Exhibit 10.26
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXXXXXXXXXX XX XXXXXXX, INC.
(formerly National Auto/Truckstops Holdings Corporation)
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SENIOR SECURED NOTE EXCHANGE AGREEMENT
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Dated as of March 21, 1997
8.94% Series I Senior Secured Notes due 2002
Series II Senior Secured Notes due 2005
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TABLE OF CONTENTS
PAGE
1. THE ORIGINAL NOTES AND THE RECAPITALIZATION; EXCHANGE OF NOTES; REPRESENTATIONS OF NOTEHOLDER..................1
1.1. The Original Notes..................................................................................1
1.2. The Recapitalization................................................................................2
1.3. Authorization of Exchange Notes.....................................................................2
1.4. Interest Rates on the Notes; Reset Procedures for Floating Rate Notes...............................3
1.5. Security for the Notes..............................................................................6
1.6. Representation of the Noteholder....................................................................6
2. EXCHANGE OF NOTES; THE CLOSING.................................................................................7
3. CONDITIONS OF CLOSING..........................................................................................7
3.1. Proceedings Satisfactory............................................................................7
3.2. Representations True, Etc.; Officer's Certificates..................................................8
3.3. Opinions of Counsel.................................................................................8
3.4. Recapitalization....................................................................................9
3.5. Subordinated Notes..................................................................................9
3.6. Credit Facilities...................................................................................9
3.7. Intercreditor Agreement.............................................................................9
3.8. Guarantee Agreement; Indemnity and Subrogation Agreement...........................................10
3.9. Existing Indebtedness; Redeemed Notes..............................................................10
3.10. No Liabilities....................................................................................10
3.11. Solvency..........................................................................................10
3.12. Pledge Agreement..................................................................................10
3.13. Security Documents................................................................................11
3.14. Mortgaged Properties; Mortgages and Leasehold Mortgages...........................................11
3.15. [Intentionally Omitted]...........................................................................12
3.16. Other Arrangements................................................................................12
3.17. Appraisals........................................................................................12
3.18. Legal, Tax and Accounting Matters.................................................................13
3.19. Certain Liabilities...............................................................................13
3.20. Floating Rate Note Facility Fee...................................................................13
3.21. Approvals.........................................................................................13
3.22. No Litigation.....................................................................................13
3.23. Deposit...........................................................................................14
3.24. Other Exchanges; Cancellation of Original Notes...................................................14
3.25. Legality..........................................................................................14
3.26. Private Placement Numbers.........................................................................14
4. REPRESENTATIONS AND WARRANTIES................................................................................14
4.1. Organization; Powers...............................................................................14
4.2. Authorization; Compliance with Laws, Instruments...................................................15
4.3. Enforceability.....................................................................................15
4.4. Governmental Approvals.............................................................................16
4.5. Financial Statements...............................................................................16
4.6. No Default or Material Adverse Change..............................................................17
4.7. Title to Properties; Possession Under Leases.......................................................17
4.8. Subsidiaries.......................................................................................18
4.9. Litigation; Compliance with Laws...................................................................18
4.10. Burdensome Agreements, Etc........................................................................18
4.11. Federal Reserve Regulations.......................................................................18
4.12. Investment Company Act; Public Utility Holding Company Act........................................19
4.13. Tax Returns.......................................................................................19
4.14. No Material Misstatements.........................................................................19
4.15. Employee Benefit Plans............................................................................20
4.16. Environmental and Safety Matters..................................................................20
4.17. Solvency..........................................................................................22
4.18. Employment and Management Agreements..............................................................22
4.19. Capitalization....................................................................................22
4.20. Security Documents................................................................................24
4.21. Labor Matters.....................................................................................25
4.22. Location of Real Property and Leased Premises.....................................................25
4.23. Insurance.........................................................................................26
4.24. Delivery of Documents; Representations and Warranties.............................................26
4.25. Fees and Expenses.................................................................................27
4.26. Offering of the Notes.............................................................................27
4.27. Other Agreements..................................................................................27
5. PREPAYMENT OF NOTES...........................................................................................27
5.1. Required Prepayment................................................................................28
5.2. Optional Prepayments...............................................................................28
5.3. Prepayments in Connection with Available Proceeds..................................................29
5.4. Prepayment in Connection with a Change in Control..................................................31
5.5. Obligation to Prepay after Notice; Make-Whole Computation..........................................33
5.6. Application of Prepayments.........................................................................33
5.7. Note Purchase Prohibition..........................................................................33
6. AFFIRMATIVE COVENANTS.........................................................................................34
6.1. Existence; Businesses and Properties; Keep Books...................................................34
6.2. Insurance..........................................................................................34
6.3. Obligations and Taxes..............................................................................37
6.4. Financial Statements, Reports, Etc.................................................................37
6.5. Litigation and Other Notices.......................................................................39
6.6. ERISA. 40
6.7. Access to Properties and Inspections...............................................................41
6.8. [Intentionally Omitted]............................................................................41
6.9. Fiscal Year........................................................................................41
6.10. Further Assurances................................................................................41
6.11. Rate Protection Agreements........................................................................42
6.12. Environmental and Safety Laws.....................................................................42
6.13. Material Contracts................................................................................43
6.14. Certificates of Occupancy, Permits and Zoning.....................................................44
7. NEGATIVE COVENANTS............................................................................................45
7.1. Indebtedness.......................................................................................45
7.2. Liens. ............................................................................................48
(ii)
7.3. Sale and Leaseback Transactions....................................................................51
7.4. Investments, Loans and Advances....................................................................51
7.5. Mergers, Consolidations, Sales of Assets and Acquisitions..........................................53
7.6. Dividends and Distributions........................................................................54
7.7. Transactions with Affiliates.......................................................................55
7.8. Business of Company, the Guarantor and TAFSI.......................................................55
7.9. Limitations on Debt Prepayments....................................................................59
7.10. Amendment of Certain Documents and Subordinated Notes.............................................60
7.11. Limitation on Leases..............................................................................60
7.12. Subsidiaries......................................................................................61
7.13. Capital Expenditures..............................................................................61
7.14. Consolidated Net Worth............................................................................62
7.15. Current Ratio.....................................................................................62
7.16. Interest Expense Coverage Ratio...................................................................62
7.17. Leverage Ratio....................................................................................63
8. INVESTMENT OF CERTAIN ESCROWED AMOUNTS........................................................................63
9. DEFINITIONS...................................................................................................64
9.1. Definitions........................................................................................64
9.2. Terms Generally....................................................................................88
10. EVENTS OF DEFAULT; REMEDIES..................................................................................89
10.1. Events of Default; Acceleration of Maturity.......................................................89
10.2. Suits for Enforcement.............................................................................94
10.3. Remedies Cumulative...............................................................................95
10.4. Remedies Not Waived...............................................................................95
11. REGISTRATION, TRANSFER AND EXCHANGE OF NOTES.................................................................95
12. LOST, ETC., NOTES............................................................................................96
13. AMENDMENT AND WAIVER.........................................................................................96
14. HOME OFFICE PAYMENT..........................................................................................97
15. LIABILITIES OF THE PURCHASER.................................................................................98
16. MISCELLANEOUS................................................................................................98
16.1. Expenses..........................................................................................98
16.2. Taxes. 99
16.3. Successors and Assigns............................................................................99
16.4. Indemnification..................................................................................100
16.5. Reliance on and Survival of Representations......................................................100
16.6. Notices..........................................................................................100
16.7. Severability.....................................................................................101
16.8. Jurisdiction and Process.........................................................................101
16.9. Governing Law....................................................................................102
16.10. Headings........................................................................................102
16.11. Counterparts....................................................................................102
(iii)
SCHEDULE I - Names and Addresses of Noteholders
Schedule 1.1(a) - Mortgaged Properties
Schedule 1.1(b) - Mortgage Filing Offices
Schedule 4.7(b) - Title to Properties
Schedule 4.7(c) - Notices of Condemnation
Schedule 4.9 - Litigation
Schedule 4.18 - Employment and Management Agreements
Schedule 4.19(a)(i) - Company's Shareholders
Schedule 4.19(a)(ii) - Voting Trust Certificateholders
Schedule 4.19(e) - Agreements re: Capital Stock, etc.
Schedule 4.20 - UCC Filings Offices
Schedule 4.22(a) - Real Property Owned by the Guarantors
Schedule 4.22(b) - Real Property Leased by the Company
Schedule 5.2(b) - Local Counsel
Schedule 6.2(e) - Certain Phase II Environmental Consultant
Insurance
Schedule 6.14 - Certain Mortgaged Properties
Schedule 7.1 - Indebtedness
Schedule 7.2 - Liens
Schedule 7.3 - Sale and Leaseback Transactions
Schedule 7.5(g) - Sale of Assets
Schedule 7.7 - Transactions with Affiliates
Schedule 7.11(a) - Limitation on Leases
EXHIBIT A-1 - Form of Fixed Rate Note
EXHIBIT A-2 - Form of Floating Rate Note
EXHIBIT B - Guarantee Agreement
EXHIBIT C - Form of Mortgage and Deed of Trust and form of
Assignments of Leases and Rents
EXHIBIT D - Security Agreement
EXHIBIT E - Pledge Agreement
EXHIBIT F - Collateral Assignment
EXHIBIT G - Trademark Security Agreement
EXHIBIT H - Intercreditor Agreement
EXHIBIT I-1 - Opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
EXHIBIT I-2 - Opinion of General Counsel of the Company
EXHIBIT I-3 - Form of Opinion of Local Counsel
EXHIBIT J - Collateral Account Agreement
EXHIBIT K - Indemnity and Subrogation Agreement
(iv)
TRAVELCENTERS OF AMERICA, INC.
(formerly National Auto/Truckstops Holdings Corporation)
SENIOR SECURED NOTE EXCHANGE AGREEMENT
8.94% Series I Senior Secured Notes due 2002
Series II Senior Secured Notes due 0000
Xxx Xxxx, Xxx Xxxx
as of March 21, 1997
To the Noteholder whose Name
Appears in the Acceptance
Form at the End Hereof
Ladies and Gentlemen:
The undersigned, TRAVELCENTERS OF AMERICA, INC., a Delaware
corporation (the "COMPANY"), hereby agrees with you (the "NOTEHOLDER") as
follows:
1. THE ORIGINAL NOTES AND THE RECAPITALIZATION; EXCHANGE OF
NOTES; REPRESENTATIONS OF NOTEHOLDER.
1.1. THE ORIGINAL NOTES.
National Auto/Truckstops, Inc., a Delaware corporation ("NATIONAL"),
is a wholly-owned Subsidiary of the Company. In order to provide the financing
for the ac quisition of a truckstop network (the "NATIONAL NETWORK"), Na tional
issued $65,000,000 aggregate principal amount of its 8.76% Senior Secured Notes
due 2002 (the "NATIONAL NOTES") pursuant to the several Senior Note Purchase
Agreements dated as of April 13, 1993, as heretofore amended (as so amended, the
"NATIONAL PURCHASE AGREEMENTS"), between National and the Company and the in
stitutional investors named in Schedule I thereto. TA Operating Corporation, a
Delaware corporation ("TA"), is a wholly-owned Subsidiary of TA Holdings
Corporation, a Delaware corporation ("TA HOLDINGS"), which is a wholly-owned
Subsidiary of the Company. In order to provide the financing for the acquisition
of another truckstop network (the "TA NETWORK" and, together with the National
Network, the "NETWORK"), TA issued $25,000,000 aggregate principal amount of its
Senior Secured Notes due 2002 (the "TA NOTES" and, together with the National
Notes, the "ORIGINAL NOTES") pursuant to the several Senior Note Purchase
Agreements dated as of December 9, 1993, as heretofore amended (as so amended,
the "TA PURCHASE AGREEMENTS" and, together with the National Purchase
Agreements, the "PURCHASE AGREEMENTS"), between TA and TA Holdings and the
institutional investors named in Schedule I thereto.
As of the date of this Agreement, $65,000,000 aggregate
principal amount of the National Notes and $25,000,000 aggregate principal
amount of the TA Notes are outstanding.
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1.2. THE RECAPITALIZATION.
On or before the Closing Date the Company will be recapitalized and
restructured pursuant to a series of transactions in which (a) TA will become a
direct wholly-owned Subsidiary of the Company, (b) TA Holdings will be merged
with and into the Company, (c) TA Franchise Systems Inc., a Delaware corporation
("TAFSI"), currently indirectly wholly-owned by the Company through TA Holdings
and TA, will become a direct wholly-owned Subsidiary of the Company, (d)
National will repay in full all outstanding Indebtedness under the Credit
Agreement and the Subordinated Note Purchase Agreement respectively referred to
in the National Purchase Agreements (the "EXISTING NATIONAL INDEBTEDNESS"), (e)
TA will pay in full all outstanding Indebtedness under the Credit Agreement and
the Subordinated Note Purchase Agreement respectively referred to in the TA
Purchase Agreements (the "EXISTING TA INDEBTEDNESS" and, together with the
Existing National Indebtedness, the "EXISTING INDEBTEDNESS"), and (f) the
obligations of National in respect of the National Notes and TA in respect of
the TA Notes shall be discharged. The transactions described in the preceding
sentence are sometimes collectively referred to as the "RECAPITALIZATION".
In order to finance the Recapitalization (i) the Company will
issue up to $125,000,000 aggregate principal amount of its Senior Subordinated
Notes due 2007 (the "SUBORDINATED NOTES"), (ii) the Company will purchase, or
shall cause TA to repay or purchase, in either case for cancellation, $4,500,000
unpaid principal amount of TA Notes (the "REDEEMED NOTES") the holder of which
is not one of the Noteholders, (iii) the Company will issue its senior secured
notes in exchange for all other Original Notes as herein provided, (iv) the
Company will enter into the Credit Agreement as defined below and (v) the
Company will make capital contributions or advances to National and TA
(including without limitation contributions of their respective Original Notes
for cancellation) in amounts sufficient to enable National and TA to discharge
their respective Existing Indebtedness and to pay accrued interest on the
Original Notes, transaction costs and other related expenses.
1.3. AUTHORIZATION OF EXCHANGE NOTES .
The Company has duly authorized an issue of its 8.94% Series I Senior
Secured Notes due 2002 in an aggregate principal amount of $35,500,000 (the
"FIXED RATE NOTES") and its Series II Senior Secured Notes due 2005 in an
aggregate principal amount of $50,000,000 (the "FLOATING RATE NOTES" and,
together with the Fixed Rate Notes, the "NOTES"), each such note to mature, bear
interest and otherwise be substantially in the respective forms of Exhibits A-1
and A-2 hereto. As used herein, the term "NOTES" shall include all notes
(irrespective of series unless otherwise specified) originally issued in
exchange for Original Notes pursuant to this Agreement and the other agreements
referred to in Section 4.27 and all notes delivered in substitution or exchange
for any of said notes and, where applicable, shall include the singular number
as well as the plural.
3
1.4. INTEREST RATES ON THE NOTES; RESET PROCEDURES FOR
FLOATING RATE NOTES.
(a) FIXED RATE NOTES. Each Fixed Rate Note shall bear interest
from the date of issue at the rate of 8.94% per annum (computed on the basis
of a 360-day year of twelve 30-day months), payable semiannually on each
Interest Payment Date in each year until the principal thereof shall become
due and payable and shall bear interest on demand on any overdue principal
or premium, if any, and on any overdue installment of interest at the
Default Rate specified therein.
(b) FLOATING RATE NOTES. Each Floating Rate Note shall bear interest
from the date of issue, payable semiannually on each Interest Payment Date in
each year, at a rate per annum (computed on the basis of actual days
elapsed and a year of 360 days) equal to the Adjusted LIBOR Rate as in effect
from time to time for the applicable Interest Period until the principal thereof
shall become due and payable and shall bear interest on demand on any overdue
principal or overdue Break Funding Cost, if any, and on any overdue installment
of interest at the Default Rate specified therein. If you are exchanging your
Original Notes for Floating Rate Notes under this Agreement, at least one
Business Day before the Closing Date, the Company will give notice to you,
specifying the LIBOR Rate for the Initial Interest Period, which shall be
determined with respect to the Closing Date as if that date were a Reset Date,
and the resulting applicable Adjusted LIBOR Rate on the Floating Rate Notes for
the Initial Interest Period.
On each Reset Date the Company shall determine the LIBOR Rate for the
Interest Period then commencing and will give notice (by telephone or facsimile
to such person as the Calculation Holder may from time to time specify for such
purpose), together with a copy of the appropriate page on Telerate Access
Service or other display as specified in the definition of "LIBOR Rate" below,
to the Calculation Holder specifying the LIBOR Rate as so determined. If for any
reason the Calculation Holder, by notice to the Company (which notice shall be
given within one Business Day after the Reset Date), objects to such
determination, the LIBOR Rate as determined by the Calculation Holder shall be
final and binding upon the Company absent manifest error. Forthwith and in any
event within two Business Days after each Reset Date the Company will give
written notice to the holders of the Floating Rate Notes specifying the LIBOR
Rate and the resulting Adjusted LIBOR Rate on the Floating Rate Notes for the
Interest Period commencing on that Reset Date and stating whether the
Calculation Holder determined (or confirmed the Company's determination of) the
LIBOR Rate for that Interest Period. If for any reason the Company and the
Calculation Holder fail to determine the LIBOR Rate for any Interest Period,
4
the determination of the LIBOR Rate by any other institutional investor
holder of a Floating Rate Note (acting in place of the Calculation Holder if
necessary) and specified in a written notice to the Company shall be final and
binding upon the Company and the holders of the Floating Rate Notes absent
manifest error, provided that in case more than one such institutional investor
holder gives such a written notice and the LIBOR Rate in such notices is not the
same rate, the LIBOR Rate shall be the rate agreed upon by such other
institutional investor holders as specified in a subsequent notice to the
Company (delivered not later than one Business Day from the date of the later of
the notices referred to above), which rate shall be final and binding as
aforesaid.
(c) CERTAIN DEFINED TERMS AND PROCEDURES. For purposes of
determining the applicable interest rate on the Floating Rate Notes, the
following terms have the following meanings (and certain matters will be
determined in accordance with procedures as specified below):
"ADJUSTED LIBOR RATE" means with respect to any Interest Period
a rate per annum equal to the LIBOR Rate for such Interest Period plus
the LIBOR Spread in effect from time to time during such Interest Period.
"CALCULATION HOLDER" means the institutional investor holding
the highest unpaid principal amount of Floating Rate Notes at the time
outstanding and willing to serve in such capacity. Xxxx Xxxxxxx Mutual
Life Insurance Company shall act as the Calculation Holder, until the
Company receives written notice to the contrary.
"DESIGNATED MATURITY" means for any Reset Date a period of six
months corresponding to the Interest Period commencing on such Reset Date.
"INITIAL INTEREST PERIOD" means the period commencing on and
including the Closing Date and ending on (but excluding) September 30,
1997.
"INTEREST PERIOD" means the Initial Interest Period and
thereafter a period commencing on and including a Reset Date and ending on
(but excluding) the next succeeding Interest Payment Date. Notwithstanding
the foregoing, if any Interest Payment Date is not a London Banking Day,
such Interest Period shall be extended to the next day that is a London
Banking Day and if there is no numerically corresponding date in the
appropriate month, such Interest Period shall end on the last London
Banking Day of such month.
"LIBOR RATE" means for the Initial Interest Period the rate
specified in the notice from the Company given pursuant to Section 1.4(b);
and means for any Reset Date the rate (rounded upwards, if necessary, to
5
the next 1/16 of 1%) for deposits in U.S. Dollars for a period of the
Designated Maturity and in a Representative Amount which appears on the
display designated as "Page 3750" on Telerate Access Service (or such
other display as may replace Page 3750 on Telerate Access Service) as of
11:00 a.m., London time, on the date that is two London Banking Days
preceding that Reset Date; and if such rate does not appear on Telerate
Page 3750 (or such other display), the rate for that Reset Date will be
the rate (rounded upwards, if necessary, to the next 1/16 of 1%) at which
deposits in U.S. dollars are offered (i) to the principal London office of
the Agent (as defined in the Credit Agreement) in immediately available
funds in the London interbank market so long as there is an Agent, or
(ii) in accordance with the procedures described below, by the Reference
Banks to prime banks in the London interbank market, in each case, at
approximately 11:00 a.m., London time, on the day that is two London
Banking Days preceding that Reset Date for a period of the Designated
Maturity commencing on that Reset Date and in a Representative Amount. The
Company will request the principal London office of each of the Reference
Banks to provide a quotation of its rate. If at least two such quotations
are provided, the rate for that Reset Date will be the arithmetic mean of
the quotations. If fewer than two quotations are provided as requested,
the rate for that Reset Date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Calculation
Holder, at approximately 11:00 a.m., New York City time, on that Reset
Date for loans in U.S. dollars to leading European banks for a period of
the Designated Maturity commencing on that Reset Date and in a
Representative Amount.
"LIBOR SPREAD" means 3.00%; provided that so long as no
Default or Event of Default shall have occurred and be continuing, the
LIBOR Spread on any date after the termination of the Interest Period
immediately following the Initial Interest Period shall be reduced by
0.25% at any time that the Facilities (as defined in the Credit Agreement)
or the Floating Rate Notes, as the case may be, are rated at least Ba2 by
Xxxxx'x or BB by Standard & Poor's so long as the Facilities or Floating
Rate Notes, as the case may be, are rated at least Ba3 by Moody's and BB-
by Standard & Poor's.
"LONDON BANKING DAY" means any day other than Saturday or
Sunday or a day on which commercial banks are required or authorized by
law to be closed in London, England.
"REFERENCE BANKS" means four major banks in the
London interbank market.
6
"REPRESENTATIVE AMOUNT" means an amount that is comparable to
the unpaid principal amount of the Floating Rate Notes at the relevant
time.
"RESET DATE" means the last day of the immediately
preceding Interest Period.
1.5. SECURITY FOR THE NOTES.
The Notes will be unconditionally guaranteed by National and TA
(individually, a "GUARANTOR" and collectively, the "GUARANTORS"), pursuant
to a guarantee agreement, substantially in the form of Exhibit B hereto (the
"GUARANTEE AGREEMENT"), between the Guarantors and the Collateral Agent. The
Notes will be secured, equally and ratably with the Term Facility and the
Revolving Facility (including the Swingline Loans and the Letters of Credit)
respectively provided pursuant to the Credit Agreement, by the Security
Documents, including, INTER ALIA, (a) mortgages, leasehold mortgages, deeds of
trust and assignments of leases and rents, each substantially in the form of
Exhibit C hereto, from National or TA to the Collateral Agent covering the
Mortgaged Properties (collectively the "MORTGAGES"), (b) a security agreement,
substantially in the form of Exhibit D hereto, between the Company, the
Guarantors and TAFSI and the Collateral Agent (the "SECURITY AGREEMENT"), (c) a
pledge agreement, substantially in the form of Exhibit E hereto, between the
Company, the Guarantors and TAFSI and the Collateral Agent (the "PLEDGE
AGREEMENT"), (d) a collateral assignment, substantially in the form of Exhibit F
hereto, from the Company, the Guarantors and TAFSI to the Collateral Agent
providing for the assignment to the Collateral Agent of the Environmental
Agreements, the Ancillary Agreements, the Franchise Agreements, the Rate
Protection Agreements and certain other agreements specified in such Collateral
Assignment (the "COLLATERAL ASSIGNMENT"), (e) one or more lockbox agreements
between the Company, the Guarantors and TAFSI and the Collateral Agent (and a
sub-agent as appropriate), in the form provided for in the Security Agreement
(collectively the "LOCKBOX AGREEMENTS"), (f) a trademark security agreement,
substantially in the form of Exhibit G hereto, between the Company, the
Guarantors and TAFSI and the Collateral Agent (the "TRADEMARK SECURITY
AGREEMENT") and (g) a Collateral Account Agreement. The respective rights of the
holders of the Notes and the Lenders party to the Credit Agreement with respect
to the Collateral and other matters shall be governed by a master collateral and
intercreditor agreement, substantially in the form of Exhibit H hereto, among
the Noteholders, such Lenders and the Collateral Agent (the "INTERCREDITOR
AGREEMENT").
1.6. REPRESENTATION OF THE NOTEHOLDER.
The Noteholder represents to the Company that: (a) it is, or it has
the authority to act on behalf of, the beneficial owner of Original Notes of
the issuer or issuers in the aggregate principal amount or amounts set forth
7
below its name in the acceptance form of this Agreement, (b) it is
exchanging on the Closing Date the Original Notes owned by it for Notes without
a view to any distribution of such Notes, subject, however, to the disposition
of its property being at all times within its control and (c) that the
representation made by it with respect to the source of funds used by it to
purchase the Original Notes in Section 1.04(b) of the National Purchase
Agreements or Section 1.04(b) of the TA Purchase Agreements, as the case may be,
was true and correct as of the date such representation was made.
2. EXCHANGE OF NOTES; THE CLOSING.
Subject to the terms of this Agreement, the Company hereby agrees
to issue to the Noteholder, and the Noteholder hereby agrees to surrender
Original Notes to the Company in exchange for, Notes of the series and in the
aggregate principal amount set opposite its name in Schedule I hereto.
The closing of the exchange of Notes under this Agreement shall be
held at the office of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M., New York City time,
on March 27, 1997, or such later date as shall be mutually satisfactory to the
Company and the Noteholder (the "CLOSING DATE"). On the Closing Date the Company
will (i) pay all accrued interest on the Original Notes held by the Noteholder,
in the manner required by the Purchase Agreements in respect of such Original
Notes and (ii) deliver to the Noteholder one or more Notes in exchange for all
Original Notes held by the Noteholder, registered in its name or the name of its
nominee, in any denominations (integral multiples of $500,000), and in the
series and aggregate principal amount to be acquired by the Noteholder, all as
the Noteholder may specify by timely notice to the Company (or, in the absence
of such notice, one Note of the series to be acquired, registered in the
Noteholder's name), duly executed and dated the Closing Date, against surrender
of such Original Notes.
3. CONDITIONS OF CLOSING.
The obligation of the Noteholder to surrender Original Notes in
exchange for the Notes to be acquired by it hereunder shall be subject to
the satisfaction on or before the Closing Date of the conditions hereinafter
set forth.
3.1. PROCEEDINGS SATISFACTORY.
All proceedings taken in connection with the issue of the Notes and
the consummation of the transactions contemplated hereby and by the other
Transaction Documents and all documents and papers relating thereto shall be
satisfactory to the Noteholder and its special counsel, and the Noteholder
and its special counsel shall have received copies of such documents and
papers, all in form and substance satisfactory to the Noteholder and its special
counsel, as the Noteholder or such counsel may reasonably request in connection
therewith.
8
3.2. REPRESENTATIONS TRUE, ETC.; OFFICER'S CERTIFICATES.
All representations and warranties of the Company contained in
Section 4 shall (except as expressly affected by the transactions
contemplated hereby) be true in all material respects on and as of the Closing
Date with the same effect as though such representations and warranties had been
made on and as of the Closing Date; each of the Company and the Guarantors shall
have performed all material agreements on its or their respective parts required
to be performed under this Agreement and the other Transaction Documents on or
prior to the Closing Date; the Company shall not have consolidated with, merged
into, or sold, leased, transferred or otherwise disposed of its properties as an
entirety or substantially as an entirety to, any Person (whether or not the same
would have been permitted by Section 7.5); no Default or Event of Default shall
have occurred and be continuing under this Agreement, the Credit Agreement or
the Subordinated Note Indenture; and the Noteholder shall have received a
certificate or certificates duly executed by the President or the chief
financial officer of the Company and dated the Closing Date, certifying to the
effect specified in this Section 3.2.
3.3. OPINIONS OF COUNSEL.
The Noteholder shall have received opinions of counsel, each dated
the Closing Date and addressed to it, from
(a) Xxxxxxx Xxxx & Xxxxxxxxx, who are acting as its special
counsel in connection with this transaction, in form and substance
satisfactory to the Noteholder,
(b) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, counsel for the
Company, the Guarantors and TAFSI, substantially in the form of
Exhibit I-1 hereto,
(c) Xxxxx X. Xxxxxxxxxx, General Counsel of the Company,
substantially in the form of Exhibit I-2 hereto, and
(d) each firm listed on Schedule 5.2(b) hereto, substantially in
the form of Exhibit I-3 hereto (with appropriate variations
for each state, as contemplated by said Exhibit),
and each such opinion shall cover such other matters incident to this
transaction as the Noteholder may reasonably request. The Company hereby
instructs each such counsel referred to in clauses (b), (c) and (d) above to
deliver its opinion to the Noteholder.
9
3.4. RECAPITALIZATION.
The Recapitalization and the other Transactions shall have been
consummated or shall be consummated simultaneously with the closing
contemplated by this Agreement in accordance with documentation reasonably
satisfactory to the Noteholder and applicable law, and the Noteholder shall
(i) be satisfied with the capitalization, structure and equity ownership of the
Company and its subsidiaries after giving effect to the Recapitalization and the
other Transactions, (ii) be satisfied with all voting and other governance
arrangements under the certificate of incorporation, by-laws, voting trust
agreement, stockholders agreement and all related documents and (iii) be
satisfied that, in connection with the Recapitalization and the other
Transactions, the aggregate amount of fees and expenses shall not exceed
$16,500,000.
3.5. SUBORDINATED NOTES.
The Company shall have received not less than $125,000,000 in gross
cash proceeds from the issuance of the Subordinated Notes in a public
offering or Rule 144A or other private placement to subordinated note purchasers
reasonably satisfactory to the Noteholder, which Subordinated Notes shall (i)
bear interest at a rate not greater than the then-current market rate of
interest as determined in good faith by the Company at the time of issuance of
the Subordinated Notes, (ii) mature not earlier than the tenth anniversary of
the Closing Date, and not be subject to any sinking fund requirements or other
amortization, (iii) be subordinated to the Notes on terms reasonably
satisfactory to the Noteholder and (iv) otherwise have terms and conditions
reasonably satisfactory in all respects to the Noteholder (including but not
limited to terms relating to fees, covenants, events of default and remedies).
3.6. CREDIT FACILITIES.
The Company shall have entered into the Credit Agreement in form
and substance reasonably satisfactory to the Noteholder; and the Company
shall have borrowed under the Term Facility upon satisfaction of the conditions
precedent thereto. The Noteholder shall have received true and complete copies
of each certificate, opinion or other writing then or theretofore delivered to
any party to the Credit Agreement in respect of the satisfaction of such
conditions precedent (without duplication as to conditions specifically set
forth in this Section 3), and in the case of opinions of counsel or other
experts not addressed to the Noteholder, an appropriate reliance letter
addressed to the Noteholder.
3.7. INTERCREDITOR AGREEMENT.
The Intercreditor Agreement shall have been duly executed and
delivered in the form hereinabove recited and shall be in full force and
effect and the Noteholder shall have received a counterpart thereof executed by
the Collateral Agent.
10
3.8. GUARANTEE AGREEMENT; INDEMNITY AND SUBROGATION
AGREEMENT.
The Guarantee Agreement shall have been duly executed and delivered
by the Guarantors in the form hereinabove recited and shall be in full
force and effect, and the Noteholder shall have received an executed counterpart
thereof. The Indemnity and Subrogation Agreement shall have been duly executed
by the Company, each Guarantor and the Collateral Agent in the form hereinabove
recited and shall be in full force and effect, and the Noteholder shall have
received an executed counterpart thereof.
3.9. EXISTING INDEBTEDNESS; REDEEMED NOTES.
The Existing Indebtedness shall have been repaid in full, all
commitments to lend thereunder shall have been permanently terminated and
all obligations thereunder and security interests relating thereto shall have
been discharged, and the Noteholder shall have received reasonably satisfactory
evidence of such repayments, termination and discharge. The Company shall have
purchased for cancellation, or shall have caused TA to repay or purchase for
cancellation, the Redeemed Notes (such Redeemed Notes being all Original Notes
not being exchanged for Notes pursuant to this Agreement and the other
agreements referred to in Section 4.27).
3.10. NO LIABILITIES.
After giving effect to the Recapitalization and the other
Transactions, the Guarantors, TAFSI and the Company shall have no
liabilities other than (i) the Notes, (ii) the Loans, the Swingline Loans and
the Letters of Credit, (iii) the Guarantee Agreement, (iv) the Subordinated
Notes and the Subordinated Note Guarantees and (v) other liabilities
satisfactory to the Noteholder and Indebtedness permitted under Section 7.1.
3.11. SOLVENCY.
The Noteholder shall have received a solvency letter, in form and
substance reasonably satisfactory to the Noteholder, from Valuation
Research Corp. together with such other evidence reasonably requested by the
Noteholder of the solvency of (i) the Guarantors, TAFSI and the Company, on a
consolidated basis, and (ii) the Guarantors, in each case after giving effect to
the Recapitalization and the other Transactions.
3.12. PLEDGE AGREEMENT.
Each of the following shall have occurred:
11
(a) the Pledge Agreement shall have been duly executed and
delivered in the form hereinabove recited and shall be in full force
and effect;
(b) certificates representing the Pledged Securities (as such term
is defined in the Pledge Agreement), together with undated stock powers for
such certificates executed in blank, shall have been delivered to the Collateral
Agent or its designee;
(c) such other certificates, instruments or documents constituting
Collateral pledged thereunder shall have been delivered to the Collateral
Agent; and
(d) the Noteholder shall have received evidence that all action
necessary or, in the opinion of the Noteholder, desirable to create a
perfected first priority Lien on the Collateral pledged thereunder shall have
been taken.
3.13. SECURITY DOCUMENTS.
Each of the following shall have occurred:
(a) the Security Agreement, the Collateral Account Agreement,
the Trademark Security Agreement, the Collateral Assignment and any Lockbox
Agreement required by the Noteholder or the Collateral Agent to be executed and
delivered shall have been duly executed and delivered in the respective forms
hereinabove recited and shall be in full force and effect;
(b) proper Financing Statements (Form UCC-1 or any other form that
may be required by any jurisdiction) shall have been duly filed under the
Uniform Commercial Code of all jurisdictions as may be necessary or, in the
opinion of the Noteholder, desirable to perfect the Liens created by such
Security Documents;
(c) the Noteholder shall have received certified copies of
requests for information or copies (Form UCC-11), or equivalent reports,
listing all effective financing statements that name the Company, National, TA
or TAFSI as debtor and that are filed in the jurisdictions referred to in
subsection (b) above, together with copies of such financing statements (none
of which shall cover the Collateral purported to be covered by the Security
Documents, except as shall be terminated on the Closing Date); and
(d) the Noteholder shall have received evidence
satisfactory to it that the insurance required by Section 6.2 is in full
force and effect.
3.14. MORTGAGED PROPERTIES; MORTGAGES AND LEASEHOLD MORTGAGES.
Each of the following shall have occurred:
12
(a) the Noteholder shall have received (i) a Mortgage or Leasehold
Mortgage, as the case may be, with respect to each of the Mortgaged
Properties, in recordable form satisfactory to the Noteholder, duly executed,
acknowledged and delivered by the Guarantors, (ii) title insurance policies for
each Mortgaged Property issued to the Collateral Agent in such forms and amounts
as are acceptable to the Noteholder, insuring that each Mortgage and Leasehold
Mortgage is a valid first priority lien on the respective Mortgaged Property, as
the case may be, subject to only such exceptions to title as shall be acceptable
to the Noteholder in its sole discretion and containing such endorsements and
affirmative insurance as the Noteholder may require and as are obtainable in the
applicable jurisdiction and (iii) either (A) a satisfactory certificate from a
Responsible Officer of the applicable Guarantor certifying that the surveys
relating to the Mortgaged Properties of such Guarantor delivered to the
purchasers of Original Notes in connection with the TA Purchase Agreements and
the National Purchase Agreements are true and correct in all material respects
as of the Closing Date or (B) a current ALTA survey and surveyor's
certification, in form and substance reasonably acceptable to the Noteholder, of
such Mortgaged Property; and
(b) the Noteholder shall have received a satisfactory certificate from
a Responsible Officer of the applicable Guarantor certifying that, to the best
of his or her knowledge, all New Improvements (as defined in Section 6.14)
located upon each Mortgaged Property set forth on Schedule 6.14 have been
completed in accordance with applicable laws, rules, regulations and statutes
(including any zoning, building, Environmental and Safety Laws, ordinance, code
or approval or any building permits) and all restrictions of record and all
material agreements affecting the Mortgaged Property and all decrees or orders
of any Governmental Authority with jurisdiction with respect thereto.
3.15. [INTENTIONALLY OMITTED]
3.16. OTHER ARRANGEMENTS.
The Noteholder shall be reasonably satisfied in all material respects
with all arrangements among the Company, the Operators that are stockholders of
the Company and the Resellers that are stockholders of the Company, including
all franchise, lease and fuel supply agreements.
3.17. APPRAISALS.
The Noteholder shall have received appraisals, reasonably satisfactory
in form and substance to the Noteholder, from an appraiser reasonably
satisfactory to the Noteholder, of the real property, personal property and
other assets of the Company and its Subsidiaries after giving effect to the
Transactions and the other transactions contemplated hereby.
13
3.18. LEGAL, TAX AND ACCOUNTING MATTERS.
The Noteholder shall be satisfied with all legal, tax and accounting
matters relating to the Transactions, the financing therefor and all other
transactions contemplated hereby.
3.19. CERTAIN LIABILITIES.
The Noteholder shall be satisfied in all respects with the tax and
ERISA positions and the contingent tax and other liabilities of each Guarantor,
TAFSI and the Company and the plans of such Guarantor and the Company with
respect thereto.
3.20. FLOATING RATE NOTE FACILITY FEE.
If the Noteholder is acquiring Floating Rate Notes, the Noteholder
shall have received a facility fee in an amount set forth below its name in the
acceptance form of this Agreement.
3.21. APPROVALS.
All requisite Governmental Authorities and third parties shall have
approved or consented to the Recapitalization and the other Transactions to the
extent required, all applicable appeal periods shall have expired and there
shall be no governmental or judicial action, actual or threatened, that has or
would have a reasonable likelihood of restraining, preventing or imposing
burdensome conditions on the transactions contemplated hereby.
3.22. NO LITIGATION.
There shall be no litigation or administrative proceedings or other
legal or regulatory developments, actual or threatened, that, in the judgment of
the Noteholder, involve a reasonable possibility of a material adverse effect on
the business, assets, operations, properties, financial condition, contingent
liabilities, prospects or material agreements of the Guarantors, TAFSI and the
Company, taken as a whole, or the ability of the Guarantors, TAFSI and the
Company, taken as a whole, to perform their obligations under the Financing
Documents, or the ability of the parties to consummate the Recapitalization or
the other Transactions or the validity or enforceability of any of the Financing
Documents or the rights, remedies and benefits available to the Collateral Agent
and the Noteholder under the Financing Documents, or which would be materially
inconsistent with the assumptions underlying the projections set forth in the
Confidential Information Memorandum.
14
3.23. DEPOSIT.
The Company shall have deposited directly into the Collateral Account
proceeds from the Term Loans in an amount not less than $45,000,000.
3.24. OTHER EXCHANGES; CANCELLATION OF ORIGINAL NOTES.
The other Noteholders shall have surrendered the respective aggregate
principal amounts of Original Notes held by them in exchange for the Notes to be
acquired by them under the other agreements referred to in Section 4.27; and the
Redeemed Notes and all other Original Notes shall have been cancelled or
arrangements satisfactory to the Noteholder for the prompt cancellation of such
Original Notes shall have been made.
3.25. LEGALITY.
On the Closing Date the Notes shall be a legal investment for the
Noteholder under the laws of each jurisdiction to which it may be subject,
without resort to any basket provisions of such laws such as New York Insurance
Law Section 1405(a)(8), and the Noteholder shall have received such certificates
or other evidence as it may reasonably request demonstrating such legality. In
addition, the exchange of Original Notes for Notes by the Noteholder shall not
subject the Noteholder to any penalty or, in the reasonable judgment of the
Noteholder, other onerous condition under or pursuant to any applicable law or
governmental regulation not in effect at the date of this Agreement.
3.26. PRIVATE PLACEMENT NUMBERS.
A private placement number shall have been obtained with respect to
the Notes of each series from Standard & Poor's CUSIP Service Bureau.
4. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to the Noteholder that:
4.1. ORGANIZATION; POWERS.
Each of the Company, TAFSI and the Guarantors (a) is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, (b) has all requisite power and authority to own its property
and assets and to carry on its business as now conducted and as proposed to be
conducted, (c) is qualified to do business and is in good standing in every
jurisdiction where such qualification is required (after giving effect to the
Recapitalization), except where the failure so to qualify or be in good standing
would not result in a Material Adverse Effect, and (d) has the corporate power
15
and authority to execute, deliver and perform its obligations under each of the
Transaction Documents and each other agreement or instrument contemplated
thereby to which it is or will be a party and, in the case of Company, to issue
the Notes.
4.2. AUTHORIZATION; COMPLIANCE WITH LAWS, INSTRUMENTS.
The execution, delivery and performance by the Company, each Guarantor
and TAFSI, as applicable, of each of the Transaction Documents to which it is a
party, borrowings under the Credit Agreement, the issuance of the Notes in
exchange for Original Notes, the creation of the Liens contemplated by the
Security Documents and the other transactions contemplated by the Transaction
Documents (including (x) the Recapitalization, (y) the agreements executed and
delivered in connection with the offering of and the issuance by the Company of
the Notes and the Subordinated Notes and (z) the Company's capital contributions
or advances to National and TA in amounts sufficient to enable National and TA
to discharge their respective Existing Indebtedness and to pay accrued interest
on the Original Notes, transaction costs and other related expenses) (all the
foregoing, collectively, the "TRANSACTIONS") (a) have been duly authorized by
all requisite corporate and, if required, stockholder action on the part of the
Company, each Guarantor and TAFSI and (b) will not (i) violate (A) any provision
of any law, statute, rule or regulation, other than any law, statute, rule or
regulation, the violation of which will not result in a Material Adverse Effect
or of the certificate of incorporation or other constitutive documents or
by-laws of the Company, the Guarantors or TAFSI, (B) any order of any
Governmental Authority or (C) any provision of any material indenture, agreement
or other instrument to which the Company, either Guarantor or TAFSI is a party
or by which any of them or any of their property (including the Mortgaged
Property) or assets is or may be bound, (ii) be in conflict with, result in a
breach of or constitute (alone or with notice or lapse of time or both) a
default under any such indenture, agreement or other instrument or (iii) result
in the creation or imposition of any Lien (other than any Lien created under the
Security Documents) upon or with respect to any property or assets now owned or
hereafter acquired by the Company, either Guarantor or TAFSI.
4.3. ENFORCEABILITY.
This Agreement has been duly executed and delivered by the Company and
constitutes, and each other Transaction Document to which the Company, a
Guarantor or TAFSI is a party when respectively executed and delivered by it
will constitute, a legal, valid and binding obligation of the Company, such
Guarantor or TAFSI, as the case may be, enforceable against it in accordance
with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other
similar laws affecting creditors' rights generally and by general principles of
16
equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity).
4.4. GOVERNMENTAL APPROVALS.
No action, consent or approval of, registration or filing with or any
other action by any Governmental Authority by the Company, either Guarantor or
TAFSI is or will be required in connection with the Transactions, except such as
have been made or obtained and are in full force and effect and other than
filings, recordings and approvals (i) to record deeds and leases with respect to
real properties, (ii) to record and/or perfect the Liens created by the Security
Documents, (iii) to record a leasehold memorandum, if currently unrecorded, in
respect of any leasehold interest to which a Leasehold Mortgage relates, and
(iv) that are not material to the Company, either Guarantor or TAFSI,
individually or in the aggregate.
4.5. FINANCIAL STATEMENTS.
(a) The unaudited pro forma consolidated balance sheet of the Company
and its Subsidiaries as of December 31, 1996 (including the notes thereto) (the
"PRO FORMA BALANCE SHEET"), a copy of which has heretofore been furnished to the
Noteholder, has been prepared giving effect (as if such events had occurred on
such date) to (i) the Transactions and (ii) the payment of fees and expenses in
connection with the foregoing. The Pro Forma Balance Sheet (i) has been prepared
based on the assumptions used to prepare the pro forma financial information
contained in the Confidential Information Memorandum, (ii) is based on the best
information available to the Company as of the date of delivery thereof and
(iii) presents fairly on a pro forma basis the estimated consolidated financial
position of the Company and its Subsidiaries as of December 31, 1996, assuming
that the events specified in the preceding sentence had actually occurred at
December 31, 1996.
(b) The Company has heretofore furnished to the Noteholder the
consolidated and consolidating balance sheets of the Company and its
consolidated Subsidiaries and the related statements of operations,
stockholders' equity and cash flows as of and for the fiscal years ended
December 31, 1996, 1995 and 1994, audited by and accompanied by the opinion of
Price Waterhouse, independent public accountants, accompanied by a certificate
of a Financial Officer of the Company. Such financial statements present fairly
the financial condition and results of operations of the Company and its
consolidated Subsidiaries as of such dates and for such periods. Such financial
statements and the notes thereto disclose all material liabilities required
under GAAP to be disclosed, direct or contingent, of the Company and its
consolidated Subsidiaries as of the dates thereof. Such financial statements
were prepared in accordance with GAAP applied on a consistent basis.
17
4.6. NO DEFAULT OR MATERIAL ADVERSE CHANGE.
Except as set forth in a letter from the Company delivered to the
Noteholder prior to the date hereof, no Default or Event of Default (as such
terms are respectively defined in the National Purchase Agreements and the TA
Purchase Agreements) has occurred and is continuing. Neither the Company, nor a
Guarantor nor TAFSI is in default (whether or not waived) in the performance or
observance of any of the terms, covenants or conditions contained in any
instrument evidencing any Indebtedness of such person that could reasonably be
expected to result in a Material Adverse Effect and no event has occurred or is
continuing which, with notice or lapse of time or both, would become such a
default. There has been no material adverse change in the business, assets,
operations, properties, financial condition, contingent liabilities, prospects
or material agreements of the Company and its Subsidiaries taken as a whole or
the Network since December 31, 1996.
4.7. TITLE TO PROPERTIES; POSSESSION UNDER LEASES.
(a) After giving effect to the consummation of the Transactions on the
Closing Date: each of the Company, TAFSI and each Guarantor will have good and
marketable title to, or valid leasehold interests in, all its material
properties and assets (including, in the case of the Guarantors, all Mortgaged
Property); all such material properties and assets shall be free and clear of
Liens, other than Liens expressly permitted by Section 7.2; and except for
leases of Mortgaged Property set forth on Schedule 7.2, no material portion of
any Mortgaged Property will be subject to any lease, license, sublease or other
agreement granting to any Person any right to use, occupy or enjoy the same.
(b) Except as set forth on Schedule 4.7(b), after giving effect to the
consummation of the Transactions on the Closing Date, each Guarantor shall have
complied with all material obligations under all material leases to which such
Guarantor shall then be a party, and all such leases shall be in full force and
effect; each Guarantor shall enjoy peaceful and undisturbed possession under all
such material leases under which it is tenant. Neither the Company nor TAFSI is
a party to any lease.
(c) Except as set forth in Schedule 4.7(c), neither the Company nor a
Guarantor has received any notice of, or has any knowledge of, any pending or
contemplated condemnation proceeding affecting the Mortgaged Properties, or any
sale or disposition thereof in lieu of condemnation.
(d) Neither the Company nor any Guarantor is obligated under any right
of first refusal, option or other contractual right to sell, assign or otherwise
dispose of any Mortgaged Property or any interest therein.
18
4.8. SUBSIDIARIES.
As of the Closing Date and after giving effect to the Recapitalization
(a) the Company has no Subsidiaries other than the Guarantors and TAFSI and (b)
none of the Guarantors or TAFSI has any Subsidiaries.
4.9. LITIGATION; COMPLIANCE WITH LAWS.
(a) Except as set forth on Schedule 4.9, there are no actions, suits
or proceedings at law or in equity or by or before any Governmental Authority
now pending or, to the knowledge of the Company, threatened against or affecting
the Company, the Guarantors or TAFSI or any business, property (including the
Network), assets or rights of any such person (i) that involve any Transaction
Document or the Transactions or (ii) as to which there is a reasonable
possibility of an adverse determination and which, if adversely determined,
could, individually or in the aggregate, result in a Material Adverse Effect.
(b) None of the Company, the Guarantors or TAFSI, nor any of their
respective material properties or assets, are in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate any material law, rule, regulation or statute (including any
zoning, building, Environmental and Safety Laws, ordinance, code or approval or
any building permits) or any restrictions of record or agreements affecting the
Mortgaged Property or are in default with respect to any judgment, writ,
injunction, decree or order of any Governmental Authority, where such violation
or default could reasonably be expected to result in a Material Adverse Effect.
(c) Certificates of occupancy and permits are in effect for 80% of the
aggregate value of the Mortgaged Properties, as currently constructed.
4.10. BURDENSOME AGREEMENTS, ETC.
After giving effect to the Recapitalization and the Transactions, none
of the Company, the Guarantors or TAFSI is in default in any manner under any
provision of any indenture or other agreement or instrument evidencing
Indebtedness, or any other material agreement or instrument to which it is a
party or by which it or any of its properties or assets are or may be bound,
where such default could reasonably be expected to result in a Material Adverse
Effect.
4.11. FEDERAL RESERVE REGULATIONS.
(a) None of the Company, the Guarantors or TAFSI is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of buying or carrying Margin Stock.
19
(b) No part of the proceeds of the sale of the Original Notes was used
by the Company, any Guarantor or TAFSI, whether directly or indirectly, and
whether immediately, incidentally or ultimately, (i) to buy or carry Margin
Stock or to extend credit to others for the purpose of buying or carrying Margin
Stock or to refund indebtedness originally incurred for such purpose or (ii) for
any purpose that entails a violation of, or is inconsistent with, the provisions
of the Regulations of the Federal Reserve Board, including Regulations G, T and
X.
4.12. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY
ACT.
None of the Company, the Guarantors or TAFSI (a) is an "INVESTMENT
COMPANY" as defined in, or is subject to regulation under, the Investment
Company Act of 1940 or (b) is a "HOLDING COMPANY" as defined in, or is subject
to regulation under, the Public Utility Holding Company Act of 1935.
4.13. TAX RETURNS.
Each of the Company, each Guarantor and TAFSI has filed or caused to
be filed all material Federal, state and local tax returns required to have been
filed by it or with respect to it and has paid or caused to be paid all taxes
shown to be due and payable on such returns or on any assessments received by it
or with respect to it, except taxes that are being contested in good faith by
appropriate proceedings and for which the Company, such Guarantor or TAFSI shall
have set aside on its books adequate reserves in accordance with GAAP. Each of
the Company, each Guarantor and TAFSI has filed or made adequate provision on
its books in accordance with GAAP for any material taxes payable by it in
connection with the Transactions.
4.14. NO MATERIAL MISSTATEMENTS.
The information provided by or on behalf of the Company and contained
in the Confidential Information Memorandum (including all attachments and
exhibits thereto), as supplemented, and as supplemented further by information
heretofore provided in writing by or on behalf of the Company (including the
Offering Memorandum) to the Noteholder, when taken as a whole, was, as of the
date of such Confidential Information Memorandum, the dates otherwise specified
therein or the dates upon which such information was provided in writing,
accurate in all material respects and does not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading, provided that (a) the statements therein
describing documents and agreements are summaries only and as such are qualified
in their entirety by reference to such documents and agreements, (b) to the
extent any such information therein was based upon or constitutes a forecast or
projection, the Company represents only that it acted in good faith and utilized
reasonable assumptions, due and careful consideration and the best information
20
known to it at the time in the preparation of such information and (c) as to the
information that is specified as having been supplied by third parties other
than Affiliates of the Company, the Company represents only that it is not aware
of any material misstatement therein or omission therefrom.
4.15. EMPLOYEE BENEFIT PLANS.
Each of the Company, the Guarantors and TAFSI and their ERISA
Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the regulations and published interpretations
thereunder. No Reportable Event has occurred, been waived or exists as to which
the Company, either Guarantor, TAFSI or any ERISA Affiliate was or is required
to file a report with the PBGC, and the present value of all benefit liabilities
under each Plan (based on those assumptions used to fund such Plan) did not, as
of the last annual valuation date applicable thereto, exceed by more than
$2,000,000 the value of the assets of such Plan. None of the Company, the
Guarantors, TAFSI or any ERISA Affiliate has incurred any Withdrawal Liability
that could result in a Material Adverse Effect. None of the Company, the
Guarantors, TAFSI or any ERISA Affiliate has received any notification that any
Multiemployer Plan is in reorganization or has been terminated within the
meaning of Title IV of ERISA, and no Multiemployer Plan is reasonably expected
to be in reorganization or to be terminated where such reorganization or
termination has resulted or could reasonably be expected to result, through
increases in the contributions required to be made to such Plan or otherwise, in
a Material Adverse Effect.
4.16. ENVIRONMENTAL AND SAFETY MATTERS.
(a) After giving effect to the Transactions, on the Closing Date each
of the Company, the Guarantors and TAFSI will be in compliance with all
Environmental and Safety Laws, with the exception of instances that will not
individually or in the aggregate result in any material liability on the part of
the Company, the applicable Guarantor or TAFSI, individually or collectively.
(b) (i) None of the Company, the Guarantors or TAFSI has received
notice of any failure to comply with, nor has any such notice been issued that
has not been fully satisfied so as to bring any property of the Company, the
Guarantors or TAFSI into full compliance with, all Environmental and Safety
Laws, except where such noncompliance, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect, (ii) after giving
effect to the Transactions, the Company's and its Subsidiaries' Truckstops,
properties, plants and facilities do not use, manage, treat, store or dispose of
any Hazardous Substances in violation of any Environmental and Safety Laws,
except where such violations, individually or in the aggregate, could not
21
reasonably be expected to have a Material Adverse Effect, (iii) all licenses,
permits or registrations (or any extensions thereof) required under any
Environmental and Safety Laws for the business of the Company and its
Subsidiaries as proposed to be conducted have been obtained and each of the
Company and its Subsidiaries is in compliance therewith, except for the failure
to obtain such licenses, permits or registrations or to comply therewith which,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect and (iv) neither the Company nor any of its Subsidiaries
is in noncompliance with, breach of or default under any applicable writ, order,
judgment, injunction or decree where such noncompliance, breach or default would
materially and adversely affect the ability of the Company or any of its
Subsidiaries, as applicable, to operate the Mortgaged Property or any other real
property owned or leased by it, and no event has occurred and is continuing
that, with the passage of time or the giving of notice or both, would constitute
such noncompliance, breach or default thereunder.
(c) No Hazardous Substance has been Released (and no oral or written
notification of such Release has been filed) or is present (whether or not in a
reportable or threshold planning quantity) at, on or under any property owned or
leased by the Company or any of its Subsidiaries during the period of the
Company's or such Subsidiary's ownership or lease of such property, or to the
knowledge of the Company or either Guarantor at any time previous to such
ownership or lease, under conditions that require remedial action under
applicable Environmental and Safety Laws, except where such remedial action,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect; the Company has not at any property now or previously
owned or leased by the Company or any of its Subsidiaries, directly or
indirectly, transported or arranged for the transportation of any Hazardous
Substances to any site listed, or proposed for listing, on the National
Priorities List promulgated pursuant to CERCLA, on CERCLIS (as defined in
CERCLA) or on any similar Federal, state or foreign list of sites requiring
investigation or cleanup except where any liability for such transportation or
arrangement for transportation, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. Neither the Company
nor any of its Subsidiaries is aware of any event, condition or circumstance
involving environmental pollution or contamination, or employee safety or health
relating to the use or handling of, or exposure to, Hazardous Substances that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.
(d) The Company and its Subsidiaries are conducting and will continue
to conduct their respective businesses and operations in an environmentally
responsible manner, and the Company and its Subsidiaries, taken as a whole are
not and have no reason to believe that they will be subject to any requirement
of Environmental and Safety Laws that will result in cash expenditures related
to environmental, health or safety matters which, individually or in the
aggregate, could have a Material Adverse Effect.
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4.17. SOLVENCY.
After giving effect to the consummation of the Transactions to occur
on the Closing Date, (a) the fair salable value of the assets of each of (i) the
Company, the Guarantors and TAFSI, on a consolidated basis and (ii) the
Guarantors will exceed the amount that will be required to be paid on or in
respect of the existing debts and other liabilities (including contingent
liabilities) of the Company, the Guarantors, TAFSI, on a consolidated basis, and
the Guarantors, respectively, as they mature, (b) the assets of (i) the Company,
the Guarantors and TAFSI, on a consolidated basis and (ii) the Guarantors will
not constitute unreasonably small capital to carry out their businesses as
conducted or as proposed to be conducted, including the capital needs of the
Company, the Guarantors and TAFSI, on a consolidated basis or the Company,
respectively (taking into account, in each case, the particular capital
requirements of the businesses conducted by such entities and the projected
capital requirements and capital availability of such businesses), and (c) none
of the Company, either Guarantor or TAFSI intends to, nor do they believe that
they will, incur debts beyond their ability to pay such debts as they mature
(taking into account the timing and amounts of cash to be received by them and
the amounts to be payable on or in respect of their obligations).
4.18. EMPLOYMENT AND MANAGEMENT AGREEMENTS.
Except as disclosed on Schedule 4.18, as of the Closing Date there are
no (a) employment agreements covering management employees of the Company, the
Guarantors or TAFSI or other material agreements relating to the compensation of
management employees (including the issuance of securities of the Company to
management employees), (b) agreements for management or consulting services to
which the Company, the Guarantors or TAFSI is a party or by which either of them
is bound or (c) collective bargaining agreements or other labor agreements
covering any of the employees of the Company, the Guarantors or TAFSI.
4.19. CAPITALIZATION.
(a) As of the Closing Date and after giving effect to the consummation
of the Transactions: the authorized capital stock of the Company will consist of
(i) 30,000,000 shares of common stock, par value $.01 per share (the "COMMON
STOCK"), of which 1,276,672 shares will be issued and outstanding and (ii)
20,000,000 shares of preferred stock, par value $.01 per share, of which (w)
6,000,000 shares have been designated Convertible Preferred Stock, Series I (the
"SERIES I PREFERRED STOCK"), of which 2,594,876 shares will be issued and
outstanding, (x) 2,500,000 shares have been designated Convertible Preferred
23
Stock, Series II (the "SERIES II PREFERRED STOCK"), of which 1,237,374 shares
will be issued and outstanding, (y) 3,000,000 shares have been designated Senior
Convertible Participating Preferred Stock, Series I (the "SERIES I SENIOR
PREFERRED STOCK"), of which 2,680,656 shares will be issued and outstanding and
(z) 1,000,000 shares have been designated Senior Convertible Participating
Preferred Stock, Series II (the "SERIES II SENIOR PREFERRED STOCK"), of which
934,344 shares will be issued and outstanding; all such outstanding shares of
capital stock of the Company will be fully paid and nonassessable; and 1,086,250
shares of Common Stock will be owned of record by the Voting Trust in accordance
with the terms of the Voting Trust Agreement. Set forth on Schedule 4.20(a)(i)
is a list of every Person that, as of the Closing Date, will own beneficially
(as defined in Rule 13d-3 promulgated under the Securities Exchange Act of 1934
or any successor thereto) and of record shares of any class of capital stock of
the Company, together with the number of shares of such class so owned. Set
forth on Schedule 4.20(a)(ii) is a list of every Person that, to the best of the
Company's knowledge based on information provided to it by the Voting Trustee
(as such term is defined in the Voting Trust Agreement) under the Voting Trust
Agreement, as of the Closing Date, will own beneficially and of record Voting
Trust Certificates, together with the number of shares represented by such
certificates so owned.
(b) The authorized capital stock of TA consists (and at all times
after the Closing Date will consist) of 1,000 shares of common stock, par value
$.01 per share, of which 100 shares are (and at all times after the Closing Date
will be) issued and outstanding. All such outstanding shares of capital stock of
TA are fully paid and nonassessable and, after giving effect to the
Recapitalization, are owned beneficially and of record by the Company.
(c) The authorized capital stock of National consists (and at all
times after the Closing Date will consist) of 1,000 shares of common stock, par
value $.01 per share, of which 10 shares are (and at all times after the Closing
Date will be) issued and outstanding. All such outstanding shares of capital
stock of National are fully paid and nonassessable and are owned beneficially
and of record by the Company.
(d) The authorized capital stock of TAFSI consists (and at all times
after the Closing Date will consist) of 1,000 shares of common stock, par value
$1 per share, of which 100 shares are (and at all times after the Closing Date
will be) issued and outstanding. All such outstanding shares of capital stock of
TAFSI are fully paid and nonassessable and, after giving effect to the
Recapitalization, are owned beneficially and of record by the Company.
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(e) Except as set forth on Schedule 4.19(e), there are no (and at all
times following the Closing Date there will be no) outstanding subscriptions,
options, warrants, calls, rights (including preemptive rights) or other
agreements or commitments (including pursuant to management or employee stock
plan or similar plan) of any nature relating to any capital stock of the
Company, either Guarantor or TAFSI.
4.20. SECURITY DOCUMENTS.
(a) The Pledge Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Pledge
Agreement) and proceeds thereof and, when the Collateral is delivered to the
Collateral Agent, the Pledge Agreement shall constitute a fully perfected first
priority Lien on, and security interest in, all right, title and interest of the
Company, each Guarantor or TAFSI, as applicable, in such Collateral and the
proceeds thereof, in each case prior and superior in right to any other Person.
(b) The Security Agreement and the Collateral Account Agreement are
effective to create in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined, respectively, in the Security Agreement and the
Collateral Account Agreement) and proceeds thereof, and when financing
statements in appropriate form are filed in the offices specified on Schedule
4.20 (or, in the case of TAFSI, in the offices of the Secretary of State of the
State of Ohio) and, in the case of cash included in the Collateral under the
Collateral Account Agreement, when such cash is deposited in the Collateral
Account, each of the Security Agreement and the Collateral Account Agreement
shall constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the Company, each Guarantor or TAFSI, as applicable, in
such Collateral and the proceeds thereof, in each case prior and superior in
right to any other Person, other than with respect to Liens expressly permitted
by Section 7.2.
(c) The Mortgages are effective to create in favor of the Collateral
Agent, for the ratable benefit of the Secured Parties, a legal, valid and
enforceable Lien on all of each Guarantor's right, title and interest in and to
the Mortgaged Properties thereunder and the proceeds thereof, and when the
Mortgages are filed in the offices specified on Schedule 1.1(b), the Mortgages
shall constitute fully perfected Liens on, and security interests in, all right,
title and interest of such Guarantor in such Mortgaged Properties and the
proceeds thereof, in each case prior and superior in right to any other Person,
other than with respect to the rights of Persons pursuant to Liens expressly
permitted by Section 7.2.
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(d) The Trademark Security Agreement is effective to create in favor
of the Collateral Agent, for the ratable benefit of the Secured Parties, a
legal, valid and enforceable security interest in the Collateral (as defined in
the Trademark Security Agreement) and the proceeds thereof, and upon the filing
of assignment statements with the United States Patent and Trademark Office,
together with financing statements in appropriate form filed in the offices
specified on Schedule 4.20, the Trademark Security Agreement shall constitute a
fully perfected Lien on, and security interest in, all right, title and interest
of the Company, the Guarantors and TAFSI in such Collateral and the proceeds
thereof, in each case prior and superior in right to any other person, other
than with respect to Liens expressly permitted by Section 7.2.
(e) The Collateral Assignment is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable assignment of, transfer of all right, title and interest of the
Company, each Guarantor or TAFSI as applicable, in, and security interest in,
the Assigned Contracts (as defined in the Collateral Assignment) and proceeds
thereof, and when financing statements in appropriate form are filed in the
offices specified on Schedule 4.20, the Collateral Agreement shall constitute a
fully perfected Lien on, and security interest in, all right, title and interest
of the Company, such Guarantor or TAFSI, as applicable, in such Assigned
Contracts and the proceeds thereof, in each case prior and superior in right to
any other Person, other than with respect to Liens expressly permitted by
Section 7.2.
4.21. LABOR MATTERS.
There are no strikes, lockouts or slowdowns against the Company or any
of its Subsidiaries pending or, to the Company's knowledge, threatened. The
hours worked by and payment made to employees of the Company and its
Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable Federal, state, local or foreign law dealing with such matters,
where such violations could reasonably be expected to result in a Material
Adverse Effect. The consummation of the Transactions will not give rise to a
right of termination or right of renegotiation on the part of any union under
any collective bargaining agreement to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound on the Closing Date.
4.22. LOCATION OF REAL PROPERTY AND LEASED PREMISES.
(a) Schedule 4.22(a) lists completely and correctly as of the Closing
Date all real property owned by the Guarantors and the addresses thereof. Each
Guarantor owns in fee all the real property set forth on Schedule 4.22(a) with
respect to such Guarantor.
26
(b) Schedule 4.22(b) lists completely and correctly as of the Closing
Date all real property leased or subleased by the Guarantors and the addresses
thereof. Each Guarantor will have a valid lease or sublease in all the real
property set forth on Schedule 4.22(b) with respect to such Guarantor.
(c) Neither the Company nor TAFSI owns nor leases any real property.
4.23. INSURANCE.
The Company and each Guarantor maintains (after giving effect to
insurance it has caused each Network Operator, if any, to maintain) with
financially sound insurance companies insurance on all its properties in at
least such amounts and against at least such risks (but, including in any event,
all-risk casualty, public liability and product liability) as are usually
insured against in the same general geographic area by companies engaged in the
same or similar business. The Company has been named as an additional insured
party on each insurance policy that it has caused each Guarantor and each
Network Operator, if any, to maintain.
4.24. DELIVERY OF DOCUMENTS; REPRESENTATIONS AND WARRANTIES.
(a) The Company has previously made available, and has caused the
Guarantor to make available, to the Noteholder true, correct and complete copies
of all real property leases or subleases, easement agreements, option agreements
and other agreements, instruments and documents (whether or not recorded) that
encumber or otherwise affect the real property listed on Schedules 4.22(a) and
4.22(b).
(b) The Noteholder has been furnished with complete certified copies
(as certified to by, as applicable, the Secretary of the Company, the applicable
Guarantor or TAFSI) of the Environmental Agreements, the Credit Agreement, the
Subordinated Note Documents, the TA Stockholders Agreement and the Stockholders
Agreement, including all exhibits, schedules and disclosure letters referred to
therein or delivered pursuant thereto (if any), and all amendments thereto,
waivers relating thereto and other side letters or agreements affecting the
terms thereof. None of such documents and agreements has been amended,
supplemented or otherwise modified, nor have any of the provisions thereof been
waived, in each case in any manner that, in the reasonable judgment of the
Noteholder, is adverse in any material respect to the Noteholder, except
pursuant to a written agreement or instrument that has heretofore been consented
to by the Noteholder.
(c) Each of the Franchise Agreements, the Credit Agreement, the
Subordinated Note Documents, the Stockholder Agreements, the TA Stockholders
Agreement and the Environmental Agreements has been duly executed and delivered
27
by the Company, TAFSI or the applicable Guarantor as applicable and, to the
Company's knowledge, by each other party thereto and each of the material terms
and provisions thereof is in full force and effect.
4.25. FEES AND EXPENSES.
Except for facility fees to be paid in connection with the exchange of
Floating Rate Notes, as contemplated by Section 3.20, neither the Company nor a
Guarantor or TAFSI has, directly or indirectly, paid or caused to be paid any
consideration (as supplemental or additional interest, a fee or otherwise) to
any holder of Original Notes in order to induce such holder to enter into this
Agreement or one of the other agreements referred to in Section 4.27, nor has
the Company or either Guarantor or TAFSI, directly or indirectly, agreed to make
any such payment. The aggregate amount of fees and expenses incurred in
connection with the Transactions by the Company, TAFSI and the Guarantors has
not and will not exceed $16,500,000.
4.26. OFFERING OF THE NOTES.
None of the Company, the Guarantors or TAFSI nor anyone acting on
their behalf has offered the Notes or the Guarantee Agreement or any similar
securities for sale to, or solicited any offer to buy any of the same from, or
otherwise approached or negotiated in respect thereof with, any Person other
than the Noteholder and the other holders of the Original Notes. None of the
Company, the Guarantors or TAFSI nor anyone acting on their behalf has taken, or
will take, any action which would subject the issuance of the Notes or the
execution and delivery of the Guarantee Agreement to Section 5 of the Securities
Act of 1933, as amended.
4.27. OTHER AGREEMENTS.
Simultaneously with the execution of this Agreement, the Company is
entering into other agreements that are identical in all respects with this
Agreement (except for the series and respective principal amounts of Notes to be
exchanged) with the other noteholders named in Schedule I. The aggregate
principal amount of Notes to be exchanged by the Noteholder and such other
noteholders is $85,500,000, but the exchanges by the Noteholder and such other
noteholders are to be separate and several transactions.
5. PREPAYMENT OF NOTES.
In addition to the payment of the entire unpaid principal amount of
the Notes of each series at the final maturity dates thereof, the Company will
make required, and may make optional, prepayments of the Notes as hereinafter
provided.
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5.1. REQUIRED PREPAYMENT.
(a) FIXED RATE NOTES. On June 30, 2001, December 31, 2001 and June 30,
2002 the Company will prepay $8,875,000 aggregate principal amount of the Fixed
Rate Notes (or, if less, the unpaid balance thereof), at the principal amount to
be prepaid, together with accrued interest on such principal amount to the date
of such prepayment, without premium, whether or not any optional prepayment has
been or is being made pursuant to Section 5.2; provided that upon any partial
prepayment of the Fixed Rate Notes pursuant to Section 5.3 or 5.4, the principal
amount of each required prepayment of the Fixed Rate Notes becoming due under
this Section 5.1(a) on and after the date of such partial prepayment shall be
reduced in the same proportion as the aggregate unpaid principal amount of the
Fixed Rate Notes is reduced as a result of such partial prepayment.
(b) FLOATING RATE NOTES. The Company will prepay the respective
principal amounts of the Floating Rate Notes (or if less, the unpaid balance
thereof) on the dates set forth below:
DATE OF PREPAYMENT PRINCIPAL AMOUNT OF PREPAYMENT
------------------ -------------------------------
June 30, 2003 $5,000,000
September 30, 2003 $5,000,000
December 31, 2003 $5,000,000
March 31, 2004 $5,000,000
June 30, 2004 $7,500,000
September 30, 2004 $7,500,000
December 31, 2004 $7,500,000
in each case at the principal amount to be prepaid, together with
accrued interest on such principal amount to the date of such prepayment,
without premium, whether or not any optional prepayment has been or is being
made pursuant to Section 5.2; provided that upon any partial prepayment of the
Floating Rate Notes pursuant to Section 5.3 or 5.4, the principal amount of each
required prepayment of the Floating Rate Notes becoming due under this Section
5.1(b) on and after the date of such partial prepayment shall be reduced in the
same proportion as the aggregate unpaid principal amount of the Floating Rate
Notes is reduced as a result of such partial prepayment.
5.2. OPTIONAL PREPAYMENTS.
The Company, upon not less than 10 or more than 30 days' prior written
notice of the date and amount of optional prepayment to the holders of the
Notes, may prepay at any time all or from time to time any part (in an integral
multiple of $1,000,000) of the Notes of either series, upon payment of the
principal amount so to be prepaid, together with accrued interest on such
principal amount to the date of such prepayment and the Make-Whole Premium for
any Fixed Rate Notes or the Break Funding Cost for any Floating Rate Notes.
29
5.3. PREPAYMENTS IN CONNECTION WITH AVAILABLE PROCEEDS.
(a) If at any time the Company shall have Available Proceeds (as
hereinafter defined), the Company will, promptly and in any event within five
days after such Available Proceeds are identified as such, give written notice
thereof to the holders of the Notes, which notice shall contain an irrevocable
offer by the Company to apply to the prepayment of the Notes (pro rata according
to the respective unpaid principal amounts of Notes held by each such holder) an
amount (rounded to the nearest $1,000) equal to such Available Proceeds, such
prepayment to be made on a date (the "AVAILABLE PROCEEDS PREPAYMENT DATE")
specified in such notice (which date shall be not less than 10 days and not more
than 30 days after the date of such notice, subject in the case of Floating Rate
Notes to extension to the next following Interest Payment Date as provided in
Section 5.3(e)), in each case at the principal amount so to be prepaid, together
with accrued interest on such principal amount to the Available Proceeds
Prepayment Date and the applicable Break Funding Cost for any Floating Rate
Notes but without premium on any Fixed Rate Notes. Each holder of a Note may
reject such offer (in whole but not in part with respect to any Note) and shall
be deemed to have rejected such offer unless such holder shall have accepted
such offer by notice delivered to the Company in writing or by telecopy (or by
telephone promptly confirmed in writing or by telecopy) at least three Business
Days prior to the Available Proceeds Prepayment Date. If any such holder shall
have rejected (or be deemed to have rejected) such prepayment offer, such holder
shall not be deemed to have waived its rights under this Section 5.3 with
respect to any later prepayment offer. A holder of more than one Note may
exercise its option under this Section in respect of all or any one of its
Notes. If any holder of Fixed Rate Notes rejects or is deemed to have rejected
such prepayment offer, then on the Available Proceeds Prepayment Date (i) the
share of such Available Proceeds attributable to such Fixed Rate Notes shall be
allocated pro rata between the Floating Rate Notes and the Term Loans and (ii)
the Company shall offer to apply such pro rata amount in the manner set forth in
Section 5.3(c) to (A) the prepayment of Floating Rate Notes (pro rata according
to the respective unpaid principal amounts of Floating Rate Notes being prepaid)
and (B) to the prepayment of obligations outstanding under the Credit Agreement
in accordance with paragraphs (e) and (f) of Section 2.13 thereof (or the
analogous provisions, if any, in respect of Refinancing Indebtedness).
(b) The Company shall, not less than two Business Days prior to the
Available Proceeds Prepayment Date, deliver to each holder of Notes a notice
specifying (i) the aggregate principal amount of all Notes of each series to be
prepaid by the Company on the Available Proceeds Prepayment Date, and (ii) the
series and principal amount of Notes held by such holder to be prepaid on the
Available Proceeds Prepayment Date.
30
(c) Each holder of a Floating Rate Note may, subject to the following
sentence, elect by notice delivered to the Company in writing or by telecopy (or
by telephone promptly confirmed in writing or by telecopy) at least one Business
Day prior to any Available Proceeds Prepayment Date, to decline all or a portion
of the prepayment offer referred to in clause (ii) of Section 5.3(a) (in respect
of amounts rejected by holders of Fixed Rate Notes and offered to such holder of
a Floating Rate Note) and, under such circumstances, the Company shall retain
all amounts (such amounts, together with all amounts declined by holders of Term
Loans pursuant to Section 2.13(h) of the Credit Agreement or the analogous
provisions in respect of Refinancing Indebtedness, the "DECLINED AMOUNTS") that
would otherwise be used to prepay Notes and Term Loans. In the event that any
portion of the Declined Amounts has not been invested in assets used in the
principal lines of business of the Company or its Subsidiaries or used by the
Company to make an optional prepayment pursuant to Section 5.2 during the
one-year period after such Declined Amounts were so declined, the Company shall
be required, on the last day of such one-year period, to apply an amount equal
to the Pro Rata Share of the remaining Declined Amounts attributable to the
Notes, all in accordance with this Section 5.3 to the same extent as if such
amount constituted Available Proceeds pursuant to Section 5.3(a), provided that
(i) any amounts declined by any holder of a Fixed Rate Note shall be allocated
pro rata between the Floating Rate Notes and the Term Loans and (ii) no holder
of Floating Rate Notes or Term Lender shall be entitled to decline to accept any
such mandatory prepayment. It is understood and agreed that all references in
this Section 5.3 to Fixed Rate Notes, Floating Rate Notes and Term Loans shall
be deemed to include any Refinancing Indebtedness with respect thereto.
(d) In the case of any Prepayment Event or other event giving rise to
Available Proceeds, in respect of which the Company is required to prepay Loans,
Swingline Loans and Letters of Credit pursuant to Section 2.13 of the Credit
Agreement (or the analogous provisions in respect of Credit Agreement
Refinancing Indebtedness) prior to the Available Proceeds Prepayment Date, the
Company will, concurrently with such prepayment pursuant to the Credit Agreement
(or in respect of Credit Agreement Refinancing Indebtedness), make effective
provision whereby the Available Proceeds are placed in escrow with the
Collateral Agent until the Available Proceeds Prepayment Date whereupon such
amounts shall be applied to prepayments under this Section 5.3 (or the analogous
provisions in respect of Refinancing Indebtedness).
(e) Notwithstanding contrary provisions in Section 5.3(a), if the
Interest Payment Date next following the date the Company is required to give
notice pursuant to Section 5.3(a) in respect of the prepayment of Floating Rate
Notes out of any Available Proceeds is more than 30 days after the date of such
notice, the Company may in such notice specify such next following Interest
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Payment Date for the Floating Rate Notes as the Available Proceeds Prepayment
Date for such prepayment of Floating Rate Notes, provided that on or before the
Available Proceeds Prepayment Date in respect of the Fixed Rate Notes the
Company shall have deposited in the Prepayment Account (as security for such
prepayment) the Available Proceeds in respect of the Floating Rate Notes. On
such Interest Payment Date or, at the direction of the Company, on any earlier
date, the Collateral Agent shall apply any cash deposited in the Prepayment
Account to such prepayment in respect of the Floating Rate Notes, provided that
such cash shall not be applied to the payment of any Break Funding Cost due on
account of such earlier prepayment if the effect would be to reduce the
principal amount that would have been prepaid without applying any such cash to
pay Break Funding Cost. For purposes of this Agreement, "PREPAYMENT ACCOUNT"
shall mean a collateral account established by the Company with the Collateral
Agent as security for the Floating Rate Notes and over which the Collateral
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal for application in accordance with this Section 5.3(e) (or the
analogous provisions in respect of Note Refinancing Indebtedness).
"AVAILABLE PROCEEDS" means, at any date of determination,
(1) in the case of Net Cash Proceeds resulting from a Prepayment
Event, an amount equal to the Pro Rata Share of the holders of the Notes in
respect of such Net Cash Proceeds, and
(2) in the case of any fiscal year of the Company for which Excess
Cash Flow exists, 50% of Excess Cash Flow for such fiscal year LESS the
portion, if any, of such percentage ---- applied (or required concurrently
to be applied) pursuant to Section 2.13(c) of the Credit Agreement (or the
analogous provisions in respect of Credit Agreement Refinancing
Indebtedness) to the prepayment of obligations under the Credit Agreement
(or in respect of Credit Agreement Refinancing Indebtedness).
The Company will furnish to the holders of the Notes, concurrently
with the financial statements and other information furnished pursuant to
Sections 6.4(a) and (b), a certificate of a Financial Officer of the Company
containing computations in reasonable detail showing whether any Available
Proceeds existed during the fiscal period covered by such financial statements
and the source of such Available Proceeds.
5.4. PREPAYMENT IN CONNECTION WITH A CHANGE IN CONTROL.
Promptly and in any event within five Business Days after the
occurrence of a Change in Control, the Company will give written notice thereof
to the holders of the Notes, which notice shall (a) describe the Change in
32
Control in reasonable detail and specify the Change in Control
Prepayment Date and the Response Date (as respectively defined below) in respect
thereof, (b) contain an irrevocable offer by the Company to prepay all Notes at
the prices specified below on the date therein specified (the "CHANGE IN CONTROL
PREPAYMENT DATE"), which shall be not less than 20 nor more than 45 days after
the date of such notice, and (c) state that such offer is conditioned upon
acceptance thereof by the Required Holders. Each holder of a Note shall notify
the Company of such holder's acceptance or rejection of such offer by giving
written notice of such acceptance or rejection to the Company at least 10 days
prior to the Change in Control Prepayment Date (the "RESPONSE DATE"). If the
Required Holders accept such offer, the Company shall, no later than two days
after the Response Date, send written notice of such acceptance to each holder
of a Note which had rejected such offer, which notice shall advise each such
holder that it may, by notice to the Company no later than five days prior to
the Change in Control Prepayment Date, rescind its prior rejection and accept
such offer. The failure by the holder of a Note to respond to such offer in
writing on or before the Response Date shall be deemed to be a rejection of such
offer by such holder in respect of such Change in Control. The Company shall
(but only if the Required Holders shall have accepted such offer as provided
above) prepay on the Change in Control Prepayment Date all of the Notes held by
the holders as to which such offer has been so accepted, at the unpaid principal
amount of each such Note, together with accrued interest thereon to the Change
in Control Prepayment Date and the Make-Whole Premium or Break Funding Cost, as
applicable, with respect to such Note. If the Required Holders fail to accept
such offer, such offer shall be deemed to be rejected (and any acceptances
thereof shall be ineffective) and the Company shall give written notice thereof
to the holders of all Notes no more than five days after the Response Date. If
any holder shall reject such prepayment offer and, if applicable, not exercise
its right to rescind such rejection, such holder shall be deemed to have waived
its rights under this Section 5.4 to require prepayment of all Notes held by
such holder in respect of such Change in Control but not in respect of any
subsequent Change in Control. A holder of more than one Note may exercise its
option under this Section 5.4 in respect of all or any one of such Notes.
If the Change in Control Prepayment Date does not occur on the last
day of an Interest Period, the Company shall also pay each holder of a Floating
Rate Note then being prepaid an amount equal to the Break Funding Cost with
respect to such Note, as specified by written notice given by the holder of such
Note at least two Business Days prior to the Change in Control Prepayment Date
(or, if such notice is subsequently given by such holder, within two Business
Days after receipt of such notice by the Company). The obligation of the Company
to pay such Break Funding Cost with respect to the prepayment of any Floating
Rate Note pursuant to this Section 5.4 shall survive the prepayment of such
Floating Rate Note and the termination of this Agreement.
33
5.5. OBLIGATION TO PREPAY AFTER NOTICE; MAKE-WHOLE
COMPUTATION.
The principal amount of the Notes designated for prepayment in any
notice of optional prepayment given pursuant to Section 5.2 shall become due and
payable on the date fixed for prepayment, together with accrued interest on such
principal amount to the date of such prepayment and the amount of any Make-Whole
Premium or Break Funding Cost, as applicable, for the Notes of each series. Two
Business Days prior to the date fixed for any prepayment under this Agreement
that includes a Make-Whole Premium, the Company will furnish to each holder of a
Fixed Rate Note being so prepaid a certificate signed by a Financial Officer of
the Company setting forth in reasonable detail the computation and the
methodology and assumptions made in connection therewith and attaching a copy of
the source of the market data by which the Treasury Yield was determined in
connection with such computation.
5.6. APPLICATION OF PREPAYMENTS.
Each prepayment of less than all outstanding Notes of either series
pursuant to Section 5.1 or 5.2 shall be applied by the Company pro rata, as
nearly as may be, to all outstanding Notes of such series according to the
respective unpaid principal amounts thereof.
5.7. NOTE PURCHASE PROHIBITION.
The Company will not, and will not permit any of its Affiliates to,
directly or indirectly acquire any Note, by purchase or otherwise, except (a) by
way of payment or prepayment thereof by the Company in accordance with the
provisions of the Notes and of this Agreement or (b) pursuant to an offer to
purchase made by any such Affiliate and which complies with the following
conditions:
(i) such offer shall require such Affiliate to purchase Notes on
the same terms and conditions (except for such difference in the offering
price that reflect the interest rates and maturities of the Notes of the
respective series), pro rata among all Notes tendered; and
(ii) such purchase shall not be made, directly or indirectly, in
connection with and in anticipation of or in consideration of any waiver or
amendment of any provision of this Agreement or any Transaction Document.
Promptly and in any event within five Business Days after each such purchase of
Notes, the Company will furnish each holder of the Notes with a certificate of a
34
Financial Officer describing such purchase (including the aggregate principal
amount of Notes of each series so purchased and the purchase price therefor) and
certifying that such purchase was made in compliance with the requirements of
this Section.
6. AFFIRMATIVE COVENANTS.
The Company covenants and agrees that, so long as any of the Notes
shall remain outstanding, the Company will and will cause each of its
Subsidiaries to:
6.1. EXISTENCE; BUSINESSES AND PROPERTIES; KEEP BOOKS.
(a) Do or cause to be done all things necessary to preserve, renew and
keep in full force and effect its legal existence.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; maintain and operate such business in
substantially the manner in which it is currently conducted and operated; comply
in all material respects with all material applicable laws, rules, regulations
and statutes (including any zoning, building, Environmental and Safety Law,
ordinance, code or approval or any building permits or any restrictions of
record or agreements affecting the Mortgaged Property) and decrees and orders of
any Governmental Authority, whether now in effect or hereafter enacted; and at
all times maintain and preserve all property material to the conduct of such
business and keep such property in good repair, working order and condition and
from time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order
that the business carried on in connection therewith may be properly conducted
at all times.
(c) Maintain all financial records in accordance with GAAP.
6.2. INSURANCE.
(a) Keep (and/or cause the related Network Operator, if any, to keep)
the Company's properties (including Improvements and Personal Property (each as
defined in the Mortgages)) insured at all times by financially sound and
reputable insurers against loss by fire, casualty and such other hazards as may
be afforded by an "ALL RISK" policy or a fire policy covering "SPECIAL" causes
of loss, including building ordinance law endorsements; cause all such policies
to be endorsed or otherwise amended to include a "STANDARD" or "NEW YORK"
lender's loss payable endorsement, in form and substance reasonably satisfactory
to the Required Holders and the Collateral Agent, which endorsement shall
35
provide that, from and after the Closing Date, the insurance carrier shall
pay all proceeds otherwise payable to the Company, the applicable
Guarantor or the applicable Network Operator under such policies directly to the
Collateral Agent unless (i) the amounts so payable shall not exceed $50,000 and
(ii) the insurance carrier shall not have received written notice from any
holder of a Note or the Collateral Agent that an Event of Default has occurred
and, if received, such notice shall not have been withdrawn (with the Required
Holders agreeing to withdraw such notice if the related Event of Default shall
have been cured and no other Event of Default shall then exist); cause all such
policies to provide that neither the Company, the Guarantors, any holder of a
Note, the Collateral Agent nor any other party shall be a coinsurer thereunder
and to contain a "REPLACEMENT COST ENDORSEMENT", without any deduction for
depreciation, and such other provisions as the Required Holders or the
Collateral Agent may reasonably require from time to time to protect their or
its interest; deliver (and/or cause the related Network Operator, if any, to
deliver) original or certified copies of all such policies to the Collateral
Agent; cause each such policy to provide that it shall not be canceled, modified
or not renewed (i) by reason of nonpayment of premium upon not less than 10
days' prior written notice thereof by insurer to the Collateral Agent or (ii)
for any other reason upon not less than 30 days' prior written notice thereof by
insurer to the holders of the Notes and the Collateral Agent; deliver to the
holders of the Notes and the Collateral Agent, prior to the cancellation,
modification or nonrenewal of any such policy of insurance, a copy of a renewal
or replacement policy (or other evidence of renewal of a policy previously
delivered to the Collateral Agent) together with evidence satisfactory to the
Collateral Agent of payment of the premium therefor; and cause each all risk
policy maintained by the Company or either Guarantor to be endorsed to provide
for a waiver by the related insurer of all its rights to recovery against any
Network Operator for damage covered by such policy.
(b) If at any time the area in which the Premises (as defined in the
Mortgages) are located is designated (i) a "FLOOD HAZARD AREA" in any Flood
Insurance Rate Map published by the Federal Emergency Management Agency, obtain
(and/or cause the related Network Operator, if any, to obtain) flood insurance
in such total amount as the Collateral Agent or the Required Holders may from
time to time require, and otherwise comply with the National Flood Insurance
Program as set forth in said Flood Disaster Protection Act of 1973, as it may be
amended from time to time, or (ii) a "ZONE 1" area, obtain (and/or cause the
related Network Operator, if any, to obtain) earthquake insurance in such total
amount as the Collateral Agent or the Required Holders may from time to time
require.
(c) With respect to any Mortgaged Property, carry and maintain (and/or
cause the related Network Operator, if any, to maintain) comprehensive general
liability insurance including the "BROAD FORM CGL ENDORSEMENT" and coverage on
an occurrence basis against claims made for personal injury (including bodily
36
injury, death and property damage) and umbrella liability insurance against any
and all claims, in no event for a combined single limit of less than $5,000,000,
naming the Collateral Agent as an additional insured, on forms satisfactory to
the Collateral Agent.
(d) Notify (and/or cause the related Network Operator, if any, to
notify) the holders of the Notes and the Collateral Agent immediately whenever
any separate insurance concurrent in form or contributing in the event of loss
with that required to be maintained under this Section 6.2 is taken out by the
Company, any Guarantor or any Network Operator; and promptly deliver to the
Collateral Agent a duplicate original copy of such policy or policies.
(e) Use its reasonable efforts to cause the Phase II Consultant (as
defined in the Environmental Agreements) to maintain, and name the Company as an
additional insured wherever permissible under the contracts of insurance,
coverage at levels at least as high as set forth in Schedule 6.2(e).
(f) In connection with the covenants set forth in this Section 6.2, it
is understood and agreed as follows:
(i) Neither the Noteholder nor the holders from time to time of
the Notes, nor their agents or employees shall be liable for any loss or
damage insured by the insurance policies required to be maintained under
this Section 6.2, it being understood that (A) the Company shall look, and
shall cause each Guarantor to look, solely to its insurance company or any
other parties other than the aforesaid parties for the recovery of such
loss or damage and (B) such insurance company shall have no rights of
subrogation against the Noteholder or any such holder or their agents or
employees. If, however, the insurance policies do not provide waiver of
subrogation rights against such parties, as requested above, then the
Company hereby agrees, to the extent permitted by law, to waive its right
of recovery, if any, against the Noteholder, the holders from time to time
of the Notes and their agents and employees.
(ii) The designation of any form, type or amount of insurance
coverage by the Noteholder, any holder of a Note or the Collateral Agent
under this Section 6.2, shall in no event be deemed a representation,
warranty or advice by the Noteholder, such holder or the Collateral Agent
that such insurance is adequate for the purposes of the Company's and each
Guarantor's business or the protection of the Company's and each
Guarantor's properties and the Required Holders and the Collateral Agent
shall have the right from time to time to require the Company to keep
(and/or cause any Guarantor or the related Network Operator, if any, to
37
keep) other insurance in such form and amount as the Required Holders or
the Collateral Agent may reasonably request, provided that such insurance
shall be obtainable on commercially reasonable terms.
6.3. OBLIGATIONS AND TAXES.
Pay its Indebtedness and other obligations promptly and in accordance
with their terms and pay and discharge promptly when due all material taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or in respect of its property, before the same shall become
delinquent or in default, as well as all lawful claims for labor, materials and
supplies or otherwise that, if unpaid, might give rise to a Lien upon such
properties or any part thereof; provided, however, that such payment and
discharge shall not be required with respect to any such obligation, tax,
assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Company, a
Guarantor or TAFSI, as applicable, shall have set aside on its books adequate
reserves with respect thereto in accordance with GAAP and such contest operates
to suspend collection of the contested obligation, tax, assessment or charge and
enforcement of a Lien and, in the case of a Mortgaged Property, there is no risk
of forfeiture of such property.
6.4. FINANCIAL STATEMENTS, REPORTS, ETC.
Furnish to each holder of a Note (in duplicate):
(a) as soon as available, and in no event later than 105 days (or 90
days during any time that the Company is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934, as amended) after the end
of each fiscal year, the consolidated and consolidating balance sheets and
related statements of income and cash flow, showing the consolidated financial
condition of the Company and its consolidated Subsidiaries as of the close of
such fiscal year and the results of their operations during such year, all
audited by Price Waterhouse or other independent public accountants of
recognized national standing and accompanied by an opinion of such accountants
(which shall not be qualified in any material respect) to the effect that such
consolidated financial statements fairly present the consolidated financial
condition and results of operations of the Company and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied;
(b) as soon as available, and in no event later than 60 days (or 45
days during any time that the Company is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934, as amended) after the end
of each of the first three fiscal quarters of each fiscal year, the unaudited
consolidated and consolidating balance sheets and related statements of income
38
and changes in financial position, showing the consolidated financial condition
of the Company and its consolidated Subsidiaries as of the close of such fiscal
quarter and the results of their operations during such fiscal quarter and the
then elapsed portion of the fiscal year, all certified by a Financial Officer of
the Company as fairly presenting the consolidated financial condition and
results of operations of the Company and its consolidated Subsidiaries in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes required by GAAP;
(c) concurrently with any delivery of financial statements under
subsection (a) or (b) above, a certificate of the accounting firm or a Financial
Officer of the Company opining on or certifying such statements (which
certificate, when furnished by an accounting firm, may be limited to accounting
matters and disclaim responsibility for legal interpretations) (i) certifying
that no Event of Default or Default has occurred during the period covered by
such financial statements or, if such an Event of Default or Default has
occurred, specifying the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto and (ii) setting forth
computations in reasonable detail demonstrating compliance with the covenants
contained in Sections 7.13, 7.14, 7.15, 7.16 and 7.17;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by the
Company or any of its Subsidiaries with the Securities and Exchange Commission,
or any governmental authority succeeding to any of or all the functions of said
Commission, or with any national securities exchange, or made generally
available to its other security holders, or distributed to its shareholders, as
the case may be;
(e) a copy of all solicitations or requests for any proposed waiver or
amendment of any of the provisions of the Credit Agreement Documents or
Subordinated Note Documents (but only if the consent or approval of holders of
the Notes is required in connection therewith);
(f) promptly following the preparation thereof, copies of each
management letter prepared by the Company's, either Guarantor's or TAFSI's
auditors (together with any response thereto prepared by the Company, such
Guarantor or TAFSI);
(g) as soon as available, and in any event no later than 105 days
after the end of each fiscal year of the Company, historical summary data for
the immediately preceding year and forecasted financial projections and summary
data through the end of the then-current fiscal year, in substantially the same
form and format as set forth in Section 10 of the Confidential Information
Memorandum (including a specification of the underlying assumptions and a
39
management discussion of historical results), all certified by a Financial
Officer of the Company to be a fair summary of its results and its good faith
estimate of the forecasted financial projections and results of operations for
the period through the then- current fiscal year;
(h) upon the earlier of (i) 105 days after the end of each fiscal year
of the Company (commencing with the fiscal year ended December 31, 1996) and
(ii) the date on which the financial statements with respect to such period are
delivered pursuant to subsection (a) above, a certificate of a Financial Officer
of the Company setting forth, in reasonable detail, the amount of Excess Cash
Flow, if any, for such period, it being understood that the certificate
delivered pursuant to this Section 6.4(h) for the fiscal year ended December 31,
1996 shall set forth the amount of Excess Cash Flow (as defined in the National
Purchase Agreement and the TA Purchase Agreement, respectively) for such period
for National and TA, respectively;
(i) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Company, either
Guarantor or TAFSI, or compliance with the terms of any Financing Document, as
such holder may reasonably request;
(j) promptly, a copy of any amendment or waiver of any provisions of
any agreement referred to in Section 7.10, any amendment or waiver of any
provision of the Credit Agreement Documents not requiring the consent or
approval of holders of the Notes;
(k) promptly, a copy of any notice of a default received by the
Company, either Guarantor or TAFSI under any other Financing Document;
(l) promptly, a copy of any notice of default received by the Company,
either Guarantor or TAFSI (i) from the Agent or any Lender under the Credit
Agreement or (ii) under the Subordinated Note Indenture; and
(m) a copy of all notices (other than regarding any scheduled or
mandatory repayments), certificates, financial statements and reports, as and
when delivered by or on behalf of the Company, either Guarantor or TAFSI (i) to
the Agent or any Lender under the Credit Agreement or (ii) under the
Subordinated Note Indenture (except to the extent any such notice, certificate,
financial statement or report is otherwise required to be delivered pursuant to
this Agreement).
6.5. LITIGATION AND OTHER NOTICES.
Furnish to each holder of a Note prompt written notice of the
occurrence of the following:
40
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) proposed to be taken with respect
thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or proceeding,
whether at law or in equity or by or before any Governmental Authority, against
the Company or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect; and
(c) any development that has resulted in, or could reasonably be
anticipated to result in, a Material Adverse Effect.
6.6. ERISA.
(a) Comply in all material respects with the applicable provisions of
ERISA.
(b) Furnish to each holder of a Note (i) as soon as possible, and in
any event within 30 days after any Responsible Officer of the Company or either
Guarantor or any ERISA Affiliate either knows or has reason to know that any
Reportable Event has occurred, as to which the Company, either Guarantor, TAFSI
or any ERISA Affiliate was or is required to file a report with the PBGC, that
alone or together with any other Reportable Event could reasonably be expected
to result in liability of the Company, either Guarantor, TAFSI or any ERISA
Affiliate to the PBGC in an aggregate amount exceeding $2,000,000, a statement
of a Financial Officer of the Company setting forth details as to such
Reportable Event and the action proposed to be taken with respect thereto,
together with a copy of the notice, if any, of such Reportable Event given to
the PBGC, (ii) promptly after receipt thereof, a copy of any notice the Company,
either Guarantor, TAFSI or any ERISA Affiliate may receive from the PBGC
relating to the intention of the PBGC to terminate any Plan or Plans (other than
a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate
only pursuant to subsection (m) or (o) of Section 414 of the Code) or to appoint
a trustee to administer any Plan or Plans, (iii) within 10 days after the due
date for filing with the PBGC pursuant to Section 412(n) of the Code of a notice
of failure to make a required installment or other payment with respect to a
Plan, a statement of a Financial Officer of the Company, such Guarantor or
TAFSI, as applicable, setting forth details as to such failure and the action
proposed to be taken with respect thereto, together with a copy of such notice
given to the PBGC and (iv) promptly and in any event within 30 days after
receipt thereof by the Company, either Guarantor, TAFSI or any ERISA Affiliate
from the sponsor of a Multiemployer Plan, a copy of each notice received by the
Company or any ERISA Affiliate concerning (A) the imposition of Withdrawal
Liability or (B) a determination that a Multiemployer Plan is, or is expected to
be, terminated or in reorganization, in each case within the meaning of Title IV
of ERISA.
41
6.7. ACCESS TO PROPERTIES AND INSPECTIONS.
Permit any representatives designated by the Noteholder or any other
institutional holder of a Note to visit and inspect the financial records and
the properties of the Company, either Guarantor and TAFSI at reasonable times
and upon reasonable notice and as often as reasonably requested and to make
extracts from and copies of such financial records, and permit any
representatives designated by any such holder to discuss the affairs, finances
and condition of the Company, the Guarantors and TAFSI or any properties of
Company with, and to be advised as to the same by, their officers, employees,
environmental consultants and other experts and independent accountants (and by
this provision the Company, the Guarantors and TAFSI authorize such consultants
and accountants to discuss such affairs, finances and accounts, whether or not a
representative of the Company, either Guarantor or TAFSI is present), all at
such reasonable times and to such reasonable extent as such holder may desire;
and the Company, the Guarantors and TAFSI jointly and severally agree to pay all
out-of-pocket expenses incurred by the Noteholder and each such holder in
connection with the Noteholder's or such holder's exercise of rights pursuant to
this Section 6.7 at any time while a Default or Event of Default has occurred
and is continuing.
6.8. [INTENTIONALLY OMITTED].
6.9. FISCAL YEAR.
Cause its fiscal year to end on December 31 of each year.
6.10. FURTHER ASSURANCES.
(a) Execute any and all further documents, financing statements,
agreements and instruments, and take all further action (including filing
Uniform Commercial Code and other financing statements, mortgages and deeds of
trust) that may be required under applicable law, or which the Required Holders
or the Collateral Agent may reasonably request, in order to effectuate the
transactions contemplated by the Transaction Documents and in order to grant,
preserve, protect and perfect the validity and first priority of the security
interests created or intended to be created by the Security Documents. In
addition, from time to time, each of the Company, each Guarantor and TAFSI will,
at its cost and expense, promptly secure the Obligations by pledging or
creating, or causing to be pledged or created, perfected security interests with
respect to such of its assets and properties as the Required Holders shall
designate (it being understood that it is the intent of the parties that the
Obligations shall be secured by, among other things, substantially all the
42
assets of the Company, the Guarantors and TAFSI (including real and other
properties acquired subsequent to the Closing Date)). Such security interests
and Liens will be created under the Security Documents and other security
agreements, mortgages, deeds of trust and other instruments and documents in
form and substance satisfactory to the Required Holders, and each of the
Company, each Guarantor and TAFSI shall deliver or cause to be delivered to all
holders of the Notes all such instruments and documents (including legal
opinions, title insurance policies and lien searches) as the Required Holders
shall reasonably request to evidence compliance with this Section 6.10. Each of
the Company and each Guarantor agrees to provide such evidence as the Required
Holders shall reasonably request as to the perfection and priority status of
each such security interest and Lien.
(b) Within 90 days following the Closing Date, enter into Lockbox
Agreements with financial institutions reasonably acceptable to the Collateral
Agent.
6.11. RATE PROTECTION AGREEMENTS.
In the case of the Company, within 90 days following the Closing Date
enter into (and thereafter maintain in effect) Rate Protection Agreements
required to be maintained under the Credit Agreement.
6.12. ENVIRONMENTAL AND SAFETY LAWS.
(a) Comply with, and use its best efforts to ensure compliance by all
tenants and subtenants (including each Network Operator, if any) with, all
Environmental and Safety Laws and obtain and comply with and maintain, and use
its best efforts to ensure that all tenants and subtenants (including each
Network Operator, if any) obtain and comply with and maintain, any and all
licenses, approvals, registrations or permits required by Environmental and
Safety Laws, except to the extent that failure to so comply or to obtain and
comply with and maintain such licenses, approvals, registrations and permits,
individually or in the aggregate, does not have and could not reasonably be
expected to result in a Material Adverse Effect.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions, required under
Environmental and Safety Laws and promptly comply with all lawful orders and
directives of all Governmental Authorities respecting Environmental and Safety
Laws, except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings, individually or in
the aggregate, would not have a Material Adverse Effect.
43
(c) Notify the holders of the Notes of any of the following that,
individually or in the aggregate, is likely to have a Material Adverse Effect:
(i) any Environmental Claim that the Company, either Guarantor or
TAFSI receives, including one to take or pay for any remedial, removal,
response or cleanup or other action with respect to any Hazardous Substance
contained on any property owned or leased by the Company, such Guarantor or
TAFSI;
(ii) any notice of any alleged violation of or knowledge by the
Company, any Guarantor or TAFSI of a condition that might reasonably result
in a violation of any Environmental and Safety Law;
(iii) any commencement or threatened commencement of any judicial
or administrative proceeding or investigation alleging a violation or
potential violation of any requirement of any Environmental and Safety Law
by the Company, either Guarantor or TAFSI; and
(iv) any Release or threat of Release which, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse
Effect, based on an objective standard.
(d) Without limiting the generality of Section 16.4, indemnify the
Noteholder, the Collateral Agent and each holder from time to time of the Notes
and each of their respective directors, officers, employees, agents and
Affiliates (each such person being called an "INDEMNITEE") against, and hold
each Indemnitee harmless from, any claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses (including reasonable
counsel fees, expert and consultant fees, charges and disbursements) of whatever
kind or nature arising out of, or in any way relating to, the violation of,
noncompliance with or liability under any Environmental and Safety Laws
applicable to the operations of the Company or either Guarantor or to the
Mortgaged Properties, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, reasonable
attorneys' and consultants' fees, investigation and laboratory fees, response
costs, court costs and litigation expenses, except to the extent that any of the
foregoing are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the Indemnitee seeking indemnification therefor. The obligation of
the Company under this Section shall survive the payment of the Notes.
6.13. MATERIAL CONTRACTS.
Maintain in full force and effect (including, without limitation,
exercising any available renewal option and without amendment or modification)
44
all its material contracts (including each operating lease permitted by Section
7.8) unless the failure so to maintain such contracts (or the amendments or
modifications thereto), individually or in the aggregate, would not have a
Material Adverse Effect, and promptly notify the holder of each Note of each
failure to comply with this Section 6.13.
6.14. CERTIFICATES OF OCCUPANCY, PERMITS AND ZONING.
(a) Within 270 days following the Closing Date, the Company shall
deliver the following documents to the Collateral Agent for Mortgaged Properties
set forth on Schedule 6.14 having 80% of the aggregate value (based upon the
Valuation Research Corp. real and personal property valuations delivered on the
Closing Date) of all Mortgaged Properties set forth on such Schedule:
(i) (A) a copy of the original permanent certificate or
certificates of occupancy or completion, as the same may have been amended
or issued from time to time, covering any Improvement located upon the
Mortgaged Property that was constructed after the date of the TA Purchase
Agreements or the National Purchase Agreements, as applicable (a "NEW
IMPROVEMENT"), that were required to have been issued by the appropriate
Governmental Authority for such New Improvement or (B) a letter from an
appropriate Governmental Authority stating that at the time of construction
certificates of occupancy were not required for each such New Improvement
for which a certificate as described above has not been delivered if
reasonably requested by the Collateral Agent and suitable evidence of the
date of construction of each New Improvement on such Mortgaged Property;
(ii) without limiting the Company's obligations under Section
6.12, (A) a copy of all material licenses, permits and authorizations
(other than certificates of occupancy or completion, all applications,
plans and filings necessary for the issuance of any such certificate and
all licenses, permits and authorizations that were no longer required once
any such certificate was issued) that were necessary for the construction
of each New Improvement located upon the Mortgaged Property or that are
necessary for the current operation of such New Improvement and (B) a copy
of all applications (including plans) that were necessary for the issuance
of any certificate of occupancy or completion with respect to any New
Improvement but only to the extent now or hereafter in the Company's
possession;
(iii) a copy of all applications (and documents filed in
connection therewith (including plans)) that the Company makes to any
Governmental Authority in order to comply with the provisions of this
Section 6.14; and
45
(iv) one of the following: (A) written confirmation from the
applicable zoning commission or other appropriate Governmental Authority
stating that, with respect to each Mortgaged Property as built, it complies
with existing land use and zoning ordinances, regulations and restrictions
applicable to such property, (B) an opinion from local counsel acceptable
to the Collateral Agent to the same effect as covered by clause (A) above
or (C) a zoning endorsement satisfactory to the Collateral Agent in
connection with the Collateral Agent's mortgagee title insurance policy of
such Mortgaged Property.
(b) After the Closing Date, the Company shall use commercially
reasonable efforts to obtain (and promptly upon obtaining the same deliver to
the Collateral Agent):
(i) estoppel certificates from ground lessors of any Mortgaged
Property;
(ii) estoppel certificates from each Operator of each Mortgaged
Property; and
(iii) subordination and attornment agreements from each Operator
of each Mortgaged Property, unless the related operating lease by its
terms, is subject and subordinate to the Lien of the applicable Mortgage or
Leasehold Mortgage.
(c) After the Closing Date, the Company shall (i) use commercially
reasonable efforts (A) to cause the lease relating to its leasehold interest in
property located in Willington, Connecticut, to be amended to provide
commercially reasonable leaseholding financeability provisions and to provide
for the lessor of such property to consent to the granting of a Mortgage on such
leasehold interest and (B) to obtain the consent of the landlord of its property
(1) on site 1058 in Nashville, Tennessee, and (2) on site 1084 in Amarillo,
Texas, to the granting of a Mortgage on such leasehold interests, and (ii) upon
obtaining any such consent, promptly cause the applicable Guarantor to enter
into a Mortgage with respect to such Mortgaged Property.
7. NEGATIVE COVENANTS.
The Company covenants and agrees that, so long as any of the Notes
shall remain outstanding, the Company will not and will not permit any of its
Subsidiaries to:
7.1. INDEBTEDNESS.
Incur, create, assume or permit to exist any Indebtedness, except:
(a) Indebtedness existing on the Closing Date (after giving effect for
the consummation on the Closing Date of the Recapitalization and the other
Transactions) and set forth on Schedule 7.1 (but not any extensions, renewals or
replacements of such Indebtedness);
46
(b) Indebtedness represented by the Notes;
(c) in the case of the Guarantors, Indebtedness consisting of purchase
money Indebtedness incurred in the ordinary course of business after the Closing
Date to finance Capital Expenditures or Transition Capital Expenditures
permitted under Section 7.13; provided, however, that (i) for purposes of
Section 7.13 the aggregate principal amount of any such Indebtedness shall be
deemed to be a Capital Expenditure or a Transition Capital Expenditure, as the
case may be, at the time incurred or assumed, (ii) the aggregate of (A) the
aggregate principal amount of Indebtedness permitted pursuant to this subsection
and (B) all Capital Lease Obligations permitted pursuant to Sections 7.1(d) and
7.11(c) shall not exceed $25,000,000 at any time outstanding and (iii) such
Indebtedness is incurred within 90 days after the making of the Capital
Expenditures or Transition Capital Expenditures financed thereby;
(d) in the case of the Guarantors, Indebtedness in respect of Capital
Lease Obligations permitted under Section 7.11(c);
(e) in the case of the Company or either Guarantor, Indebtedness in
respect of fuel-supply hedging agreements and arrangements, provided that any
such agreements or arrangements shall have been entered into for bona fide
hedging purposes pursuant to a written fuel-supply hedging policy approved by
the board of directors of the Company;
(f) (i) in the case of the Company, Indebtedness represented by the
Loans, the Swingline Loans, the Letters of Credit and the Subordinated Notes and
(ii) in the case of the Guarantors, Indebtedness represented by the Guarantee
Agreement and the Subordinated Note Guarantees;
(g) Indebtedness arising from the refinancing from time to time by the
Company of (i) the Loans, the Swingline Loans and the Letters of Credit under
the Credit Agreement and the Guarantee Agreement in respect of such Indebtedness
or (ii) the Notes of either series and the Guarantee Agreement in respect of the
Notes of such series, in either case ranking PARI PASSU with or subordinate to
the Notes (or the Notes of the series not being refinanced) and the
Guarantee Agreement in respect of the Notes (or the Notes of the series not
being refinanced); provided, however, that (i) such refinancing must be in whole
and not in part with respect to such Loans or the Notes of a series, as the case
may be, (ii) the weighted average interest rate (or applicable margins)
applicable to such Indebtedness must be less than or equal to the interest rate
(or applicable margins) applicable to the Loans or the Notes of the series being
47
refinanced, as the case may be, (iii) no material terms applicable to
such Indebtedness or the related guarantees shall be more favorable to the
refinancing lenders or note purchasers than the terms that are applicable to the
Lenders under the Credit Agreement Documents or the holders of the Notes of such
series (or to lenders or note purchasers in respect of refinancing Indebtedness
then outstanding), (iv) the weighted average life to maturity of such
Indebtedness shall be greater than or equal to the remaining weighted average
life to maturity of the Term Loans (or of the term loan portion of any
refinancing Indebtedness then outstanding) or the Notes of the series being
refinanced, as the case may be, and the first scheduled principal payment or
required prepayment in respect of such Indebtedness shall not be earlier than
the first scheduled principal payment in respect of the Term Loans or the Notes
of the series being refinanced, as the case may be, (v) such Indebtedness shall
be Indebtedness of the Company, (vi) the priority of the security interest in
the collateral securing the repayment of such Indebtedness (if such Indebtedness
is to be secured) and the total amount or share of the collateral to be made
available to secure such Indebtedness shall be no more senior or favorable than
that which secured the repayment of the Loans or the Notes (or any refinancing
Indebtedness then outstanding) at the time of such refinancing and the
refinancing lenders or note purchasers shall enter into an intercreditor
agreement with the Collateral Agent and the holders of the Notes then
outstanding in substantially the form of the Intercreditor Agreement (or in such
other form as may be reasonably acceptable to the Required Holders) providing
for the sharing of collateral on such basis, (vii) the principal amount of such
Indebtedness shall be less than or equal to the principal amount then
outstanding of the Loans or the Notes of such series being refinanced, as the
case may be (or any refinancing Indebtedness then outstanding) and (viii) such
Indebtedness may not be incurred if at the time of such refinancing a Default or
Event of Default has occurred and is continuing or would result therefrom;
(h) Indebtedness arising from the refinancing from time to time by the
Company of the Subordinated Notes that is subordinate to the Obligations (which,
if required by the terms thereof, shall include any Indebtedness incurred
pursuant to Section 7.1(g) above in connection with any refinancing of the Loans
or the Notes of either series); provided, however, that (i) such refinancing
must be in whole and not in part, (ii) the weighted average interest rate
applicable to such Indebtedness must be less than or equal to the interest rate
applicable to the Subordinated Notes, (iii) no material terms applicable to such
Indebtedness (including the subordination provisions thereof) shall be more
favorable to the refinancing lenders than the terms that are applicable under
the Subordinated Note Indenture prior to such refinancing, (iv) the weighted
average life to maturity of such Indebtedness shall be greater than or equal to
the weighted average life to maturity of the Subordinated Notes and the first
scheduled principal payment in respect of such Indebtedness shall not be earlier
48
than the first scheduled principal payment in respect of the Subordinated Notes,
(v) such Indebtedness shall be Indebtedness of the Company, (vi) such
Indebtedness shall be unsecured, (vii) the guarantees by the guarantors of such
Indebtedness shall be no more favorable to the refinancing lenders than the
Subordinated Note Guarantees, (viii) the principal amount of such Indebtedness
shall be less than or equal to the principal amount then outstanding of the
Subordinated Notes and (ix) such Indebtedness may not be incurred if at the time
of such refinancing a Default or Event of Default has occurred and is continuing
or would result therefrom;
(i) in the case of TAFSI, Indebtedness to the Company or either
Guarantor, provided that the amount of all such Indebtedness does not exceed
$3,000,000 in the aggregate at any time outstanding;
(j) in the case of either Guarantor, Indebtedness to the Company, the
other Guarantor or TAFSI;
(k) Rate Protection Agreements required by Section 6.11 of the Credit
Agreement;
(l) in the case of the Guarantors, other unsecured Indebtedness in an
aggregate principal amount at any time outstanding for both Guarantors not in
excess of $5,000,000; and
(m) in the case of the Company, Indebtedness to any of its
Subsidiaries.
7.2. LIENS.
Create, incur, assume or permit to exist any Lien on any property or
assets (including stock or other securities of any person) now owned or
hereafter acquired by it or on any income or revenues or rights in respect of
any thereof, except:
(a) Liens on property or assets of the Company or any Subsidiary
thereof existing on the date hereof and set forth on Schedule 7.2 (including, to
the extent any such Lien is the result of a lease, any extensions, renewals or
replacements of such lease, provided that the annual lease payment under any
such extension, renewal or replacement shall be no less than the fair market
rental value of the leased property as of the date of such extension, renewal or
replacement), provided that such Liens shall secure only those obligations that
they secure on the date hereof;
(b) in the case of either Guarantor, any Lien existing on any property
or asset prior to the acquisition thereof by such Guarantor or TAFSI, provided
that (i) such Lien is not created in contemplation of or in connection with such
acquisition, (ii) such Lien does not apply to any other property or assets of
such Guarantor and (iii) such Lien does not (A) materially interfere with the
49
use, occupancy and operation of any property, (B) materially reduce the fair
market value of such property but for such Lien or (C) result in any material
increase in the cost of operating, occupying or owning (or leasing) such
property;
(c) Liens for taxes, assessments or governmental charges not yet due
and payable (or due and payable but not yet delinquent) or which are being
contested in compliance with Section 6.3 or 6.12;
(d) in the case of the Guarantors, carriers', warehousemen's,
mechanics', materialmen's, repairmen's, landlord's or other like Liens arising
in the ordinary course of business and securing obligations that are not due and
payable or which are being contested in compliance with Section 6.3;
(e) in the case of the Guarantors, pledges and deposits made in the
ordinary course of business in compliance with worker's compensation,
unemployment insurance and other social security laws or regulations;
(f) in the case of the Guarantors, pledges and deposits to secure the
performance of bids, trade contracts (other than for Indebtedness), leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(g) in the case of the Guarantors, zoning restrictions, easements,
rights-of-way, restrictions on use of real property and other similar
encumbrances that do not materially impair the current use or the value of the
property subject thereto;
(h) in the case of the Guarantors, purchase money security interests
in real property, improvements thereto or equipment hereafter acquired (or, in
the case of improvements, constructed), provided that (i) such security
interests secure Indebtedness permitted by Section 7.1(c), (ii) such security
interests are incurred, and the Indebtedness secured thereby is created, within
90 days after such acquisition (or construction), (iii) the Indebtedness secured
thereby does not exceed 75% of the lesser of the cost and the fair market value
of such real property, improvements or equipment at the time of such acquisition
(or construction) and (iv) such security interests do not apply to any other
property or assets;
(i) Liens incurred in connection with Capital Lease Obligations
permitted by Section 7.1(d), provided that such Liens do not extend to any other
property or assets of such person;
(j) any Lien created under the Financing Documents;
(k) the lease or sublease of retail space and office space at any
Truckstop so long as either (i) the term of the lease or sublease does not
exceed three years or (ii) such lease or sublease does not result in the lease
50
or sublease of real property of the Company or any of its Subsidiaries
in excess of 3,000 square feet at any one location to any one lessee; and
(l) the lease or sublease of retail space and office space at any
Truckstop other than as described in clause (k) above, provided that (i) the
lease with respect thereto shall (A) contain provisions consistent with and not
in conflict with any term, condition, covenant or agreement contained in any
Financing Document, (B) require the lessee to deliver estoppel certificates to
the Collateral Agent in compliance with clause (iii) below, (C) provide that
such lease is subject and subordinate in all respects to the applicable Mortgage
and (D) constitute an "operating lease" (and not a financing lease) for all
purposes, (ii) in each case, the Company shall have delivered to the Collateral
Agent, reasonably in advance of the execution and delivery thereof, copies of
such lease and all other agreements to be entered into by the Company or any of
its Subsidiaries in connection therewith, (iii) the Company shall have delivered
to the Collateral Agent within 30 days of a request therefor by the holder of
any Note, an estoppel certificate of any lessee in form and substance
satisfactory to the Collateral Agent, (iv) in each case, the Company shall, at
its expense, take such action as shall be necessary or as shall be reasonably
requested by the Collateral Agent to assign to the Collateral Agent, for the
benefit of the Secured Parties, a perfected security interest in its rights
under such lease and other agreements, including the execution, delivery and
recording of an Assignment of Leases and Rents substantially in the form of
Exhibit C, (v) after giving effect to the entering into of such lease, no
Default or Event of Default shall have occurred and be continuing, (vi) promptly
after execution of such lease, an executed copy of such lease and a certificate
of an officer of the Company certifying that such lease complies with the
provisions of this Section 7.02(l) shall be delivered to the Collateral Agent
and (vii) the lease or sublease of such space: (A) shall not result in the
representations and warranties contained in the related Mortgage or in this
Agreement to be untrue, (B) shall not result in any material adverse effect on
the value or operations of the related Mortgaged Property as a Truckstop, (C)
shall have no effect on the Collateral Agent's Lien on the remaining Land under
the related Mortgage (as defined therein), (D) shall not restrict ingress and
egress to, the operation of or in any way interfere with the business currently
conducted on the Mortgaged Property and (E) shall be done and conducted, as
applicable, in accordance with all material laws, rules, regulations or statutes
(including any zoning, building, Environmental and Safety Laws, ordinances,
codes or approvals or any building permits) or any restrictions of record or
agreements affecting the Mortgaged Property.
51
7.3. SALE AND LEASEBACK TRANSACTIONS.
Enter into any arrangement, directly or indirectly, with any person
whereby it shall sell or transfer any property, real or personal, used or useful
in the business of the Company or its Subsidiaries, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property
that it intends to use for substantially the same purpose or purposes as the
property being sold or transferred (any such transaction a "SALE AND LEASEBACK
TRANSACTION"), other than (a) any Sale and Leaseback Transactions involving the
properties described on Schedule 7.3 or (b) any Sale and Leaseback Transaction
with respect to property acquired by the Company or any Subsidiary following the
Closing Date, if such Sale and Leaseback Transaction (i) involves a sale by the
Company or any Subsidiary for consideration equal to at least the then-current
fair market value of such property and (ii) results in a Capital Lease
Obligation or an operating lease permitted by Section 7.11, in either case
entered into to finance a Capital Expenditure permitted by Section 7.13
consisting of (A) the initial acquisition by the Company or such Subsidiary of
the property sold or transferred in such Sale and Leaseback Transaction or (B)
the development of a Truckstop on such property.
7.4. INVESTMENTS, LOANS AND ADVANCES.
Purchase, hold or acquire any capital stock, evidences of Indebtedness
or other securities of, make or permit to exist any loans or advances to, or
make or permit to exist any investment or any other interest in, any other
Person, except:
(a) investments by the Company in the capital stock of, and loans to,
the Guarantors and in promissory notes described in Section 7.4(e);
(b) Permitted Investments;
(c) in the case of the Guarantors, pledges and deposits permitted by
Section 7.2(f);
(d) in the case of the Guarantors, loans or advances to employees in
the ordinary course of business in an aggregate amount outstanding to any single
employee at any time not in excess of $10,000 (or, if and to the extent such
loans or advances shall be used by such employees solely for relocation
expenses, $100,000) and in an aggregate amount outstanding for all employees at
any time not in excess of $1,000,000 (which loans and advances shall not be
forgiven by the Company);
(e) in the case of either Guarantor, promissory notes evidencing loans
made by the Company to members of such Guarantor's management or the
Institutional Equity Investors to enable them to purchase shares of Common
Stock, provided that (i) the amount loaned to any single member of management or
52
any single Institutional Equity Investor shall not exceed 50% of the
aggregate purchase price of such member's or Institutional Equity Investor's
shares, (ii) all the shares purchased by such member or Institutional Equity
Investor with the proceeds of any such loan shall be retained by such Guarantor
for the benefit of the Secured Parties until such time as such loan shall have
been repaid, (iii) the aggregate amount of all such loans outstanding at any
time shall not exceed $1,500,000, (iv) such loans shall not be forgiven by the
Company, (v) any shares purchased by any Institutional Equity Investor with the
proceeds of any such loan shall be resold to members of the Company's management
as soon as such a resale may be consummated in accordance with applicable state
and federal securities laws and (vi) any member of the Company's management who
purchases shares pursuant to the preceding clause (v) shall assume all
obligations under the loans the proceeds of which were used by such
Institutional Equity Investor to purchase such shares;
(f) investments by the Company in the capital stock of, and loans to,
TAFSI that are consistent with the limitations on the business of TAFSI set
forth in Section 7.8;
(g) investments in connection with Permitted Business Acquisitions, it
being understood that the aggregate purchase consideration paid in any such
investment shall (i) constitute a Capital Expenditure during the period in which
such investment occurs or (ii) if and to the extent the Company and its
Subsidiaries are not permitted to incur additional Capital Expenditures under
Section 7.13(a) at the time of such investment, constitute a Transition Capital
Expenditure during the period in which such investment occurs;
(h) in the case of the Guarantors and TAFSI, investments in any joint
venture so long as the amount of all such investments does not exceed $5,000,000
in the aggregate at any time outstanding (any such joint venture, a "PERMITTED
JOINT VENTURE");
(i) Rate Protection Agreements required by Section 6.11 of the Credit
Agreement (or the analogous provision, if any, of any Credit Agreement
Refinancing Indebtedness);
(j) investments not otherwise permitted above so long as the amount of
all such investments does not exceed $1,000,000 in the aggregate at any time
outstanding; and
(k) in the case of the Guarantors and TAFSI, intercompany loans and
advances permitted under Sections 7.1(i), (j) and (m).
53
7.5. MERGERS, CONSOLIDATIONS, SALES OF ASSETS AND
ACQUISITIONS.
Merge into or consolidate with any other Person, or permit any other
Person to merge into or consolidate with it, or sell, transfer, assign, lease,
sublease or otherwise dispose of (in one transaction or in a series of
transactions) (i) all or any substantial part of the assets (whether now owned
or hereafter acquired) of the Company, either Guarantor or TAFSI, or (ii) the
capital stock of either Guarantor or TAFSI, or purchase, lease or otherwise
acquire (in one transaction or a series of transactions) all or any substantial
part of the assets of any other Person; provided, however, that the foregoing
shall not prohibit:
(a) sales of Permitted Investments for cash;
(b) sales, transfers and other dispositions of used or surplus
equipment, vehicles and other assets in the ordinary course of business (to the
extent that the Company shall have complied with the provisions of Section 5.3);
(c) sales of inventory in the ordinary course of business;
(d) sales, transfers and other dispositions of Truckstops and the
related assets for at least the then-current fair market value of such assets
(other than any such sales, transfers and other dispositions permitted under
subsection (g) below), with the related Net Cash Proceeds being applied in
accordance with the provisions of Section 5.3 and the definition of the term
"PREPAYMENT EVENT," if (i) the aggregate number of Truckstops so sold,
transferred or disposed of pursuant to this subsection (d) shall not exceed ten
since the Closing Date, (ii) the aggregate amount of Net Cash Proceeds received
by the Company in respect of such sales, transfers and dispositions pursuant to
this subsection (d) shall not exceed $30,000,000 since the Closing Date, (iii)
the consideration received in any such transaction shall consist of immediately
available funds in an amount equal to at least 75% of the then-current fair
market value of the applicable asset(s) (with any instrument evidencing
consideration in other than immediately available funds being pledged to the
Collateral Agent as Collateral pursuant to the Pledge Agreement), (iv) no
Default or Event of Default shall have occurred and be continuing and no such
event shall occur as the result of such proposed transaction and (v) prior to
any such proposed transaction, each holder of a Note and the Collateral Agent
shall have received a certificate of a Financial Officer of the Company
describing the proposed transaction (including the consideration to be received)
and certifying as to the compliance with the foregoing provisions on a
prospective basis;
(e) sublicenses by the Company, either Guarantor or TAFSI to
Franchisees and Network Operators, if any, of the trademarks and servicemarks
owned by the Company, such Guarantor or TAFSI;
54
(f) sales, transfers and other dispositions of any portion of a
Mortgaged Property in connection with the development of such property as
permitted in, and in accordance with, the provisions of Section 10 of the
Guarantee Agreement;
(g) sales, transfers and other dispositions of the parcels of real
estate listed on Schedule 7.5(g) (which Schedule may be amended by the Company
from time to time to substitute another parcel of real estate for any parcel of
real estate that is then listed on such Schedule and has not been sold,
transferred or otherwise disposed of on or prior to the date of such
substitution) and the related Truckstop assets, with the related Net Cash
Proceeds being applied in accordance with the provisions of Section 5.3 and the
definition of the term "Prepayment Event";
(h) in the case of the Guarantors and TAFSI, (i) the acquisition of
assets from, or shares or other equity interests in, any person in connection
with a Permitted Business Acquisition or a Permitted Joint Venture and (ii) the
merger of any person with and into one of the Guarantors as required by the
definition of the term "Permitted Business Acquisition;"
(i) leases permitted by Section 7.8;
(j) sales of assets in connection with Sale and Leaseback Transactions
permitted by Section 7.3; and
(k) any sale, transfer or other disposition of any asset by a
Guarantor to TAFSI or the other Guarantor or by TAFSI to a Guarantor provided
that the aggregate fair market value of all assets transferred to TAFSI by the
Guarantors does not exceed $3,000,000.
7.6. DIVIDENDS AND DISTRIBUTIONS.
(a) Declare or pay, directly or indirectly, any dividend or make any
other distribution (by reduction of capital or otherwise), whether in cash,
property, securities or a combination thereof, with respect to any shares of its
capital stock or directly or indirectly redeem, purchase, retire or otherwise
acquire for value any shares of any class of its capital stock or set aside any
amount for any such purpose except that (i) each Guarantor and TAFSI may declare
and pay dividends or make other distributions to the Company, and (ii) the
Company may declare and pay dividends or make other distributions to repurchase
or redeem Common Stock (A) from officers, directors or employees of the Company
who are no longer employed by the Company so long as no Default or Event of
Default shall have occurred and be continuing immediately before and after
giving effect to such payment, repurchase or redemption and the aggregate amount
55
of such dividends and other distributions (1) during any fiscal year shall not
exceed $1,000,000 and (2) since the Closing Date shall not exceed $3,000,000,
plus, in each case, the proceeds of any resale of such Common Stock to other or
new employees, directors or officers of the Company made prior to or within 180
days after such repurchases or redemptions and (B) from Operators, so long as
the aggregate amount of such repurchases since the Closing Date shall not exceed
$15,000,000.
(b) Permit its Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such Subsidiary to (i) pay any dividends or
make any other distributions on its capital stock or any other interest or (ii)
make or repay any loans or advances to the Company other than any (A) consensual
encumbrances or restrictions set forth in the Credit Agreement or the
Subordinated Note Indenture and (B) consensual encumbrances or restrictions that
are incurred in connection with any Refinancing Indebtedness provided that such
encumbrances or restrictions are no more onerous than the encumbrances and
restrictions described in clause (A) above.
7.7. TRANSACTIONS WITH AFFILIATES.
Sell or transfer any property or assets to, or purchase or acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except that the Company, each Guarantor and TAFSI may engage
in any of the foregoing transactions in the ordinary course of business at
prices and on terms and conditions no less favorable to the Company, such
Guarantor or TAFSI, as the case may be, than could be obtained on an
arm's-length basis from unrelated third parties, provided that the foregoing
shall not restrict (a) any transaction listed on Schedule 7.7 or (b) any
transaction with an Affiliate expressly permitted by this Agreement (including
transactions expressly permitted by Section 7.2, 7.4, 7.5 or 7.6).
7.8. BUSINESS OF COMPANY, THE GUARANTOR AND TAFSI.
(a) In the case of the Company, (i) engage at any time in any business
or business activity other than (a) the ownership of all the outstanding capital
stock of each Guarantor and TAFSI, together with the activities directly related
thereto, (B) the exercise of its rights and the performance of its obligations
under or contemplated by the Transaction Documents and (c) actions required by
law to maintain its status as a corporation.
(b) In the case of a Guarantor,
(i) engage at any time in any activities other than the business
currently conducted by it and business activities reasonably incidental
thereto (including the operation of restaurants) on Truckstop premises, or
56
(ii) lease any Truckstop to a third-party operator, or engage any
third party operator to operate any Truckstop, or otherwise cease to
conduct directly the operation of any Truckstop (other than in connection
with a sale of such Truckstop in accordance with Section 7.5); provided,
however, that such Guarantor may lease Truckstops to credit- worthy
third-party operators with experience in the operation of similar
facilities who shall at the time become Franchisees if (A) in each case the
lease shall (I) provide for payment of rent and all other material amounts
payable thereunder at rates at least equal to the fair market rental value
as a full service truckstop facility (using for such purpose the highest
number resulting at the time from at least three standard methods of
determining fair market rental value), as of the date such lease is
executed by such Guarantor, of the entire premises covered by such lease
for the term thereof, including any renewal options, (II) require the
lessee to use and operate the Truckstop in a manner consistent with
industry standards from time to time for the operation of similar
facilities (and in any event in compliance with the applicable Franchise
Agreement), (III) have a term not longer than ten years, except that such
lease may be renewed for a period of up to ten years, or successive periods
of up to ten years each, if such lease shall provide for payment of rent
and all other material amounts payable thereunder at rates reasonably
believed by such Guarantor, as of the date such lease is entered into, to
be the fair market rental value (determined as aforesaid) of the entire
premises covered by such lease for each such period, (IV) contain
provisions consistent with and not in conflict with any term, condition,
covenant or agreement contained in any Financing Document, (V) require the
lessee to deliver estoppel certificates to the Collateral Agent in
compliance with clause (D) below, (VI) provide that such lease is subject
and subordinate in all respects to the applicable Mortgage and may be
terminated by such Guarantor in case of a default under or termination of
the applicable Franchise Agreement and (VII) constitute an "OPERATING
LEASE" (not a financing lease) for all purposes, (B) in each case, such
Guarantor shall have delivered to the holders of the Notes, reasonably in
advance of the execution and delivery thereof, copies of such lease and all
other agreements to be entered into by such Guarantor in connection
therewith, (C) such Guarantor shall have delivered to the holders of the
Notes within 30 days of a request therefor by the holders of the Notes, an
estoppel certificate of any lessee in form and substance satisfactory to
the Required Holders, (D) in each case, such Guarantor, at its expense,
take such action as shall be necessary or as shall be reasonably requested
by the Required Holders and the Collateral Agent to assign to the
Collateral Agent, for the benefit of the Secured Parties, a perfected
security interest in its rights under such lease and other agreements,
including the execution, delivery and recording of an assignment of leases
57
and rents substantially in the form included in Exhibit C, (E) on the
date of such lease the pro forma Interest Expense Coverage Ratio in
respect of the period of four fiscal quarters ending with the last full
fiscal quarter immediately preceding such date (giving effect to the
entering into of such lease as if it had been entered into on the first day
of such period but not giving effect to any transfer to the lessee of the
obligation to make capital expenditures that were made by such Guarantor),
shall be equal to or greater than the Interest Expense Coverage Ratio for
such period, (F) after giving effect to the entering into of such lease, no
Default or Event of Default shall have occurred and be continuing and there
shall have been no decrease in Consolidated Net Worth, (G) the
consideration to such Guarantor from the lessee in connection with such
lease (including without limitation any franchise fee and consideration for
the sale of inventory or other assets relating to such Truckstop) shall be
paid in cash and, in the case of assets, shall equal the greater of (x) the
then-current fair market value of such assets and (y) the book value of
such assets as reflected on such Guarantor's financial statements at such
time, (H) the lessee shall be an Accredited Lessee (as below defined), (I)
the lessee shall not be a lessee or operator of more than three Truckstops
leased by the Guarantors pursuant to this Section 7.8 (provided that no
more than ten persons may be lessee of more than one Truckstop leased
pursuant to this Section 7.8 and no more than five persons may be lessee of
more than two Truckstops leased pursuant to this Section 7.8), (J) such
lease shall prohibit the lessee from mortgaging such lessee's leasehold
interest in the Truckstop or such lease, (K) the rent payable at a fixed or
contractual rate under such lease shall equal or exceed 70% of the total
rent payable under such lease assuming such lease had been entered into on
the first day of the period of four consecutive fiscal quarters ending with
the last full fiscal quarter immediately preceding the date of such lease
and (L) promptly after execution of such lease, an executed copy of such
lease and a certificate of an officer of the Company certifying that such
lease complies with the provisions of this Section 7.8 shall be delivered
to the holders of the Notes; and provided, further, that such Guarantor may
(i) enter into extensions, renewals and replacements of leases permitted
pursuant to Section 7.2(a) and (ii) lease or sublease retail space and
office space at any Truckstop to the extent permitted pursuant to Sections
7.2(k) and (l).
As used in clause (ii) above, "ACCREDITED LESSEE" shall mean with respect to a
proposed lessee:
(1) in case the proposed lessee is a franchisee of a Guarantor
who has, for at least two years prior to the proposed lease, been in
compliance with all requirements of such lessee's franchise agreement or
franchise agreements with such Guarantor,
58
(A) if such lessee is not a lessee of any other Truckstop
pursuant to this Section 7.8, an "ACCREDITED INVESTOR" within the
meaning of paragraph (a)(5), (a)(6) or a (8) of Rule 501 under the
Securities amended Act of 1933, as amended,
(B) if such lessee is (after giving effect to the proposed
lease) a lessee of two Truckstops pursuant to this Section 7.8, an
"ACCREDITED INVESTOR" as aforesaid, except that for purposes of
paragraph (a)(6) of said Rule 501, the individual and joint income
requirements shall be $400,000 and $600,000, respectively, and
(C) if such lessee is (after giving effect to the proposed
lease) a lessee of three Truckstops pursuant to this Section 7.8, an
"ACCREDITED INVESTOR" as aforesaid, except that for purposes of
paragraph (a)(5) of said Rule 501, the net worth requirement shall be
$1,500,000 and for purposes of paragraph (a)(6) of said Rule, the
individual and joint income requirements shall be $600,000 and
$900,000, respectively; and
(2) in case the proposed lessee is not a franchisee of either
Guarantor or, in case the proposed lessee is such a franchisee but has not
been such for at least two years in compliance with such lessee's franchise
agreement or franchise agreements as described in clause (1) above,
(A) if such lessee is not a lessee of any other Truckstop
pursuant to this Section 7.8, an "ACCREDITED INVESTOR" within the
meaning of paragraphs (a)(5) and (a)(6) of said Rule 501 or a
partnership or other entity in which each of the equity owners
constitutes an "ACCREDITED INVESTOR" within the meaning of both such
paragraphs of said Rule,
(B) if such lessee is (after giving effect to the proposed
lease) a lessee of two Truckstops pursuant to this Section 7.8, a
person meeting the requirements of subclause (A) above, except that
for purposes of paragraph (a)(6) of said Rule 501, the individual and
joint income requirements shall be $400,000 and $600,000,
respectively, and
(C) if such lessee is (after giving effect to the proposed
lease) a lessee of three Truckstops pursuant to this Section 7.8, a
person meeting the requirements of subclause (A) above, except that
for purposes of paragraph (a)(5) of said Rule 501, the net worth
requirement shall be $1,500,000 and for purposes of paragraph (a)(6)
of said Rule, the individual and joint income requirements shall be
$600,000 and $900,000, respectively.
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(c) In the case of TAFSI, (i) engage in any activities other than the
franchising of auto/truckstops and activities incidental thereto in accordance
with its past practice, (ii) own or acquire any material assets (other than
assets under the Franchise Agreements) or (iii) incur any material liabilities
(other than liabilities under the Transaction Documents and Franchise
Agreements).
7.9. LIMITATIONS ON DEBT PREPAYMENTS.
(a) Optionally prepay, repurchase or redeem or otherwise defease or
segregate funds with respect to any Indebtedness for borrowed money (including,
in the case of the Company, the Subordinated Notes) other than the Notes;
provided, however, that the foregoing shall not prevent the Company from (i)
making any payment pursuant to Section 2.12 or 2.13 of the Credit Agreement,
(ii) refinancing Indebtedness under the Credit Agreement or the Subordinated
Notes pursuant to, and in accordance with, the provisions of Section 7.1(g) or
(h), respectively (whereupon this Section 7.9 shall apply to the Indebtedness
incurred in connection with any such refinancing) or (iii) prepaying or
otherwise refinancing any Indebtedness permitted in Section 7.1(i), 7.1(j),
7.1(l) or 7.1(m). Without limiting the foregoing, neither the Credit Agreement
nor the Subordinated Note Indenture nor any document in respect of Credit
Agreement Refinancing Indebtedness or Subordinated Note Refinancing Indebtedness
shall prevent the Company from electing to apply to the optional prepayment of
Notes from time to time pursuant to Section 5.2 in an aggregate amount
(allocable to principal and Make-Whole Premium or Break Funding Cost, as the
case may be) in each case at least equal to the Pro Rata Share of the holders of
the Notes in respect of each optional prepayment of the Term Loans pursuant to
Section 2.12 of the Credit Agreement (or the analogous provision in respect of
Credit Agreement Refinancing Indebtedness).
(b) Permit any amendment or modification to the terms of any
Subordinated Note, any Subordinated Note Guarantees or the Subordinated Note
Indenture if the effect of such amendment or modification is to impose
additional or increased scheduled or mandatory repayment, retirement, repurchase
or redemption obligations in respect of the Indebtedness evidenced by such notes
or to require any scheduled or mandatory payment to be made in respect of such
notes prior to the date that such payment would otherwise be due; or permit any
amendment or modification to the terms of the Credit Agreement or any agreement
relating to Refinancing Indebtedness unless made in compliance with Section 7.04
of the Intercreditor Agreement (or the analogous provision of any successor
thereto).
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7.10. AMENDMENT OF CERTAIN DOCUMENTS AND SUBORDINATED NOTES.
(a) Permit any termination of, or any amendment or modification that
is adverse in any material respect to the interests of the holders of the Notes
to, (i) the Certificate of Incorporation of the Company, either Guarantor or
TAFSI, (ii) the By-laws of the Company, either Guarantor or TAFSI, (iii) the
Subordinated Notes, the Subordinated Note Guarantees and the Subordinated Note
Indenture, (iv) the Asset Purchase Agreements, (v) the Environmental Agreements
and (vi) the Ancillary Agreements, in each case without the prior written
consent of the Required Holders.
(b) Without limiting the generality of the foregoing, with respect to
the Subordinated Notes, the Subordinated Note Guarantees and the Subordinated
Note Indenture, it is understood that (i) any increase in the interest, fees or
other amounts payable in connection therewith, (ii) any amendment that imposes
additional covenants or events of default or makes more restrictive the
covenants or events of default contained therein or (iii) any amendment that
renders the subordination provisions contained therein less favorable to the
Noteholder shall in each case require the consent of the Required Holders.
7.11. LIMITATION ON LEASES.
Create or suffer to exist any obligations on the part of the Company
of any of its Subsidiaries for the payment of rents for any property under
leases or agreements to lease, except, in the case of either Guarantor:
(a) (i) leases (other than leases of real property) of such Guarantor
entered into in the ordinary course of business and in existence on the date
hereof having annual lease payments of less than $250,000 and (ii) leases of
such Guarantor in existence on the date hereof and listed on Schedule 7.11(a)
(and any extensions, renewals or replacements of such leases, provided that the
annual lease payment under any such extension, renewal or replacement shall be
no greater than the fair market rental value of the leased property, as of the
date of such extension, renewal or replacement for the term of such extension,
renewal or replacement);
(b) operating leases entered into after the date hereof by such
Guarantor as lessee (i) in the ordinary course of business in a manner and to an
extent consistent with historical practices of the Network as of the date hereof
and (ii) in connection with Sale and Leaseback Transactions permitted by Section
7.3, provided that the aggregate annual lease payments under all such leases
shall not exceed $10,000,000;
(c) Capital Lease Obligations incurred by such Guarantor to finance
the acquisition of equipment and other property, provided that (i) the aggregate
of (A) all such Capital Lease Obligations and (B) all purchase money
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Indebtedness permitted pursuant to Section 7.1(c) shall not exceed $15,000,000
at any time outstanding, (ii) each Capital Lease Obligation at the time of its
incurrence shall have an average life to maturity greater than the average life
to maturity of the Notes, (iii) none of the related leases shall contain
financial covenants and (iv) for purposes of Section 7.13, the amount of such
aggregate annual rental payments shall be deemed to be Capital Expenditures in
the year in which they are incurred; and
(d) any fair-market-value leases entered into by such Guarantor in
connection with the relocation of its offices.
7.12. SUBSIDIARIES.
After giving effect to the Recapitalization and the Transactions, in
the case of the Company, have any direct or indirect Subsidiaries other than the
Guarantors, TAFSI and any Permitted Joint Venture that is a direct or indirect
Subsidiary of the Company. Each of the Guarantor and TAFSI shall remain a wholly
owned Subsidiary of the Company.
7.13. CAPITAL EXPENDITURES.
(a) Make or permit Capital Expenditures during any fiscal year,
commencing with the fiscal year ending December 31, 1997, to exceed $25,000,000;
provided, however, that the amount of permitted Capital Expenditures in any
fiscal year shall be increased by (i) an amount equal to 50% of the excess of
(A) consolidated EBITDA for the immediately preceding fiscal year over (B)
$64,000,000 and (ii) the lesser of (A) 25% of the total amount of permitted
Capital Expenditures for the immediately preceding fiscal year (including
amounts permitted as a result of the application of clause (i) but excluding any
unused Capital Expenditures carried forward to such preceding year) and (B) the
total amount of unused permitted Capital Expenditures for the immediately
preceding fiscal year (excluding any unused Capital Expenditures carried forward
to such preceding year). Notwithstanding the foregoing, the aggregate amount of
Capital Expenditures permitted in any fiscal year shall not exceed $35,000,000.
(b) (i) Permit Transition Capital Expenditures to exceed (A)
$50,000,000 during any fiscal year (commencing with the fiscal year ending
December 31, 1997), or (ii) $140,000,000 during the term of this Agreement or
(ii) permit the aggregate purchase consideration in connection with Permitted
Business Acquisitions that, pursuant to Section 7.4(g), constitute Transition
Capital Expenditures to exceed $25,000,000 during the term of this Agreement.
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7.14. CONSOLIDATED NET WORTH.
Permit Consolidated Net Worth at any time to be less than $90,000,000,
plus, without duplication, (a) 50% of Net Income for each fiscal quarter
(beginning with the fiscal quarter ending June 30, 1997) for which Net Income is
positive, plus (b) 100% of the Net Cash Proceeds of any primary offering of
equity securities consummated by the Company or either Guarantor after the
Closing Date, plus (c) 100% of any capital contribution made to the Company or
either Guarantor after the Closing Date by any holder of its respective capital
stock (without duplication), minus (d) amounts paid to repurchase or redeem
Common Stock of the Company from Operators as permitted by Section 7.06(a)(ii).
7.15. CURRENT RATIO.
Permit on the last day of any fiscal quarter the ratio of Current
Assets to Current Liabilities to be less than 1.50 to 1.00.
7.16. INTEREST EXPENSE COVERAGE RATIO.
(a) Permit the Interest Expense Coverage Ratio for any fiscal year
ending on a date indicated below to be less than the ratio set forth opposite
such date:
FISCAL YEAR RATIO
----------- -----
December 31, 1997 1.50
December 31, 1998 1.75
December 31, 1999 2.00
December 31, 2000 2.25
December 31, 2001 2.50
December 31, 2002 2.75
December 31, 2003 3.00
December 31, 2004. 3.25
(b) Incur Indebtedness if, after giving effect to the incurrence of
such Indebtedness, the Interest Expense Coverage Ratio determined on the last
day of the most recently completed period of four consecutive fiscal quarters
for such period (or in the case of any fiscal quarter ending prior to March 31,
1998, for the period commencing April 1, 1997 and ending on the last day of such
fiscal quarter), as if such Indebtedness had been incurred at the beginning of
such period, would be less than 1.00 to 1.00.
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7.17. LEVERAGE RATIO.
Permit the Leverage Ratio on any date during any fiscal quarter ending
on the last day of or during any period indicated below to be in excess of the
ratio set forth opposite such period:
FROM AND INCLUDING: TO AND INCLUDING: RATIO:
------------------ ---------------- -----
July 1, 1997 June 30, 1998 5.50 to 1.00
July 1, 1998 December 31, 1998 5.25 to 1.00
January 1, 1999 December 31, 1999 4.75 to 1.00
January 1, 2000 December 31, 2000 4.50 to 1.00
January 1, 2001 December 31, 2001 3.75 to 1.00
January 1, 2002 December 31, 2002 3.25 to 1.00
January 1, 2003 December 31, 2003, 3.00 to 1.00
and thereafter
8. INVESTMENT OF CERTAIN ESCROWED AMOUNTS.
The Company also covenants and agrees that, so long as any of the
Notes shall remain outstanding, in the event that the Company or a Guarantor
deposits money with the Collateral Agent, or such money is received directly by
the Collateral Agent, pursuant to or in connection with (a) the definition of
the term "PREPAYMENT EVENT" (in connection with any deposit of Net Cash Proceeds
pending any permitted application of such money contemplated by such definition
(other than with respect to any Mortgaged Property Casualty or Condemnation
governed by Section 9 of the Guarantee Agreement)) or (b) Section 9 of the
Guarantee Agreement (in connection with any Mortgaged Property Casualty or
Condemnation), the Company understands and agrees that (i) such amounts shall be
held as Collateral for the payment of the Obligations in separate escrow
accounts (or sub-accounts of a single escrow account) with the Collateral Agent
for the benefit of the Secured Parties, (ii) the Collateral Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal,
over such accounts (or sub-accounts), (iii) other than any interest earned on
the investment of such deposits in Permitted Investments, which investments
shall be made at the option and sole discretion of the Collateral Agent, such
deposits shall not bear interest, (iv) interest or profits, if any, on such
investments shall accumulate in such accounts (or sub-accounts) and (v) amounts
held in such accounts (or sub-accounts) shall be released or applied (A) in the
case of Section 9 of the Guarantee Agreement, as provided in (and subject to the
provisions of) such Section and (B) in all other cases, upon the demand by the
Company or the applicable Guarantor in connection with the Company's or such
Guarantor's reinvestment of such amounts within the specified period of time in
accordance with the definition of the term "Prepayment Event".
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Nothing in this Section 8 shall prevent the Collateral Agent from
applying at any time all or any part of the amounts on deposit in the
above-contemplated accounts (or subaccounts) to the curing of any Event of
Default in accordance with the Intercreditor Agreement. The provisions of this
Section 8 are subject to the provisions of the Intercreditor Agreement.
9. DEFINITIONS.
9.1. DEFINITIONS.
Except as otherwise specified or as the context may otherwise require,
the following terms shall have the respective meanings set forth below:
"AFFILIATE" shall mean, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"ANCILLARY AGREEMENTS" shall mean the TA Ancillary Agreements and the
National Ancillary Agreements.
"ASSET PURCHASE AGREEMENTS" shall mean the TA Asset Purchase Agreement
and the National Asset Purchase Agreement.
"AVAILABLE PROCEEDS" shall have the meaning ascribed in Section 5.3.
"BREAK FUNDING COST" shall mean, as a consequence of the receipt for
any reason (including a prepayment pursuant to Section 5.2, 5.3 (after giving
effect to the provisions of Section 5.3(e)) or 5.4 or acceleration pursuant to
Section 10.1 of payment on account of all or any part of any Floating Rate Note
prior to the last day of the applicable Interest Period therefor, an amount as
in the good faith determination of the holder of such Floating Rate Note will
compensate such holder for (a) any actual loss or reasonable expense incurred
(other than any lost profits) by such holder and (b) an amount equal to the
excess, if any, of (i) such holder's cost of obtaining the funds for the
principal amount of such Floating Rate Note in respect of which such holder has
received payment (assumed to be the LIBOR Rate applicable thereto) for the
period from and including the date of such payment to but excluding the last day
of the applicable Interest Period over (ii) the amount of interest that would be
realized by such holder in reemploying the funds so paid for such period. A
certificate of a holder of Floating Rate Notes setting forth in reasonable
detail any amount or amounts that such holder is entitled to receive as Break
Funding Cost shall be delivered to the Company and shall be conclusive as to the
Floating Rate Note held by such holder absent manifest error.
65
"BUSINESS DAY" shall mean any day (other than a Saturday, Sunday or
legal holiday in the State of New York) on which banks are open for business in
New York City.
"CAPITAL EXPENDITURES" shall mean, for any period, the sum of all
amounts that would, in accordance with GAAP, be included as additions to
property, plant and equipment and other capital expenditures on a consolidated
statement of cash flows for the Company during such period (including the amount
of assets leased under any Capital Lease Obligation). Notwithstanding the
foregoing, the term "CAPITAL EXPENDITURES" shall not include (a) capital
expenditures in respect of the reinvestment of sales proceeds, insurance
proceeds and condemnation proceeds received by the Company or its Subsidiaries
in connection with the sale, transfer or other disposition of the Company's or
its Subsidiaries' business units, assets or properties, if (as contemplated in
the definition of the term "PREPAYMENT EVENT") such reinvestment (including, in
the case of insurance proceeds, reinvestment in the form of restoration or
replacement of damaged property) shall have resulted in the event giving rise to
the receipt of such amounts not being considered a Prepayment Event as
contemplated in the definition of such term, or (b) Transition Capital
Expenditures made during such period.
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"CASH INTEREST EXPENSE" shall mean, for any period, the interest
expense (net of interest income) of the Company and its Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP, excluding (a)
any fees and expenses payable or amortized during such period by the Company and
its Subsidiaries in connection with the Transactions and (b) any interest on the
Subordinated Notes not paid in cash prior to the maturity of the Subordinated
Notes. For purposes of the foregoing, interest expense (net of interest income)
shall be determined after giving effect to any net payments made or received by
the Company with respect to Rate Protection Agreements.
"CASUALTY" shall have the meaning ascribed in Section 9 of the
Guarantee Agreement.
"CERCLA" shall have the meaning ascribed in the definition of the term
"ENVIRONMENTAL AND SAFETY LAWS."
66
A "CHANGE IN CONTROL" shall be deemed to have occurred if:
(a) any person or Group (as below defined) other than (i) the
Institutional Equity Investors (including the First Boston Entities (as
below defined)) or (ii) the Management Investors and their Permitted
Transferees (as set forth in Section 2(b) of the Stockholders Agreement),
shall directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, have the ability to elect a majority
of the board of directors of the Company;
(b) (i) the Institutional Equity Investors (including the First Boston
Entities) or (ii) the First Boston Entities, respectively, in the aggregate
cease to own, directly or indirectly, beneficially and of record, shares
representing at least 65% of the aggregate ordinary voting power
represented by the shares of capital stock of the Company held by such
persons on the date hereof, provided that such 65% shall be reduced by the
dilution suffered by such persons solely as a result of issuances by the
Company after the Closing Date of additional shares of capital stock having
ordinary voting power (A) for fair value for cash to non- Affiliates of the
applicable parties under clause (i) or (ii) above, as the case may be, or
(B) to its employees to the extent that such additional shares of capital
stock issued to such employees do not at any time exceed 15% of the then
outstanding capital stock having ordinary voting power;
(c) any person or Group, other than the Institutional Equity Investors
(including the First Boston Entities), owns (directly or indirectly,
beneficially or of record) issued and outstanding voting stock of the
Company representing more than the lesser at any time of (i) 35% of the
aggregate ordinary voting power represented by issued and outstanding
capital stock of the Company and (ii) the percentage of the aggregate
ordinary voting power represented by the shares owned directly or
indirectly, beneficially or of record, by the Institutional Equity
Investors (including the First Boston Entities) at such time;
(d) a majority of the seats (other than vacant seats) on the board of
directors of the Company shall at any time be occupied by persons who were
neither (i) nominated by the Institutional Equity Investors (including the
First Boston Entities) or the Management Investors and their Permitted
Transferees nor (ii) elected by directors so nominated;
(e) any "CHANGE IN CONTROL" (as such term is defined in the Credit
Agreement and in the Subordinated Note Indenture) shall have occurred by
reason of facts or circumstances not otherwise constituting a Change in
Control hereunder (unless the event of default under the Credit Agreement
67
resulting from such Change in Control has been waived pursuant to the
Credit Agreement; provided that if any consideration for such waiver has
been paid to the Lenders, then an amount bearing the same relation to the
aggregate unpaid principal amount of Notes at the time outstanding as the
amount of such consideration bears to the outstanding principal amount of
Indebtedness under the Credit Agreement shall be allocated and paid
concurrently to the holders of the Notes in proportion to the respective
unpaid principal amounts held by each such holder);
(f) the Company ceases to own and control directly, of record and
beneficially, all of the issued and outstanding capital stock of each
Guarantor and TAFSI, free and clear of all Liens (other than Liens created
under the Pledge Agreement); or
(g) either Guarantor or TAFSI issues any class of capital stock (or
security convertible into its capital stock) that is not pledged to the
Collateral Agent for the ratable benefit of the Secured Parties.
For purposes of clause (b) above the Convertible Preferred Stock and the Senior
Convertible Participating Preferred Stock shall be deemed to constitute capital
stock with ordinary voting power, and for purposes of clauses (a), (c) and (d)
above an Institutional Equity Investor shall be deemed to own all shares of the
Company having ordinary voting power in respect of which such Institutional
Equity Investor or First Boston Entity shall hold the irrevocable general proxy
of the holder of such shares in respect of such shares. For purposes of this
definition: the "FIRST BOSTON ENTITIES" shall mean Credit Suisse First Boston
Corporation, The Clipper Group, L.P., Clipper Capital Associates, L.P.,
Clipper/Merchant I, L.P., Merchant Truckstops, L.P. and their Affiliates and any
of their designees on the Closing Date; and "GROUP" shall mean a group within
the meaning of Rule 13d-5 of the Securities and Exchange Commission as in effect
on the date hereof.
"CLOSING DATE" shall have the meaning ascribed in Section 2.
"CODE" shall mean the Internal Revenue Code of 1986, or any successor
statute thereto, as the same may be amended from time to time.
"COLLATERAL" shall mean all the "COLLATERAL" as defined in any
Security Document and shall also include the Lockbox Collateral and the
Mortgaged Properties.
"COLLATERAL ACCOUNT" shall have the meaning given such term in the
Collateral Account Agreement.
68
"COLLATERAL ACCOUNT AGREEMENT" shall mean the Collateral Account
Agreement, substantially in the form of Exhibit J, between the Company and the
Collateral Agent for the benefit of the Secured Parties.
"COLLATERAL AGENT" shall mean The Chase Manhattan Bank, as Collateral
Agent under the Intercreditor Agreement, the Security Documents and the
Guarantee Agreement.
"COLLATERAL ASSIGNMENT" shall have the meaning ascribed in Section
1.5.
"COMMON STOCK" shall have the meaning ascribed in Section 4.19.
"CONDEMNATION PROCEEDS" shall have the meaning ascribed in Section 9
of the Guarantee Agreement.
"CONFIDENTIAL INFORMATION MEMORANDUM" shall mean the Confidential
Information Memorandum of the Company dated February 1997.
"CONSOLIDATED NET WORTH" shall mean, at any date, on a consolidated
basis for the Company and its Subsidiaries, (a) the sum of (i) common stock
taken at par or stated value, (ii) preferred stock (other than preferred stock
that is mandatorily redeemable on or prior to the first anniversary of the
latest final maturity of the then outstanding Notes) taken at its liquidation
value, (iii) capital surplus relating to common stock and (iv) retained earnings
(or deficit) at such date minus (b) the sum of treasury stock at such date
(other than treasury stock repurchased pursuant to Section 7.6), all determined
in accordance with GAAP and after giving effect to all adjustments required
thereby, but excluding any adjustments required by purchase accounting.
"CONTROL" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "CONTROLLING" and "CONTROLLED" shall have meanings
correlative thereto.
"CONVERTIBLE PREFERRED STOCK" shall mean the Series I Preferred Stock
and the Series II Preferred Stock.
"CREDIT AGREEMENT" shall mean the Credit Agreement dated the date
hereof by and among the Company, the Lenders party thereto and The Chase
Manhattan Bank, as agent for said Lenders, as amended, modified or supplemented
in accordance with the provisions of this Agreement. After the incurrence of any
Credit Agreement Refinancing Indebtedness, the term "CREDIT AGREEMENT" shall
include all agreements (or comparable documents, such as loan agreements or
indentures) entered into by the Company in connection with the sale or issuance
of such refinancing Indebtedness.
69
"CREDIT AGREEMENT DOCUMENTS" shall mean the Credit Agreement, the
Security Documents, the Intercreditor Agreement and the Guarantee Agreement.
"CREDIT AGREEMENT REFINANCING INDEBTEDNESS" shall mean any
Indebtedness incurred by the Company as contemplated by Section 7.1(g) in
connection with the refinancing of Indebtedness under the Credit Agreement.
"CURRENT ASSETS" as of any date shall mean the total assets that would
properly be classified as current assets of the Company and its Subsidiaries on
a consolidated basis as of such date in accordance with GAAP.
"CURRENT LIABILITIES" as of any date shall mean the total liabilities
that would properly be classified as current liabilities (other than the current
portion of Funded Debt) of the Company and its Subsidiaries on a consolidated
basis as of such date in accordance with GAAP.
"DECLINED AMOUNTS" shall have the meaning ascribed in Section 5.3.
"DEFAULT" shall mean any event or condition that upon notice, lapse of
time or both would constitute an Event of Default.
"DOLLARS" or "$" shall mean lawful money of the United States.
"EBITDA" with respect to the Company and its Subsidiaries for any
period shall mean the sum of (a) Net Income for such period, (b) all Federal,
state, local and foreign income taxes deducted in determining such Net Income,
(c) interest expense deducted in determining such Net Income, (d) depreciation,
amortization and other noncash charges deducted in determining such Net Income
and (e) to the extent deducted from such Net Income with respect to any fiscal
quarter ending on or prior to December 31, 2000, transition costs paid during
such period, provided that the aggregate amount of all transition costs incurred
after the Closing Date and permitted to be added back to Net Income pursuant to
this definition shall not exceed $11,000,000. For purposes of calculating the
Interest Expense Coverage Ratio, "EBITDA" shall not include the gain on the
initial sale of assets to any lessee in connection with the leasing of any
Truckstop in accordance with Section 7.8.
"ENVIRONMENTAL AGREEMENTS" shall mean (a) the Environmental Agreement
entered into as of July 22, 1993, among BP Exploration & Oil Inc., TA and
certain other parties, as amended by Amendment No. 1 thereto dated December 9,
70
1993, and by the letter agreement dated as of December 9, 1993, and as further
amended, modified or supplemented in accordance with the provisions of Section
7.10 and (b) the Environmental Agreement dated as of November 23, 1992, between
Union Oil Company of California and National, as amended, modified or
supplemented in accordance with the provisions of Section 7.10.
"ENVIRONMENTAL AND SAFETY LAWS" shall mean any and all applicable
current and future treaties, laws, regulations, enforceable requirements,
binding determinations, orders, decrees, judgments, injunctions, permits,
approvals, authorizations, licenses, permissions, notices or binding agreements
issued, promulgated or entered by any Governmental Authority, relating to the
environment, to employee health or safety as it pertains to the use or handling
of, or exposure to, Hazardous Substances, to preservation or reclamation of
natural resources or to the management, release or threatened release of
contaminants or noxious odors, including the Hazardous Materials Transportation
Act, the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendments and Reauthorization Act of 1986
("CERCLA"), the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 and the Hazardous and Solid Waste
Amendments of 1984, the Federal Water Pollution Control Act, as amended by the
Clean Water Act of 1977, the Clean Air Act of 1970 (to the extent it pertains to
the use or handling of, or exposure to, Hazardous Substances), as amended, the
Toxic Substances Control Act of 1976, the Occupational Safety and Health Act of
1970, as amended, the Emergency Planning and Community Right-to-Know Act of
1986, the Safe Drinking Water Act of 1974, as amended, and any similar or
implementing state or local laws, and all amendments or regulations promulgated
thereunder.
"ENVIRONMENTAL CLAIM" shall mean any written notice of any
Governmental Authority alleging potential liability for damage to the
environment or by any person alleging potential liability for personal injury
(including sickness, disease or death), in either case, resulting from or based
upon (a) the presence or Release (including intentional and unintentional,
negligent and nonnegligent, sudden or nonsudden, accidental or nonaccidental
leaks or spills) of any Hazardous Substance at, in or from the property, whether
or not owned or leased by the Company or a Guarantor or (b) any other
circumstances forming the basis of any violation, or alleged violation, of any
Environmental and Safety Laws.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, or any successor statute, together with the regulations thereunder, as the
same may be amended from time to time.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated) that was, is or hereafter becomes, a member of a group of which
the Company is a member and which is treated as a single employer under Section
414 of the Code.
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"EVENT OF DEFAULT" shall have the meaning ascribed in Section 10.1.
"EXCESS CASH FLOW" shall mean, for any period, the consolidated Net
Income of the Company and its Subsidiaries during such period plus, without
duplication, (a)(i) the aggregate amounts deducted in determining such Net
Income in respect of all deferred charges and depreciation, amortization and
other noncash charges (including any interest expense other than Cash Interest
Expense), (ii) all noncash losses deducted in determining such Net Income, (iii)
to the extent not included in such Net Income, the aggregate amount of all
income tax refunds received during such period, (iv) the principal amount of any
Indebtedness incurred or assumed pursuant to Section 7.1(c) during such period,
(v) the aggregate amount of Indebtedness with respect to Capital Lease
Obligations incurred pursuant to Sections 7.1(d) and 7.11(c) during such period
and (vi) the net negative change, if any, in Net Working Capital during such
period MINUS (b)(i) all noncash gains and credits included in such Net Income,
(ii) scheduled required prepayments during such period of the principal of the
Notes, (iii) scheduled payments during such period of the principal of
Indebtedness permitted under Section 7.1 other than the Notes (including the
Term Loans, the Refinancing Indebtedness and the Subordinated Notes), but only
to the extent that such payments cannot by their terms be reborrowed or redrawn,
(iv) prepayments during such period of Term Loans and the Notes pursuant to
Section 2.12 of the Credit Agreement and Section 5.2, (v) the aggregate amount
of Capital Expenditures and Transition Capital Expenditures of the Company and
its Subsidiaries made and permitted hereunder during such period (other than the
amount of such Transition Capital Expenditures that were financed during such
period with funds released to the Company and its Subsidiaries from the
Collateral Account), (vi) repayments during such period of the portion of
Capital Lease Obligations of the Company and its Subsidiaries not allocable to
Cash Interest Expense and (vii) the net positive change, if any, in Net Working
Capital during such period, in each case determined in accordance with GAAP.
"EXISTING INDEBTEDNESS" shall have the meaning ascribed in Section
1.2.
"FINANCIAL OFFICER" of any corporation shall mean the chief financial
officer, principal accounting officer, treasurer or controller of such
corporation.
"FINANCING DOCUMENTS" shall mean this Agreement, the other agreements
referred to in Section 4.27, the Notes, the Intercreditor Agreement, the
Security Documents, the Guarantee Agreement and the Indemnity and Subrogation
Agreement.
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"XXXXX XXXXX" shall mean the First Plaza Group Trust, a trust
organized under the laws of the State of New York.
"FIXED RATE NOTES" shall have the meaning ascribed in Section 1.3.
"FLOATING RATE NOTES" shall have the meaning ascribed in Section 1.3.
"FRANCHISE AGREEMENTS" shall mean the Franchise Agreements pursuant to
which the Franchisees have or shall become franchisees of a Guarantor or TAFSI.
"FRANCHISEE" shall mean each party who has executed, or will execute,
a Franchise Agreement with a Guarantor or TAFSI.
"FUNDED DEBT" as to any Person shall mean all Indebtedness of such
Person that matures more than one year from the date of its creation or matures
within one year from such date but is renewable or extendible, at the option of
such Person, to a date more than one year from such date or arises under a
revolving credit or similar agreement that obligates the lender or lenders to
extend credit during a period of more than one year from such date, including
without limitation all amounts of Funded Debt required to be paid or prepaid
within one year from the date of its creation and, in the case of the Company,
all Indebtedness in respect of the Loans and the Swingline Loans under the
Credit Agreement.
"GAAP" shall mean generally accepted accounting principles in the
United States.
"GOVERNMENTAL AUTHORITY" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"GUARANTEE" of or by any Person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "PRIMARY OBLIGOR") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase property, securities or services for the purpose
of assuring the owner of such Indebtedness of the payment of such Indebtedness
or (c) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness; provided, however, that the term "GUARANTEE"
shall not include endorsements for collection or deposit, in either case in the
ordinary course of business.
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"GUARANTEE AGREEMENT" shall have the meaning ascribed in Section 1.5.
"GUARANTORS" shall have the meaning ascribed in Section 1.5.
"HAZARDOUS SUBSTANCES" shall mean any toxic, radioactive, caustic or
otherwise hazardous substance, material or waste, including petroleum, its
derivatives, by-products and other hydrocarbons, or any substance having any
constituent elements displaying any of the foregoing characteristics, including,
without limitation, polychlorinated biphenyls ("PCBS"), asbestos or
asbestos-containing material, and any substance, waste or material regulated
under Environmental and Safety Laws.
"INDEBTEDNESS" of any Person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid, (d) all obligations of such
person under conditional sale or other title retention agreements relating to
assets purchased by such person, (e) all obligations of such person issued or
assumed as the deferred purchase price of property or services (excluding trade
accounts payable and accrued expenses arising in the ordinary course of business
in accordance with customary trade terms), (f) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such person, whether or not the obligations secured thereby have
been assumed by such person, (g) all Guarantees by such person of Indebtedness
of others, (h) all Capital Lease Obligations of such person, (i) all obligations
of such person in respect of interest rate protection agreements, foreign
currency exchange agreements or other interest or exchange rate hedging
arrangements, (j) all obligations of such person as an account party to
reimburse any bank or any other person in respect of letters of credit and
bankers' acceptances and (k) all obligations of such person in respect of
fuel-supply hedging agreements and arrangements. The Indebtedness of any person
shall include the Indebtedness of any partnership or joint venture in which such
person is a general partner or member, other than to the extent that the
instrument or agreement evidencing such Indebtedness expressly limits the
liability of such person in respect thereof pursuant to provisions and terms
reasonably satisfactory to the Required Holders.
"INDEMNITY AND SUBROGATION AGREEMENT" shall mean the Indemnity,
Subrogation and Contribution Agreement, substantially in the form of Exhibit K,
between the Company, the Guarantors and the Collateral Agent.
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"INSTITUTIONAL EQUITY INVESTORS" shall mean The Clipper Group, L.P.,
First Plaza, Credit Suisse First Boston Corporation, Barclays USA, Inc., Olympus
Private Placement Fund, L.P., Clipper/Merchant I, L.P., Clipper Capital
Associates, L.P., National Partners, L.P., National Partners II, L.P., National
Partners III, L.P., UBS Capital Corporation, The Travelers Indemnity Company and
The Phoenix Insurance Company and their respective Affiliates.
"INSURANCE PROCEEDS" shall have the meaning ascribed in Section 9 of
the Guarantee Agreement.
"INTERCREDITOR AGREEMENT" shall have the meaning ascribed in Section
1.5; and from and after the incurrence of any Refinancing Indebtedness pursuant
to Section 7.1(g), the term "INTERCREDITOR AGREEMENT" shall include any
intercreditor agreement entered into in connection with the incurrence of such
Refinancing Indebtedness.
"INTEREST EXPENSE COVERAGE RATIO" shall mean with respect to the
Company and its Subsidiaries on a consolidated basis, for any period, the ratio
of (a) EBITDA for such period to (b) Cash Interest Expense for such period.
"INTEREST PAYMENT DATE" shall mean (a) with respect to the Fixed Rate
Notes, each June 30 and December 31 commencing on June 30, 1997 and (b) with
respect to the Floating Rate Notes, each March 31 and September 30 commencing on
September 30, 1997.
"LEASEHOLD MORTGAGE" shall mean any Mortgage that is a leasehold or
subleasehold mortgage.
"LENDERS" shall have the meaning ascribed in the Credit Agreement.
After the incurrence of any Credit Agreement Refinancing Indebtedness, the term
"Lender" shall include all original lenders of such refinancing Indebtedness and
their successors and assigns.
"LETTERS OF CREDIT" shall have the meaning ascribed in the Credit
Agreement.
"LEVERAGE RATIO" shall mean on any date the ratio of (a) Total Debt as
of such date to (b) EBITDA for the period of four consecutive fiscal quarters
most recently ended as of such date.
"LIEN" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, assignment for security (whether collateral or
otherwise), hypothecation, encumbrance, easement, restriction, covenant, lease,
sublease, charge or security interest in or on such asset, (b) the interest of a
vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement, or financing lease having substantially the same economic
75
effect as any of the foregoing, relating to such asset, (c) in the case of
securities, any purchase option, call or similar right of a third party with
respect to such securities and (d) zoning or land use restrictions.
"LOANS" shall have the meaning ascribed in the Credit Agreement and
shall also include Swingline Loans and Letters of Credit. After the incurrence
of any Credit Agreement Refinancing Indebtedness, the term "Loans" shall include
all loans outstanding in respect of such refinancing Indebtedness.
"LOCKBOX AGREEMENTS" shall have the meaning ascribed in Section 1.5.
"LOCKBOX COLLATERAL" shall have the meaning ascribed in each of the
Lockbox Agreements.
"MAKE-WHOLE PREMIUM" shall mean, in connection with any prepayment of
a Fixed Rate Note, the amount (but not less than zero) equal to the excess, if
any, of
(a) the sum of the Present Values (as hereinafter defined) of (1) the
principal amount of such Note being prepaid (assuming the required
prepayments pursuant to Section 5.1 and the principal balance of such Note
payable upon maturity are paid when due) and (2) the amount of interest
which would have been payable on each Interest Payment Date on the amount
of such principal being prepaid (assuming the required prepayments pursuant
to Section 5.1 and the principal balance of such Note payable upon maturity
and interest payments are paid when due), OVER
(b) the principal amount of such Note being prepaid.
For purposes of this definition, "PRESENT VALUE" shall be determined
in accordance with generally accepted financial practice by discounting on a
semiannual basis to the date of such prepayment at a discount rate per annum
equal to the sum of the applicable Treasury Yield plus 0.50% (or 1.25% if such
prepayment date is after December 9, 1998); and the "TREASURY YIELD" for such
purpose shall be determined as of 10:00 A.M. New York City time on the third
Business Day prior to the date of such prepayment by reference to the yields of
those actively traded "ON THE RUN" United States Treasury securities having a
maturity equal to the then-remaining weighted average life to maturity of such
Note as reported by the Telerate Access Service page 7677 (ask side) or the
equivalent page provided by Telerate Systems Incorporated (or any other
nationally recognized publicly available on-line source of similar market data),
provided that if such weighted average life to maturity is not equal to the
maturity of an actively traded "ON THE RUN" United States Treasury security,
76
such yield shall be obtained by linear interpolation (calculated to the nearest
one-twelfth of a year) from the yields as so reported of actively traded "ON THE
RUN" Treasury securities having a maturity closest to such weighted average life
to maturity . For purposes hereof, "ON THE RUN" United States Treasury
securities refers to those United States Treasury securities which are most
recently auctioned.
"MANAGEMENT INVESTORS" shall mean the officers, directors or employees
of the Company or its Subsidiaries who have purchased or will purchase Common
Stock.
"MARGIN STOCK" shall have the meaning given such term under Regulation
G.
"MATERIAL ADVERSE EFFECT" shall mean (a) a materially adverse effect
on the business, assets, operations, prospects or condition, financial or
otherwise, or the material agreements of the Company and its Subsidiaries, taken
as a whole, (b) a material impairment of the ability of the Company, either of
the Guarantors or TAFSI to perform any of its obligations under any Transaction
Document to which it is or will be a party or (c) a material impairment of the
rights of or benefits available to the Collateral Agent or the holders of Notes
under any Financing Document.
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc.
"MORTGAGED PROPERTIES" shall mean the owned real properties and
leasehold and subleasehold interests of the Company and TAFSI specified on
Schedule 1.1(a).
"MORTGAGES" shall have the meaning ascribed in Section 1.5.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which the Company or any ERISA Affiliate (other
than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Section 414 of the Code) is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"NATIONAL" shall have the meaning ascribed in Section 1.1.
"NATIONAL ANCILLARY AGREEMENTS" shall have the meaning assigned to the
term "Ancillary Agreements" in the National Asset Purchase Agreement and shall
include the Xxxx of Sale, the Assignment and Assumption Agreement, the
Non-Competition Agreement, the Office Sublease, the Credit Card Agreement, the
Trademark License Agreement, the Software License Agreement and the Services
Agreement (each as defined in the National Asset Purchase Agreement).
"NATIONAL ASSET PURCHASE AGREEMENT" shall mean the Asset Purchase
Agreement dated as of November 23, 1992, between National and Union Oil Company
of California, as amended, supplemented or otherwise modified from time to time
in accordance with the terms of this Agreement.
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"NATIONAL NETWORK" shall have the meaning ascribed in Section 1.1.
"NATIONAL NOTES" shall have the meaning ascribed in Section 1.1.
"NATIONAL PURCHASE AGREEMENTS" shall have the meaning ascribed in
Section 1.1.
"NET CASH PROCEEDS" shall mean, with respect to any Prepayment Event
or any issuance of equity of the Company or its Subsidiaries, (a) the gross cash
proceeds (including insurance proceeds, condemnation awards and payments from
time to time in respect of installment obligations, if applicable) received by
or on behalf of the Company or any Subsidiary thereof in respect of such
Prepayment Event or equity issuance, less (b) the sum of (i) in the case of a
Prepayment Event, the amount, if any, of all taxes (other than income taxes)
payable by the Company or any Subsidiary thereof in connection with such
Prepayment Event and the Company's good-faith best estimate of the amount of all
income taxes payable in connection with such Prepayment Event (to the extent
that such amount shall have been set aside for the purpose of paying such income
taxes), (ii) in the case of a Prepayment Event that is an asset sale or
disposition, (A) the amount of any reasonable reserve established in accordance
with GAAP against any liabilities associated with the assets sold or disposed of
and retained by the Guarantor or any Subsidiary thereof, provided that the
amount of any subsequent reduction of such reserve (other than in connection
with a payment in respect of any such liability) shall be deemed to be Net Cash
Proceeds of a Prepayment Event occurring on the date of such reduction, and (B)
the amount applied to repay any Indebtedness (other than the Term Loans and the
Notes) to the extent such Indebtedness is required by its terms to be repaid as
a result of such Prepayment Event and (iii) reasonable and customary fees,
commissions and expenses and other costs paid by the Company or any Subsidiary
thereof in connection with such Prepayment Event or equity issuance (other than
those payable to the Company or any Affiliate of the Company (other than
customary financial advisory fees payable to The Clipper Group, L.P. or its
Affiliates, in connection therewith to the extent that such fees are no greater
than the financial advisory fees that a third party could have obtained for the
same services after negotiation at arm's length)), in each case only to the
extent not already deducted in arriving at the amount referred to in clause (a).
"NET INCOME" shall mean, for any period, the aggregate net income (or
net deficit) of the Company and its Subsidiaries determined on a consolidated
basis for such period, which shall be equal to gross revenues for the Company
and its Subsidiaries determined on a consolidated basis during such period less
78
the aggregate for the Company and its Subsidiaries determined on a consolidated
basis during such period, without duplication, of (a) cost of goods sold, (b)
interest expense, (c) operating expenses, (d) selling, general and
administrative expenses, (e) taxes, (f) depreciation, depletion and amortization
of properties and (g) any other items that are treated as expense under GAAP,
all computed in accordance with GAAP; provided, however, that the term "NET
INCOME" shall exclude, for all purposes other than for the purposes of
calculating Consolidated Net Worth, (i) extraordinary gains and losses from the
sale of assets other than in the ordinary course of business, (ii) one-time
charges taken in connection with the Recapitalization and the other Transactions
and (iii) any write-up in the value of any asset.
"NET WORKING CAPITAL" shall mean, with respect to any Person and its
Subsidiaries on a consolidated basis at any date, (a) the sum of inventory,
current receivables (including trade receivables and current rent receivables)
and prepaid expenses minus (b) the sum of accrued expenses payable and trade
payables, as each of such items would appear on a consolidated balance sheet of
such person and its Subsidiaries as of the date of determination in accordance
with GAAP.
"NETWORK" shall have the meaning ascribed in Section 1.1.
"NETWORK OPERATOR" shall mean each independent auto/truckstop operator
who will lease or sublease a Truckstop from either Guarantor.
"NOTEHOLDERS" shall mean the Noteholder and the other noteholders
listed in Schedule I hereto.
"NOTE REFINANCING INDEBTEDNESS" shall mean any Indebtedness incurred
by the Company as contemplated by Section 7.1(g) in connection with the
refinancing of the Notes of either series.
"NOTE REGISTER" shall have the meaning ascribed in Section 11.
"NOTES" shall have the meaning ascribed in Section 1.3.
"OBLIGATIONS" shall mean all obligations defined as "OBLIGATIONS" in
the Guarantee Agreement and the Security Documents.
"OFFERING MEMORANDUM" shall mean the Offering Memorandum of the
Company dated March 24, 1997, relating to the Subordinated Notes, as amended,
supplemented or otherwise modified from time to time.
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"OPERATORS" shall mean independent auto/truckstop operators who lease
or sublease their facilities from National.
"ORIGINAL NOTES" shall have the meaning ascribed in Section 1.1.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA or any successor thereto.
"PERFECTION CERTIFICATE" shall mean the Perfection Certificate,
substantially in the form of Annex 2 to the Security Agreement, prepared by the
Company.
"PERMITTED BUSINESS ACQUISITION" shall mean any acquisition of assets
from, or shares or other equity interests in, any Person if (a) immediately
after giving effect thereto, no Default or Event of Default shall have occurred
and be continuing or would result therefrom, (b) all transactions related
thereto shall be consummated in accordance with applicable laws, (c) in the case
of any acquisition of shares or other equity interests in any Person, such
acquisition is an acquisition of 100% of the shares or other equity interests of
such Person and, simultaneously with or immediately following such acquisition,
such acquired Person is merged with and into one of the Guarantors and (d)
neither the Company nor any of its Subsidiaries shall assume or otherwise become
liable for any Indebtedness in connection with such acquisition (except for
Indebtedness permitted by Section 7.1).
"PERMITTED DEVELOPER" shall have the meaning ascribed in Section 10 of
the Guarantee Agreement.
"PERMITTED DEVELOPMENT ENTITY" shall be a corporation or limited
partnership that does not satisfy the criteri a to be considered a "SUBSIDIARY"
as contemplated in the definition thereof.
"PERMITTED INVESTMENTS" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within three months from the date of acquisition thereof;
(b) without limiting the provisions of paragraph (d) below,
investments in commercial paper maturing within three months from the date
of acquisition thereof and having, at such date of acquisition, the highest
credit rating obtainable from Standard & Poor's and from Moody's;
80
(c) investments in certificates of deposit, banker's acceptances and
time deposits (including eurodollar time deposits) maturing within three
months from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, (i)
any domestic office of The Chase Manhattan Bank or (ii) any domestic office
of any other commercial bank of recognized standing organized under the
laws of the United States of America or any state thereof that has a
combined capital and surplus and undivided profits of not less than
$250,000,000 and which is rated (or the senior debt securities of the
holding company of such commercial bank are rated) A or better by Standard
& Poor's or A2 or better by Moody's, or carrying an equivalent rating by
another nationally recognized rating agency if neither of the two named
rating agencies shall rate such commercial bank (or the holding company of
such commercial bank);
(d) investments in commercial paper maturing within three months from
the date of acquisition thereof and issued by (i) the holding company of
The Chase Manhattan Bank or (ii) the holding company of any other
commercial bank of recognized standing organized under the laws of the
United States of America or any state thereof that has (A) a combined
capital and surplus in excess of $250,000,000 and (B) commercial paper
rated at least A-1 or the equivalent thereof by Standard & Poor's or at
least P-1 or the equivalent thereof by Moody's, or carrying an equivalent
rating by another nationally recognized rating agency, if both of the two
named rating agencies cease publishing ratings of investments;
(e) repurchase agreements having a term of seven days or less with (i)
any domestic office of The Chase Manhattan Bank or (ii) any domestic office
of any other commercial bank of recognized standing organized under the
laws of the United States of America or any state thereof that has a
combined capital and surplus and undivided profits of not less than
$250,000,000 and which is rated (or the senior debt securities of the
holding company of such commercial bank are rated) A or better by Standard
& Poor's or A2 by Moody's or carrying an equivalent rating by another
nationally recognized rating agency if neither of the two named rating
agencies shall rate such bank, in each case relating to marketable direct
obligations issued or unconditionally guaranteed by the United States but
only if the securities collateralizing such repurchase agreements are
delivered to or on the order of the Collateral Agent;
(f) other investment instruments approved in writing by the Required
Holders and offered by financial institutions that have a combined capital
and surplus and undivided profits of not less than $250,000,000; and
81
(g) investments consisting of Rate Protection Agreements.
"PERMITTED JOINT VENTURE" shall have the meaning ascribed in Section
7.4(h).
"PERSON" or "PERSON" shall mean any natural person, corporation,
business trust, joint venture, association, company, partnership or government,
or any agency or political subdivision thereof.
"PLAN" shall mean any pension plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code that
is maintained for employees of the Company or any ERISA Affiliate.
"PLEDGE AGREEMENT" shall have the meaning ascribed in Section 1.5.
"PREPAYMENT ACCOUNT" shall have the meaning ascribed in the
Intercreditor Agreement.
"PREPAYMENT EVENT" shall mean (a) any sale, transfer or other
disposition of any business units, assets, franchises or other properties of the
Company or any Subsidiary thereof (including dispositions in the nature of
casualties (to the extent covered by insurance) or condemnations (including any
Casualty or Condemnation in respect of a Mortgaged Property as contemplated in
Section 9 of the Guarantee Agreement)), (b) any sale and leaseback of any asset
or the mortgaging of any real property other than (i) any Sale and Leaseback
Transaction permitted by Section 7.3 or (ii) pursuant to a Mortgage (or a
modification thereof) by the Company or any Subsidiary thereof, or (c) the
issuance or incurrence by the Company or any Subsidiary thereof of any
Indebtedness (excluding any Indebtedness permitted under Section 7.1), or the
issuance or sale by the Company or any Subsidiary thereof of any debt securities
or any obligations convertible into or exchangeable for, or giving any Person
any right, option or warrant to acquire from the Company or any Subsidiary
thereof any Indebtedness or any such debt securities or any such convertible or
exchangeable obligations (excluding any Indebtedness permitted under Section
7.1). Notwithstanding the foregoing, the term "PREPAYMENT EVENT" shall not
include:
(i) sales, transfers and other dispositions of used or surplus
equipment, vehicles and other assets in the ordinary course of business
permitted pursuant to Section 7.5(b) not exceeding in the aggregate
$1,000,000 in any fiscal year, provided that (A) at any time when such
sales, transfers and other dispositions in the ordinary course of business
shall exceed $1,000,000 in any fiscal year, the resultant Prepayment Event
shall include the entire amount of such sales, transfers and dispositions
82
since the date of such most recent payment, if any, with respect to such
fiscal year and not just amounts above such dollar threshold and (B) to the
extent that the Company or any of its Subsidiaries shall have reinvested on
the date of such Prepayment Event (or certified to the holders of the Notes
that it intends to reinvest within 180 days of such Prepayment Event) any
of the proceeds of such sales, transfers and dispositions in equipment,
vehicles or other assets used in the principal lines of business of the
Subsidiaries, the resultant Prepayment Event shall be reduced by the lesser
of (I) $1,000,000 and (II) the amount so reinvested or to be reinvested;
(ii) sales of inventory in the ordinary course of business;
(iii) sales, transfers and other dispositions of Truckstops and the
related assets permitted pursuant to Sections 7.5(d) and 7.5(g) resulting
in Net Cash Proceeds in an aggregate amount not exceeding (A) during the
period commencing on the Closing Date and ending on March 31, 2000,
$50,000,000 and (B) during each period of four consecutive fiscal quarters
ending on each March 31 thereafter, $7,500,000, provided that (1) such Net
Cash Proceeds are either (x) used to prepay or voluntarily prepay the Notes
or the Loans, in accordance with Section 5.2 or 5.3 of this Agreement and
Section 2.12 or 2.13 of the Credit Agreement, on such date as may be
elected by the Company or (y) reinvested in other Truckstop properties and
related assets, (2) in connection with any such reinvestment, the Company
shall (x) provide the holders of the Notes and the Collateral Agent with
such opinions, documents, certificates, title insurance policies (as
required by Section 3.14(a)), surveys and other insurance policies as they
may reasonably request and (y) take such other actions as the Required
Holders and the Collateral Agent may reasonably deem necessary or
appropriate (including actions with respect to the delivery to the
Collateral Agent of a first priority Mortgage as required by Section
3.14(a) and assignment with respect to the related real property for the
ratable benefit of the Secured Parties) and (3) the Company, pending any
such repayment, voluntary prepayment or reinvestment, promptly deposits
such Net Cash Proceeds in a cash collateral account established with the
Collateral Agent for the benefit of the Secured Parties;
(iv) the receipt of insurance or condemnation proceeds (other than
Condemnation Proceeds and Insurance Proceeds in respect of Mortgaged
Properties), provided that (A) such proceeds are reinvested in equipment,
vehicles or other assets used in the Subsidiaries' principal lines of
business within 180 days after the receipt thereof and (B) the Company,
pending such reinvestment, promptly deposits such proceeds so received and
unreinvested in a cash collateral account established with the Collateral
Agent for the benefit of the Secured Parties;
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(v) the receipt of Condemnation Proceeds and Insurance Proceeds in
respect of Mortgaged Properties to the extent that (A) such Condemnation
Proceeds or Insurance Proceeds are used to restore, repair or locate,
acquire and replace the related Mortgaged Property in accordance with
Section 9 of the Guarantee Agreement, (B) such Condemnation Proceeds or
Insurance Proceeds, pursuant to Section 9 of the Guarantee Agreement, are
not otherwise required to be applied as a mandatory prepayment pursuant to
Section 2.13(b) of the Credit Agreement and Section 5.3 or (C) to the
extent permitted by Section 9 of the Guarantee Agreement, any Condemnation
Proceeds or Insurance Proceeds are (I) reinvested in equipment, vehicles or
other assets used in the Subsidiaries' principal lines of business within
180 days after the receipt thereof and (II) the Company, pending such
reinvestment, has deposited such amounts in an escrow account with the
Collateral Agent as contemplated in Section 9 of the Guarantee Agreement;
(vi) except as otherwise specified in Section 10 of the Guarantee
Agreement, any sale, transfer and other disposition of any portion of a
Mortgaged Property in connection with the development of such property as
permitted in, and in accordance with, the provisions of Section 10 of the
Guarantee Agreement; and
(vii) in respect of any Mortgaged Property, sales, transfers and other
dispositions of any portion of the Land (as defined in the related
Mortgage) that has no significant improvements on it that are permitted
pursuant to Section 7.05(f) in an aggregate amount not exceeding $2,000,000
in any fiscal year or $8,000,000 since the Closing Date, provided that (A)
the proceeds of each such sale are reinvested in equipment, vehicles or
other assets used in the Subsidiaries' principal lines of business within
180 days of the date of such sale and (B) the Company, pending such
reinvestment, promptly deposits such proceeds so received and unreinvested
in a cash collateral account established with the Collateral Agent for the
benefit of the Secured Parties.
"PRO FORMA BALANCE SHEET" shall have the meaning ascribed in Section
4.5(a).
"PRO RATA SHARE" shall mean, in relation to any amount, (a) with
respect to all the Lenders as a group, a share of such amount determined by
multiplying such amount by a fraction, the numerator of which shall be the sum
of the aggregate principal amount of Revolving Credit Loans (as defined in the
Credit Agreement), Swingline Loans and Term Loans outstanding at the time plus
the aggregate face amount of all Letters of Credit outstanding at the time under
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the Credit Agreement plus the aggregate unused amount of Revolving Credit
Commitments (as defined in the Credit Agreement) in effect at the time (the sum
of the foregoing amounts being referred to as the "LENDERS' AMOUNT"), and the
denominator of which shall be the sum of the Lenders' Amount and the aggregate
unpaid principal amount of the Notes at the time outstanding (the sum of the
foregoing amounts being referred to as the "DENOMINATOR AMOUNT"), and (b) with
respect to the holders of the Notes or the Notes of either series, a share of
such amount determined by multiplying such amount by a fraction, the numerator
of which shall be the aggregate unpaid principal amount of Notes or the Notes of
such series, as the case may be, at the time outstanding, and the denominator of
which shall be the Denominator Amount. In making a determination of the Pro Rata
Share with respect to a Prepayment Event as of any date in a fiscal year prior
to prepayment pursuant to Section 2.12(d) of the Credit Agreement in respect of
Excess Cash Flow for the prior fiscal year, the Lenders' Amount shall be
determined on a pro forma basis after giving effect to such prepayment in
respect of Excess Cash Flow. After the incurrence of Refinancing Indebtedness,
the Pro Rata Share shall be determined, MUTATIS MUTANDIS, with respect to the
analogous provisions of the Refinancing Indebtedness.
"PURCHASE AGREEMENTS" shall have the meaning ascribed in Section 1.1.
"RATE PROTECTION AGREEMENTS" shall have the meaning ascribed in the
Credit Agreement.
"RECAPITALIZATION" shall have the meaning ascribed in Section 1.2.
"REDEEMED NOTES" shall have the meaning ascribed in Section 1.2.
"REFINANCING INDEBTEDNESS" shall mean, as the context requires,
individually the Credit Agreement Refinancing Indebtedness or the Note
Refinancing Indebtedness in respect of the Notes of either series, and
collectively the Credit Agreement Refinancing Indebtedness and such Note
Refinancing Indebtedness.
"RELEASE" shall mean any discharge, emission, release, or threat
thereof, including a "RELEASE" as defined in CERCLA at 42 U.S.C. ss. 9601(22),
and the term "RELEASED" has a meaning correlative thereto.
"REPORTABLE EVENT" shall mean any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate that is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the
Code).
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"REQUIRED HOLDERS" shall mean, at any time, the holder or holders of
at least 51% of the aggregate unpaid principal amount of the Notes then
outstanding. Unless the context otherwise clearly requires, any reference to the
"Required Holders" is a reference to the Required Holders of all Notes.
"RESELLERS" shall mean independent auto/truckstop operators who own
their facilities and who are part of the National Network.
"RESPONSIBLE OFFICER" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"SALE AND LEASEBACK TRANSACTION" shall have the meaning ascribed in
Section 7.3.
"SECURED PARTIES" shall have the meaning ascribed in the Security
Agreement.
"SECURITY AGREEMENT" shall have the meaning ascribed in Section 1.5.
"SECURITY DOCUMENTS" shall mean the Mortgages (including any
assignment of leases and rents and any leasehold mortgage covering the Mortgaged
Properties), the Security Agreement, the Pledge Agreement, the Collateral
Assignment, the Collateral Account Agreement, the Lockbox Agreements, the
Trademark Security Agreement and each of the security agreements, mortgages and
other instruments and documents executed and delivered pursuant to any of the
foregoing or pursuant to Section 6.10.
"SENIOR CONVERTIBLE PARTICIPATING PREFERRED STOCK" shall mean the
Series I Senior Preferred Stock and the Series II Senior Preferred Stock.
"SENIOR FUNDED DEBT" means all Funded Debt of the Guarantor and its
Subsidiaries other than the Subordinated Notes (or the Subordinated Note
Refinancing Indebtedness).
"SERIES I PREFERRED STOCK", "SERIES I SENIOR PREFERRED STOCK", "SERIES
II PREFERRED STOCK" and "SERIES II SENIOR PREFERRED STOCK" shall have the
meaning ascribed in Section 4.19(a).
"STANDARD & POOR'S" means Standard & Poor's Ratings Group, a division
of The XxXxxx-Xxxx Companies, Inc.
"STOCKHOLDERS AGREEMENT" shall mean the Stockholders Agreement dated
as of April 14, 1993, as amended as of March 6, 1997, among certain
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Institutional Equity Investors, certain Resellers, certain Operators and the
Company and as the same may be further amended, modified or supplemented in
accordance with the provisions of this Agreement.
"SUBORDINATED NOTE DOCUMENTS" shall mean the Subordinated Note
Guarantees, the Subordinated Note Indenture and the Subordinated Notes.
"SUBORDINATED NOTE GUARANTEES" shall mean, collectively, the
Guarantees of the Guarantors guaranteeing repayment of the Subordinated Notes.
"SUBORDINATED NOTE INDENTURE" shall mean the Subordinated Note
Indenture, dated as of March 24, 1997, among the Company, the Guarantors and
Fleet National Bank, as trustee, as amended from time to time in accordance with
the terms hereof and thereof.
"SUBORDINATED NOTE REFINANCING INDEBTEDNESS" shall mean any
Indebtedness incurred by the Company as contemplated in Section 7.01(h).
"SUBORDINATED NOTES" shall have the meaning ascribed in Section 1.2.
"SUBSIDIARY" shall mean, with respect to any person (herein referred
to as the "PARENT"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held or (b) that is, at the time any
determination is made, otherwise Controlled by the parent or one or more
Subsidiaries of the parent or by the parent and one or more Subsidiaries of the
parent. Unless the context otherwise requires, references to "SUBSIDIARIES"
shall mean Subsidiaries of the Company.
"SWINGLINE LOANS" shall have the meaning ascribed in the Credit
Agreement.
"TA" shall have the meaning ascribed in Section 1.1.
"TA ANCILLARY AGREEMENTS" shall have the meaning ascribed to the term
"Ancillary Agreements" in the TA Asset Purchase Agreement and shall include the
Non-Competition Agreement, the Credit Card Agreement, the Services Agreement,
the Office Sub-Lease, the Assignment and Assumption Agreement, the TAFSI
Assumption Agreement, the Jobber Agreement, the Supplemental Agreement, the
Trademark Assignment and the Software License Agreement (each as defined in the
TA Asset Purchase Agreement).
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"TA ASSET PURCHASE AGREEMENT" shall mean the Asset Purchase Agreement
dated as of July 22, 1993, as amended by Amendment No. 1 thereto dated as of
December 9, 1993, among TA, BP Exploration & Oil, Inc. and Truckstops
Corporation of America, as the same may be further amended, supplemented or
otherwise modified from time to time in accordance with the terms of this
Agreement.
"TA HOLDINGS" shall have the meaning ascribed in Section 1.1.
"TA NETWORK" shall have the meaning ascribed in Section 1.1.
"TA NOTES" shall have the meaning ascribed in Section 1.1.
"TA PURCHASE AGREEMENTS" shall have the meaning ascribed in Section
1.1.
"TA STOCKHOLDERS AGREEMENT" shall mean the Stockholders Agreement
dated as of December 10, 1993 among the Company and the stockholders parties
thereto to be amended in accordance with the Company's Consent Solicitation
dated February 13, 1997, as the same may be amended, modified or supplemented in
accordance with the provisions of this Agreement.
"TA SUBORDINATED NOTES" shall mean all of TA's outstanding Series A
and Series B Senior Subordinated Notes due 2003.
"TAFSI" shall have the meaning ascribed in Section 1.2.
"TERM LENDER" shall have the meaning ascribed in the Credit Agreement.
"TERM LOANS" shall mean the Term Loans as defined in the Credit
Agreement.
"TOTAL DEBT" shall mean, with respect to the Company and its
Subsidiaries on a consolidated basis at any time, all Capital Lease Obligations,
Indebtedness for borrowed money, Indebtedness in respect of deferred purchase
price of property or services of the Company and its Subsidiaries and preferred
stock that is mandatorily redeemable on or prior to the first anniversary of the
latest final maturity of the then outstanding Notes less the amount of cash and
cash equivalents set forth on the Company's consolidated balance sheet at such
time (including all amounts on deposit in the Collateral Account at such time)
in excess of $2,500,000.
"TRADEMARK SECURITY AGREEMENT" shall have the meaning ascribed in
Section 1.5.
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"TRANSACTION DOCUMENTS" shall mean the Credit Agreement Documents, the
Financing Documents and the Subordinated Note Documents.
"TRANSACTIONS" shall have the meaning ascribed in Section 4.2.
"TRANSITION CAPITAL EXPENDITURES" shall mean, for any period, all
capital expenditures made by the Company and its subsidiaries during such period
to the extent that such capital expenditures (a) are in an amount in excess of
the Capital Expenditures permitted to be made during such period under Section
7.13(a) of this Agreement and (b) are capital expenditures substantially similar
to those described in Section 10 of the Confidential Information Memorandum.
"TRUCKSTOP" shall mean, as of any date, each full service truckstop
facility that is part of the Network and that is owned by the Company or a
Subsidiary or leased by the Company or a Subsidiary as lessee or sublessee.
"VOTING TRUST" shall mean the Voting Trust established pursuant to the
terms of the Voting Trust Agreement.
"VOTING TRUST AGREEMENT" shall mean the Voting Trust Agreement dated
as of April 14, 1993, as amended as of March 6, 1997, among the Company, certain
Resellers, certain Operators and United States Trust Company of New York, as
trustee, as the same may be amended, modified or supplemented in accordance with
the provisions of this Agreement.
"VOTING TRUST CERTIFICATES" shall mean the Voting Trust Certificates
issued pursuant to the terms of the Voting Trust Agreement.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
7.2. TERMS GENERALLY.
The definitions in Section 9.1 shall apply equally to both the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "INCLUDE," "INCLUDES" and "INCLUDING" shall be deemed to
be followed by the phrase "WITHOUT LIMITATION." All references herein to
Sections, Exhibits and Schedules shall be deemed to be references to Sections
of, and Exhibits and Schedules to, this Agreement unless the context shall
otherwise require. Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder shall be
made and all financial statements required to be delivered hereunder shall be
prepared in accordance with GAAP as in effect from time to time.
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10. EVENTS OF DEFAULT; REMEDIES.
10.1. EVENTS OF DEFAULT; ACCELERATION OF MATURITY.
If any of the following events ("EVENTS OF DEFAULT") shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or by operation of law or
otherwise), that is to say:
(a) any representation or warranty made or deemed made in this
Agreement or any Transaction Document, or any representation, warranty,
statement or information contained in any report, certificate, financial
statement or other instrument furnished pursuant to this Agreement, shall
prove to have been false or misleading in any material respect when so
made, deemed made or furnished;
(b) default shall be made in the payment of all or any part of the
principal of, or premium (if any) on, any Note when and as the same shall
become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Note,
when and as the same shall become due and payable, and such default shall
continue unremedied for a period of three Business Days;
(d) default shall be made in the due observance or performance by the
Company, of any covenant, condition or agreement contained in Section 5.3,
5.4, 6.1, 6.5, 6.11, 6.12, 6.13, 6.14, 7.1 or 7.3 to 7.17, inclusive, or
Section 8 or in Section 9 or 10 of the Guarantee Agreement;
(e) default shall be made in the due observance or performance by the
Company, either Guarantor or TAFSI of any covenant, condition or agreement
contained in any Financing Document (other than those defaults specified in
subsection (b), (c) or (d) above) and such default shall continue
unremedied for a period of the earlier of (i) 30 days after an executive
officer of the Company, such Guarantor or TAFSI first becomes aware or
should have become aware thereof and (ii) 15 days after notice thereof from
any holder of any Note to the Company, such Guarantor or TAFSI, as
applicable;
(f) the Company or any of its Subsidiaries shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any
Indebtedness in a principal amount in excess of $2,000,000, when and as the
same shall become due and payable (after giving effect to any applicable
grace period) or (ii) fail to observe or perform any other term, covenant,
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condition or agreement contained in any agreement or instrument
evidencing or governing any such Indebtedness (after giving effect to any
applicable grace period) if the effect of any failure referred to in this
clause (ii) is to cause, or to permit the holder or holders of such
Indebtedness or a trustee on its or their behalf (with or without the
giving of notice, the lapse of time or both) to cause, such Indebtedness to
become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of the Company or any of its Subsidiaries, or of a
substantial part of the property or assets of the Company or any of its
Subsidiaries, under Title 11 of the United States Code, as now constituted
or hereafter amended, or any other Federal or state bankruptcy, insolvency,
receivership or similar law, (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Company or
any of its Subsidiaries, or for a substantial part of the property or
assets of the Company or any of its Subsidiaries, or (iii) the winding-up
or liquidation of the Company or any of its Subsidiaries; and such
proceeding or petition shall continue undismissed for 30 days or an order
or decree approving or ordering any of the foregoing shall be entered;
(h) the Company or any of its Subsidiaries shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11
of the United States Code, as now constituted or hereafter amended, or any
other Federal or state bankruptcy, insolvency, receivership or similar law,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner (but within 30 days in any event), any proceeding or the
filing of any petition described in (g) above, (iii) apply for or consent
to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any of the its
Subsidiaries, or for a substantial part of the property or assets of the
Company or any of its Subsidiaries, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors, (vi) become
unable, admit in writing its inability or fail generally to pay its debts
as they become due or (vii) take any action for the purpose of effecting
any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $2,000,000 (to the extent not covered by insurance)
shall be rendered against the Company, either Guarantor or TAFSI or any
combination thereof and the same shall remain undischarged for a period of
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30 consecutive days during which execution shall not be effectively stayed,
or any action shall be legally taken by a judgment creditor to levy upon
assets or properties of the Company, either Guarantor or TAFSI to enforce
any such judgment;
(j) a Reportable Event or Reportable Events, or a failure to make a
required installment or other payment (within the meaning of Section
412(n)(l) of the Code), shall have occurred with respect to any Plan or
Plans that reasonably could be expected to result in liability of the
Company, either Guarantor, TAFSI or any ERISA Affiliate to the PBGC or to a
Plan in an aggregate amount exceeding $2,000,000 and, within 30 days after
the reporting of any such Reportable Event to the holders of the Notes or
after the delivery of the statement required pursuant to Section
6.6(b)(iii), the Required Holders shall have notified the Company in
writing that (i) the Required Holders have reasonably determined that, on
the basis of such Reportable Event or Reportable Events or the failure to
make a required payment, there are reasonable grounds (a) for the
termination of such Plan or Plans by the PBGC, (b) for the appointment by
the appropriate United States District Court of a trustee to administer
such Plan or Plans or (c) for the imposition of a lien in favor of a Plan
and (ii) as a result thereof an Event of Default exists hereunder; or a
trustee shall be appointed by a United States District Court to administer
any such Plan or Plans; or the PBGC shall institute proceedings to
terminate any Plan or Plans;
(k) (i) the Company, either Guarantor, TAFSI or any ERISA Affiliate
shall have been notified by the sponsor of a Multiemployer Plan that it has
incurred Withdrawal Liability to such Multiemployer Plan, (ii) the Company,
such Guarantor, TAFSI or such ERISA Affiliate does not have reasonable
grounds for contesting such Withdrawal Liability or is not in fact
contesting such Withdrawal Liability in a timely and appropriate manner and
(iii) the amount of the Withdrawal Liability specified in such notice, when
aggregated with all other amounts required to be paid to Multiemployer
Plans in connection with Withdrawal Liabilities (determined as of the date
or dates of such notification), either (a) is $2,000,000 or more and the
Required Holders have reasonably determined that the Company, such
Guarantor, TAFSI or such ERISA Affiliate will not be able to make the
payments required in connection with such Withdrawal Liability or (B) is
less than $2,000,000 and any payment due as a result of such liability
remains unpaid 30 days after such payment is due;
(l) the Company, either Guarantor, TAFSI or any ERISA Affiliate shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
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meaning of Title IV of ERISA, if solely as a result of such reorganization
or termination the aggregate annual contributions of the Company, each
Guarantor, TAFSI and each ERISA Affiliate to all Multiemployer Plans that
are then in reorganization or have been or are being terminated have been
or will be increased over the amounts required to be contributed to such
Multiemployer Plans for their most recently completed plan years by an
amount exceeding $2,000,000 and the Required Holders have reasonably
determined that the Company, such Guarantor, TAFSI or such ERISA Affiliate
will not be able to make the payments required in connection with such
contribution;
(m) any material security interest purported to be created by any
Security Document shall cease to be, or shall be asserted by the Company,
either Guarantor or TAFSI not to be, a valid, perfected, first priority
(except as otherwise expressly provided in this Agreement or such Security
Document) security interest in the securities, assets or properties covered
thereby, except to the extent that any such loss of perfection or priority
results from the failure of the Collateral Agent to maintain possession of
certificates representing securities pledged under the Pledge Agreement
(except to the extent that such loss is covered by a lender's title
insurance policy and the related insurer promptly after such loss shall
have acknowledged in writing that such loss is covered by such title
insurance policy);
(n) any Financing Document shall not be for any reason or shall be
asserted by the Company, either Guarantor or TAFSI, not to be in full force
and effect and enforceable in all material respects in accordance with its
terms;
(o) the Obligations and the guarantees thereof pursuant to the
Guarantee Agreement shall cease to constitute, or shall be asserted by the
Company or either Guarantor not to constitute, senior indebtedness under
the subordination provisions of the Subordinated Notes, the Subordinated
Guarantees and the Subordinated Note Indenture (or the provisions of the
Subordinated Note Refinancing Indebtedness) or such subordination
provisions shall be invalidated or otherwise cease to be a legal, valid and
binding obligation of the parties thereto, enforceable in accordance with
their terms; or
(p) any material provision of the Guarantee Agreement or any other
Financing Document shall cease to be in full force and effect and
enforceable in accordance with its terms for any reason whatsoever or
either Guarantor or TAFSI shall contest or deny in writing the validity or
enforceability of any of its obligations under the Guarantee Agreement or
any other Financing Document, as applicable, or the Notes shall cease to be
entitled to the benefits of any Security Document, this Agreement, or the
Intercreditor Agreement for any reason whatsoever;
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then (i) upon the occurrence of an Event of Default with respect to the Company
or any of its Subsidiaries described in subsection (g) or (h) above, the unpaid
principal amount of all Notes, together with the interest accrued thereon, shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by the Company or (ii) upon the occurrence and continuance of any other
Event of Default, the Required Holders may, by written notice to the Company,
declare the unpaid principal amount of all Notes to be, and the same shall
forthwith become, due and payable, together with the interest accrued thereon
and, to the extent permitted by law, an amount equal to the Additional Amount
(as hereinafter defined) in respect of each such Note, provided that during the
existence of an Event of Default described in subsection (b) or (c) above with
respect to any Note, the holder of such Note may, by written notice to the
Company, declare such Note to be, and the same shall forthwith become, due and
payable, together with the interest accrued thereon and, to the extent permitted
by law, an amount equal to the Additional Amount. If any holder of any Note
shall exercise the option specified in the proviso to the preceding sentence,
the Company will forthwith give written notice thereof to the holders of all
other outstanding Notes and each such holder may (whether or not such notice is
given or received), by written notice to the Company, declare the unpaid
principal amount of all Notes held by it to be, and the same shall forthwith
become, due and payable, together with the interest accrued thereon and, to the
extent permitted by law, an amount equal to the Additional Amount. If all Notes
are accelerated as specified above, the Company will forthwith give written
notice thereof to any holder of an outstanding Note which has not given written
notice to the Company with respect to such acceleration.
Notwithstanding the foregoing, in the event that a non-payment default
under subsection (a), (d) or (e) above is solely the result of any Network
Operator's failure to perform its obligations to either Guarantor pursuant to
any operating lease with such Guarantor permitted by Section 7.8, then, so long
as (i) there shall not be a similar failure by more than two other Network
Operators and (ii) such Guarantor has rights against such Network Operator with
respect to such default and has commenced enforcement of its rights against such
Network Operator (including compelling such Network Operator to cure such
default, exercising such Guarantor's self-help remedies as landlord under such
operating lease or terminating such operating lease and taking possession of the
premises within the time for cure as provided herein) and the Required Holders,
in their reasonable judgment, are satisfied that such Guarantor is diligently
and with best efforts prosecuting such enforcement until cure of such default,
no Event of Default shall be deemed to have occurred hereunder with respect
thereto.
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For purposes of this Section, the term "ADDITIONAL AMOUNT" means: with
respect to any Fixed Rate Note, an amount equal to the Make-Whole Premium that
would be payable with respect to such Note if the Company had elected to prepay
such Note in full pursuant to Section 5.2 on the date of acceleration; and with
respect to any Floating Rate Note, an amount equal to the Break Funding Cost
that would be payable with respect to such Note, if the Company had elected to
prepay such Note in full pursuant to Section 5.2 on the date of acceleration.
The provisions of this Section are subject, however, to the condition
that if, at any time after all Notes have been declared due and payable as
aforesaid by the Required Holders, the Company shall pay all arrears of interest
on the Notes and all payments on account of the principal of and premium (if
any) on the Notes which shall have become due otherwise than by acceleration
(with interest on such principal, premium (if any) and, to the extent permitted
by law, on overdue payments of interest, at the rate specified in the Notes with
respect to overdue payments) and all Events of Default (other than nonpayment of
principal of and accrued interest on Notes due and payable solely by virtue of
acceleration) shall be remedied or waived pursuant to Section 13, then the
holders of at least 75% of the aggregate unpaid principal amount of the Notes at
the time outstanding may, by written notice to the Company, rescind and annul
any such acceleration and its consequences; but no such action shall affect any
subsequent Default or Event of Default or impair any right consequent thereon.
10.2. SUITS FOR ENFORCEMENT.
If any Event of Default shall have occurred and be continuing, the
holder of any Note may proceed to protect and enforce its rights, either by suit
in equity or by action at law, or both, whether for the specific performance of
any covenant or agreement contained in this Agreement or in aid of the exercise
of any power granted in this Agreement, or the holder of any Note may proceed to
enforce the payment of all sums due upon such Note or to enforce any other legal
or equitable right of the holder of such Note.
The Company covenants that, if it shall default in the making of any
payment due under any Note or in the performance or observance of any agreement
contained in this Agreement, it will pay to the holder thereof such further
amounts, to the extent lawful, as shall be sufficient to pay the costs and
expenses of collection or of otherwise enforcing such holder's rights, including
counsel fees.
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10.3. REMEDIES CUMULATIVE.
No remedy herein conferred upon the Noteholder or the holder of any
Note is intended to be exclusive of any other remedy and each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise.
10.4. REMEDIES NOT WAIVED.
No course of dealing between the Company and the Noteholder or the
holder of any Note and no delay or failure in exercising any rights hereunder or
under any Note in respect thereof shall operate as a waiver of any rights of the
Noteholder or any holder of such Note.
11. REGISTRATION, TRANSFER AND EXCHANGE OF NOTES.
The Company will keep at the Company's principal executive office or
at such other office as the Company may designate in writing to the holders of
the Notes a register (the "NOTE REGISTER") in which, subject to such reasonable
regulations as it may prescribe, but at its expense (other than transfer taxes,
if any), it will provide for the registration and transfer of Notes.
Whenever any Note shall be surrendered either at such office of the
Company or at the place of payment named in such Note, for transfer or exchange,
within five Business Days thereafter the Company will execute and deliver in
exchange therefor a new Note or Notes, as may be requested by such holder, in
the same aggregate unpaid principal amount as the unpaid principal amount of the
Note so surrendered. Each such new Note shall be payable to such person as such
holder may request. Each Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer, duly executed by the registered holder of such Note or
such holder's attorney duly authorized in writing. Any Note issued in exchange
for any other Note or upon transfer thereof shall carry the rights to unpaid
interest and interest to accrue which were carried by the Note so exchanged or
transferred, and neither gain nor loss of interest shall result from any such
transfer or exchange. Any transfer tax relating to such transaction shall be
paid by the holder requesting the exchange.
The Company and any agent of the Company may deem and treat the Person
in whose name any Note is registered as the owner of such Note for the purpose
of receiving payment of the principal of and premium (if any) and interest on
such Note and for all other purposes whatsoever, whether or not such Note be
overdue.
96
As provided in the Intercreditor Agreement, the rights and obligations
of the holder of a Note thereunder shall be assigned automatically, without the
need for the execution of any document or any other action, to any transferee of
such Note whereupon such transferee shall automatically become a party to the
Intercreditor Agreement.
12. LOST, ETC., NOTES.
Upon receipt by the Company of evidence reasonable and satisfactory to
it of the loss, theft, destruction or mutilation of any Note, and (in case of
loss, theft or destruction) of indemnity satisfactory to it, and upon surrender
and cancellation of such Note, if mutilated, within five Business Days
thereafter the Company will deliver in lieu of such Note a new Note in a like
unpaid principal amount, dated as of the date to which interest has been paid
thereon.
Notwithstanding the foregoing provisions of this Section, if any Note
of which the Noteholder or any other institutional holder is the owner is lost,
stolen or destroyed, then the affidavit of your or such holder's treasurer or
assistant treasurer (or other responsible official), setting forth the
circumstances with respect to such loss, theft or destruction, shall be accepted
as satisfactory evidence thereof, and no indemnity shall be required as a
condition to the execution and delivery by the Company of a new Note in lieu of
such Note (or as a condition to the payment thereof, if due and payable) other
than the Noteholder's or such holder's unsecured written agreement to indemnify
the Company.
13. AMENDMENT AND WAIVER.
(a) Any provision of this Agreement or the Notes may, with the consent
of the Company, be amended or waived (either generally or in a particular
instance and either retroactively or prospectively), by one or more
substantially concurrent written instruments signed by the Required Holders
(subject to the provisions of the Intercreditor Agreement) provided, however,
that
(i) no such amendment or waiver shall
(A) change the rate or the time of payment of interest on
any of the Notes, change the maturity of any of the Notes or affect
the premium payable on any prepayment of a Note, modify any of the
other provisions of this Agreement with respect to the payment or
prepayment or purchase of any Note, modify this Section 13 or Section
14, reduce the percentage of the principal amount of the Notes the
holders of which are required to approve any such amendment or
effectuate any such amendment or effectuate any such waiver, or change
97
the percentage of the principal of the Notes the holders of which are
required to accelerate the maturity of the Notes or rescind any such
acceleration, without the consent of the holders of all the Notes then
outstanding, or
(B) modify the definition of "MAKE-WHOLE PREMIUM" or "BREAK
FUNDING COST" without the consent of the holder of each Note affected
thereby, or
(C) be effective prior to the Closing Date without your
consent, and
(ii) no such waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon.
(b) Any amendment or waiver pursuant to subsection (a) above
shall apply equally to all the holders of the Notes and shall be binding upon
them, upon each future holder of any Note and upon the Company, in each case
whether or not a notation thereof shall have been placed on any Note.
(c) The Company will not, and will cause its Subsidiaries not to,
solicit, request or negotiate for or with respect to any proposed waiver or
amendment of any of the provisions of this Agreement or the Notes unless each
holder of a Note (irrespective of the principal amount of Notes then held by it)
shall be informed thereof by the Company and shall be afforded the opportunity
of considering the same and shall be supplied by the Company with sufficient
information to enable it to make an informed decision with respect thereto.
Executed or true and correct copies of any amendment or waiver effected pursuant
to the provisions of this Section shall be delivered by the Company to each
holder of Notes forthwith following the date on which the same shall have become
effective. The Company will not, and will cause its Subsidiaries not to,
directly or indirectly, pay or cause to be paid any remuneration, whether by way
of supplemental or additional interest, fee or otherwise, to any holder of a
Note as consideration for or as an inducement to the entering into by such
holder of any such amendment or waiver unless such remuneration is concurrently
paid, on the same terms, ratably to the holders of all of the Notes then
outstanding.
(d) For purposes of determining whether the holders of
outstanding Notes of the requisite unpaid principal amount at any time have
taken any action authorized by this Section or otherwise by this Agreement, any
Notes owned by the Company, any Subsidiary or any Affiliate of the Company shall
not be deemed outstanding.
14. HOME OFFICE PAYMENT.
Anything in the Notes, this Agreement or any other Security
Document to the contrary notwithstanding, so long as the Noteholder (or its
98
nominee or nominees) shall hold any of the Notes, the Company agrees that it
will make or cause to be made all payments of principal of and interest and
premium, if any, on the Notes held by the Noteholder or nominee, without
surrender or presentation thereof, to the Noteholder or nominee in the manner
and at the address specified in Schedule I hereto (or in such other manner or at
such other address as the Noteholder or nominee may request in writing). The
Noteholder agrees that if it sells or transfers any Note held by it, prior to
such disposition it will make a notation thereon of all principal payments
previously made. The Company agrees that the provisions of this Section 14 shall
inure to the benefit of any other institutional holder of any such Note which
shall have agreed to comply with the requirements of this Section.
15. LIABILITIES OF THE PURCHASER.
Neither this Agreement nor the Security Documents or any other
document relating hereto or thereto nor any disposition of any of the Notes
shall be deemed to create any liability or obligation of the Noteholder or any
other holder of any Note to enforce any provision hereof or thereof for the
benefit or on behalf of any other person who may be the holder of any Note.
16. MISCELLANEOUS.
16.1. EXPENSES.
The Company agrees, whether or not the transactions contemplated
hereby shall be consummated, to pay all reasonable expenses incident to such
transactions (including without limitation all document production, recording,
filing and other expenses and the fees and disbursements of the Collateral Agent
for services with relation to such transactions, the fees and disbursements of
Xxxxxxx Xxxx & Xxxxxxxxx, special counsel for the Noteholders, for their
services with relation to such transactions, the fees and disbursements of any
local counsel for any opinions furnished pursuant to Section 3.3 or any other
opinions that the Noteholder or said special counsel may reasonably deem it
advisable to obtain and all expenses in connection with the shipping to and from
the Noteholder's office or the office of its nominee, insured to the Noteholder
satisfaction, of the Notes and upon any exchange or substitution pursuant to the
provisions of the Notes or this Agreement) and to reimburse the Noteholder for
any out-of-pocket expenses in connection therewith. The Company also agrees to
pay all expenses incurred by the Noteholder, including without limitation
reasonable fees of local counsel and of a single special counsel for all
Noteholders (unless there shall exist a legitimate conflict in the interests of
the Noteholders, in which case the Company shall pay such fees of more than one
special counsel), in each case in connection with any amendment of, or waiver or
consent under or with respect to, this Agreement, any Security Document or any
of the Notes, whether or not the same shall become effective (including without
99
limitation in connection with any incurrence or proposed incurrence of
Refinancing Indebtedness or Subordinated Refinancing Indebtedness). The Company
also agrees to pay, and to save the Noteholder and all subsequent holders of the
Notes harmless, against any loss or liability for the payment of costs and
expenses, including reasonable attorneys' fees and court costs, in connection
with the enforcement of any provision of this Agreement or the collection or
attempted collection of any Note or any investigation of any Default or Event of
Default (including investment banking and financial consultant fees). The
Company also agrees to pay, and to save the Noteholder and all subsequent
holders of the Notes harmless against, any loss or liability resulting from the
nonpayment or delay in payment of any placement fees and other obligations to
pay any agent or broker in connection with the transactions hereby contemplated.
The obligations of the Company under this Section 16.1 shall survive the payment
of the Notes.
In furtherance of the foregoing, on the Closing Date the Company will
pay the fees and disbursements and other charges (including estimated unposted
disbursements and other charges as of the Closing Date) of the Noteholders'
special counsel and any local counsel listed in Schedule 3.3 which are reflected
in any statement of such special counsel or local counsel, as the case may be,
delivered to the Company on or prior to the Closing Date; and thereafter the
Company will pay, promptly upon receipt of supplemental statements therefor from
time to time, additional fees, if any, and disbursements and other charges of
such counsel in connection with the transactions hereby contemplated.
16.2. TAXES.
The Company jointly and severally agrees to pay all documentary, stamp
or similar taxes (including any interest or penalty resulting from nonpayment or
delay in payment) with respect to the execution and delivery of this Agreement,
any other Transaction Document or any instrument contemplated hereby or thereby,
the execution and delivery (but not the transfer) of any of the Notes, or of any
amendment of, or waiver or consent under or with respect to, this Agreement, any
other Transaction Document or any such other instruments or of any of the Notes.
The obligations of the Company under this Section 16.2 shall survive the payment
of the Notes.
16.3. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Agreement, the Intercreditor
Agreement and the other Security Documents by or on behalf of the Company for
the benefit of the Noteholder shall bind and inure to the benefit of the
successors and assigns of the Company, whether so expressed or not, and all such
covenants and agreements shall inure to the benefit of the Noteholder and their
successors and assigns, including all subsequent holders of the Notes; provided
that the benefits of Sections 12 and 14 shall be limited as specifically
provided therein.
100
16.4. INDEMNIFICATION
The Company agrees, to the extent permitted by applicable law, to
indemnify, exonerate and hold the Noteholder and each of the Noteholder's
officers, directors, employees and agents (collectively the "INDEMNITIES" and
individually an "INDEMNITEE") free and harmless from and against any and all
actions, causes of action, suits, losses, liabilities and damages, and expenses
in connection therewith, including without limitation reasonable counsel fees
and disbursements (collectively the "INDEMNIFIED LIABILITIES") incurred by the
Indemnitees or any of them as a result of, or arising out of, or relating to any
transaction financed or to be financed in whole or in part directly or
indirectly with proceeds from the sale of any of the Notes, or the execution,
delivery, performance or enforcement of this Agreement, the Security Documents
or any instrument contemplated hereby by any of the Indemnitees, except as to
any Indemnitee for any such Indemnified Liabilities arising on account of such
Indemnitee's gross negligence or willful misconduct; and if and to the extent
the foregoing undertaking may be unenforceable for any reason, the Company
agrees to make the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities which is permissible under applicable law. The
obligations of the Company under this Section shall survive the payment of the
Notes.
16.5. RELIANCE ON AND SURVIVAL OF REPRESENTATIONS.
All agreements, representations and warranties of the Company herein
and in any certificates or other instruments delivered pursuant to this
Agreement or the Security Documents shall (A) be deemed to have been relied upon
by the Noteholder, notwithstanding any investigation heretofore or hereafter
made by the Noteholder or on the Noteholder's behalf, and (B) survive the
execution and delivery of this Agreement and the delivery of Notes to the
Noteholder, and shall continue in effect so long as any Note is outstanding and
thereafter as provided in Sections 6.12, 16.1, 16.2 and 16.4; provided that the
representation and warranty of the Company set forth in the first sentence of
Section 4.6 shall terminate and expire and shall not survive the execution and
delivery of this Agreement and the delivery of the Notes to the Noteholder.
16.6. NOTICES.
All communications and notices provided for hereunder or under the
Notes shall be in writing and delivered, or sent by a nationally recognized
overnight courier for delivery on the following Business Day or by telex or
telecopy (with such telex or telecopy to be confirmed promptly in writing sent
by overnight courier as aforesaid) (A) if to the Noteholder, at its address as
101
set forth in Schedule I hereto, or (B) if to the Company at 00000 Xxxxxx Xxxxx
Xxxx, Xxxxx 000, Xxxxxxxx, Xxxx 00000-0000, Attention of Xxxxx X. Xxxx,
President and CEO (Telecopy No. (000) 000-0000); with a copy to The Clipper
Group, L.P., 00 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention
of Rowan X.X. Xxxxxx (Telecopy No. (000) 000-0000); with a copy to Xxxx, Weiss,
Rifkind, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention of Xxxxxxx X. Xxxxxxxx, Esq. (Telecopy No. (000) 000-0000), or
(C) if to any other holder of a Note, at the address of such holder as it
appears on the Note Register. Any address may be changed from time to time and
shall be the most recent address furnished in writing (1) if by the Noteholder
or any other holder of a Note, to the Company, or (2) if by the Company to the
Noteholder and to each other holder of a Note.
16.7. SEVERABILITY.
In case any one or more of the provisions contained in this Agreement
or in any instrument contemplated hereby, or any application thereof, shall be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein, and any
other application thereof, shall not in any way be affected or impaired thereby.
16.8. JURISDICTION AND PROCESS.
The Company agrees that any legal action or proceeding arising out of
or relating to this Agreement, the Notes or any other document executed in
connection herewith, or any legal action or proceeding to execute or otherwise
enforce any judgment obtained against the Company for breach hereof or thereof,
or against any of its properties, may be brought in the courts of the State of
New York or the United States District Court for the Southern District of New
York by or on behalf of the Noteholder or any holder of a Note, as the
Noteholder or such holder may elect, and the Company hereby irrevocably and
unconditionally submits to the non-exclusive jurisdiction of such courts for
purposes of any such legal action or proceeding. The Company consents to process
being served in any suit, action or proceeding by sending a copy thereof by any
commercial delivery service or by mailing a copy thereof by registered or
certified mail, postage prepaid, return receipt requested, to the address of the
Company specified in Section 16.6. The Company agrees that such service upon
receipt (A) shall be deemed in every respect effective service of process upon
it in any such suit, action or proceeding and (B) shall, to the fullest extent
permitted by law, be taken and held to be valid personal service upon and
personal delivery to the Company. In addition, the Company hereby irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement, the Notes or any other document
102
executed in connection herewith brought in the courts of the State of New York
or the United States District Court for the Southern District of New York, and
any claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.
THE COMPANY WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH
RESPECT TO THIS AGREEMENT, THE NOTES OR ANY OTHER DOCUMENT EXECUTED IN
CONNECTION HEREWITH.
16.9. GOVERNING LAW.
This Agreement and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
16.10. HEADINGS.
The headings in this Agreement are for convenience of reference and
shall not limit or otherwise affect any of the terms hereof.
16.11. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
103
If you are in agreement with the foregoing, please sign the form of
acceptance in the space below provided, whereupon this Agreement shall become a
binding agreement between you and the Company.
TRAVELCENTERS OF AMERICA, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------
Title: Senior Vice President
and Assistant Secretary
The foregoing Agreement is
hereby accepted as of the date
first above written.
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
By /s/ Xxxxxxx X. XxXxxx
------------------------
Title: Xxxxxxx X. XxXxxx
Investment Officer
Principal Amount of National Notes held: $11,000,000
Principal Amount of TA Notes held: $0
Facility Fee payable on the Closing Date: $41,250
103
If you are in agreement with the foregoing, please sign the form of
acceptance in the space below provided, whereupon this Agreement shall become a
binding agreement between you and the Company.
TRAVELCENTERS OF AMERICA, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------
Title: Senior Vice President
and Assistant Secretary
The foregoing Agreement is
hereby accepted as of the date
first above written.
MELLON BANK, N.A., solely in its
capacity as Trustee for the
NYNEX MASTER PENSION TRUST,
(as directed by Xxxx Xxxxxxx
Mutual Life Insurance Company),
and not in its individual capacity
By /s/ Xxxxx Xxxxxx
------------------------
Title: Vice President
Principal Amount of National Notes held: $2,000,000
Principal Amount of TA Notes held: $0
Facility Fee payable on the Closing Date: $7,500
The decision to partipate in the investment, any
representation made herein by the participant, and any
actions taken hereunder by the participant has/have been made
solely at the direction of the investment fiduciary who has
sole investment discretion with respect to this investment.
103
If you are in agreement with the foregoing, please sign the form of
acceptance in the space below provided, whereupon this Agreement shall become a
binding agreement between you and the Company.
TRAVELCENTERS OF AMERICA, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------
Title: Senior Vice President
and Assistant Secretary
The foregoing Agreement is
hereby accepted as of the date
first above written.
COMMONWEALTH OF PENNSYLVANIA STATE
EMPLOYEES' RETIREMENT SYSTEM
By: Xxxx Xxxxxxx Mutual Life Insurance
Company as Investment Adviser
By /s/ Xxxxxxx X. XxxXxxx
------------------------
Title: Senior Investment Officer
Principal Amount of National Notes held: $2,000,000
Principal Amount of TA Notes held: $0
Facility Fee payable on the Closing Date: $7,500
103
If you are in agreement with the foregoing, please sign the form of
acceptance in the space below provided, whereupon this Agreement shall become a
binding agreement between you and the Company.
TRAVELCENTERS OF AMERICA, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------
Title: Senior Vice President
and Assistant Secretary
The foregoing Agreement is
hereby accepted as of the date
first above written.
THE TRAVELERS INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxxx
------------------------
Title: Investment Officer
Principal Amount of National Notes held: $10,000,000
Principal Amount of TA Notes held: $0
Facility Fee payable on the Closing Date: $0
103
If you are in agreement with the foregoing, please sign the form of
acceptance in the space below provided, whereupon this Agreement shall become a
binding agreement between you and the Company.
TRAVELCENTERS OF AMERICA, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------
Title: Senior Vice President
and Assistant Secretary
The foregoing Agreement is
hereby accepted as of the date
first above written.
THE TRAVELERS LIFE AND ANNUITY COMPANY
By /s/ Xxxxxx X. Xxxxx
------------------------
Title: Investment Officer
Principal Amount of National Notes held: $5,000,000
Principal Amount of TA Notes held: $0
Facility Fee payable on the Closing Date: $0
103
If you are in agreement with the foregoing, please sign the form of
acceptance in the space below provided, whereupon this Agreement shall become a
binding agreement between you and the Company.
TRAVELCENTERS OF AMERICA, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------
Title: Senior Vice President
and Assistant Secretary
The foregoing Agreement is
hereby accepted as of the date
first above written.
THE TRAVELERS INDEMNITY COMPANY
By /s/ Xxxxxx X. Xxxxx
------------------------
Title: Investment Officer
Principal Amount of National Notes held: $5,000,000
Principal Amount of TA Notes held: $7,000,000
Facility Fee payable on the Closing Date: $0
103
If you are in agreement with the foregoing, please sign the form of
acceptance in the space below provided, whereupon this Agreement shall become a
binding agreement between you and the Company.
TRAVELCENTERS OF AMERICA, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------
Title: Senior Vice President
and Assistant Secretary
The foregoing Agreement is
hereby accepted as of the date
first above written.
KEYPORT LIFE INSURANCE COMPANY
By: XXXXX XXX & FARNHAM
INCORPORATED, AS AGENT
By /s/ Xxxxxxx X. Xxxxxxx
------------------------
Title:
Principal Amount of National Notes held: $15,000,000
Principal Amount of TA Notes held: $10,000,000
Facility Fee payable on the Closing Date: $93,750
103
If you are in agreement with the foregoing, please sign the form of
acceptance in the space below provided, whereupon this Agreement shall become a
binding agreement between you and the Company.
TRAVELCENTERS OF AMERICA, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------
Title: Senior Vice President
and Assistant Secretary
The foregoing Agreement is
hereby accepted as of the date
first above written.
OHIO NATIONAL LIFE ASSURANCE CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
------------------------
Title: Vice President, Fixed Income Securities
Principal Amount of National Notes held: $5,000,000
Principal Amount of TA Notes held: $0
Facility Fee payable on the Closing Date: $0
103
If you are in agreement with the foregoing, please sign the form of
acceptance in the space below provided, whereupon this Agreement shall become a
binding agreement between you and the Company.
TRAVELCENTERS OF AMERICA, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------
Title: Senior Vice President
and Assistant Secretary
The foregoing Agreement is
hereby accepted as of the date
first above written.
OHIO NATIONAL LIFE INSURANCE CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
------------------------
Title: Vice President, Fixed Income Securities
Principal Amount of National Notes held: $0
Principal Amount of TA Notes held: $3,500,000
Facility Fee payable on the Closing Date: $0
103
If you are in agreement with the foregoing, please sign the form of
acceptance in the space below provided, whereupon this Agreement shall become a
binding agreement between you and the Company.
TRAVELCENTERS OF AMERICA, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------
Title: Senior Vice President
and Assistant Secretary
The foregoing Agreement is
hereby accepted as of the date
first above written.
XXXXXXX & CO.
By Xxxxxxx XxXxxxxxx
------------------------
Title: Assistant Treasurer
Principal Amount of National Notes held: $10,000,000
Principal Amount of TA Notes held: $0
Facility Fee payable on the Closing Date: $37,500
EXHIBIT A-1
[Form of Fixed Rate Note]
TRAVELCENTERS OF AMERICA, INC.
8.94% Series I Senior Secured Note due 0000
Xx. X- Xxx Xxxx, Xxx Xxxx
$ [DATE]
PPN: 894172 A* 6
TRAVELCENTERS OF AMERICA, INC., a Delaware corporation (the
"COMPANY"), for value received, hereby promises to pay to [ ], or registered
assigns, the principal sum of [ ] DOLLARS (or so much thereof as shall not have
been prepaid) on December 31, 2002, and to pay interest (computed on the basis
of a 360-day year of twelve 30-day months) (a) from the date hereof on the
unpaid balance thereof at a rate of 8.94% per annum, payable semiannually on
June 30 and December 31 in each year, until the principal hereof shall have
become due and payable (whether at maturity, upon acceleration, upon notice of
prepayment or otherwise) and (b) on any overdue principal, premium (if any) and,
to the extent permitted by applicable law, on any overdue payment of interest,
payable semiannually as aforesaid (or on demand at the option of the registered
holder hereof) at a rate per annum from time to time equal to the greater of (i)
10.94% and (ii) 2% above the prime commercial lending rate of interest announced
by The Chase Manhattan Bank at its principal office in The City of New York, as
in effect from time to time.
Payments of principal, premium (if any) and interest with respect to
this Note shall be made in lawful money of the United States of America at said
principal office of The Chase Manhattan Bank, or at such other place as the
Company shall have designated by written notice to the holder of this Note as
provided in the Note Exchange Agreements referred to below.
This Note is one of a series of Senior Secured Notes issued pursuant
to the several Senior Secured Note Exchange Agreements dated as of March 21,
1997 (as from time to time amended, the "NOTE EXCHANGE AGREEMENTS") entered into
by the Company with certain institutional investors and the holder of this Note
is entitled to the benefits thereof and of a Guarantee Agreement referred to
therein and, subject to compliance with the terms of the Intercreditor Agreement
referred to therein, the security and benefits of said Intercreditor Agreement
and of the Security Documents referred to therein. As provided in said
Intercreditor Agreement, the rights and obligations of the holder of this Note
thereunder shall be assigned automatically, without the need for the execution
of any document or any other action, to any transferee of this Note whereupon
such transferee shall automatically become a party to said Intercreditor
Agreement.
This Note is subject to mandatory prepayment by the Company on the
dates and in the amounts specified in the Note Exchange Agreements. The Company
may at its election prepay this Note and the maturity hereof may be accelerated
following an Event of Default, all as provided in the Note Exchange Agreements,
to which reference is made for the terms and conditions of such provisions as to
prepayment and acceleration, including without limitation the payment of a
make-whole premium in connection therewith. The Company is also required under
circumstances described in the Note Exchange Agreements to offer to prepay all
or a portion of the Notes of this series on the terms and under the
circumstances specified in the Note Exchange Agreements.
Upon surrender of this Note for registration of transfer or exchange,
duly endorsed or accompanied by a written instrument of transfer duly executed
by the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note of the same series for a like principal amount will be
issued to, and, at the option of the holder, registered in the name of, the
transferee. The Company and any agent of the Company may deem and treat the
person in whose name this Note is registered as the owner hereof for the purpose
of receiving payments of the principal of, premium (if any) and interest hereon
and for all other purposes whatsoever whether or not this Note is overdue, and
the Company shall not be affected by any notice to the contrary.
As provided in the Note Exchange Agreements, this Note shall be
governed by and construed in accordance with the laws of the State of New York.
TRAVELCENTERS OF AMERICA, INC.
By
----------------------------
Title:
-2-
EXHIBIT A-2
[Form of Floating Rate Note]
TRAVELCENTERS OF AMERICA, INC.
Series II Senior Secured Note due 0000
Xx. XX- Xxx Xxxx, Xxx Xxxx
$
------- [Date]
PPN: 894172 A@ 4
TRAVELCENTERS OF AMERICA, INC., a Delaware corporation (the
"COMPANY"), for value received, hereby promises to pay to [-------- ], or
registered assigns, the principal sum of [-------- ] DOLLARS (or so much thereof
as shall not have been prepaid) on March 31, 2005, and to pay interest (computed
on the basis of actual days elapsed and a year of 360 days) on the unpaid
balance thereof (a) from the date hereof, payable on each Interest Payment Date
(as defined below), at a rate per annum for the Interest Period ending on such
Interest Payment Date equal to the LIBOR Rate (as the terms Interest Period and
LIBOR Rate are defined in the Note Exchange Agreements referred to below) as
determined in respect of such Interest Period pursuant to said Note Exchange
Agreements plus the LIBOR Spread (as therein defined) as in effect from time to
time during such Interest Period, until the principal hereof shall have become
due and payable, and (b) on any overdue principal, break funding costs and (to
the extent permitted by applicable law) any overdue payment of interest, payable
on each Interest Payment Date as aforesaid (or on demand at the option of the
registered holder hereof) at a rate per annum from time to time equal to 2%
above the Adjusted LIBOR Rate (as so defined).
As used herein the term "INTEREST PAYMENT DATE" means each March 31
and September 30[, commencing September 30, 1997].1
Payments of principal, premium (if any) and interest shall be made in
lawful money of the United States of America at the principal office in The City
of New York of The Chase Manhattan Bank, or at such other place as the Company
shall have designated by written notice to the holder of this Note as provided
in said Note Exchange Agreements.
This Note is one of a series of Senior Secured Notes issued pursuant
to the several Senior Secured Note Exchange Agreements dated as of March 21,
1997 (as from time to time amended, the "NOTE EXCHANGE AGREEMENTS") entered into
by the Company with certain institutional investors and the holder of this Note
is entitled to the benefits thereof and of a Guarantee Agreement referred to
therein and, subject to compliance with the terms of the Intercreditor Agreement
referred to therein, the security and benefits of said Intercreditor Agreement
and of the Security Documents referred to therein.
-------------------
1 Bracketed langauge is only required for Floating Rate note
dated prior to April 1, 1997.
As provided in said Intercreditor Agreement, the rights and
obligations of the holder of this Note thereunder shall be assigned
automatically, without the need for the execution of any document or any other
action, to any transferee of this Note whereupon such transferee shall
automatically become a party to said Intercreditor Agreement.
Pursuant to the Note Exchange Agreements the Company is required to
give written notice to the holder of this Note of the LIBOR Rate for each
Interest Period as determined on the Reset Date (as defined in the Note Exchange
Agreements) for such Interest Period. The applicable LIBOR Rate for each
Interest Period and LIBOR Spread from time to time during such Interest Period
for this Note shall be endorsed by the holder of this Note on the schedule
attached hereto or any continuation thereof prior to any transfer of this Note.
This Note is subject to mandatory prepayment by the Company on the
dates and in the amounts specified in the Note Exchange Agreements. The Company
may at its election prepay this Note and the maturity hereof may be accelerated
following an Event of Default, all as provided in said Note Exchange Agreements,
to which reference is made for the terms and conditions of such provisions as to
prepayment and acceleration, including without limitation the payment of certain
break funding costs in connection therewith. The Company is also required under
circumstances described in the Note Exchange Agreements to offer to prepay all
or a portion of the Notes of this series on the terms and under the
circumstances specified in the Note Exchange Agreements.
Upon surrender of this Note for registration of transfer or exchange,
duly endorsed or accompanied by a written instrument of transfer duly executed
by the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note of the same series for a like principal amount will be
issued to, and, at the option of the holder, registered in the name of, the
transferee. The Company and any agent of the Company may deem and treat the
person in whose name this Note is registered as the owner hereof for the purpose
of receiving payments of the principal of, premium (if any) and interest hereon
and for all other purposes whatsoever whether or not this Note is overdue, and
the Company shall not be affected by any notice to the contrary.
As provided in the Note Exchange Agreements, this Note shall be
governed by and construed in accordance with the laws of the State of New York.
TRAVELCENTERS OF AMERICA, INC.
By
--------------------------
Title:
-2-
Schedule of LIBOR Rates and LIBOR Spreads
Date of Change in
LIBOR Spread (3%
Reset Date LIBOR Rate unless otherwise noted) Made By
---------- ---------- ----------------------- -------
EXHIBIT B
[Included in Exhibit 10.25 as Exhibit F]
EXHIBIT C
[Included in Exhibit 10.25 as Exhibit I]
EXHIBIT D
[Included in Exhibit 10.25 as Exhibit K]
EXHIBIT E
[Included in Exhibit 10.25 as Exhibit J]
EXHIBIT F
[Included in Exhibit 10.25 as Exhibit E]
EXHIBIT G
[Included in Exhibit 10.25 as Exhibit L]
EXHIBIT H
[Included in Exhibit 10.25 as Exhibit H]
EXHIBIT J
[Included in Exhibit 10.25 as Exhibit D]
EXHIBIT K
[Included in Exhibit 10.25 as Exhibit G]
