EXECUTION COPY
-----------------------------------------------------
AMENDED AND RESTATED
TRANSACTION AGREEMENT
BY AND AMONG
LJH, LTD.,
OWL CREEK I, L.P., OWL CREEK II, L.P.,
OWL CREEK OVERSEAS FUND I, LTD.,
AND OWL CREEK OVERSEAS FUND II, LTD.
AND
TAS HOLDING, INC.
AS OF APRIL 20, 2006
-----------------------------------------------------
AMENDED AND RESTATED TRANSACTION AGREEMENT
AMENDED AND RESTATED TRANSACTION AGREEMENT, dated as of April 20, 2006 (the
"Agreement"), is by and among LJH, Ltd., a Texas limited partnership ("LJH"),
Owl Creek I, L.P., Owl Creek II L.P., Owl Creek Overseas Fund, Ltd. and Owl
Creek Overseas Fund II, Ltd., each a Delaware limited partnership (together, the
"Owl Creek Investors," and together with LJH, the "Investors") with respect to
certain transactions proposed to be undertaken by LJH and the Owl Creek
Investors with respect to their ownership of TIMCO Aviation Services, Inc. (the
"Company").
WHEREAS, the Company has experienced continuing losses in its business
during the fourth quarter of 2005 and in 2006 that are greater than had been
planned for and which have restricted the Company's liquidity and resulted in
breaches of certain of the financial covenants (the "Defaults") in the Financing
Agreement dated April 5, 2004 between the Company, certain of its Subsidiaries
named therein and CIT Group/Business Credit, Inc., as Agent and one of the
"Credit Parties" named therein ("CIT"), as amended (the "CIT Facility"), and in
the Restated and Amended Financing Agreement dated April 8, 2005 between the
Company, certain of its Subsidiaries named therein and Monroe Capital Advisors,
LLC as the "Lender" named therein ("Monroe"), as amended (the "Monroe/Fortress
Facility"), which on April 11, 2005 was assigned to and is now held by Fortress
Credit Opportunities I LP ("Fortress").
WHEREAS, LJH has purchased the Monroe Facility and proposes to modify its
terms to, among other things, resolve the Defaults thereunder and make available
to the Company $6 million of additional funding (the "Working Capital
Infusion"), and by working with the Company to obtain amendments to the CIT
Facility which will resolve the Defaults thereunder and make available to the
Company additional credit to fund its business.
WHEREAS, the Investors entered into that certain Transaction Agreement,
dated April 10, 2006 (the "Transaction Agreement"), which provided, among other
things, for the Investors to cooperate to enter into certain transactions to
resolve the Defaults and to induce the Company to enter into an Agreement and
Plan of Merger between TAS Holding, Inc., a Delaware corporation owned by LJH
("Newco"), and the Company (the "Merger"), whereby Newco would merge with and
into the Company and the remaining stockholders of the Company, other than the
Investors, would receive $4.00 per share in cash, and, pursuant to an Escrow
Agreement between Newco, the Company and American Bank of Texas, as escrow
agent, (the "Escrow Agreement"), Newco would deposit the sum of $10,006,524
received from the Investors into escrow in order to pay the other stockholders
of the Company upon the closing of the Merger;
WHEREAS, in accordance with the terms of the Transaction Agreement, (i) LJH
entered into that certain Assignment and Acceptance, dated April 10, 2006, with
Fortress and Monroe, whereby LJH purchased the Monroe/Fortress Facility; (ii)
pursuant to that certain Participation Agreement, dated April 10, 2006, between
LJH and the Owl Creek Investors (as amended, the "Participation Agreement"), the
Owl Creek Investors, among other things, purchased a 19.48% share of the
Monroe/Fortress Facility; (iii) Newco was organized; and (iv)
the Investors entered into a Stockholders Agreement between Newco and the
Investors (the "Stockholders Agreement") and a Registration Rights Agreement
between Newco and the Investors (the "Registration Rights Agreement") to govern
the rights of the Investors and other potential stockholders in Newco;
WHEREAS, the Investors desire to amend and restate the Transaction
Agreement as further set forth herein to revise the various understandings and
agreements between them with respect to the transactions described in this
preamble and in this Agreement.
NOW, THEREFORE, the Investors and Newco agree as follows:
ARTICLE I
AMENDMENT AND RESTATEMENT; DEFINITIONS
1.1 AMENDMENT AND RESTATEMENT. This Agreement amends and restates in its
entirety the Transaction Agreement effective from and --------------------------
after the date of this Agreement.
1.2 DEFINITIONS. Certain capitalized terms are used in this Agreement as
specifically defined in this Section 1.1 as follows: -----------
"AFFILIATE" means any Person directly or indirectly controlling, controlled
by or under direct or indirect common control with the Company (or other
specified Person), excluding the Company itself, and shall include (a) any
Person who is an officer, director, manager or beneficial holder of at least 10%
of the outstanding equity securities of the Company (or other specified Person),
(b) any Person of which the Company (or other specified Person) or any officer,
director or manager of the Company (or other specified Person) shall, directly
or indirectly, either beneficially own at least 10% of the outstanding equity
securities or constitute at least a 10% participant, and (c) in the case of a
specified Person who is an individual, Members of the Immediate Family of such
Person; PROVIDED, HOWEVER, that the Investors shall not be Affiliates of the
Company for purposes of this Agreement.
"AGREEMENT" is defined in the Preamble.
"CIT" is defined in the preamble.
"CIT FACILITY" is defined in the preamble.
"CLOSING DATE" is defined in Section 2.4.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" is defined in the Preamble.
"COMPANY COMMON STOCK" means the common stock, $.001 par value per share,
of the Company.
"COMPANY SHARES" is defined in Section 4.2(a).
"CONTRACTUAL OBLIGATION" means, with respect to any Person, any contracts,
agreements, deeds, mortgages, leases, licenses, other instruments, commitments,
undertakings, arrangements or understandings, written or oral, or other
documents, including any document or instrument evidencing indebtedness, to
which any such Person is a party or otherwise subject to or bound by or to which
any asset of any such Person is subject.
"ESCROW AGREEMENT" is defined in the preamble.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, or any successor
federal statute, and the rules and regulations of the Commission thereunder, all
as from time to time amended and in effect.
"EXERCISE NOTICE" is defined in Section 4.3(c)(ii).
"EXERCISING INVESTOR" is defined in Section 4.3(c)(ii).
"FORTRESS" is defined in the preamble.
"INDEPENDENT APPRAISER" means a third party appraiser which (i) does not
have a current material business or other relationship with the Company, any
shareholders of the Company or any of their respective Affiliates and (ii) is a
nationally recognized investment banking or accounting firm or an Affiliate of
such a firm.
"INFORMATION NOTICE" is defined in Section 4.3(a).
"INFORMATION PERIOD" is defined in Section 4.3(a).
"INVESTORS" is defined in the preamble.
"LEGAL REQUIREMENT" means any federal, state or local law, statute,
standard, ordinance, code, order, rule, regulation, resolution, promulgation or
any final order, judgment or decree of any court, arbitrator, tribunal or
governmental authority, or any license, franchise, permit or similar right
granted under any of the foregoing.
"LJH" is defined in the preamble.
"LJH/CIT INTERCREDITOR" is defined in Section 2.1.
"MONROE" is defined in the preamble.
"MONROE/FORTRESS FACILITY" is defined in the preamble.
"MONROE/FORTRESS FACILITY AMENDMENT" is defined in Section 2.1.
"NOTICE DATE" is defined in Section 4.3(c)(i)(5).
"NEWCO" is defined in the preamble.
"OPTION CLOSING DATE" is defined in Section 4.3(c)(iii).
"OPTION NOTICE" is defined in Section 4.3(c)(i).
"OTHER INVESTORS" is defined in Section 4.3(a).
"OWL CREEK INVESTORS" is defined in the preamble.
"PARTICIPATION AGREEMENT" is defined in the preamble.
"PERMITTED TRANSFEREE" is defined in Section 4.2(b).
"PERSON" means an individual, partnership, corporation, company,
association, trust, joint venture, unincorporated organization and any
governmental department or agency or political subdivision.
"PROPOSED TRANSFEREE" is defined in Section 4.3(c)(i).
"REGISTRATION RIGHTS AGREEMENT" is defined in the preamble.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be from time to time amended and in effect.
"SELLING INVESTOR" is defined in Section 4.3(c)(i).
"SPECIFIED SHARES" is defined in Section 4.3(c)(i).
"STOCKHOLDERS AGREEMENT" is defined in the preamble.
"SUBSIDIARY" means any Person of which the Company or the Investors now or
hereafter shall at the time (a) own directly or indirectly through a Subsidiary
at least 50% of the outstanding capital stock (or other shares of beneficial
interest) entitled to vote generally, excluding the Company itself, or (b)
constitute a general partner.
"SUSPENDED AGREEMENTS" is defined in Section 2.2.
"TAG ALONG RIGHTS" is defined in Section 4.4(a).
"TAG ALONG INVESTORS" is defined in Section 4.4(b).
"TRANSFERRING INVESTOR" is defined in Section 4.3(a).
"WORKING CAPITAL INFUSION" is defined in Section 2.1.
ARTICLE II
TRANSACTIONS
2.1 AMENDMENT OF MONROE/FORTRESS FACILITY; WORKING CAPITAL INFUSION. On or
before April 21, 2006, LJH will enter into to a Second Amendment to Amended and
Restated Financing Agreement between Lender and the Company (the
"Monroe/Fortress Facility Amendment") in the form attached hereto as Exhibit A
and a related Intercreditor and Subordination Agreement between Lender and CIT
(the "LJH/CIT Intercreditor") in the form attached hereto as Exhibit B to, among
other things, decrease the interest rate and fees payable under the
Monroe/Fortress Facility and to waive certain existing events of default for the
benefit of the Company and to advance to the Company additional working capital
in the amount of Six Million and no/100's Dollars ($6,000,000.00) of cash for
use as working capital (the "Working Capital Infusion"). The Owl Creek Investors
consent to the execution and delivery of the Monroe/Fortress Facility Amendment
and the LJH/CIT Intercreditor in the forms attached hereto as Exhibits A and B
and agree to fund One Million, One Hundred Sixty-eight Thousand, Eight Hundred
and no/100s Dollars ($1,168,800.00) (19.48%) of the Working Capital Infusion,
subject to the terms and conditions stated therein and the Participation
Agreement.
2.2 MERGER AND RELATED AGREEMENTS. The Investors have heretofore conducted
negotiations with the Company with respect to a proposed form of Merger
Agreement but have determined not to proceed with the Merger contemplated
thereby at this time. In view of such action, the Investors confirm that all
agreements and understandings among the Investors with respect to the proposed
Merger and Newco, including the Stockholders Agreement and Registration Rights
Agreement (the "Suspended Agreements"), are suspended until such time as the
Investors may agree in writing to proceed with the Merger and the other actions
contemplated thereby. The Suspended Agreements will have no legal or binding
effect on the Investors until they agree otherwise in writing. If no action to
proceed with the Merger is taken by the Investors prior to October 20, 2006, the
Suspended Agreements and all agreements and understandings with respect to the
proposed Merger and Newco will be terminated without any further action by the
Investors and thereafter will be of no further force or effect.
2.3 SEC FILINGS. Each of the Investors agree to promptly file amendments to
their respective Schedule 13D's with the SEC to reflect the actions described in
this Agreement and to provide each party to this Agreement with prompt notice of
any development which would under applicable rules require an amendment to their
respective Schedule 13D's. Each of the Investors agrees to provide the other
with a reasonable opportunity to review and comment on each proposed amendment
to its Schedule 13D prior to its filing. Each of the Investors agrees that
information provided by such Investor to any other Investor for inclusion in an
SEC filing, which is provided solely with respect to such party, will be true
and correct in all material respects and will not misstate any material fact or
omit to state any material fact required to be stated therein, in light of the
circumstances in which they were made, in order that the information provided
will not be misleading.
2.4 CONDITIONS TO CLOSING FOR THE INVESTORS. The Investors' several
obligations to take the actions described in Sections 2.1 and 2.2 of this
Agreement are subject to the satisfaction of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by each of the parties herein shall have been true and correct
when made and shall be true and correct on and as of the date hereof with the
same force and effect as though made on and as of this date, except for any
representations and warranties that are made as of a specific date which shall
only be required to be true and correct as of such date.
(b) PERFORMANCE. All covenants, agreements and conditions contained in
this Agreement to be performed or complied with by each of the Investors on or
prior to the date of this Agreement shall have been performed or complied with.
(c) CONSENTS. All consents and approvals to the transactions
contemplated by
this Agreement required to be obtained from any third party shall have been
obtained.
(d) LEGALITY. All authorizations, approvals or permits of any
governmental
authority or regulatory body that are required in connection with such action
shall have been duly obtained and shall be in full force and effect.
(e) GENERAL. All instruments and legal and organizational proceedings
in connection with the transactions contemplated by this Agreement shall be
reasonably satisfactory in form and substance to the Investors, and the
Investors shall have received copies of all documents, including records of
company proceedings and officers' certificates, which they may have reasonably
requested in connection therewith.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
LJH hereby represents and warrants to the Owl Creek Investors, and each of the
Owl Creek Investors, jointly and severally, hereby represents and warrants to
LJH, as follows:
3.1 ORGANIZATION. It is duly organized and validly existing and in good
standing under the laws of its state of organization. ------------
3.2 ORGANIZATIONAL POWER. It has all necessary power and authority to enter
into and perform this Agreement, to own all the --------------------- properties
owned by it and to carry on the businesses now conducted or presently proposed
to be conducted by it. It has taken all action necessary to authorize this
Agreement.
3.3 AUTHORIZATION. All approval and action on the part of such Investor by
its owners and its governing body necessary for the due authorization, execution
and delivery of this Agreement and the consummation of the transactions
contemplated herein has been or will be taken. This Agreement is a legal, valid
and binding agreement of the Investor, enforceable in accordance with its terms.
The execution, delivery and performance by such Investor of this Agreement will
not result in any violation of or be in conflict with, or result in a breach of
or constitute a default under, any term or provision of any Legal Requirement to
which such Investor is subject, its organizational documents, or any Contractual
Obligation to which such Investor is a party or by which it is bound.
3.4 LITIGATION. As of the date of this Agreement, no litigation or
proceeding before, or investigation by, any foreign, federal, state or municipal
board or other governmental or administrative agency or any arbitrator is
pending or, to the Investor's knowledge, threatened, against such Investor with
respect to its ownership of Company Common Stock or the transactions
contemplated by this Agreement.
3.5 CONSENTS. No consent, approval, qualification, order or authorization
of, or filing with any governmental authority is required in connection with
such Investor's valid execution, delivery or performance of this Agreement,
except as expressly contemplated herein.
ARTICLE IV
COVENANTS OF THE INVESTORS
4.1 EXPENSES. Each party to this Agreement will bear its own expenses
incurred on its behalf with respect to this Agreement. --------
4.2 GENERAL RESTRICTION; PERMITTED TRANSFERS.
(a) GENERAL. Except as otherwise provided herein, no Investor shall,
directly or indirectly, sell, give, assign, hypothecate, pledge, encumber, grant
a security interest in or otherwise dispose of (whether by operation of law or
otherwise) (each, a "transfer") any shares of Company Common Stock (the "Company
Shares") or any right, title or interest therein or thereto. The provisions of
this Section 4.2 shall immediately terminate and be null and void on October 20,
2006.
(b) PERMITTED TRANSFERS. An Investor may transfer Company Shares to
(i) an Affiliate of such Investor or (ii) upon the liquidation or dissolution of
such Investor, any general or limited partner, member or shareholder of such
Investor (each Person referred to in the preceding clauses (i) and (ii) is
herein referred to as a "Permitted Transferee"). Any transfer pursuant to this
Section 4.2(b) may be effected without complying with the provisions of Section
4. Upon the consummation of, and as a condition to, any transfer pursuant to
this Section 4.2(b), the transferee must execute an Addendum in the form of
Exhibit I hereto and thereby become a party to, and be bound by, the terms and
provisions of this Agreement. References in this Agreement to Company Shares
held or owned by any Investor shall be deemed to include Company Shares held or
owned by any such Permitted Transferee(s) and references to actions to be taken
by an Investor shall be taken jointly by such Investor and its Permitted
Transferee(s).
(c) PLEDGE OR GRANT OF SECURITY INTEREST BY INVESTOR. An Investor may
pledge all or a portion of its Company Shares or grant a security interest
therein to secure Indebtedness (as defined in the Stockholders Agreement) of
such Investor or any of its Permitted Transferees owing to a bank, other
financial institution or other financing source; PROVIDED, HOWEVER, that the
pledge agreements or other related financing agreements of any Investor shall be
subject to and acknowledge the rights of the other Investors set forth herein.
4.3 NOTICE PRIOR TO SALE; RIGHT OF FIRST REFUSAL.
(a) INFORMATION NOTICE. Except for a transfer permitted by Section
4.2(b) and (c) and subject to compliance with the provisions of Section 4.5,
prior to any transfer of Company Shares by an Investor (a "Transferring
Investor"), such Transferring Investor shall not approach any bona fide buyer
prior to informing the other Investors (the "Other Investors"), in writing (the
"Information Notice") of the Transferring Investor's desire to seek a buyer
after the expiration of ten (10) days from the date of said Information Notice.
The Transferring Investor, through its representatives, shall meet or confer
with the Other Investors regarding its plans and proposals at reasonable times
and places during the ten (10) days following the Information Notice (the
"Information Period"). The Owl Creek Investors shall be treated as a single
Investor for purposes of this Section 4.3 and Sections 4.4 and 4.5.
(b) PERMITTED TRANSFERS. Upon the expiration of the Information
Period, the Transferring Investor may consummate a sale of the Company Shares by
entering within 120 days from the expiration of the Information Period into a
definitive agreement with a third party. If any sale to a third party pursuant
to this clause (b) is not consummated within 120 days of the date of execution
of the applicable purchase agreement, the restrictions provided for herein shall
again become effective, and no transfer of the Company Shares may be made
thereafter (other than in a transfer pursuant to Section 4.2(b) and (c)) by the
Transferring Stockholder without again notifying the Other Investors in
accordance with this Section 4.3.
(c) RIGHT OF FIRST REFUSAL.
(i) Except for a transfer permitted by Section 4.2(b) or 4.3(b),
if an Investor or a Permitted Transferee (collectively, the "Selling Investor")
desires to sell, dispose of, or otherwise transfer all or any of its Company
Shares (the "Specified Shares") to any Person (the "Proposed Transferee") that
is not an Affiliate or Permitted Transferee of such Investor and who has made an
unsolicited bona fide offer to purchase such specified Shares, then, before
transferring any of the Specified Shares to such Proposed Transferee, (i) it
shall have obtained a bona fide written offer to purchase the Specified Shares
at a stated dollar price per share for cash, and (ii) it shall give written
notice (the "Option Notice") to the other Investors. The Option Notice shall:
(1) certify that the Selling Investor has received a bona
fide written offer to purchase the Specified Shares and enclose a copy of such
offer,
(2) identify the Proposed Transferee who has made such bona
fide offer,
(3) state the number of Company Shares the Proposed
Transferee has offered to purchase,
(4) state the purchase price per share for the Company
Shares to be transferred and other material terms and conditions of the Proposed
Transferee's offer to purchase the Specified Shares, and
(5) state the date on which the Option Notice is being sent
(the "Notice Date").
(ii) On or before the twentieth (20th) day after the Notice Date,
any other Investor (the "Exercising Investor") may exercise an option to
purchase all of the Specified Shares for the same purchase price and on the same
terms and conditions as the Proposed Transferee's offer as set forth in the
Option Notice. The Exercising Investor shall exercise its option by giving
written notice to the Selling Investor (the "Exercise Notice").
(iii) The closing for the purchase by the Exercising Investor of
the Specified Shares under Section 4.3(c) shall be held at 10:00 a.m. at the
principal office of the Company, on the date specified in the Exercise Notice
(the "Option Closing Date"), which date shall be not earlier than 30 days nor
later than 60 days after the date of the Exercise Notice. The purchase price and
all other terms for such purchase of the Specified Shares shall be as set forth
in the Option Notice. At such closing, the Selling Investor shall deliver
certificates representing the Specified Shares, duly endorsed for transfer and
accompanied by all requisite stock transfer taxes, if any, against payment of
the purchase price therefore, and the Specified Shares shall be free and clear
of any liens, charges, claims or encumbrances (other than restrictions imposed
pursuant to applicable Federal and state securities laws and restrictions
imposed by this Agreement) and the Selling Investor shall so represent and
warrant. Each Selling Investor shall further represent and warrant that it is
the record and beneficial owner of the Specified Shares and make such additional
representations and warranties as shall be customary in transactions of a
similar nature.
(iv) If the other Investor does not elect to purchase all of the
Specified Shares set forth in the Option Notice, the Selling Investor may
transfer the Specified Shares to the Proposed Transferee named in the Option
Notice for the consideration and upon the terms set forth in the Option Notice.
The transfer of the Specified Shares to the Proposed Transferee must be
consummated within a period of ninety (90) days after the date of the Notice
Date. Any transfer after the expiration of such 90-day period and any transfer
to a different transferee or for different consideration or upon terms and
conditions different from those set forth in the Option Notice shall be null and
void.
4.4 TAG ALONG RIGHTS.
(a) LJH may not and shall cause its Affiliates not to, transfer any
Company Shares other than to a Permitted Transferee if such transactions,
together with all Company Shares previously transferred by LJH to one or more
third parties, would, if consummated, result in LJH transferring more than 25%
of the aggregate number of Company Shares held by LJH (without giving effect to
any previous transfers pursuant to Section 4.2(b) or (c) or this Section 4.4),
UNLESS each of the Owl Creek Investors are offered a right to sell (the "Tag
Along Right") their Company Shares in such transfer with LJH. Any sale pursuant
to this Section 4.4 shall be made after compliance with the provisions of
Section 4.3(a).
(b) At least 20 days prior to any such transfer, LJH will deliver a
sale notice to the Owl Creek Investors specifying the identity of the
prospective transferee(s) and disclosing in reasonable detail the number of
Company Shares, the price, which shall be payable solely in cash
at the closing of the transaction or in installments over time, a good faith
estimate of the costs for such transfer and other terms and conditions of the
proposed transfer, including, without limitation, the expected aggregate
holdings (in terms of dollars and percentage) by LJH of the Company Shares
immediately after consummation of such proposed transfer. The Owl Creek
Investors who elect to participate in the proposed transfer (the "Tag Along
Investors") shall deliver written notice of their election to participate to LJH
prior to the expiration of such 20-day period.
(c) Each Tag Along Investor will be entitled to sell in such proposed
transfer, at the same price and on the same terms as LJH, a number of Company
Shares equal to the product of (x) the quotient determined by dividing the
number of Company Shares then held by such Tag Along Investor by the aggregate
number of Company Shares held by LJH and all Tag Along Investors multiplied by
(y) the number of Company Shares to be sold in such proposed transfer. The
number of Company Shares proposed to be transferred by LJH in the current
transfer shall be reduced to the extent necessary to provide for the sale of
Company Shares by each Tag Along Investor exercising its rights hereunder.
(d) PERMITTED TRANSFER. LJH and the Tag Along Investors may transfer
the Company Shares at the price and on the terms and conditions set forth in the
sale notice for a period of 60 days from the expiration of the 20-day period
commencing on the date of delivery of the sale notice to the other Investors.
Any Company Shares not transferred within such period again shall be subject to
the provisions of this Section 4.4 in connection with any subsequent transfer.
(e) FAILURE TO EXERCISE OPTION. The failure of any Investor to give
written notice as specified in this Section 4.4 within the time period specified
herein shall be deemed to be a waiver of its rights under this Section 4.4.
4.5 RELATED PARTY TRANSACTIONS. Each of the Investors agrees that it will
not enter into, renew, extend or be a party to, or permit any of its Affiliates
or any Person in which an Affiliate of an Investor or any of their respective
Subsidiaries has an interest as a director, officer, employee or greater than 5%
stockholder, or interest through a relationship with a family member or any
Person related by marriage to a family member, to enter into, renew, extend or
be a party to, any transaction or series of related transactions (including,
without limitation, the purchase, sale, lease, transfer or exchange of property
or assets of any kind or the rendering of services of any kind) with, or make
any loan or advance to, or purchase, assume or guarantee any Indebtedness (as
defined in the Stockholders Agreement) to or from, the Company or any of its
Subsidiaries, without the prior consent of each of the Investors, which will not
be unreasonably withheld, delayed or conditioned, provided that (a) LJH may
enter into an agreement to purchase or refinance the CIT Facility if LJH offers
to the Owl Creek Investors the ability to participate in such an agreement on
the same terms as the Participation Agreement and (b) the Owl Creek Investors
may enter into an agreement to purchase or refinance the CIT Facility if the Owl
Creek Investors offer to LJH the ability to ability to serve as the purchasing
lender with respect to the CTI Facility with the Owl Creek Investors to
participate in the CIT Facility on the same terms as the Participation
Agreement.
ARTICLE V
MISCELLANEOUS
5.1 TERMINATION. Either LJH or the Owl Creek Investors may terminate this
Agreement at any time after October 20, 2006 by providing written notice to the
other parties as set forth below. The Investors may also terminate this
Agreement at any time by an agreement in writing that is executed by each of the
Investors.
5.2 NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by registered or certified
mail, postage prepaid, sent by facsimile or electronic mail or otherwise
delivered by hand or by messenger addressed: If to LJH or to Newco, to it at ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇, telecopy: (903)
465-6514, with a copy to ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., telecopy
(▇▇▇) ▇▇▇-▇▇▇▇, or at such other address as LJH or Newco shall have specified by
notice to the other parties to this Agreement.
If to any of the Owl Creek Investors, to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ , attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Esq., telecopy: (▇▇▇-▇▇▇-▇▇▇▇.
All such notices and communications will be deemed effectively given the
earlier of (i) when received, (ii) when delivered personally, (iii) one business
day after being delivered by facsimile or e-mail (with receipt of appropriate
confirmation), (iv) one business day after being deposited with an overnight
courier service of recognized standing or (v) 72 hours after being deposited in
the U.S. mail, first class with postage prepaid. In the event of any conflict
between the Company's books and records and this Agreement or any notice
delivered hereunder, the Company's books and records will control absent fraud
or error.
5.3 PRESS RELEASES. The Investors shall agree on the form of each press
release by any of them or by Newco related to this Agreement or the transactions
contemplated hereby to the extent that any such press release references an
Investor or an Affiliate of such Investor.
5.4 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively) only with
the written consent of the Investors.
5.5 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the personal representatives, successors and assigns of
the respective parties hereto. Newco shall not have the right to assign its
rights or obligations hereunder or any interest herein without obtaining the
prior written consent of the Investors and any attempted assignment otherwise
shall be void. The Investors may assign or transfer their rights under this
Agreement to the extent permitted herein and by the other agreements between the
respective parties and the Company. Whether or not any express assignment has
been made in this Agreement, provisions
of this Agreement that are for the Investors' benefit as the holder of any
Company Common Stock are also for the benefit of, and enforceable by, all
subsequent holders of the Company Common Stock.
5.6 GENERAL. The invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of any other term or
provision hereof. The headings in this Agreement are for convenience of
reference only and shall not alter or otherwise affect the meaning hereof. This
Agreement and the other written agreements of the parties referred to herein or
therein constitute the entire understanding of the parties hereto with respect
to the subject matter hereof and thereof and supersede all present and prior
agreements, whether written or oral. This Agreement shall be governed by and
construed in accordance with the laws (other than the conflict of laws rules) of
the State of Delaware, and shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns.
5.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart. One or more counterparts of this
Agreement or any Exhibit or Schedule hereto may be delivered via facsimile and
such facsimile counterpart shall have the same effect as an original counterpart
hereof.
5.8 GOVERNING LAW; JURISDICTION. The laws of the State of Delaware, without
reference to conflict of laws principles, shall govern the validity,
construction and interpretation of this Agreement. Each party to this Agreement
hereby irrevocably agrees that any legal action or proceeding arising out of or
relating to this Agreement or any agreements or transactions contemplated hereby
may be brought exclusively in the courts of the State of Delaware and hereby
expressly submits to the personal jurisdiction and venue of such courts for the
purposes thereof and expressly waives any claim of improper venue and any claim
that such courts are an inconvenient forum. Each party hereby irrevocably
consents to the service of process of any of the aforementioned courts in any
such suit, action or proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, to the address provided in accordance with
Section 5.2, such service to become effective 10 days after such mailing.
[Signature pages follow]
The undersigned have executed this Amended and Restated Transaction
Agreement as of the date first above written.
TAS HOLDING, INC.
By:
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
LJH, LTD.
By: DLH Management, L.L.C.,
its general partner
By:____________________________
▇▇▇▇ ▇▇▇▇▇▇, President
OWL CREEK I L.P.
By: Owl Creek Advisors, LLC
its General Partner
By:
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Member
OWL CREEK II L.P.
By: Owl Creek Advisors, LLC
its General Partner
By:
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Member
OWL CREEK OVERSEAS FUND LTD.
By:
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
OWL CREEK OVERSEAS FUND II, LTD.
By:
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director