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Exhibit 10.1
TERMINATION AND RELEASE
AGREEMENT
This TERMINATION AND RELEASE AGREEMENT (this
“Agreement”), is entered into as of June 23, 2008 by
and among ALTERNATIVE ASSET MANAGEMENT ACQUISITION CORP., a
Delaware corporation (“ AAMAC ”), HALCYON
MANAGEMENT GROUP LLC, a Delaware limited liability company (“
Halcyon ”), HALCYON PARTNERS LP, a Delaware limited
partnership (“ Halcyon Partner Vehicle ”),
HALCYON EMPLOYEES LP, (solely in its capacity as “ Halcyon
Representative ”), HALCYON ASSET MANAGEMENT LLC, HALCYON
OFFSHORE ASSET MANAGEMENT LLC, HALCYON ASSET-BACKED ADVISORS LP AND
HALCYON LOAN INVESTORS LP (together with Halcyon, Halcyon Partner
Vehicle and Halcyon Representative, the “ Halcyon
Parties ”). AAMAC and the Halcyon Parties are hereinafter
collectively referred to as the “ Parties ”.
WHEREAS, on March 12,
2008, the Parties entered into that certain Purchase Agreement (the
“ Purchase Agreement ”). All capitalized terms
used herein and not defined, will have the meanings ascribed to
them in the Purchase Agreement;
WHEREAS, upon
execution and delivery of this Agreement, the Founders’
Voting and Support Agreement, dated March 12, 2008, by and among
AAMAC, Halcyon Representative, Hanover Overseas Limited, STC
Investment Holdings LLC, Solar Capital, LLC, Jakal Investments,
LLC, Mark D. Klein, David Hawkins, Steven A. Shenfeld, Bradford R.
Peck and Frederick G. Kraegel, shall terminate with no further
obligations or liabilities for the parties thereto; and
WHEREAS, the Parties
desire to terminate the Purchase Agreement on the terms and
conditions set forth herein.
NOW, THEREFORE, in
consideration of the premises and the mutual agreements hereinafter
set forth, the sufficiency of which is hereby acknowledged, and
intending to be legally bound hereby, the Parties hereby agree as
follows:
1. Termination of
Purchase Agreement . The Parties acknowledge and agree that the
Purchase Agreement is hereby irrevocably terminated in accordance
with Section 7.1(a) of the Purchase Agreement, as a result of which
no provision of the Purchase Agreement, including Section 7.2 and
Article VIII, shall survive and the Purchase Agreement shall be of
no further force or effect, with no further liability or obligation
on any Party, Halcyon Releasee or AAMAC Releasee arising out of or
related to the Purchase Agreement or the Transaction Documents
except, in each case, as set forth in Section 4 hereof.
2. Confidentiality
Agreement . Notwithstanding anything in this Agreement or in
the Purchase Agreement to the contrary, the Parties acknowledge
that the Mutual Confidentiality and Non-Disclosure Agreement, dated
December 12, 2007, between AAMAC and Halcyon Asset Management LLC
(the “ Confidentiality Agreement ”), shall
remain in full force and effect. Except as necessary to comply with
applicable law, AAMAC and the Halcyon Parties shall promptly (i)
destroy or cause to be destroyed all information received by it and
its Associated Parties under the Confidentiality Agreement or
Section 6.5 of the Purchase Agreement and no such person will
retain any copies, extracts or other reproductions in whole or in
part of such written material provided, however , that AAMAC
may keep one archival copy for legal and compliance purposes or to
comply with any bona fide records retention policy, and (ii) AAMAC
and the Halcyon Representative will deliver to the other a written
certificate executed by an authorized officer certifying such
destruction.
3. Mutual
Releases .
(a)
Certain Definitions . As used herein, the following terms
shall have the following meanings:
Exhibit 10.1
“ Associated Party ” means, with
respect to any specified Person, to the extent applicable, such
Person’s (i) predecessors, successors, executors,
administrators, trusts, spouse, heirs and estate, (ii) past,
present and future assigns, agents and representatives, (iii) each
entity that such Person has the power to bind (by such
Person’s acts or signature) or over which such Person
directly or indirectly exercises control and (iv) each entity of
which such Person owns, directly or indirectly, a majority of the
outstanding equity, beneficial, proprietary, ownership or voting
interests.
“ Business Combination ” has the
meaning set forth in Article Sixth of the AAMAC’s certificate
of incorporation.
“ Claims ” mean and include any
and all agreements, causes of action, claims, commitments,
contracts, controversies, covenants, indebtedness, debts, damages,
demands, disputes, obligations, liabilities, rights and suits of
every kind and nature, whether in law or equity, whether known or
unknown, matured or unmatured, accrued or unaccrued, liquidated or
unliquidated, asserted or unasserted, fixed or contingent, and
whether sounding in contract, statute, tort, fraud,
misrepresentation or other legal theory.
“ Halcyon Releasee ” means the
Halcyon Parties, Affiliates of the Halcyon Parties, and the present
and former chairmen, directors, officers, managers, employees,
attorneys, agents and representatives, of the Halcyon Parties or
Affiliates thereof, and the respective Affiliates, successors and
assigns of each of the foregoing.
“ AAMAC Releasee ” means AAMAC,
Affiliates of and the present and former directors, officers,
employees, stockholders, agents and representatives of AAMAC or
Affiliates thereof, and the respective Affiliates, successors and
assigns of each of the foregoing.
“ Released Claims ” means, (i)
with respect to Section 3(b) below, Claims which AAMAC and/or any
of its Associated Parties has had or claims to have had, now has or
claims to have, or may in the future have, whether known or
unknown, against any Halcyon Releasee by reason of any matter,
cause or thing whatsoever from the beginning of the world through
the date hereof, whether arising as law or equity, whether based on
any federal, state or foreign law or right of action and (ii) with
respect to Section 3(c), Claims which the Halcyon Parties and/or
any of its Associated Parties has had or claims to have had, now
has or claims to have, or may in the future have against any AAMAC
Releasee by reason of any matter, cause or thing whatsoever from
the beginning of the world through the date hereof, whether arising
as law or equity, whether based on any federal, state or foreign
law or right of action, in each case, (A) only to the extent
arising out of, or relating to, the Purchase Agreement, any
documents and instruments executed in connection therewith, the
evaluation, negotiation and execution thereof, and any transactions
contemplated by the Purchase Agreement or any such documents and
instruments, and any negotiations or disclosures in connection with
any of the foregoing, but (B) excluding Claims arising out of, or
relating to, the Confidentiality Agreement and this Agreement.
(b)
Release by AAMAC . Effective as of the date hereof, AAMAC,
on behalf of itself and each of its Associated Parties:
(i)
releases and forever discharges each Halcyon Releasee of and from
each Released Claim;
(ii)
waives the benefits of, and any rights arising under, any statute
or common law principle that would provide that the foregoing
release does not extend to claims that AAMAC does not know or
suspect to exist at the time of executing this Agreement;
Exhibit 10.1
(iii)
represents and warrants that (A) neither AAMAC nor any of its
Associated Parties has assigned, transferred, or purported to
assign or transfer, to any Person any Released Claim, (B) to
AAMAC’s best knowledge, no other Person or entity has any
interest in any of the Released Claims, (C) this Agreement has been
duly and validly executed and delivered by AAMAC, (D) this
Agreement is a valid and binding obligation of AAMAC, and is
enforceable against AAMAC in accordance with its terms, and (E) no
authorization, instruction, consent or approval of any Person is
required to be obtained by AAMAC in connection with the execution
and delivery of this Agreement or the performance hereof (other
than the consent of the Board of Directors of AAMAC, which consent
has been obtained); and
(iv)
irrevocably covenants to refrain from asserting any claim or
demand, or commencing, instituting or causing to be commenced, any
proceeding of any kind against any Halcyon Releasee based upon any
Released Claim, it being understood that if AAMAC or any of its
Associated Parties brings any claim, suit, action or manner of
action against any Halcyon Releasee in administrative proceedings,
in arbitration or admiralty, at law, in equity, or mixed, with
respect to any Released Claim, then AAMAC shall indemnify such
Halcyon Releasee in the amount or value of any final judgment or
settlement (monetary or other) and any related cost (including
without limitation reasonable and documented legal fees) entered
against, paid or incurred by the Halcyon Releasee.
(c)
Release by the Halcyon Parties . Effective as of the date
hereof, the Halcyon Parties, on behalf of itself and each of its
Associated Parties:
(i)
releases and forever discharges each AAMAC Releasee of and from
each Released Claim;
(ii)
waives the benefits of, and any rights arising under, any statute
or common law principle that would provide that the foregoing
release does not extend to claims that the Halcyon Parties does not
know or suspect to exist at the time of executing this
Agreement;
(iii)
represents and warrants that (A) neither the Halcyon Parties nor
any of its Associated Parties has assigned, transferred, or
purported to assign or transfer, to any Person any Released Claim,
(B) to the Halcyon Parties’ best knowledge, no other Person
or entity has any interest in any of the Released Claims, (C) this
Agreement has been duly and validly executed and delivered by the
Halcyon Parties, (D) this Agreement is a valid and binding
obligation of the Halcyon Parties, and is enforceable against the
Halcyon Parties in accordance with its terms, and (E) no
authorization, instruction, consent or approval of any Person is
required to be obtained by the Halcyon Parties in connection with
the executio
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