BG DRAFT
4/06/06
PARTICIPATION AGREEMENT
PARTICIPATION AGREEMENT (this "AGREEMENT") dated as of April 10, 2006
between LJH, LTD., a Texas limited partnership (the "SELLER"), and [OWL CREEK
OVERSEAS FUND, LTD.], a ____________________ (the "PARTICIPANT").
1. DEFINITIONS.
1.1. Capitalized terms used herein and not defined herein or in
Schedule 1 or Schedule 2 shall have the respective meanings attributed thereto
in the Credit Documents. In addition, as used herein, the following terms shall
have the following respective meanings:
"BORROWER" has the meaning given to it in Schedule 1.
"BUSINESS DAY" means any day that is not (a) a Saturday, (b) a Sunday
or (c) any other day on which commercial banks are authorized or required by law
to be closed in the City of New York.
"CREDIT AGREEMENT" has the meaning given to it in Schedule 1.
"CREDIT DOCUMENTS" means the Credit Agreement and all guarantees,
security agreements, pledge agreements, assignments, mortgages, deeds of trust,
letters of credit, reimbursement agreements, blocked account agreements, control
agreements, waivers, amendments, modifications, supplements and all agreements,
instruments and other documents executed and delivered in connection therewith.
"CLOSING DATE" means April 10, 2006.
"FEDERAL FUNDS RATE" means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day that is a Business Day, the average (rounded upwards, if necessary, to
the next 1/100 of 1%) of the quotations for such day for such transactions
received by the Parties from three federal funds brokers of recognized standing
selected by the Parties. For a day that is not a Business Day, the Federal Funds
Rate shall be the rate applicable to federal funds transactions on the
immediately preceding day for which such rate is reported.
"FUTURE LOAN" means each advance or loan hereafter made pursuant to the
Specified Commitments.
"LOANS" means, collectively, (a) the Loans in the amounts specified in
Schedule 1 and (b) the Future Loans, and includes in each case the notes (if
any) evidencing such Loans issued under the Credit Agreement.
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"OBLIGORS" means, collectively, the Borrowers and each guarantor,
pledgor, collateral grantor, or other Person directly or indirectly obligated in
respect of the Loans, including each of the Guarantors Party to the Credit
Agreement.
"PARTICIPANT'S ACCOUNT" has the meaning given to it in Schedule 2.
"PARTICIPANT'S PERCENTAGE" has the meaning given to it in Schedule 2.
"PARTICIPANT'S SHARE" means, with respect to any Loan or payment, an
amount equal to the Participant's Percentage of the principal amount of such
Loan or the amount of such payment, as applicable.
"PARTICIPATION" has the meaning given to it in Section 2.
"PARTY" means the Participant or the Seller, as applicable.
"PERSON" means any individual, corporation, estate, trust, business
trust, joint venture, association, partnership, limited liability company,
government, government agency or political subdivision or other legal entity.
"PURCHASE PRICE" has the meaning given to it in Schedule 2.
"SPECIFIED COMMITMENTS" has the meaning given to it in Schedule 1.
"SELLER'S ACCOUNT" has the meaning given to it in Schedule 2.
1.2. The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. This Agreement includes the
Schedules attached hereto and any documents attached as exhibits to the
Agreement. The Schedules attached hereto may supplement, change, or supersede
other provisions of this Agreement; if there is any inconsistency between the
provisions of said Schedules and the other provisions of this Agreement, said
Schedules will prevail. The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation". The word "will" shall
be construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein or any statute, law, order, rule or
regulation shall be construed as referring to such agreement, instrument, other
document, statute, law, order, rule or regulation as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof and (d) all references herein to Sections and
Schedules shall be construed to refer to Sections of, and Schedules to, this
Agreement. Section, Schedule and other headings and captions are included solely
for convenience of reference and are not intended to affect the interpretation
of any provisions of this Agreement. This Agreement shall be deemed to have been
jointly drafted and no provision of it shall be interpreted or construed for or
against any Party because such Party purportedly prepared or requested such
provision, any other provision or this Agreement as a whole.
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2. SALE OF PARTICIPATION. Subject to the terms and conditions set forth in
this Agreement, the Seller hereby agrees to sell, and on the Closing Date does
hereby sell, to the Participant, without recourse to or (except to the extent
expressly provided herein) representation or warranty whatsoever by the Seller,
and the Participant hereby agrees to acquire and assume, and on the Closing Date
does hereby acquire and assume, against payment by the Participant of an amount
equal to the Purchase Price, a participation (the "PARTICIPATION") consisting of
an undivided interest, to the extent of the Participant's Percentage, in (i)
each Loan heretofore made and set forth in Schedule 1, (ii) the Specified
Commitments and each Future Loan and (iii) to the extent permitted to be
transferred under applicable law, all claims, suits, causes of action and any
other right of the Seller (in its capacity as a lender), whether known or
unknown, against any Borrower, any other Obligor or any of their respective
affiliates, agents, representatives, contractors, advisors or any other Person
arising under or in connection with the Credit Documents or that is in any way
based on or related to any of the foregoing or the loan transactions governed
thereby, including contract claims, tort claims, malpractice claims, statutory
claims and all other claims at law or in equity related to the rights and
obligations sold and purchased pursuant to this Agreement.
3. CONDITIONS PRECEDENT.
3.1. The Participant's obligations to pay the Purchase Price to the
Seller and to acquire the Participation on the Closing Date shall be subject to
the conditions that (a) the Seller's representations and warranties in this
Agreement shall have been true and correct on the Closing Date, and (b) the
Participant shall have received this Agreement duly executed on behalf of the
Seller.
3.2. The Seller's obligation to sell, transfer, assign, grant, and
convey the Participation to the Participant on the Closing Date shall be subject
to the conditions that (a) the Participant's representations and warranties in
this Agreement shall have been true and correct on the Closing Date, (b) the
Seller shall have received this Agreement duly executed on behalf of the
Participant and (c) the Seller shall have received payment of the Purchase Price
from the Participant.
4. PAYMENT IN RESPECT OF FUTURE LOANS. The Seller shall notify the
Participant promptly of its receipt of each notice from the Borrowers (or any of
them) requesting a Future Loan, specifying therein the amount and date of such
Future Loan and the Participant's Share of such Future Loan. Not later than
11:00 a.m. (New York City time) on the date so specified for such Future Loan
the Participant shall pay to the Seller, by deposit into the Seller's Account,
the Participant's Share of such Future Loan, in like currency and immediately
available funds, without set-off, counterclaim or deduction of any kind.
5. PAYMENTS TO PARTICIPANT. (a) Promptly upon receipt by the Seller of any
payment of principal of or cash interest on any Loan, or any fee, in respect of
the Loans or the Specified Commitments, the Seller shall remit to the
Participant the Participant's Share of such payment; PROVIDED that interest on
any Loan accrued prior to the Closing Date, and fees accrued prior to the
Closing Date, shall be for the sole account of the Seller.
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(b) To the extent contemplated by the Credit Agreement, the Seller
shall promptly remit to the Participant an amount equal to any payment received
by the Seller on account of increased costs, break funding payments or expenses
incurred by the Participant in connection with the Participation. In addition,
so long as (i) the Participant has notified the Borrowers of the Participation
and (ii) the Participant complies with its obligations under Section 9 and any
similar provisions in the Credit Agreement, the Seller shall promptly remit to
the Participant an amount equal to any payment received by the Seller on account
of taxes incurred by the Participant in connection with the Participation. To
the extent required by the Credit Agreement, the Participant hereby agrees, for
the benefit of the Borrowers, to comply with any such similar provisions in the
Credit Agreement.
(c) The Seller shall be entitled to deduct from payments to be made by
it hereunder any overdue amount payable by the Participant to the Seller under
this Agreement.
6. REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants to
the other Party (as of the Closing Date) that:
(a) such Party (i) is duly organized and validly existing under the
laws of its jurisdiction of organization or incorporation, (ii) is in good
standing under such laws and (iii) has full power and authority to execute,
deliver and perform its obligations under this Agreement;
(b) such Party's execution, delivery, and performance of this Agreement
have not resulted, and will not result, in a breach of any provision of (i) such
Party's organizational documents, (ii) any statute, law, writ, order, rule or
regulation of any governmental authority applicable to such Party, (iii) any
judgment, injunction, decree or determination applicable to such Party or (iv)
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument by which such Party may be bound or to which any of the assets of
such Party are subject; and
(c) (i) this Agreement (A) has been duly and validly authorized,
executed, and delivered by such Party and (B) constitutes the legal, valid, and
binding obligation of such Party, enforceable against such Party in accordance
with its terms, except that such enforceability may be limited by bankruptcy,
insolvency, or other similar laws of general applicability affecting the
enforcement of creditors' rights generally and by the court's discretion in
relation to equitable remedies; and (ii) no notice to, registration with,
consent or approval of, or any other action by, any relevant governmental
authority or other Person is or will be required for such Party to execute,
deliver, and perform its obligations under this Agreement.
7. NON-RECOURSE; NO LIABILITY. (a) The Participation is acquired by the
Participant without recourse to the Seller and for the Participant's own account
and risk. The Seller makes no representation or warranty, express or implied,
and assumes no responsibility, with respect to the genuineness, authorization,
execution, delivery, validity, legality, value, sufficiency, perfection,
priority, enforceability or collectability of any of the Credit Documents or any
liens or security interests thereunder. The Seller assumes no responsibility for
(i) any representation or warranty made by, or the accuracy, completeness,
correctness or sufficiency of any information (or the validity, completeness or
adequate disclosure of assumptions underlying any estimates, forecasts or
projections contained in such information) provided directly or indirectly
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by, any Borrower, any other Obligor or any other Person, (ii) the performance or
observance by any Borrower or any other Obligor of any of the provisions of the
Credit Documents (whether on, before or after the Closing Date), (iii) the
filing, recording, or taking of any action with respect to any of the Credit
Documents, (iv) the financial condition of the Borrowers, any other Obligor or
any other Person or (v) (except as otherwise expressly provided herein) any
other matter whatsoever relating to the Borrowers, any other Obligor, any other
Person, the Loans or the Participation.
(b) The Participant represents to and agrees with the Seller that the
Participant is a sophisticated buyer and has made, independently and without
reliance on the Seller, its own analysis of the Borrowers, the other Obligors
and the Credit Documents for the purpose of acquiring the Participation, and it
has received such additional documents and information (including any syndicate
confidential information) as it has deemed necessary for such purpose, and it
shall continue to make its own decisions with respect to the Participation
without such reliance.
(c) The Participant agrees that the Seller may, in its sole discretion,
exercise or refrain from exercising any right, or take or refrain from taking
any action, which the Seller may be entitled to take or assert under any of the
Credit Documents and, without limiting the generality of the foregoing, the
Seller may take legal action to enforce the Participant's or the Seller's
interests with respect to any Loan or any of the Credit Documents.
(d) The Participant agrees that the Seller may, in its sole discretion,
without prior notice to the Participant, agree to the modification, amendment or
waiver of any of the terms of any of the Credit Documents, PROVIDED that the
Seller shall not, without the Participant's prior written consent, agree to any
such modification, amendment or waiver that would (i) reduce the principal
amount of or rate of interest on the Loans or any fee payable under the Credit
Agreement, (ii) postpone any date fixed for any payment of principal of or
interest on the Loans or any fee payable under the Credit Agreement, (iii)
postpone any date fixed for any payment of principal or interest on the Loans or
any fee payable under the Credit Agreement, or (iv) release any guaranty or
material collateral except as otherwise contemplated by the Credit Documents.
(e) The Seller shall have no liability or responsibility to the
Participant except as expressly provided herein and except for its own gross
negligence or willful misconduct which results in actual loss to the
Participant, and, except to such extent, the Seller shall have no responsibility
to the Participant for the failure by the Seller to make any Loan or other
extension of credit to the Borrowers or the failure by the Seller to comply with
any of the Seller's other obligations to the Borrowers under the Credit
Agreement or otherwise. In administering the Participation, the Seller may
consult with legal counsel (including counsel for the Borrowers), independent
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in reliance on the
advice of any such Person.
(f) The Participant acknowledges that the Seller and its affiliates may
have lending, trust or other fiduciary relationships and/or other business
relationships, including extensions of credit and advisory arrangements with the
Borrowers, the other Obligors and their respective affiliates in addition to the
Loans, the Specified Commitments and the Participation.
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8. INDEMNITY. (a) The Participant shall reimburse the Seller, ratably to
the extent of the Participant's Percentage, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, and disbursements, including legal fees, which may be incurred or made
by the Seller in connection with the administration of the Credit Documents or
any action that may be taken by the Seller to collect the principal of or
interest on the Loans in which the Participant is participating or for the
preservation or enforcement of any rights conferred by any of the Credit
Documents for which the Seller is not reimbursed at any time by or on behalf of
the Borrower.
(b) If the Seller makes a payment to the Participant in respect of an
amount that the Seller expects to receive under the Credit Documents, but such
amount is not so received, the Participant shall, on demand from the Seller,
repay to the Seller its PRO RATA share of the amount not received, together with
interest thereon at the Federal Funds Rate. In the event that, after the Seller
has made any payment to the Participant hereunder, any such payment or
application is rescinded or must otherwise be returned or paid over by the
Seller for any reason, the Participant shall, upon notice from the Seller,
forthwith pay to the Seller the Participant's Share of such amount so returned
or paid over, together with its share of any interest or penalties payable with
respect thereto.
9. TAXES. If the Participant is not created or organized under the laws of
the United States of America or any state thereof (a "NON-U.S. PARTICIPANT"), it
represents that it is entitled to receive any payments to be made to it
hereunder without the withholding of any tax and shall furnish to the Seller
such forms, certifications, statements and other documents as the Seller may
request from time to time to evidence the Participant's exemption from the
withholding of any tax imposed by any jurisdiction or to enable the Seller to
comply with any applicable laws or regulations relating thereto. Without
limiting the effect of the foregoing, if the Participant is a Non-U.S.
Participant, in the event that the payment of interest by any Borrower under the
Credit Agreement is treated for United States income tax purposes as derived in
whole or in part from sources within the United States of America, the
Participant shall furnish to the Seller such forms, certifications, statements
or documents as the Seller may reasonably request, duly executed and completed
by the Participant as evidence of the Participant's exemption from the
withholding of United States tax with respect thereto. The Seller shall not be
obligated to make any payments hereunder to the Participant in respect of any
Loan, until the Participant shall have furnished to the Seller the requested
form, certification, statement or document. In the event that the Participant is
subject to United States withholding taxes and any Borrower or the Seller is
held liable for such withholding taxes, the Participant agrees to promptly
reimburse the Seller for any such amount.
10. PAYMENTS. All payments by the Seller to the Participant hereunder shall
be made to the Participant's Account in like funds and currency as received by
the Seller, without set-off, counterclaim or deduction of any kind. If the
applicable payment is received by the Seller not later than 12:00 noon (New York
City time) on any day, the corresponding payment shall be made to the
Participant not later than 5:00 p.m. (New York City time) on such day, and
otherwise not later than 5:00 p.m. (New York City time) on the immediately
succeeding Business Day.
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11. NATURE OF INTEREST. The Participant shall not, by reason of this
Agreement and the transactions contemplated hereby, be deemed to have an
interest in any property taken as security for the Loans or any other extension
of credit by the Seller, or in any property now or hereafter in the Seller's
possession or control (other than an undivided participation interest hereunder
in the Participant's Share of the Loans), or in any deposit held or other
indebtedness owing by it which may be or become security for the Loans, or by
reason of the general description contained in any general loan or collateral
agreement, or by reason of any right of setoff, counterclaim, banker's lien or
otherwise; PROVIDED that if any such property, deposit, indebtedness or any
proceeds thereof shall be applied by the Seller to the payment of any amount in
which the Participant has an interest hereunder, then the Participant shall be
entitled to receive from the Seller an amount equal to its PRO RATA share
thereof as provided herein.
12. SET-OFF. To the extent contemplated by the Credit Agreement and
permitted by law, the Participant shall be entitled to the benefits of any
provisions in the Credit Agreement providing for rights of set-off against the
Borrowers as though the Participant were a Lender.
13. MISCELLANEOUS.
(a) ENTIRE AGREEMENT; AMENDMENTS; EXERCISE OF RIGHTS. This Agreement
constitutes the entire agreement of the Parties with respect to the respective
subject matters hereof and supersedes all previous and contemporaneous
negotiations, promises, covenants, agreements, understandings and
representations on such subjects, all of which have become merged and finally
integrated into this Agreement. No amendment of any provision of this Agreement
shall be effective unless it is in writing and signed by the Parties and no
waiver of any provision of this Agreement, nor consent to any departure by
either Party from it, shall be effective unless it is in writing and signed by
the affected Party, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given. No failure
on the part of a Party to exercise, and no delay in exercising, any right under
this Agreement shall operate as a waiver hereof by such Party, nor shall any
single or partial exercise of any right under this Agreement preclude any other
or further exercise thereof or the exercise of any other right. The rights and
remedies of each Party provided herein (a) are cumulative and are in addition
to, and are not exclusive of, any rights or remedies provided by law (except as
otherwise expressly set forth in this Agreement) and (b) are not conditional or
contingent on any attempt by such Party to exercise any of its rights under any
other related document against the other Party or any other Person.
(b) SURVIVAL; SUCCESSORS AND ASSIGNS. All representations, warranties,
covenants, indemnities and other provisions made by the Parties shall be
considered to have been relied upon by the Parties, shall be true and correct as
of the Closing Date, and shall survive the execution, delivery, and performance
of this Agreement. This Agreement, including the representations, warranties,
covenants and indemnities contained in this Agreement, shall inure to the
benefit of, be binding upon and be enforceable by and against the Parties and
their respective successors and permitted assigns. Without prejudice to any
restrictions or limitations in the Credit Agreement, the Participation may be
sold, pledged, assigned, subparticipated, or otherwise transferred only with the
Seller's prior written consent, which consent shall not be unreasonably
withheld.
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(c) FURTHER ASSURANCES. Each Party agrees (i) to execute and deliver,
or to cause to be executed and delivered, all such instruments and (ii) to take
all such actions as the other Party may reasonably request to effectuate the
intent and purposes, and to carry out the terms, of this Agreement, including
the procurement of any third-party consents.
(d) DISCLOSURE. Each Party agrees that, without the prior written
consent of the other Party, it shall not disclose the contents of this Agreement
to any Person, except that any Party may make any such disclosure (a) as
required to implement or enforce this Agreement, (b) if required to do so by any
law, court, or regulation, (c) to any governmental authority or self-regulatory
entity having or asserting jurisdiction over it, (d) if its attorneys advise it
that it has a legal obligation to do so or that failure to do so may result in
it incurring a liability to any other Person, (e) to its professional advisors
and auditors, (f) to its affiliates, or (g) as set forth in the immediately
succeeding sentence. The Participant may disclose the contents of this Agreement
to any proposed transferee, assignee, subparticipant or other Person proposing
to enter into contractual relations with the Participant in respect of the
Participation or any part of it. The Participant agrees to comply with the
requirements of the Credit Documents regarding confidentiality.
(e) PARTIES' OTHER RELATIONSHIPS. Each Party and any of its affiliates
may engage in any kind of lawful business or relationship with the Borrowers,
any other Obligor or any of their respective affiliates without liability to the
other Party or any obligation to disclose such business or relationship to the
other Party.
(f) COUNTERPARTS. This Agreement may be executed in counterparts (and
by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. Delivery of an executed counterpart of a signature page to this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
(g) RELATIONSHIP BETWEEN THE SELLER AND THE PARTICIPANT. The
relationship between the Seller and the Participant shall be that of seller and
buyer. Neither Party is a trustee or agent for the other Party, nor does either
Party have fiduciary obligations to the other Party. This Agreement shall not be
construed to create a partnership or joint venture between the Parties.
(h) SEVERABILITY. The illegality, invalidity, or unenforceability of
any provision of this Agreement under the law of any jurisdiction shall not
affect its legality, validity or enforceability under the law of any other
jurisdiction nor the legality, validity or enforceability of any other
provision.
(i) GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the law of the State of [New York].
(j) WAIVER OF TRIAL BY JURY. THE PARTIES HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT THAT THEY MAY HAVE TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION, OR IN
ANY LEGAL PROCEEDING DIRECTLY OR
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INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HAVE BEEN INDUCED TO ENTER INTO
THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS CLAUSE (J).
(k) JURISDICTION. Each Party irrevocably and unconditionally submits to
and accepts the nonexclusive jurisdiction of any [New York] State or United
States Federal court sitting in [New York] County for any action, suit, or
proceeding arising out of or based upon this Agreement or any matter relating to
it, and waives any objection that it may have to the laying of venue in any such
court or that such court is an inconvenient forum or does not have personal
jurisdiction over it. The Parties irrevocably agree that, should either Party
institute any legal action or proceeding in any jurisdiction (whether for an
injunction, specific performance, damages or otherwise) in relation to this
Agreement, no immunity (to the extent that it may at any time exist, whether on
the grounds of sovereignty or otherwise) from such action or proceeding shall be
claimed by it or on its behalf, any such immunity being hereby irrevocably
waived, and each Party irrevocably agrees that it and its assets are, and shall
be, subject to such legal action or proceeding in respect of its obligations
under this Agreement.
(l) SUBROGATION. To the extent that the Participant enforces any claim
for indemnification or other claim or remedy against the Seller under this
Agreement and receives payment or another remedy from the Seller in respect of
such claim or remedy, the Parties agree that to the extent permitted by law and
the Credit Documents, without the need for further action on the part of either
Party, the Seller shall be subrogated to the rights of the Participant against
any other Person with respect to such claim or remedy to the extent of such
payment or other remedy.
(m) EXPENSES. Each Party agrees to bear its own expenses in connection
with this Agreement.
(n) INTEREST. If either Party fails to pay any amount (including
interest, to the fullest extent permitted by applicable law) payable by it
hereunder when due, then interest shall accrue and be payable immediately upon
demand on such unpaid amount at a PER ANNUM rate equal to the Federal Funds Rate
from and including the date on which such amount became due to but excluding the
date the same is paid in full.
(o) NOTICES. All communications between the Parties or notices or other
information sent under this Agreement shall be in writing, hand delivered or
sent by overnight courier or telecopier, addressed to the relevant Party at its
address or facsimile number specified in Schedule 1 or at such other address or
facsimile number as such Party may request in writing. All such communications
and notices shall be effective upon receipt.
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(p) DOCUMENTS. The Seller shall furnish to the Participant copies of
the Credit Documents and, as and when available to the Seller (without prejudice
to Section 8(d)), a copy of each amendment, consent or waiver in connection with
the Credit Documents. The Participant agrees that it shall maintain the
confidentiality of any such documents to the extent required in the Credit
Documents and to the same extent as if it were a party to the Credit Documents
and shall, upon the Seller's request, provide to the Seller a confidentiality
undertaking to such effect in accordance with the terms of the Credit Documents
prior to the delivery thereof.
[Signatures Begin on Next Page]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed and delivered as of the date first above stated.
SELLER
LJH, LTD.
By:
-----------------------------------
Name:
--------------------------------
Title:
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PARTICIPANT
[OWL CREEK OVERSEAS FUND, LTD.]
By:
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Name:
--------------------------------
Title:
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SCHEDULE 1
CREDIT AGREEMENT
"BORROWERS" means the collective reference to Aircraft Interior Design, Inc., a
Florida corporation, Xxxxx Manufacturing Company, Inc., a California
corporation, TIMCO Aviation Services, Inc., a Delaware corporation, TIMCO Engine
Center, Inc., a Delaware corporation, TIMCO Engineered Systems, Inc., a Delaware
corporation, and Triad International Maintenance Corporation, a Delaware
corporation.
"CREDIT AGREEMENT" means the Amended and Restated Financing Agreement dated as
of April 8, 2005, among LJH, Ltd. (as the assignee of Fortress Credit
Opportunities I LP, which was the assignee of Monroe Capital Advisors LLC), as
lender, the Borrowers, and the Guarantors named therein, as amended, restated,
supplemented or otherwise modified from time to time.
"THE LOANS" means the Term Loan A-1 in the original principal amount of
$8,000,000, the Term Loan A-2 in the original principal amount of $7,000,000,
the Term Loan B in an aggregate principal amount not to exceed $3,000,000, and
the Term Loan C in the principal amount of $6,000,000. As of the Closing Date,
the outstanding principal balance of the Term Loan A-1 is $8,158,314.57, the
outstanding principal balance of the Term Loan A-2 is $7,138,507.47, and the
outstanding principal balance of the Term Loan B is $2,627,508.00. As of the
Closing Date, the Term Loan C has not been funded.
"SPECIFIED COMMITMENTS" means (a) the Term Loan B Line in the principal amount
of $3,000,000, and (b) the commitment to fund the Term Loan C in the principal
amount of $6,000,000, in each case as specified in the Credit Agreement.
SCHEDULE 2
THE PARTICIPATION
"CLOSING DATE" means April 10, 2006.
"PARTICIPANT'S ACCOUNT" means ________________.
"PARTICIPANT'S PERCENTAGE" means twenty percent (20%).
"PURCHASE PRICE" of the Loans means $__________.
"SELLER'S ACCOUNT" means ________________.
PARTICIPANT'S ADDRESS FOR NOTICES AND DELIVERY
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Attention:
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Telephone:
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Facsimile:
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Seller's Address for Notices and Delivery
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Attention:
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Telephone:
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Facsimile:
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