co-lead arrangers, in an aggregate
principal amount of up to $408,000,000, and the initial borrowings
thereunder shall have occurred. The Purchasers shall have received
conformed counterparts thereof and all other documents and agreements
entered into and received thereunder in connection with the closing of
the Credit Agreement. There shall exist at and as of the Closing Date
(after giving effect to the transactions contemplated by this Agreement
and the Transactions) no condition that would constitute a default (or
an event that with notice or lapse of time, or both, would constitute a
default) under the Credit Agreement or any other document related to
the Transactions (as such term is defined in the Offering Circular).
(j) Prior to the issuance and sale of the Offered Securities
by the Company, at least a majority of the Company's outstanding
Existing Subordinated Notes shall have been tendered pursuant to a debt
tender offer and consent solicitation, as a result of which all
significant negative covenants of the Existing Subordinated Notes shall
be eliminated.
(k) On the Closing Date, the Indenture, the Warrant Agreement,
the Registration Rights Agreement and this Agreement shall have been
duly authorized by the Company and, in the case of the Indenture and
this Agreement, by the Guarantors.
(l) On the Closing Date, the Contingent Warrants will be
placed in escrow pursuant to the Warrant Agreement.
Documents described as being "in the agreed form" are documents which
are in the forms which have been initialed for the purpose of identification by
Cravath, Swaine & Moore, copies of which are held by the Company and CSFBC, with
such changes as CSFBC may approve.
The Company will furnish the Purchasers with such conformed copies of
such customary certificates, letters and documents as the Purchasers reasonably
request. CSFBC may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder,
whether in respect of an Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company and the Guarantors
will, jointly and severally, indemnify and hold harmless each Purchaser, its
partners, directors and officers and each person, if any, who controls such
Purchaser within the meaning of Section 15 of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Purchaser may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related
15
Preliminary Offering Circular or the Exchange Act Reports, or arise out of or
are based upon 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, including any losses, claims, damages or liabilities arising out of
or based upon the Company's failure to perform its obligations under Section
5(a) of this Agreement, and will reimburse each Purchaser for any legal or other
expenses reasonably incurred by such Purchaser in connection with investigating
or defending any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability 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 written information furnished to the Company by any Purchaser
through CSFBC specifically for use therein, it being understood and agreed that
the only such information consists of the information described as such in
subsection (b) below; and provided further, however, that with respect to any
untrue statement or alleged untrue statement in or omission or alleged omission
from any Preliminary Offering Circular, the indemnity agreement contained in
this subsection (a) shall not inure to the benefit of any Purchaser that sold
the securities concerned (or any Person controlling such Purchaser) to the
person asserting any such losses, claims, damages or liabilities, to the extent
that such sale was an initial resale by such Purchaser and any such loss, claim,
damage or liability of such Purchaser or such Person controlling such Purchaser
results from the fact that there was not sent or given to the person, at or
prior to the written confirmation of the sale of such securities to such person,
a copy of the Offering Circular (exclusive of any material included therein but
not attached thereto) if the Company had previously furnished copies thereof to
such Purchaser.
(b) The Purchasers will severally and not jointly indemnify
and hold harmless the Company and each Guarantor, their directors and
officers and each person, if any, who controls the Company or a
Guarantor within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities to which the Company
may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Offering Document, or any amendment or supplement thereto, or any
related Preliminary Offering Circular, or arise out of or are based
upon the omission or the alleged omission to state therein a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, in each
case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to
the Company by such Purchaser through CSFBC specifically for use
therein, and will reimburse any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Purchaser consists of the following information in the
Offering Document furnished on behalf of each Purchaser: under the
caption "Plan of Distribution", the seventh paragraph (but only as to
the third and fourth sentences), the eighth paragraph and the ninth
paragraph; provided, however, that the Purchasers shall not be liable
for any losses, claims, damages or liabilities arising out of or based
upon the Company's failure to perform its obligations under Section
5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party
16
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional
release of such indemnified party from all liability on any claims that
are the subject matter of such action and does not include a statement
as to or an admission of fault, culpability or failure to act by or on
behalf of any indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the
Guarantors on the one hand and the Purchasers on the other from the
offering of the Offered 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 and the Guarantors on the one hand and the Purchasers on the
other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by
the Company and the Guarantors on the one hand and the Purchasers on
the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Company and the Guarantors bear to the total discounts and commissions
received by the Purchasers from the Company under this Agreement. 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
information supplied by the Company or the Guarantors or by the
Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement
or omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of
this subsection (d), no Purchaser shall be required to contribute any
amount in excess of the amount by which the total price at which the
Offered Securities purchased by it were resold exceeds the amount of
any damages which such Purchaser has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. The Purchasers' obligations in this subsection (d) to
contribute are several in proportion to their respective purchase
obligations and not joint.
(e) The obligations of the Company and the Guarantors under
this Section shall be in addition to any liability which the Company
and the Guarantors may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any
Purchaser within the meaning of the Securities Act or the Exchange Act;
and the obligations of the Purchasers under this Section shall be in
addition to any liability which the respective Purchasers may otherwise
have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in
their obligations to purchase the Offered Securities hereunder and the total
number of Units that such defaulting Purchaser or Purchasers agreed but failed
to purchase does not exceed 10% of the total number of Units, CSFBC may make
arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons,
17
including any of the Purchasers, but if no such arrangements are made by the
Closing Date, the non-defaulting Purchasers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the total number of Units with respect to
which such default or defaults occur exceeds 10% of the total number of Units
and arrangements satisfactory to CSFBC and the Company for the purchase of such
Offered Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any non-
defaulting Purchaser or the Company, except as provided in Section 9. As used in
this Agreement, the term "Purchaser" includes any person substituted for a
Purchaser under this Section. Nothing herein will relieve a defaulting Purchaser
from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, the Guarantors or their officers and of the several Purchasers set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Purchaser, the Company, the Guarantors or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered Securities. If
this Agreement is terminated pursuant to Section 8 or if for any reason the
purchase of the Offered Securities by the Purchasers is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5(h) and the respective obligations of the Company and the
Guarantors on the one hand and the Purchasers on the other hand pursuant to
Section 7 shall remain in effect. If the purchase of the Offered Securities by
the Purchasers is not consummated for any reason other than solely because of
the termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in clause (C), (D) or (E) of Section 6(b)(ii), the Company will
reimburse the Purchasers for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Purchasers will be mailed, delivered or telegraphed and confirmed to
the Purchasers, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking Department -
Transactions Advisory Group, or, if sent to the Company or a Guarantor, will be
mailed, delivered or telegraphed and confirmed to it at 24601 Center Ridge Road,
Suite 200, Westlake, Ohio 44145, Attention: General Counsel; provided, however,
that any notice to a Purchaser pursuant to Section 7 will be mailed, delivered
or telegraphed and confirmed to such Purchaser.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Company as if such
holders were parties thereto.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
18
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement among the Company, the Guarantors
and the several Purchasers in accordance with its terms.
Very truly yours,
TRAVELCENTERS OF AMERICA, INC.
by /s/ James W. George
-------------------------
Name: James W. George
Title: Senior Vice President and
Chief Financial Officer
TA OPERATING CORPORATION
by /s/ James W. George
-------------------------
Name: James W. George
Title: Senior Vice President and
Chief Financial Officer
TA TRAVEL, L.L.C.
by /s/ James W. George
-------------------------
Name: James W. George
Title: Senior Vice President and
Chief Financial Officer
TA LICENSING, INC.
by /s/ Andrew Panaccione
-------------------------
Name: Andrew Panaccione
Title: Secretary
TRAVELCENTERS PROPERTIES, L.P.
By TA OPERATING CORPORATION, its general partner
by /s/ James W. George
-------------------------
Name: James W. George
Title: Senior Vice President and
Chief Financial Officer
TRAVELCENTERS REALTY, INC.
by /s/ Andrew Panaccione
-------------------------
Name: Andrew Panaccione
Title: Secretary
19
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
CHASE SECURITIES INC.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
Acting on behalf of themselves
and as the Representatives of
the several Purchasers
By CREDIT SUISSE FIRST BOSTON CORPORATION
by /s/ Geoffrey Manna
----------------------------
Name: Geoffrey Manna
Title: Vice President
20
SCHEDULE A
[Download Table]
MANAGER NUMBER OF UNITS
------- ---------------
Credit Suisse First Boston Corporation/Donaldson, Lufkin & Jenrette
Securities Corporation 95,000
Chase Securities Inc. 95,000
--------
Total 190,000
========
Dates Referenced Herein and Documents Incorporated by Reference
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