Exhibit 3.34
AMENDMENT
TO THE
SECOND AMENDED AND RESTATED TRUST AGREEMENT
This AMENDMENT ("Amendment") to the Second Amended and Restated Trust
Agreement, dated as of September 29, 1995, among the Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity, but solely as
trustee thereunder ("Owner Trustee"), and 747, Inc., an Oregon corporation
("747"), King, Christian Inc., a Nevada corporation ("King Christian"), and
Delford M. Smith, as beneficiaries, is made as of May 8, 2003, among Owner
Trustee, Evergreen International Aviation, Inc., an Oregon corporation
("Aviation") and Delford M. Smith.
W I T N E S S E T H:
WHEREAS, a trust (the "1986 Trust") was created pursuant to the 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, among
Aviation (an assignee of Evergreen Holdings, Inc.,) as successor to 747 and King
Christian and Delford M. Smith, as Beneficiaries, and Wilmington Trust Company,
not in its individual capacity, but solely as Owner Trustee (as amended and
restated, the "Existing Trust Agreement")
WHEREAS, pursuant to Articles of Merger filed on August 11, 1998 with
the Secretary of State of the State of Oregon, 747 and King Christian were
merged with and into Evergreen Holdings, Inc., an Oregon corporation
("Holdings"), with Holdings as the surviving corporation.
WHEREAS, the Assignment and Assumption Agreement, dated as of July 31,
1998, was entered into between Holdings and Aviation, whereby Holdings assigned
all its rights, title and interests in, to and under the Trust Agreement to
Aviation, and Aviation assumed all Holdings' obligations thereunder.
WHEREAS, Aviation has elected to issue and sell (the "Offering")
senior second secured notes (the "Notes"), with an aggregate principal amount
not to exceed $215,000,000, pursuant to an indenture (the "Indenture") among
Aviation, Holdings and the subsidiary guarantors listed on the signature page
thereof (the "Subsidiary Guarantors"), and Bank One, N.A., as trustee, to be
entered into on or about May 16, 2003.
WHEREAS, Pursuant to the Indenture which governs the Notes, each of
the Subsidiary Guarantors, including the 1986 Trust, will jointly and severally
guarantee (the "Notes Guarantee") the Aviation's obligations arising under the
Indenture and the Notes.
WHEREAS, In connection with the offering of the Notes, Aviation,
Holdings and the Subsidiary Guarantors (except for Wells Fargo Bank Northwest,
National Association, in its capacity as owner trustee of the Evergreen Aircraft
Trust and Boomer Air, Inc.) will also execute and deliver to Morgan Stanley &
Co. Incorporated, Merrill, Lynch, Pierce, Fenner & Smith, Incorporated and PNC
Capital Markets, Inc. (the "Placement Agents"), the placement agreement (the
"Placement Agreement"), to be entered into on or about May 8, 2003. In addition,
Aviation, Holdings and the Subsidiary Guarantors will also enter into a
registration rights agreement (the "Registration Rights Agreement"), to be
entered into on or about May 16, 2003, with the Placement Agents pursuant to the
Placement Agreement.
WHEREAS, Aviation has also elected to enter into the Credit, Guaranty
and Security Agreement, to be dated on or about May 16, 2003 (the "Credit,
Guaranty and Security Agreement"), by and among Aviation, Holdings, and the
Subsidiary Guarantors, the financial institutions which are now or which
thereafter become a party thereto ("Lenders") and PNC Bank, National
Association, as agent for Lenders.
WHEREAS, Pursuant to the Credit, Guaranty and Security Agreement, each
of the Subsidiary Guarantors, including the 1986 Trust, will unconditionally
guarantee (the "Credit Agreement Guarantee") the Aviation's obligations arising
under the Credit, Guaranty and Security Agreement.
WHEREAS, Pursuant to a Security Agreement to be entered into by and
among Aviation, Holdings, the Subsidiary Guarantors (except for the 1986 Trust)
and Bank One, N.A. (the "Second Lien Security Agreement"), and the Intercreditor
Agreement, to be entered into by and among Aviation, Holdings, the Subsidiary
Guarantors, Bank One, N.A. and PNC Bank, National Association (the
"Intercreditor Agreement"), certain subsidiaries of Aviation (other than the
1986 Trust) will grant a second priority security interest in the collateral to
be pledged under the Credit Agreement.
WHEREAS, In connection with the Notes Guarantee and the Credit
Agreement Guarantee of the 1986 Trust as described above, FINOVA Capital
Corporation ("FINOVA") has requested that the Secured Loan Agreement, dated as
of May 7, 1997 (the "Secured Loan Agreement"), among FINOVA Capital Corporation,
Wilmington Trust Company, not in its individual capacity, except as expressly
set forth therein, but solely as Owner Trustee under the Existing Trust
Agreement, 747, Delford M. Smith and King Christian, be amended by an amendment
agreement (the "Secured Loan Amendment Agreement"), to be entered into among
FINOVA, Aviation, as assignee of Holdings (successor to 747, Inc. and King,
Christian Inc.) and Delford M. Smith, providing that an event of default under
the Indenture or under the Credit, Guaranty and Security Agreement constitute an
event of default under the Secured Loan Agreement.
WHEREAS, FINOVA, pursuant to a Waiver and Consent, dated April 26,
2003 and a Waiver and Consent, dated May 5, 2003, has consented to the
participation of the 1986 Trust in all of the transactions contemplated above.
WHEREAS, Owner Trustee, Aviation and Delford M. Smith desire to amend
the terms of the Existing Trust Agreement to allow for participation of the 1986
Trust in the transactions as contemplated above.
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree to amend and restate the Existing Trust Agreement in its entirety
as follows:
Section 1. Amendment of Section 1.2 of the Existing Trust Agreement.
The parties hereto agree that Section 1.2 of the Existing Trust Agreement is
hereby amended to include the following sub-sections:
"(h) to execute and deliver the Indenture, the Placement Agreement,
the Registration Rights Agreement, the Notes Guarantee, the Credit,
Guaranty and Security Agreement, the Intercreditor Agreement, the
Secured Loan Amendment Agreement, and to enter into and execute all
other documents and to perform all agreements or other obligations in
connection with those agreements upon the instruction of the
Beneficiary."
Section 2. Amendment to Section 4.7(a) of the Existing Trust
Agreement. The parties hereto agree that Section 4.7(a) of the Existing Trust
Agreement is hereby amended to include the following sub-section:
"(4) "take all such actions as required to be taken in connection with
the obligations of the Trustee under the Indenture, the Placement
Agreement, the Registration Rights Agreement, the Notes Guarantee, the
Credit, Guaranty and Security Agreement, the Intercreditor Agreement,
the Secured Loan Amendment Agreement, and any and all other documents
or agreements entered into connection therewith at the instruction of
the Beneficiary.
Section 3. Entire Agreement. This Agreement and the other documents
attached hereto or incorporated by reference herein constitute the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all other understandings, oral and written, with respect to the
subject matter hereof.
Section 4. Applicable Law. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN
NEGOTIATED AND MADE IN, AND SHALL BE GOVERNED AND INTERPRETED UNDER THE LAWS OF
THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE BY RESIDENTS THEREOF TO BE
ENTIRELY PERFORMED THEREIN.
Section 5. Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
Section 6. Effect of Amendment. Except as specifically set forth
herein, all other provisions of the Existing Trust Agreement shall remain in
full forth and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to the
Second Amended and Restated Trust Agreement to be duly executed by their duly
authorized officers as of the day and year first above written.
Wilmington Trust Company, not in its
individual capacity, but solely as Owner
Trustee
By: /s/ Charisse L. Rodgers
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Name: Charisse L. Rodgers
Title: Vice President
Evergreen International Aviation, Inc.
By: /s/ Delford M. Smith
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Name: Delford M. Smith
Title: Chief Executive Officer
Delford M. Smith
By: /s/ Delford M. Smith
---------------------------------------
Name: Delford M. Smith
Title:
CONSENTED TO:
FINOVA Capital Corporation
By: /s/ Philip S. Clare
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Name: Philip S. Clare
Title: V.P.
Evergreen International Airlines, Inc.
By: /s/ Robert Warren
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Name: Robert Warren
Title: Vice President