SECURITIES & EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
SCHEDULE 13D
(Rule 13d-101)
Amendment No. 4
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
TIMCO AVIATION SERVICES, INC.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
887151-20-7
(CUSIP Number)
Owl Creek Asset Management, L.P.
640 Fifth Avenue, 20th Floor, New York, NY 10019, Attn: Daniel Sapadin
(212) 688-2550
(Name, address and telephone number of person
authorized to receive notices and communications)
April 20, 2006
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g),
check the following box [ ]
NOTE: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Rule 13d-7 for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter the disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be
deemed to be "filed" for purposes of Section 18 of the Securities Exchange Act
of 1934 ("Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act (however, see the
Notes).
(Page 1 of 18 pages)
CUSIP No. 887151-20-7 13D Page 2 of 18 pages
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(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Owl Creek I, L.P.
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [ ]
(b) [X]
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS **
WC, OO
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(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES --------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
165,359
OWNED BY --------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING --------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
165,359
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
165,359
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(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
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(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
0.8%
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(14) TYPE OF REPORTING PERSON **
PN
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** SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 887151-20-7 13D Page 3 of 18 pages
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(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Owl Creek II, L.P.
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [ ]
(b) [X]
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS **
WC, OO
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(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES --------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
1,299,607
OWNED BY --------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING --------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
1,299,607
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
1,299,607
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(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
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(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
6.1%
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(14) TYPE OF REPORTING PERSON **
PN
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** SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 887151-20-7 13D Page 4 of 18 pages
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(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Owl Creek Advisors, LLC
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [ ]
(b) [X]
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS **
WC, OO
-----------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES --------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
1,464,966
OWNED BY --------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING --------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
1,464,966
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
1,464,966
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(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
-----------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
6.8%
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(14) TYPE OF REPORTING PERSON **
CO
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** SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 887151-20-7 13D Page 5 of 18 pages
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(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Owl Creek Asset Management, L.P.
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) []
(b) [X]
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS **
WC, OO
-----------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES --------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
2,257,433
OWNED BY --------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING --------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
2,257,433
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
2,257,433
-----------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
-----------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
10.5%
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(14) TYPE OF REPORTING PERSON **
PN
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** SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 887151-20-7 13D Page 6 of 18 pages
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(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Jeffrey A. Altman
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) []
(b) [X]
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(3) SEC USE ONLY
-----------------------------------------------------------------------------
(4) SOURCE OF FUNDS **
WC, OO
-----------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES --------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
3,722,399
OWNED BY --------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING --------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
3,722,399
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
3,722,399
-----------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
-----------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
17.4%
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(14) TYPE OF REPORTING PERSON **
IN
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** SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 887151-20-7 13D Page 7 of 18 pages
Item 1. Security and Issuer.
The Schedule 13D initially filed on October 20, 2005, amended by
Amendment No. 1 filed on October 21, 2005 amended by Amendment No. 2 filed on
December 1, 2005 and subsequently amended on April 13, 2006, relating to the
common stock, par value $0.001 (the "Common Stock"), of TIMCO Aviation Services,
Inc. (the "Issuer"), a Delaware corporation whose principal executive offices
are located at 623 Radar Road, Greensboro, North Carolina 27410, is hereby
amended and restated in its entirety by this Amendment No. 4 to the Schedule
13D.
Item 2. Identity and Background.
(a) This statement is filed by:
(i) Owl Creek I, L.P., a Delaware limited partnership, ("Owl
Creek I") with respect to the shares of Common Stock directly owned by it;
(ii) Owl Creek II, L.P., a Delaware limited partnership, ("Owl
Creek II") with respect to the shares of Common Stock directly owned by it;
(iii) Owl Creek Advisors, LLC, a Delaware limited liability
company (the "General Partner"), with respect to the shares of Common Stock
directly owned by Owl Creek I and Owl Creek II;
(iv) Owl Creek Asset Management, L.P. a Delaware limited
partnership (the "Investment Manager"), with respect to the shares of Common
Stock directly owned by Owl Creek Overseas Fund, Ltd., an exempted company
organized under the laws of the Cayman Islands ("Owl Creek Overseas"), and Owl
Creek Overseas Fund II, Ltd., an exempted company organized under the laws of
the Cayman Islands ("Owl Creek Overseas II"); and
(iv) Jeffrey A. Altman, with respect to shares of Common Stock
owned by Owl Creek I, Owl Creek II, Owl Creek Overseas and Owl Creek Overseas
II.
The foregoing persons are hereinafter sometimes collectively
referred to as the "Reporting Persons." Any disclosures made herein with respect
to persons other than the Reporting Persons are made on information and belief
after making inquiry to the appropriate party.
(b) The address of the principal office of the Reporting Persons is
640 Fifth Avenue, 20th Floor, New York, NY 10019.
(c) The principal business of each of Owl Creek I and Owl Creek II
is serving as a private investment limited partnership. The principal business
of the General Partner is serving as general partner of Owl Creek I and Owl
Creek II, respectively. The principal business of the Investment Manager is
serving as investment manager to Owl Creek Overseas and Owl Creek Overseas II.
(d) None of the Reporting Persons have, during the last five years,
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
CUSIP No. 887151-20-7 13D Page 8 of 18 pages
(e) None of the Reporting Persons have, during the last five years,
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and, as a result of such proceeding, was, or is subject
to, a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, Federal or State securities laws
or finding any violation with respect to such laws.
(f) Each of Owl Creek I, Owl Creek II and the Investment Manager is
a limited partnership organized under the laws of the State of Delaware. The
General Partner is a limited liability company organized under the laws of the
State of Delaware. Mr. Altman is a United States citizen.
(g) The Reporting Persons believe that upon execution by Owl
Creek I, Owl Creek II, Owl Creek Overseas and Owl Creek Overseas II,
(collectively, the "Owl Creek Parties") of the Amended Transaction Agreement (as
defined in Item 6) on April 20, 2006, they may have continued their existence as
a "group" for purposes of Section 13(d)(3) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and Rule 13d-1 thereunder, with (i) Lacy
J. Harber, the ultimate beneficial owner of the shares of Common Stock that are
owned by LJH, Ltd. ("LJH") and (ii) John R. Cawthron, the holder of a revocable
proxy to vote all shares of Common Stock that LJH would be entitled to vote at
any annual or special meeting of the stockholders of the Issuer (and
collectively with Mr. Harber, the "LJH Parties"), for the purpose of engaging in
the proposed transactions described in Items 4 and 6. The Reporting Persons
disclaim that they are members of a "group" for purposes of the Exchange Act.
Although the Reporting Persons do not affirm that such a "group" continues to
exist, this disclosure is being made to ensure compliance with the Exchange Act.
The LJH Parties and the Reporting Persons have elected to satisfy their
filing requirements with respect to Schedule 13D by making individual filings
(one filing for the Reporting Persons and one filing for the LJH Parties) rather
than by making a single joint filing. For information regarding the LJH Parties,
including information with respect to the Items called for by Schedule 13D,
please see the LJH 13D, which is available on the SEC's website at www.sec.gov.
Item 3. Source and Amount of Funds and Other Consideration.
The shares of Common Stock were acquired pursuant to (i) a tender
offer made by the Issuer to the holders of its 8% senior subordinated
convertible PIK notes due 2006 and to other noteholders and (ii) a rights
offering made by the Issuer to holders of its Common Stock as of 5:00 p.m., New
York City time, on October 19, 2005. The tender offer closed on October 12,
2005. The rights offering closed on November 22, 2005. All or part of the shares
of Common Stock beneficially owned by the Reporting Persons may from time to
time be pledged with one or more banking institutions or brokerage firms as
collateral for loans made by such bank(s) or brokerage firm(s) to Owl Creek I,
Owl Creek II, Owl Creek Overseas or Owl Creek Overseas II. Such loans bear
interest at a rate based upon the broker's call rate from time to time in
effect. Such indebtedness may be refinanced with other banks or broker-dealers.
CUSIP No. 887151-20-7 13D Page 9 of 18 pages
Item 4. Purpose of the Transaction.
The Issuer has previously advised the Reporting Persons that it was in
breach of certain of the financial covenants (the "Defaults") in the Financing
Agreement dated April 5, 2004 between the Issuer, 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
Issuer, 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 Fortress Credit
Opportunities I LP ("Fortress").
Pursuant to the Initial Transaction Agreement (as defined in Item 6), LJH
purchased the Monroe/Fortress Facility from Fortress on April 10, 2006, with
some of the Owl Creek Parties (together with LJH, the "Investors")
simultaneously acquiring an approximately 20% participation in the
Monroe/Fortress Facility. LJH then proposed to the Issuer that it would modify
the terms of that facility to, among other things, resolve the Defaults
thereunder, decrease the interest rate and fees payable by the Issuer with
respect to the Monroe/Fortress Facility and make available to the Issuer $6
million of additional funding (the "Working Capital Infusion").
On April 20, 2006 LJH and the Issuer entered into a Second Amendment to
Amended and Restated Financing Agreement dated April 20, 2006 between the Issuer
and LJH (the "Monroe/Fortress Facility Amendment") resolving all outstanding
Defaults, decreasing the interest rate and fees under that facility and
providing for the $6 million Working Capital Infusion, approximately 19.48% of
which was funded through a participation by the Owl Creek Parties. LJH also
entered into a related Intercreditor and Subordination Agreement dated as of
April,20, 2006, between LJH and CIT (the "Intercreditor Agreement"). In response
to these actions, CIT agreed to amend the terms of CIT Facility pursuant to an
Amendment No. 4 to Financing Agreement between CIT as Agent and sole lender and
the Issuer, which has resolved certain existing events of default under the CIT
Facility and increased the amount of funding available under that facility.
These transactions are referred to herein as the "Debt Restructuring."
LJH has determined not to require as part of the Debt Restructuring
that the Issuer agree to merge with TAS Holding, Inc. ("Newco") at this time or
to issue any shares of Common Stock and therefore discussions between LJH and
the Issuer concerning those transactions have been suspended. There can be no
assurance that these discussions will be resumed and if so, lead to any
definitive agreement or resulting transaction. The Reporting Persons do not have
any present plan or proposal that would relate to or result in any of the
matters set forth in subparagraphs (a) - (j) of Item 4 of Schedule 13D below,
except as set forth herein or such as would occur upon completion of any of the
actions described above or in Item 6 hereto. However, the Reporting Persons
intend to continuously evaluate that and other possible transactions with
respect to the Issuer or their ownership of the Issuer, which transactions could
have one or more of the effects identified below.
CUSIP No. 887151-20-7 13D Page 10 of 18 pages
Except as described above or in Item 6, the Reporting Persons have no
current plans or proposals which relate to or would result in:
(a) the acquisition by any person of additional securities of the Issuer,
or the disposition of securities of the Issuer;
(b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Issuer or any of its subsidiaries;
(c) a sale or transfer of a material amount of assets of the Issuer or any
of its subsidiaries;
(d) any change in the present board of directors or management of the
Issuer, including any plans or proposals to change the number of term of
directors or to fill any existing vacancies on the board of directors of the
Issuer;
(e) any material change in the present capitalization or dividend policy of
the Issuer;
(f) any other material change in the Issuer's business or corporate
structure;
(g) changes in the Issuer's charter, by-laws or instruments corresponding
thereto or other actions which may impede the acquisition of control of the
Issuers by any person;
(h) causing a class of securities of the Issuer to be delisted from a
national securities exchange or to cease to be authorized to be quoted in an
interdealer quotation system of a registered national securities association;
(i) a class of equity securities of the Issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Exchange Act; or
(j) any action similar to any of those enumerated above.
The Reporting Persons intend to review their investment in the Issuer on a
continuing basis, and, subject to the provisions of the Amended Transaction
Agreement, may, at any time and from time to time, review or reconsider their
position and formulate plans or proposals that relate to, might result in, or
have the purpose or effect of resulting in the matters enumerated above. Subject
to the Amended Transaction Agreement and compliance with applicable law,
depending on various factors including, without limitation, the Issuer's
financial position and strategic direction, price levels of the Common Stock,
conditions in the securities market and general economic and industry
conditions, the Reporting Persons may in the future take such actions with
respect to their investment in the Issuer as they deem appropriate including,
without limitation, purchasing additional Common Stock or selling some or all of
its Common Stock, and, alone or with others, pursuing further discussions with
the Issuer, other stockholders, including the LJH Parties and third parties
and/or otherwise changing their intention with respect to any and all matters
referred to in Item 4. To the extent the Monroe/Fortress Facility becomes in
default in the future, the Investors may exercise their rights as
CUSIP No. 887151-20-7 13D Page 11 of 18 pages
the lenders thereunder. The Reporting Persons may engage in additional
discussions with the Issuer's other lenders regarding the terms of the Issuer's
indebtedness and regarding other matters relating to the Issuer. Subject to the
Amended Transaction Agreement, the Reporting Persons may also in the future
(although they have no obligation to do so) propose other arrangements or enter
into agreements with the Issuer's other lenders seeking to resolve loan covenant
defaults or seeking modifications of terms of the Issuer's indebtedness to avoid
restrictions that limit the availability of funding to the Issuer. If any such
agreements are reached in the future, the Reporting Persons may seek
compensation from the Issuer for any actions by the Reporting Persons with
respect to the Issuer's lenders which benefit the Issuer, which compensation may
include the payment of cash or the issuance of additional equity or debt
securities of the Issuer.
Item 5. Interest in Securities of the Issuer.
A. Owl Creek I, L.P.
(a) Aggregate number of shares beneficially owned: 165,359
Percentage: 0.8% The percentages used herein and in
the rest of Item 5 are calculated based upon 21,441,510 shares of Common Stock
that are outstanding as of December 31, 2005 as reported by the Issuer in its
Form 10-K for the year then ended.
(b) 1. Sole power to vote or direct vote: -0-
2. Shared power to vote or direct vote: 165,359
3. Sole power to dispose or direct the disposition: -0-
4. Shared power to dispose or direct the disposition: 165,359
(c) Other than as described in Item 4 or Item 6 of this
Schedule 13D/A, Owl Creek I, L.P. did not enter into any transactions in the
Common Stock of the Issuer within the last sixty days.
(d) Owl Creek Advisors, LLC, the general partner of Owl Creek I,
L.P., has the power to direct the affairs of Owl Creek I, L.P., including
decisions respecting the receipt of dividends from, and the disposition of the
proceeds from the sale of, the shares. Mr. Altman is the managing member of Owl
Creek Advisors, LLC and in that capacity directs its operations.
(e) Not applicable.
B. Owl Creek II, L.P.
(a) Aggregate number of shares beneficially owned: 1,299,607
Percentage: 6.1%
(b) 1. Sole power to vote or direct vote: -0-
2. Shared power to vote or direct vote: 1,299,607
3. Sole power to dispose or direct the disposition: -0-
CUSIP No. 887151-20-7 13D Page 12 of 18 pages
4. Shared power to dispose or direct the disposition:
1,299,607
(c) Other than as described in Item 4 or Item 6 of this Schedule
13D/A, Owl Creek II, L.P. did not enter into any transactions in the Common
Stock of the Issuer within the last sixty days. .
(d) Owl Creek Advisors, LLC, the general partner of Owl Creek II,
L.P., has the power to direct the affairs of Owl Creek II, L.P., including
decisions respecting the receipt of dividends from, and the disposition of the
proceeds from the sale of, the shares. Mr. Altman is the managing member of Owl
Creek Advisors, LLC and in that capacity directs its operations.
(e) Not applicable.
C. Owl Creek Advisors, LLC
(a) Aggregate number of shares beneficially owned: 1,464,966
Percentage: 6.8%
(b) 1. Sole power to vote or direct vote: -0-
2. Shared power to vote or direct vote: 1,464,966
3. Sole power to dispose or direct the disposition: -0-
4. Shared power to dispose or direct the disposition:
1,464,966
(c) Other than as described in Item 4 or Item 6 of this Schedule
13D/A, Owl Creek Advisors, LLC did not enter into any transactions in the Common
Stock of the Issuer within the last sixty days.
(d) Owl Creek Advisors, LLC, as the general partner of Owl Creek
I, L.P. and Owl Creek II, L.P., has the power to direct the affairs of Owl Creek
I, L.P. and Owl Creek II, L.P., including decisions respecting the receipt of
dividends from, and the disposition of the proceeds from the sale of, the
shares. Mr. Altman is the managing member of Owl Creek Advisors, LLC and in that
capacity directs its operations.
(e) Not applicable.
D. Owl Creek Asset Management, L.P.
(a) Aggregate number of shares beneficially owned: 2,257,433
Percentage: 10.5%
(b) 1. Sole power to vote or direct vote: -0-
2. Shared power to vote or direct vote: 2,257,433
3. Sole power to dispose or direct the disposition: -0-
4. Shared power to dispose or direct the disposition:
2,257,433
(c) Other than as described in Item 4 or Item 6 of this Schedule
13D/A, Owl Creek Asset Management, L.P. did not enter into any transactions in
the Common Stock of the Issuer within the last sixty days.
(d) Owl Creek Asset Management, L.P., as the investment manager to
Owl Creek Overseas Fund, Ltd. and Owl Creek Overseas Fund II, Ltd., has the
power to direct the investment activities of Owl Creek Overseas Fund, Ltd. and
Owl Creek Overseas Fund II, Ltd., including decisions respecting the receipt of
dividends from, and the disposition of the proceeds from the sale of, the
shares. Mr. Altman is the managing member of the general partner of Owl Creek
Asset Management, L.P. and in that capacity directs its operations.
(e) Not applicable.
CUSIP No. 887151-20-7 13D Page 13 of 18 pages
E. Jeffrey A. Altman
(a) Aggregate number of shares beneficially owned: 3,722,399
Percentage: 17.4%
(b) 1. Sole power to vote or direct vote: -0-
2. Shared power to vote or direct vote: 3,722,399
3. Sole power to dispose or direct the disposition: -0-
4. Shared power to dispose or direct the disposition:
3,722,399
(c) Other than as described in Item 4 or Item 6 of this Schedule
13D/A, Mr. Altman did not enter into any transactions in the Common Stock of the
Issuer within the last sixty days.
(d) Not applicable.
(e) Not applicable.
Based on the LJH 13D, as amended to April 24, 2006, the
Reporting Persons believe that the LJH Parties, or some of them, are the
beneficial owners of an aggregate of 15,385,812 shares of Common Stock,
representing 71.8% of the outstanding Common Stock. Combined with the 15,385,812
shares of Common Stock owned of record by LJH, the Reporting Persons and LJH
together own 19,208,211 shares of Common Stock, representing 89.12% of the
outstanding Common Stock. The Reporting Persons disclaim any beneficial interest
in the Common Stock owned by LJH.
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
In connection with the matters described herein, LJH, Newco and
the Owl Creek Parties have entered into an Amended and Restated Transaction
Agreement dated as of April 20, 2006 (the "AMENDED TRANSACTION AGREEMENT"). A
copy of the Amended Transaction Agreement is filed as Exhibit A to this Schedule
13D/A, is incorporated by reference herein and its summary qualified in its
entirety to the full text of the Amended Transaction Agreement.
In accordance with the Initial Transaction Agreement (the "Initial
Transaction Agreement"), LJH entered into an Assignment and Acceptance (the
"ASSIGNMENT AND ACCEPTANCE") dated as of April 10, 2006, among Monroe, Fortress
and Monroe Investments, Inc., as assignors (collectively, the "ASSIGNORS"), and
LJH, as assignee, providing for the purchase of the Monroe/Fortress Facility by
LJH on the terms and conditions stated therein, which terms include a cash
payment to Fortress in respect of the principal, accrued interest, fees and
expenses of Fortress of an amount of approximately $18.4 million (the
"MONROE/FORTRESS FACILITY PURCHASE PRICE"). The Investment Manager, on behalf of
some of the Owl Creek Parties executed and delivered to LJH a Participation
Agreement dated as of April 10, 2006 (the "INITIAL PARTICIPATION AGREEMENT")
providing for the participation in the Monroe/Fortress Facility by the
Investment Manager, on behalf of the Owl Creek Parties, on the terms and
conditions stated therein and its agreement to fund 19.48% of the
Monroe/Fortress Facility Purchase Price. These transactions were funded and
closed on April 10, 2006.
On April 20, 2006, LJH agreed with the Issuer to amend the Monroe/Fortress
Facility to resolve the Defaults thereunder and provide the $6 million cash
Working Capital Infusion pursuant to the Monroe/Fortress Facility Amendment,
approximately 19.48% of which was funded through a participation by the Owl
Creek Parties pursuant to the Amended Participation
CUSIP No. 887151-20-7 13D Page 14 of 18 pages
Agreement. On April 20, 2006 LJH also entered into the related Intercreditor
Agreement with CIT. In response to these actions, CIT agreed to amend the terms
of the CIT Facility pursuant to an Amendment No. 4 to Financing Agreement
between CIT as Agent and sole lender and the Issuer, which has resolved certain
existing events of default under the CIT Facility and increased the amount of
funding available under that facility.
The Initial Participation Agreement was filed as Exhibit B to Amendment 3
to the Reporting Persons' Schedule 13D, is incorporated herein by reference, and
its summary qualified in its entirety to the full text of such Initial
Participation Agreement. The Initial Participation Agreement was amended as of
April 20, 2006 (the "AMENDED PARTICIPATION AGREEMENT") to provide for, among
other things, the participation by the Owl Creek Parties in its pro-rata funding
of the Working Capital Infusion to the Issuer as described below. The Amended
Participation Agreement is attached to this Schedule 13D/A as Exhibit B, is
incorporated herein by reference and is qualified in its entirety by reference
to the full text of the Amended Participation Agreement.
As a condition to LJH's execution, delivery and performance of the
Monroe/Fortress Facility Amendment and the making of the Working Capital
Infusion, the Issuer and certain of its subsidiaries executed and delivered to
LJH a Ratification Agreement and Release (the "Ratification and Release"),
confirming the validity of the Monroe/Fortress Facility and waiving and
releasing claims against LJH and its officers, directors, employees, attorneys,
representatives, parents, affiliates, predecessors, successors or assigns
including, the Owl Creek Parties with respect to its participation in the
Working Capital Infusion. The summaries of the Monroe/Fortress Facility
Amendment, the LJH/CIT Intercreditor Agreement and the Ratification and Release
set forth herein are qualified in their entirety by reference to the full text
of such agreements which have been filed (i) with respect to the Monroe/Fortress
Facility Amendment and the LJH/CIT Intercreditor Agreement by the Issuer in its
Annual Report on Form 10-K for the fiscal year ended December 31, 2005 and (ii)
with respect to Ratification and Release, by LJH in Amendment 12 to its Schedule
13D.
The Amended Transaction Agreement also provides that for a period of 180
days from the execution of the Amended Transaction Agreement, (i) if LJH
determines to sell its shares of Common Stock to any person, the Owl Creek
Parties may elect to be included in that transaction, (ii) if either of the Owl
Creek Parties or LJH receives an offer to purchase their Common Stock, they will
first offer it to the other for purchase before they may sell it, (iii) each
party must consult with the other prior to seeking a buyer of its shares of
Common Stock and (iv) neither of the Investors may engage in transactions with
the Issuer without the prior written consent of the other Investor.
The Board of Directors of the Issuer has elected Mr. Cawthron as the Chief
Executive Officer of the Issuer at the request of LJH, such action to be
effective upon or within five days of the execution of the Monroe/Fortress
Facility Amendment.
Except as described in this Schedule 13D/A, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) among the
persons named in Item 2 hereof and between such persons and any person with
CUSIP No. 887151-20-7 13D Page 15 of 18 pages
respect to any securities of the Issuer, including but not limited to transfer
or voting of any other securities, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, divisions of profits or
loss, or the giving or withholding of proxies.
CUSIP No. 887151-20-7 13D Page 16 of 18 pages
Item 7. Materials to be Filed as Exhibits.
Exhibit No. Description of Exhibit
A Amended and Restated Transaction Agreement dated as of
April 20, 2006, among LJH, Ltd., Owl Creek I, L.P., Owl
Creek II, L.P., Owl Creek Overseas Fund, Ltd. and Owl
Creek Overseas Fund II, Ltd.
B First Amendment to the Participation Agreement dated as
of April 20, 2006, among LJH, Ltd. and Owl Creek Asset
Management, L.P.
CUSIP No. 887151-20-7 13D Page 17 of 18 pages
SIGNATURES
After reasonable inquiry and to the best of knowledge and belief of
the undersigned, the undersigned certify that the information set forth in this
statement is true, complete and correct.
DATED: April 24, 2006
/s/ JEFFREY A. ALTMAN
---------------------
Jeffrey A. Altman, individually, and as
managing member of Owl Creek Advisors, LLC,
for itself and as general partner of
Owl Creek I, L.P. and Owl Creek II L.P.,
and as managing member of the general
partner of Owl Creek Asset Management, L.P.,
for itself and as investment manager to Owl
Creek Overseas Fund, Ltd. and Owl Creek
Overseas Fund II, Ltd.
CUSIP No. 887151-20-7 13D Page 18 of 18 pages
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
A Amended and Restated Transaction Agreement dated as of
April 20, 2006, among LJH, Ltd., Owl Creek I, L.P., Owl
Creek II, L.P., Owl Creek Overseas Fund, Ltd. and Owl
Creek Overseas Fund II, Ltd.
B First Amendment to the Participation Agreement dated as
of April 20, 2006, among LJH, Ltd. and Owl Creek Asset
Management, L.P.