EXHIBIT 10.36
FIRST AMENDMENT TO CREDIT, GUARANTY AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO CREDIT, GUARANTY AND SECURITY AGREEMENT, dated as
of August 14, 2003 (this "First Amendment"), by and among Evergreen
International Aviation, Inc., an Oregon corporation ("Borrower"), the various
Subsidiaries (direct and indirect) of Borrower whose names appear on the
signature pages to the Credit Agreement (as defined below) or who may thereafter
become parties thereto by executing and delivering an Instrument of Joinder (the
"Subsidiary Parties"), a trust created pursuant to that certain Trust Agreement
dated as of May 1, 1997, by and between Boomer Air, Inc., a Delaware
corporation, as owner participant, and First Security Bank, National
Association, a national banking association (predecessor in interest to ▇▇▇▇▇
Fargo Bank Northwest, N. A.), not in its individual capacity, but as owner
trustee (the "Evergreen Aircraft Trust"), Evergreen Holdings, Inc., an Oregon
corporation ("Parent Company"), a Delaware common law trust created pursuant to
that certain Trust Agreement, dated as of February 25, 1986, as amended and
restated pursuant to the Amended and Restated Trust Agreement, dated as of
August 31, 1987, as amended on August 31, 1988, and as amended and restated
pursuant to the Second Amended and Restated Trust Agreement, dated as of
September 29, 1995, as amended as of May 8, 2003, among the Borrower (an
assignee of the Parent Company) as successor to 747, Inc. and ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Inc. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Beneficiaries, and Wilmington Trust Company, not
in its individual capacity, but solely as owner trustee (the "1986 Trust"), the
financial institutions which are now or which hereafter become a party to the
Credit Agreement (collectively, the "Lenders" and individually a "Lender"), PNC
Bank, National Association ("PNC"), as the Administrative Agent for Lenders and
Lead Arranger (PNC, in such capacity, the "Agent"), and GE CAPITAL PUBLIC
FINANCE, INC, as the Documentation Agent (in such capacity, the "Documentation
Agent"). The Borrower, the Subsidiary Parties and the Evergreen Aircraft Trust
are sometimes referred to collectively as the "Credit Parties" and individually
as a "Credit Party". The Subsidiary Parties, the Parent Company, the Evergreen
Aircraft Trust and the 1986 Trust are sometimes referred to as the "Guarantors"
and individually as a "Guarantor".
A. The Credit Parties, Parent Company, the 1986 Trust, Lenders and Agent
have previously entered into that certain Credit, Guaranty and Security
Agreement, dated as of May 16, 2003 (as the same may be further amended,
modified, supplemented or restated from time to time, the "Credit Agreement"),
pursuant to which Lenders and Agent have extended and have agreed to extend and
make available to Borrower certain advances of money under a revolving credit
facility (the "Revolving Credit Facility" in the amount of up to One Hundred
Million Dollars ($100,000,000) upon the terms and conditions set forth in the
Credit Agreement, and any and all agreements, documents and instruments now
existing or hereafter executed and delivered in connection with the Revolving
Credit Facility (collectively, the "Loan Documents").
B. The parties desire to enter into this First Amendment to modify the
Credit Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. All capitalized terms used in this First Amendment and not
otherwise defined herein shall have the meanings ascribed to such capitalized
terms in the Credit Agreement.
2. Amendment of Definition of Eligible Receivables. Any instance in
subsection (i) of the definition of Eligible Receivables in which "90-day" is
referenced shall be corrected to read "150-day".
3. Revision of Certain Other Provisions. The following provisions of the
Credit Agreement are hereby revised as follows: Any instance in Sections 4.4,
4.5 and 8.1(y) of the Credit Agreement in which "90" is referenced shall be
revised to read "150".
4. Representations and Warranties. In order to induce Agent to enter into
this First Amendment, Borrower hereby represents and warrants to Agent as
follows:
(a) After giving effect to this First Amendment: (i) the
representations and warranties contained in the Loan Documents (other than those
that expressly speak as of a different date) are true, accurate and complete in
all material respects as of the date hereof and (ii) no Default or Event of
Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and
deliver this First Amendment and to perform its obligations under the Loan
Documents to which it is a party;
(c) The articles of incorporation, bylaws and other organizational
documents of Borrower delivered to Agent pursuant to the Credit Agreement are
true, accurate and complete and have not been amended, supplemented or restated
and continue to be in full force and effect, except as certified to Agent at the
time of their delivery to Agent;
(d) The execution and delivery by Borrower of this First Amendment and
the performance by Borrower of its obligations under the Credit Agreement and
each of the other Loan Documents to which Borrower is a party have been duly
authorized by all necessary corporate action on the part of Borrower;
(e) The execution and delivery by Borrower of this First Amendment and
the performance by Borrower of its obligations under the Loan Documents do not
and will not contravene (i) any law or regulation binding on or affecting
Borrower, (ii) the articles of incorporation or bylaws of Borrower, (iii) any
order, judgment or decree of any court or other governmental or public body or
authority, or subdivision thereof, binding on Borrower or (iv) any contractual
restriction binding on or affecting Borrower;
(f) The execution and delivery by Borrower of this First Amendment and
the performance by Borrower of its obligations under each Loan Document to which
it is a party do not require any order, consent, approval, license,
authorization or validation of, or filing, recording or registration with, or
exemption by any governmental or public body or authority, or subdivision
thereof, binding on Borrower, except as already has been obtained or made; and
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(g) This First Amendment has been duly executed and delivered by
Borrower and is the binding obligation of Borrower, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar
laws of general application and equitable principles relating to or affecting
creditors' rights.
5. Conditions Precedent. The legal effectiveness of this First Amendment is
subject to the full satisfaction, in Agent's sole discretion, of the following
conditions precedent:
(a) Borrower shall have duly executed this First Amendment and
delivered the same to Agent;
(b) Agent shall have received a certificate of the Secretary of
Borrower with respect to incumbency containing sample signatures and resolutions
authorizing the execution and delivery of each of this First Amendment and the
performance of the transactions contemplated by this First Amendment;
(c) Borrower shall have paid any and all amounts that are due to
Agent, including, but not limited to the estimated reasonable fees and expenses
of Agent's legal counsel in connection with preparation, negotiation and
execution of this First Amendment; and
(d) Agent shall have received any and all consents and other documents
necessary to permit the effectuation of the transactions contemplated by this
First Amendment and the Credit Agreement.
6. Severability. Any provision of this First Amendment that is held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this First Amendment and the effect thereof shall
be confined to the provisions so held to be invalid or unenforceable.
7. Successors and Assigns. This First Amendment is binding upon and shall
inure to the benefit of Borrower, Agent and their respective successors and
permitted assigns, except as limited by applicable law and/or by the terms of
the Credit Agreement.
8. Effect of this First Amendment. Except as expressly provided for in this
First Amendment, this First Amendment shall not, in any way or manner, rescind,
supplement or modify any existing term or provision of the Credit Agreement or
any other Loan Document or waive or diminish any right or remedy of Lenders
under the Credit Agreement, or any other Loan Document, at law in or equity. All
of the amendments set forth in this First Amendment shall be effective as of the
date hereof.
9. Further Assurances. Borrower agrees that it shall do and perform such
acts and execute and deliver such additional documents and instruments as may be
necessary to effectuate the purposes of this First Amendment, including, without
limitation, documents and instruments relating to the perfection and
continuation of the security interest of Agent, on behalf of Lenders, granted
under the Credit Agreement.
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10. Headings. The headings in this First Amendment are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
11. General Release. Borrower, on behalf of itself and its officers,
agents, attorneys, employees, directors, members, shareholders, parent entities,
subsidiaries and affiliates, and any other person or entities who may claim
through any one or all of them (collectively, including Borrower, the "Releasing
Parties"), does hereby release and forever discharges Agent, each Lender and
each of their respective present and former affiliates, subsidiaries,
predecessors, successors, assigns, shareholders, officers, directors, employees,
representatives, administrators and attorneys (collectively, the "Released
Parties"), of and from any and all causes of action, in law or in equity, suits,
debts, liens, claims, demands, damages, losses, costs or expenses, of any nature
whatsoever, known or unknown, suspected or unsuspected, fixed or contingent,
past or present, that any one or all of the Releasing Parties now have, hold or
own or may hereafter have, own or hold, or that any or all of them may ever
have, own or hold, by reason of any matter, cause, fact or thing, act or
omission whatsoever, against the Released Parties by reason of any of the Loan
Documents or any matter, cause or thing whatsoever, at any time, related to the
Loan Documents, the business relationships between Borrower and Lenders, or
otherwise Parties (all of the foregoing, collectively, the "Released Claims").
It is the mutual intention of the parties that this release be unqualifiedly
general in scope and effect and that the foregoing release shall be effective as
a bar against all actions, causes of action, suits, claims or demands of every
kind, nature or character whatsoever, known or unknown, suspected or
unsuspected, fixed or contingent, against the Released.
THE RELEASING PARTIES ACKNOWLEDGE THAT THEY HAVE HAD AN OPPORTUNITY TO
CONSULT WITH LEGAL COUNSEL AND ARE FAMILIAR WITH THE PROVISIONS OF CALIFORNIA
CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
THE RELEASING PARTIES EXPRESSLY WAIVE AND RELINQUISH ANY AND ALL RIGHTS OR
BENEFITS THAT THEY MAY HAVE, OR WHICH MAY BE CONFERRED UPON THEM BY, THE
PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE TO THE FULLEST EXTENT
THAT THEY MAY LAWFULLY WAIVE SUCH RIGHTS OR BENEFITS PERTAINING TO THE SUBJECT
MATTER OF THE ABOVE-DESCRIBED RELEASE. In connection with such waiver and
relinquishment, the Releasing Parties hereby acknowledge that they are aware
that they, or their attorneys, may hereafter discover claims or fact in addition
to, or different from, those that they now know or believe to exist with respect
to the subject matter of this First Amendment, but that it is nonetheless the
intention of the Releasing Parties to hereby fully, finally and forever settle
and release all disputes and differences, known or unknown, suspected or
unsuspected, that constitute the Released Claims.
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12. Governing Law. THIS FIRST AMENDMENT SHALL BE GOVERNED BYAND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS.
13. Integration. This First Amendment (and all Exhibits attached hereto,
which are hereby incorporated by reference in this First Amendment) and the
Credit Agreement, as modified hereby, constitute the entire agreement among the
parties hereto and supersedes all prior and contemporaneous agreements, oral or
written, among the parties concerning the subject matter hereof. No term of this
First Amendment shall be amended, supplemented, modified or waived except by a
writing signed by the parties hereto.
14. Construction. Each party to this First Amendment has reviewed and
participated in the formulation of the components of this First Amendment.
Accordingly, this First Amendment shall be construed simply according to its
fair meaning and not strictly for or against any party.
15. Attorney's Fees. Borrower agrees to pay to Agent, in addition to any
other amounts otherwise due and owing to Agent, all of Agent's reasonable
attorney's fees, costs and expenses incurred in connection with the preparation
of this First Amendment and the resolution of the matters discussed herein.
16. Counterparts. This First Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which, taken
together, shall constitute one and the same agreement.
[Remainder of page intentionally left blank, signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
as of the day and year first written above.
EVERGREEN INTERNATIONAL AVIATION,
INC., as Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: CFO
PNC BANK NATIONAL ASSOCIATION,
as Agent and Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Commitment Percentage: 60%
GE CAPITAL PUBLIC FINANCE, INC.,
as Documentation Agent and Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Commitment Percentage: 25%
HSBC BANK, USA,
as Lender
By: /s/ ▇▇▇▇ ▇. Ip
/s/ ▇. ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. Ip ▇. ▇. ▇▇▇▇
Title: Vice President Senior Vice
President
Commitment Percentage: 15%
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EVERGREEN INTERNATIONAL AIRLINES,
INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
EVERGREEN AVIATION GROUND LOGISTICS
ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President
EVERGREEN HELICOPTERS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
EVERGREEN AIR CENTER, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Corporate Secretary
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EVERGREEN AIRCRAFT SALES AND
LEASING CO.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
EVERGREEN HELICOPTERS
INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
EVERGREEN EQUITY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
EVERGREEN HELICOPTERS OF ALASKA,
INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
BOOMER AIR, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
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EZ EXPRESS CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
THE EVERGREEN AIRCRAFT TRUST
By: ▇▇▇▇▇ FARGO NORTHWEST, N.A.,
not in its individual capacity
but solely as the owner trustee
of Evergreen Aircraft Trust
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
EVERGREEN HOLDINGS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
THE 1986 TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as the owner trustee
of the 1986 Trust
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
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