Exhibit 10.2
EXECUTION COPY
SECURITY AGREEMENT
AMONG
BANK ONE, NATIONAL ASSOCIATION
(AS COLLATERAL AGENT),
EVERGREEN INTERNATIONAL AVIATION, INC.
(COMPANY),
EVERGREEN HOLDINGS, INC.
(HOLDINGS),
A CERTAIN RELATED TRUST
AND
CERTAIN OF THE SUBSIDIARIES
OF BORROWER AND HOLDINGS
May 16, 2003
i
TABLE OF CONTENTS
Page
I. DEFINITIONS..............................................................1
1.1 Other Defined Terms...............................................11
1.2 Uniform Commercial Code Terms.....................................11
II. COLLATERAL: GENERAL TERMS..............................................12
2.1 Security Interest in the Collateral...............................12
2.2 Perfection of Security Interest...................................12
2.3 Disposition of Collateral.........................................13
2.4 Assignment of Payments Under Certain U.S. Government
Contracts and U.S. Government Accounts............................13
2.5 Assignment of Payments Under Certain Other Government
Contracts and Other Government Accounts...........................13
2.6 Additional Remedy for Failure to Assign Payments..................14
2.7 Preservation of Collateral........................................15
2.8 Ownership of Collateral...........................................15
2.9 Defense of the Collateral Agent's and Secured Parties'
Interests.........................................................16
2.10 Compliance with Laws..............................................16
2.11 Inspection of Premises............................................17
2.12 Insurance.........................................................17
2.13 Payment of Leasehold Obligations..................................17
2.14 Receivables.......................................................17
(a) Location of Chief Executive Offices..........................17
(b) Collection of Receivables....................................18
(c) Notification of Assignment of Receivables....................18
(d) Power of the Collateral Agent to Act on Company's Behalf.....18
(e) No Liability.................................................19
(f) Establishment of Deposit Accounts............................19
2.15 Inventory.........................................................19
2.16 Maintenance and Valuation of Equipment............................19
2.17 Exculpation of Liability..........................................19
ii
2.18 Financing Statements..............................................20
2.19 Certain Additional Provisions Concerning Aircraft-Related
Collateral........................................................20
III. REPRESENTATIONS AND WARRANTIES..........................................21
3.1 Authority.........................................................21
3.2 Formation and Qualification.......................................21
3.3 Survival of Representations and Warranties........................21
3.4 Corporate Name....................................................22
3.5 Solvency..........................................................22
3.6 Patents, Trademarks, Copyrights and Licenses......................22
3.7 Government Contracts..............................................22
3.8 Assignment of Payments............................................22
3.9 Conflicting Agreements............................................23
3.10 Aircraft and Aircraft-Related Collateral..........................23
3.11 Status As Air Carrier.............................................23
IV. COVENANTS...............................................................23
4.1 Conduct of Business and Maintenance of Existence and Assets.......23
4.2 Execution of Supplemental Instruments.............................23
4.3 Maintenance and Repair Covenant...................................24
4.4 Citizenship and Regulatory Certificates...........................26
4.5 Additional Documents..............................................26
V. RIGHTS AND REMEDIES AFTER DEFAULT.......................................26
5.1 Rights and Remedies...............................................26
5.2 The Collateral Agent's Discretion.................................27
5.3 Set-Off...........................................................27
5.4 Rights and Remedies Not Exclusive.................................27
5.5 Allocation of Payments After Event of Default.....................28
VI. WAIVERS AND JUDICIAL PROCEEDINGS........................................28
6.1 Waiver of Notice..................................................28
6.2 Delay.............................................................28
6.3 Jury Waiver.......................................................29
VII. EFFECTIVE DATE AND TERMINATION..........................................29
7.1 Term..............................................................29
7.2 Termination.......................................................29
iii
7.3 Release...........................................................29
VIII. SECURITY INTEREST ABSOLUTE..............................................30
IX. REGARDING THE AGENT.....................................................30
9.1 Appointment; Nature of Duties.....................................30
9.2 Lack of Reliance on the Collateral Agent and Resignation..........30
9.3 Certain Rights of the Collateral Agent............................31
9.4 Reliance..........................................................31
9.5 Notice of Default.................................................32
9.6 Grantors' Undertaking to the Collateral Agent.....................32
X. MISCELLANEOUS...........................................................32
10.1 Governing Law.....................................................32
10.2 Entire Understanding..............................................33
10.3 Successors and Assigns; New Secured Parties.......................33
10.4 Application of Payments...........................................33
10.5 Indemnity.........................................................34
10.6 Notice............................................................34
10.7 Survival..........................................................34
10.8 Severability......................................................34
10.9 Expenses..........................................................35
10.10 Injunctive Relief.................................................35
10.11 Consequential Damages.............................................35
10.12 Captions..........................................................35
10.13 Counterparts; Facsimile Signatures................................35
10.14 Holdings Collateral...............................................35
10.15 Construction......................................................35
10.16 Intercreditor Agreement...........................................35
Exhibit 10.2
SECURITY AGREEMENT, dated as of May 16, 2003 (the "Agreement"), is
entered into by and among EVERGREEN INTERNATIONAL AVIATION, INC., an Oregon
corporation ("Company"), various Subsidiaries (direct and indirect) of Company
whose names appear on the signature pages to this Agreement (each an "Initial
Grantor" and collectively, the "Initial Grantors") or who may hereafter become
parties hereto by executing and delivering a security agreement supplement
(together with the Initial Grantors, the Evergreen Aircraft Trust (as defined
below) and Holdings (as defined below), each individually a "Grantor" and
collectively, the "Grantors"), 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 Wells
Fargo Bank, N. A.), not in its individual capacity, but as owner trustee (the
"Evergreen Aircraft Trust"), EVERGREEN HOLDINGS, INC., an Oregon corporation
("Holdings") and Bank One, National Association, a national banking association
("Bank One") as collateral agent (the "Collateral Agent") for the Secured
Parties (as defined below).
Whereas, pursuant to an Indenture dated as of May 16, 2003 (as it may
be amended, amended and restated, supplemented or otherwise modified from time
to time, the "Indenture") among the Company, Holdings, certain subsidiaries of
the Company as Subsidiary Guarantors and Bank One, as trustee (the "Trustee"),
the Company has authorized the issuance from time to time of senior second
secured notes (the "Notes") which are guaranteed by Holdings and the Subsidiary
Guarantors.
Whereas, pursuant to the terms of the Indenture, the Grantors are
required to make the grant of the security interest contemplated herein to
secure the Notes and the other obligations of the Company and the other Grantors
under the Indenture.
IN CONSIDERATION of the mutual covenants and undertakings herein
contained, the Grantors and the Collateral Agent hereby agree as follows:
I. DEFINITIONS
"Aeronautics Authority" means each Person who shall from time to time
be vested with the control and supervision of, or have jurisdiction over, the
registration, airworthiness, operation or other matters relating to civil
aviation in the applicable jurisdiction.
"Affiliate" of any Person shall mean (a) any Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with
such Person, or (b) any Person who is a director or officer (i) of such Person;
(ii) of any Subsidiary of such Person; or (iii) of any Person described in
clause (a) above. For purposes of this definition, control of a Person shall
mean the power, direct or indirect, (x) to vote five percent (5%) or more of the
securities having ordinary voting power for the election of directors of such
Person, or (y) to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
"Agreement" shall have the meaning set forth in the preamble hereto.
"Aircraft" shall mean any aircraft as defined in the Federal Aviation
Act, 49 U.S.C. Section 40102(a)(6), including the Airframes and any Engines or
Propellers currently installed
2
thereon, together with any and all Parts from time to time incorporated or
installed in or attached to any of such Aircraft or required to be subject to
the lien of this Agreement or any other agreement entered into in connection
herewith, and all improvements, additions, and appurtenances thereto,
substitutions thereof and replacements thereto, whether now or hereafter
attached thereto or installed thereon.
"Aircraft-Related Collateral" shall mean any Aircraft, Airframe,
Engine, Part or Propeller.
"Airframe" shall mean each of those certain airframes identified on
Schedule 2.8.
"Applicable Jurisdiction" means the jurisdiction of incorporation or
organization of the applicable Person or such other jurisdiction the Uniform
Commercial Code or other law of which governs the perfection, the effect of
perfection or nonperfection or priority of a lien or security interest
hereunder.
"Applicable Law" shall mean all laws, rules and regulations applicable
to the Person, conduct, transaction, covenant, Other Documents or contract in
question, including all applicable common law, all provisions of all applicable
state, federal and foreign constitutions, statutes, rules, regulations and
orders of any Governmental Body, and all orders, judgments and decrees of all
courts and arbitrators.
"Assignment" means a direct assignment of payments or claims under
U.S. Government Contracts, pursuant to and in compliance with the Assignment of
Claims Act.
"Assignment of Claims Act" means Title 31, United States Code Section
3727, and Title 41, United States Code Section 15, as revised or amended, and
any rules or regulations issued pursuant thereto, and also shall be deemed to
include any other laws, rules or regulations governing the assignment of
payments under U. S. Government Contracts or claims against the U.S. Government
or agency thereof.
"Authority" shall have the meaning set forth in Section 4.22(d)
hereof.
"Blocked Account" shall have the meaning set forth in Section 2.14(f)
hereof.
"Blocked Account Agreement" shall have the meaning set forth in
Section 2.14(f) hereof.
"Company" shall have the meaning set forth in the preamble to this
Agreement and shall extend to all permitted successors and assigns of such
Person.
"Business Day" shall mean any day other than Saturday or Sunday or a
legal holiday on which commercial banks are authorized or required by law to be
closed for business in New York, New York and, if the applicable Business Day
relates to any Eurodollar Rate Loans, such day must also be a day on which
dealings are carried on in the London interbank market.
3
"Charges" shall mean all taxes, charges, fees, imposts, levies or
other assessments, including, without limitation, all net income, gross income,
gross receipts, sales, use, ad valorem, value added, transfer, franchise,
profits, inventory, capital stock, license, withholding, payroll, employment,
social security, unemployment, excise, severance, stamp, occupation and property
taxes, custom duties, fees, assessments, liens, claims and charges of any kind
whatsoever, together with any interest and any penalties, additions to tax or
additional amounts, imposed by any taxing or other authority, domestic or
foreign (including, without limitation, the Pension Benefit Guaranty Corporation
or any environmental agency or superfund), upon the Collateral, any Grantor or
any of their respective Affiliates.
"Chattel Paper" shall mean, as to any Person, such person's chattel
paper as such term is defined in the UCC and shall include, without limitation,
all writings owned or held by such person which evidence both a monetary
obligation and a security interest in or a lease of specific goods.
"Closing Date" shall mean May 16, 2003 or such other date as may be
agreed to by the parties hereto.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time and the regulations promulgated thereunder.
"Collateral", with respect to any Person, shall mean and include:
(a) all Receivables (including, in the case of Company, all
Intercompany Notes);
(b) all Equipment;
(c) all General Intangibles (including without limitation, all
Intellectual Property Collateral);
(d) all Inventory;
(e) all Subsidiary Stock;
(f) all Deposit Accounts;
(g) all Investment Property;
(h) all Instruments;
(i) all Chattel Paper;
(j) all Documents;
(k) all Airframes;
(l) all Engines;
4
(m) all Parts, whether or not located at a Designated Location or
other location;
(n) all Spare Parts located at a Designated Location;
(o) all Propellers;
(p) all of such Person's right, title and interest in and to (i) its
respective goods including, but not limited to, all merchandise returned
or rejected by Customers, relating to or securing any of the Receivables;
(ii) all of such Person's rights as a consignor, a consignee, an unpaid
vendor, mechanic, artisan, or other lienor , including stoppage in
transit, setoff, detinue, replevin, reclamation and repurchase; (iii) all
additional amounts due to such Person from any Customer relating to the
Receivables; (iv) warranty claims and similar rights relating to any goods
securing this Agreement; (v) all of such Person's contract rights, rights
of payment which have been earned under a contract right, instruments
(including promissory notes), documents, chattel paper (including
electronic chattel paper), warehouse receipts, deposit accounts, letters
of credit, letter of credit rights, supporting obligations, and money;
(vi) all commercial tort claims (whether now existing or hereafter
arising) including without limitation such commercial tort claims as are
described on Schedule 1.2(k) hereto; (vii) if and when obtained by such
Person, all goods, accounts, general intangibles, instruments, documents,
chattel paper or investment property of third parties in which such Person
has been granted a lien or security interest as security for the payment
or enforcement of Receivables; (viii) all leases, rental agreements,
charter agreements, chattel paper or other agreements respecting any
Airframes, Engines, Parts and Propellers, including without limitation
such Person's right to receive, either directly or indirectly, from any
Person, any accounts, rents or other payments due under such agreements
and such Person's rights under any warranties, relating to any Airframes,
Engines, Spare Parts and Propellers; (ix) all of such Person's rights (but
not its obligations) under any lease described on Schedule 2.8; and (x)
any other goods, accounts, general intangibles, instruments, documents,
chattel paper or investment property now owned or hereafter acquired in
which such Person has expressly granted a security interest;
(q) all of such Person's ledger sheets, ledger cards, files,
correspondence, records, books of account, business papers, computers,
computer software (owned by such Person or in which it has an interest),
computer programs, tapes, disks and documents relating to the items
referred to in any of the foregoing clauses (a), (b), (c), (d), (e), (f),
(g), (h), (i), (j), (k), (l), (m), (n),(o) and (p) including, without
limitation, aircraft logs, flight records, maintenance records and
records, manuals and documents relating to any Airframe, Engine, Parts or
Propellers and any general intangibles relating to or arising out of the
foregoing; and
(r) all proceeds and products of the items referred to in any of the
foregoing clauses (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k),
(l), (m), (n), (o), (p) and (q) in whatever form, including, but not
limited to: cash, deposit accounts (whether or not comprised solely of
proceeds), certificates of deposit, insurance proceeds (including hazard,
flood and credit insurance), negotiable instruments and other instruments
for the
5
payment of money, chattel paper, security agreements, documents, eminent
domain proceeds, condemnation proceeds and tort claim proceeds.
"Collateral Agent" shall have the meaning set forth in the preamble to
this Agreement and shall include its successors and assigns.
"Collateral Exclusions" shall mean such items of Equipment and the
other assets of the Grantors as are set forth on Schedule 1.2(b) hereto.
"Consents" shall mean all filings and all licenses, permits, consents,
approvals, authorizations, qualifications and orders of governmental authorities
and other third parties, domestic or foreign, necessary to carry on Company's
business, including, without limitation, any Consents required under all
applicable federal, state or other applicable law.
"Credit Agreement" shall mean that certain Credit, Guaranty and
Security Agreement dated as of the May 16, 2003, as amended from time to time,
among the Grantors and PNC Bank, National Association, as administrative agent.
"Customer" shall mean and include the account debtor with respect to
any Receivable and/or the prospective purchaser of goods, services or both with
respect to any contract or contract right, and/or any party who enters into or
proposes to enter into any contract or other arrangement with a Person, pursuant
to which such Person is to deliver any personal property or perform any
services.
"Default" shall mean an event which, with the giving of notice or
passage of time or both, would constitute an Event of Default.
"Deposit Account" shall mean any demand, time, savings, passbook or
like account (whether general, special or otherwise) of a Grantor maintained
with a bank, savings and loan association, credit union or like organization,
other than an account evidenced by a certificate of deposit that is an
instrument under the Uniform Commercial Code as in effect in the Applicable
Jurisdiction, and all sums now or hereafter on deposit therein or payable
thereon, and all other personal property and interests in personal property of
such Grantor now held by such organization, and all dividends and distributions
on or other rights in connection with such property, whether now owned or
existing or hereafter created, acquired or arising.
"Designated Location" shall mean the location of any Spare Part which
is set forth on Schedule 2.19, as amended by any Supplement.
"Document" shall mean, as to a Person, any document as such term is
defined in the UCC, and shall include, without limitation, any bill of lading,
dock warrant, dock receipt, warehouse receipt or order for the delivery of
Inventory owned or held by such Person, together with any other document or
receipt which in the regular course of business or financing is treated as
adequately evidencing that the person in possession of it is entitled to
receive, hold and dispose of the document and the goods it covers.
"Dollar" and the sign "$" shall mean lawful money of the United States
of America.
6
"Engine" or "Engines" shall mean an "aircraft engine" as defined in
the Federal Aviation Act, 49 U.S.C. Section 40102(a)(7), including without
limitation each aircraft engine described in Schedule 2.8A hereto (or, if any
such engine shall be replaced pursuant to this Agreement, then such replacement
aircraft engine) (each of which engines has 750 or more rated takeoff horsepower
or the equivalent thereof), together with any and all Parts so long as the same
shall be either incorporated or installed in or attached to such aircraft engine
or required to be subject to the Lien of this Agreement or any other agreement
entered into in connection herewith, and all improvements, appurtenances and
additions thereto, substitutions thereof and replacements thereto, whether now
or hereafter attached thereto or installed thereon. Each such engine shall
constitute an "Engine" for all purposes hereof whether or not from time to time
installed on an Airframe or on any other airframe or located on the ground.
"Event of Default" shall have the meaning set forth in Article X
hereof.
"Evergreen Aircraft Trust" shall have the meaning set forth in the
preamble.
"Excluded Collateral" shall mean (i) any capital stock of an Excluded
Subsidiary and (ii) the Collateral Exclusions.
"Excluded Subsidiaries" shall mean (i) Evergreen Agricultural
Enterprises, Inc., Evergreen Agricultural Products, LLC, Vigna Maria Grazia,
LLC, Evergreen Vintage Aircraft, Inc.; (ii) any entity which is Subsidiary on
the Closing Date and is not a Significant Subsidiary; and (iii) any Subsidiary
of such entities.
"FAA" means the Federal Aviation Administration of the United States
of America and any successor governmental authority.
"FAA Application for Registration" means the application for
registration of the Aircraft on AC Form 8050-1 (or such other form as may be
acceptable to the FAA for recordation with it on the Closing Date).
"Federal Aviation Act" means Subtitle VII of Title 49 of the United
States Code, as amended from time to time, and the rules and regulations
promulgated thereunder.
"General Intangibles" of any Person shall mean and include all of such
Person's general intangibles, whether now owned or hereafter acquired including
without limitation all Intellectual Property Collateral, whether now owned or
hereafter acquired including, without limitation, all payment intangibles, all
choses in action, causes of action, corporate or other business records,
records, registrations, licenses, franchises, customer lists, tax refunds, tax
refund claims, all claims under guaranties, security interests or other security
held by or granted to such Person to secure payment of any of the Receivables by
a Customer (other than to the extent covered by Receivables) all rights of
indemnification and all other intangible property of every kind and nature
(other than Receivables).
"Government Account" shall mean a U.S. Government Account or an Other
Government Account.
7
"Government Contract" shall mean a U.S. Government Contract or an
Other Government Contract.
"Governmental Body" shall mean any nation or government, any state or
other political subdivision thereof or any entity exercising the legislative,
judicial, regulatory or administrative functions of or pertaining to a
government.
"Grantor" and "Grantors" shall have the respective meanings set forth
in the preamble to this Agreement.
"Holdings" shall mean Evergreen Holdings, Inc., an Oregon corporation.
"Holdings Collateral" shall mean all shares of capital stock or other
equity securities or rights to acquire equity securities of the Company now or
hereafter held by Holdings (whether currently issued and outstanding or to be
issued and outstanding subsequent to the date of this Agreement) and all new,
substituted and/or additional securities, documents, instruments and general
intangibles issued with respect thereto or in exchange therefor or in redemption
thereof (collectively, the "Pledged Securities"), and the certificates
representing such Pledged Securities, if any, and all now existing and hereafter
arising rights of the holder of such Pledged Securities, including, without
limitation, (a) all voting rights and rights to and interest in all cash and
non-cash dividends and/or distribution of any kind and nature, (b) all other
property now or hereafter distributable on account of received or receivable
with respect to any of the foregoing, (c) all of Holdings' rights under any
option, warrant or other security instrument or agreement to acquire shares of
additional capital stock in the Company and (d) all proceeds of the foregoing
and includes whatever is receivable or received when the Holdings Collateral or
proceeds are sold, collected, exchanged or otherwise disposed of, whether such
disposition is voluntary or involuntary.
"Indenture" shall have the meaning set forth in the preamble to this
Agreement.
"Instrument" shall mean any instrument, as such term is defined in the
UCC, of a Person, and shall include, without limitation, any draft, check,
certificate of deposit, note, bill of exchange, security, or any other writing
owned or held by such person which evidences a right to the payment of money and
is not itself a security agreement or lease and is of a type which is
transferred in the ordinary course of business by delivery with any necessary
endorsement or assignment.
"Intellectual Property Collateral" of any Person means and includes
such Person's right, title and interest in and to any intellectual property,
whether now owned or hereafter acquired in any country, including, without
limitation: (i) patents and patent applications; (ii) all common law and
registered trademarks, service marks, trade names, domain names, other source of
business identifiers, all registrations, pending registrations, applications and
recordings thereof, and all of the goodwill connected with the use of and
symbolized by the foregoing; (iii) copyrights; (iv) trade secrets; (v) computer
programs and software; (vi) all licenses to the foregoing; and (vii) any and all
causes of action which have existed, exist now or may exist in the future by
reason of infringement, dilution, breach or violation of the foregoing or injury
to the goodwill associated therewith.
8
"Intercompany Note" shall mean a promissory note evidencing
Indebtedness owed to the Company by any one of the Subsidiary Parties.
"Intercreditor Agreement" shall mean the Intercreditor Agreement dated
as of the May 16, 2003, as amended from time to time, between PNC Bank, National
Association, as Senior Agent thereunder and Bank One as Junior Collateral Agent
thereunder.
"Inventory" of any Person shall mean and include all of such Person's
now owned or hereafter acquired goods, merchandise and other personal property
(including without limitation, Aircraft, Engines, Parts and Propellers which
otherwise constitute Inventory), whether such goods, merchandise or other
personal property is held as inventory for sale to third parties or as
replacement or surplus parts relating to Aircraft or other property used by or
on behalf of any Grantor or other Affiliate (whether such goods, merchandise or
personal property is, or is not, considered inventory for GAAP purposes),
wherever located, to be furnished under any consignment arrangement, contract of
service or held for sale or lease, all raw materials, work in process, finished
goods and materials and supplies of any kind, nature or description which are or
might be used or consumed in such Person's business or used in selling or
furnishing such goods, merchandise and other personal property, and all
documents of title or other documents representing them.
"Investment Property" of any Person shall mean and include all of such
Person's now owned or hereafter acquired securities (whether certificated or
uncertificated), securities entitlements, securities accounts, commodities
contracts and commodities accounts.
"Leasehold Interests" of any Person shall mean all of such Person's
right, title and interest in and to any leasehold estate in real property.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, security interest, lien (whether statutory or otherwise), charge,
claim or encumbrance, or preference, priority or other security agreement or
preferential arrangement held or asserted in respect of any asset of any kind or
nature whatsoever including, without limitation, any conditional sale or other
title retention agreement, any lease having substantially the same economic
effect as any of the foregoing, and the filing of, or agreement to give, any
financing statement under the Uniform Commercial Code or comparable law of any
jurisdiction.
"Material Adverse Effect" shall mean a material impairment of the
value of the Collateral, or the Collateral Agent's Liens on the Collateral or
the priority of any such Lien; or a material impairment of the benefits of the
Collateral Agent's and each Secured Party's rights and remedies under this
Agreement and the Other Documents.
"Notes" shall have the meaning set forth in the preamble to this
Agreement.
"Obligations" shall mean and include any and all debts, liabilities,
obligations, covenants and duties owing by a Grantor to the Secured Parties or
the Collateral Agent or to any other direct or indirect subsidiary or affiliate
of the Collateral Agent or any Secured Party of any kind or nature, present or
future under this Agreement or any Other Document (including, without
limitation, any interest accruing thereon after maturity, or after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding
9
relating to such Person, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether or not evidenced by any note,
guaranty or other instrument, whether arising under any agreement, instrument or
document, whether or not for the payment of money, whether arising by reason of
an extension of credit, opening of a letter of credit, loan, equipment lease or
guarantee, under any interest or currency swap, future, option or other similar
agreement, or in any other manner, whether arising out of overdrafts or deposit
or other accounts or electronic funds transfers (whether through automated
clearing houses or otherwise) or out of the Collateral Agent's or any Secured
Parties non-receipt of or inability to collect funds or otherwise not being made
whole in connection with depository transfer check or other similar
arrangements, whether direct or indirect (including those acquired by assignment
or participation), absolute or contingent, joint or several, due or to become
due, now existing or hereafter arising, contractual or tortious, liquidated or
unliquidated, regardless of how such indebtedness or liabilities arise or by
what agreement or instrument they may be evidenced or whether evidenced by any
agreement or instrument, and any amendments, extensions, renewals or increases
and all costs and expenses of the Collateral Agent and any Secured Party
incurred in the documentation, negotiation, modification, enforcement,
collection or otherwise in connection with any of the foregoing, including but
not limited to reasonable attorneys' fees and expenses and all obligations of
any such Person to the Collateral Agent or Secured Parties to perform acts or
refrain from taking any action.
"Opinion of Counsel" shall mean an opinion of counsel which shall be
satisfactory to the Collateral Agent and which may be provided by in-house
counsel of the Company.
"Other Documents" shall mean the Notes, the Indenture and any and all
other agreements, instruments and documents, including, without limitation,
guaranties, pledges, supplemental indentures, powers of attorney, consents or
other similar agreements, now or hereafter executed by any Grantor and/or
delivered to the Collateral Agent or any Secured Party in respect of the
transactions contemplated by this Agreement or the Indenture.
"Other Government" shall mean the government of any state of the
United States of America, the District of Columbia, or any foreign nation, or
any subdivision or agency of any of the foregoing.
"Other Government Accounts" shall mean all Receivables arising out of
any Other Government Contract.
"Other Government Contracts" shall mean all contracts with an Other
Government, including all renewals, extensions, modifications, change orders and
amendments thereof.
"Parent" of any Person shall mean a Person owning, directly or
indirectly at least fifty percent (50%) of the shares of stock or other
ownership interests having ordinary voting power to elect a majority of the
directors of the Person, or other Persons performing similar functions for any
such Person.
10
"Parts" shall mean all appliances, avionics (including, without
limitation, radio, radar, navigation systems, or other electronic equipment),
parts, components, instruments, appurtenances, attachments, accessories,
furnishings and other equipment of whatever nature and any replacements of the
foregoing, which may from time to time be incorporated or installed in or
attached to an Airframe, airframe, Engine, engine, Propeller, or propeller or
located on the ground (and includes, without limitation, the terms "appliances"
and "spare parts" as defined in the Federal Aviation Act, 49 U.S.C. Sec.
40102(a)(11) and (38)).
"Person" shall mean any individual, sole proprietorship, partnership,
corporation, business trust, joint stock company, trust, unincorporated
organization, association, limited liability company, institution, public
benefit corporation, joint venture, entity or government (whether federal,
state, county, city, municipal or otherwise, including any instrumentality,
division, agency, body or department thereof).
"Premises" shall mean the real property premises set forth in Schedule
2.8 hereof.
"Propeller" shall mean a "propeller" as defined in the Federal
Aviation Act, 49 U.S.C. Section 40102(a)(7), including without limitation each
aircraft propeller described in Schedule 2.8 hereto (or, if any such propeller
shall be replaced pursuant to this Agreement, then such replacement propeller)
(each of which propellers is capable of absorbing 750 or more rated takeoff
shaft horsepower), together with, in the case of each propeller referred to
above, any and all Parts so long as the same shall be either incorporated or
installed in or attached to such propeller or required to be subject to the Lien
of this Agreement or any other agreement entered into in connection herewith,
and all improvements and additions thereto, substitutions thereof and
replacements thereto. Each such propeller shall constitute a "Propeller" for all
purposes hereof whether or not from time to time installed on an Airframe or on
any other airframe or located on the ground.
"RCRA" shall mean the Resource Conservation and Recovery Act, 42
U.S.C. Sections 6901 et seq., as same may be amended from time to time.
"Receivables" of any Person shall mean and include all of such
Person's accounts, contract rights, instruments (including those evidencing
indebtedness owed to such Person by its Affiliates), documents, chattel paper
(including electronic chattel paper), general intangibles relating to accounts,
drafts and acceptances, credit card receivables and all other forms of
obligations owing to such Person arising out of or in connection with the sale
or lease of Inventory or the rendition of services, all supporting obligations,
guarantees and other security therefor, whether secured or unsecured, now
existing or hereafter created, and whether or not specifically sold or assigned
to the Collateral Agent hereunder.
"Replacement Assets" means, on any date, property or assets (other
than current assets) of a nature or type or that are used in a business (or an
investment in a company having property or assets of a nature or type, or
engaged in a business) similar or related to the nature or type of the property
and assets of, or the business of, the Grantors existing on such date.
"Required Secured Parties" shall mean the amount of Holders determined
in accordance with Section 6.05 of the Indenture.
11
"Rotary Wing Aircraft" shall mean such items of Aircraft as are set
forth on Schedule 2.8 hereto.
"Secured Party" shall mean each of the Collateral Agent, the Trustee
and the holders from time to time of the Notes.
"Small Fixed-Wing Aircraft" shall mean such items of Aircraft as are
set forth on Schedule 2.8 hereto.
"Spare Part" shall mean any "spare part" or "appliance" as defined in
the Federal Aviation Act maintained by or on behalf of Evergreen International
Airlines, Inc. or Evergreen Helicopters Inc.
"State Government Contracts Law" shall mean any law, regulation or
policy applicable to any Other Government Contract or Other Government Account
which restricts or imposes limitations on the assignability of or hypothecation
of or imposes a set-off right on, such Other Government Contract or Other
Government Account.
"Subsidiary" or in the collective, "Subsidiaries" shall mean, with
respect to a Person, a corporation or other entity of whose shares of stock or
other ownership interests having ordinary voting power (other than stock or
other ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the directors of such corporation, or other
Persons performing similar functions for such entity, are owned, directly or
indirectly, by such Person.
"Subsidiary Stock" shall mean, with respect to any Person, all of the
issued and outstanding shares of capital stock of such Person's Subsidiaries,
excluding any Subsidiaries which are Excluded Subsidiaries.
"Supplement" shall have the meaning set forth in Section 2.19(c).
"U.S. Government" means the government of the United States of America
or the departments or agencies of the United States, but does not include the
government of any state or the District of Columbia or any departments or
agencies of any state or of the District of Columbia.
"U.S. Government Accounts" means all Receivables arising out of any
U.S. Government Contract.
"U.S. Government Contracts" means all contracts with a U.S.
Government, including all renewals, extensions, modifications, change orders and
amendments thereof.
1.1 Other Defined Terms. Terms not defined herein shall have the
meanings ascribed thereto in the Indenture.
1.2 Uniform Commercial Code Terms. All terms used herein and defined
in the Uniform Commercial Code as adopted in the Applicable Jurisdiction from
time to time shall have the meaning given therein unless otherwise defined
herein. To the extent the definition of
12
any category or type of collateral is expanded by any amendment, modification or
revision to the Uniform Commercial Code, such expanded definition will apply
automatically as of the date of such amendment, modification or revision.
II. COLLATERAL: GENERAL TERMS
2.1 Security Interest in the Collateral. To secure the prompt
payment and performance to the Secured Parties of the Obligations, each Grantor
hereby assigns, pledges and grants to the Collateral Agent for its benefit and
for the ratable benefit of each Secured Party a continuing security interest in
and to all of its Collateral, whether now owned or existing or hereafter
acquired or arising and wheresoever located. Each Grantor shall take such
actions as may be reasonably necessary or appropriate to evidence, protect and
perfect the Collateral Agent's security interest. Each Grantor shall promptly
provide the Collateral Agent with written notice of all commercial tort claims
of such Grantor, such notice to contain the case title together with the
applicable court and a brief description of the claim(s). Upon delivery of each
such notice, each Grantor shall be deemed to hereby grant to the Collateral
Agent a security interest and lien in and to such commercial tort claims and all
proceeds thereof.
2.2 Perfection of Security Interest. Each Grantor shall take all
action that may be necessary, or that the Collateral Agent may reasonably
request, so as at all times to maintain the validity, perfection, enforceability
and priority of the Collateral Agent's security interest in the Collateral or to
enable the Collateral Agent to protect, exercise or enforce its rights hereunder
and in the Collateral, including, but not limited to, (i) immediately
discharging all Liens other than Permitted Liens, (ii) using commercially
reasonable efforts to obtain landlords' or mortgagees' lien waivers from
landlords or mortgagees with respect to all Premises leased or owned by such
Grantor (and subject to mortgage), (iii) delivering to the Collateral Agent,
endorsed or accompanied by such instruments of assignment as the Collateral
Agent may specify, and stamping or marking, in such manner as the Collateral
Agent may specify, any and all chattel paper, instruments, letters of credits
and advices thereof and documents evidencing or forming a part of the
Collateral, (iv) entering into warehousing, lockbox and other custodial
arrangements acceptable to the Collateral Agent in its sole discretion including
the Blocked Account Agreements, (v) executing and delivering financing
statements, control agreements, instruments of pledge, mortgages, notices and
assignments, in each case in form and substance acceptable to the Collateral
Agent in its sole discretion, relating to the creation, validity, perfection,
maintenance or continuation of the Collateral Agent's security interest under
the Uniform Commercial Code, and with respect to Collateral in which a security
interest may not be perfected by filing a financing statement in accordance with
the Uniform Commercial Code, by appropriate filings and/or registrations with or
in appropriate governmental offices or by appropriate filings with the United
States Patent and Trademark Office or the United States Copyright Office, and
(vi) taking such further similar action as Collateral Agent shall reasonably
request. Each Grantor authorizes the filing of any financing statements or
continuation statements, and amendments to financing statements or any similar
document in any Applicable Jurisdiction and with any filing offices as
Collateral Agent may reasonably determine are necessary or advisable to perfect
the security interest granted to the Collateral Agent under Section 2.1. Such
financing statements may describe the Collateral in the same manner as described
herein or may contain an indication or description of collateral that describes
such property in any other manner as Collateral Agent shall reasonably determine
is necessary,
13
advisable or prudent to ensure the perfection of the security interest in the
Collateral granted to Collateral Agent herein, including, without limitation,
describing such property as "all assets" or "all personal property, whether now
owned or hereafter required". Each Grantor also hereby authorizes the Collateral
Agent to file chattel mortgages with respect to Aircraft-Related Collateral.
Each Grantor agrees that it shall execute collateral assignments of leases
relating to Aircraft Related Collateral owned by the Evergreen Aircraft Trust.
All charges, expenses and fees the Collateral Agent may incur in doing any of
the foregoing, and any local taxes relating thereto, shall be paid to the
Collateral Agent immediately upon demand.
2.3 Disposition of Collateral. The Grantors will use commercially
reasonable efforts to safeguard and protect all Collateral for the Collateral
Agent's account and shall make no disposition of such Collateral except in
compliance with the Indenture.
2.4 Assignment of Payments Under Certain U.S. Government Contracts
and U.S. Government Accounts. Each Grantor shall use its best efforts to
promptly secure, for each U.S. Government Contract or U.S. Government Account
existing on the Closing Date, specific Assignments of payments due or to become
due, and acknowledgments thereof within 90 days after the Closing Date. Upon the
creation of any U.S. Government Contract or U.S. Government Account after the
Closing Date, each Grantor shall promptly thereafter execute and deliver to the
Collateral Agent specific Assignments of payments due or to become due, and
acknowledgements thereof, with respect to any such U.S. Government Account. Each
Grantor shall seek, and shall use commercially reasonable efforts to obtain, a
Set-Off Waiver acceptable to the Collateral Agent in its sole discretion as to
each U.S. Government Contract or U.S. Government Account, whether in existence
on the Closing Date or created thereafter. The Company shall execute and deliver
any and all documents and take all steps necessary to protect the Collateral
Agent's interest in the Collateral under the Federal Assignment of Claims Act
and deliver to the Collateral Agent appropriately endorsed, any instrument or
chattel paper connected with any Receivable arising out of contracts between any
Grantor and the U.S. Government or Other Government. Without limiting the
generality of the foregoing, the Company shall promptly notify the Collateral
Agent when the Company obtains any new U. S. Government Contract or U. S.
Government Account for which Payments are to be specifically assigned to the
Collateral Agent pursuant to this Agreement, and the Company shall furnish to
the Collateral Agent, upon request, a copy of each Government Contract of the
Company and a copy of each amendment thereto or modification thereof which
changes the price of such contract or the amount funded to pay for such
contract, except to the extent that furnishing such copies may be prohibited by
government security regulations or by the terms of such contract. The separate
Assignment to the Collateral Agent of a right to payment under specific U.S.
Government Contracts, as contemplated under this Section, shall not be deemed to
limit the Collateral Agent's security interest to Payments under those
particular U.S. Government Contracts and the related U.S. Government Accounts,
but rather the Collateral Agent's security interest, as stated above, shall
extend to Payments under any and all U.S. Government Contracts and the related
U.S. Government Accounts and proceeds thereof, now or hereafter owned or
acquired by a Grantor.
2.5 Assignment of Payments Under Certain Other Government Contracts
and Other Government Accounts. If requested by the Collateral Agent, on or after
90 days following the Closing Date, and thereafter upon the creation of any
Other Government Contract or Other Government Account, the applicable Grantor
shall promptly thereafter deliver to the Collateral
14
Agent specific assignments of payments due or to become due, and acknowledgments
thereof, with respect to any Other Government Account designated by the
Collateral Agent and shall provide Set-Off Waivers acceptable to the Collateral
Agent in its sole discretion. The Company shall execute and deliver any and all
documents and take any and all steps necessary to provide the Collateral Agent
with an assignment, acceptable to the Collateral Agent in its sole discretion,
with respect to such Other Government Contract or Other Government Account, and
take all steps necessary to protect the Collateral Agent's interest in the
Collateral under State Government Contracts Law and deliver to the Collateral
Agent appropriately endorsed, any instrument or chattel paper connected with any
Receivable arising out of contracts between any Grantor and an Other Government.
Without limiting the generality of the foregoing, such Grantor shall promptly
notify the Collateral Agent when the Company obtains any new Other Government
Contract or Other Government Account for which Payments are to be specifically
assigned to the Collateral Agent pursuant to this Agreement, and the Company
shall furnish to the Collateral Agent, upon request, a copy of each Other
Government Contract of the Company and a copy of each amendment thereto or
modification thereof which changes the price of such contract or the amount
funded to pay for such contract, except to the extent that furnishing such
copies may be prohibited by government security regulations or by the terms of
such contract. The separate assignment to the Collateral Agent of a right to
payment under specific Other Government Contracts, as contemplated under this
Section, shall not be deemed to limit the Collateral Agent's security interest
to payments under those particular Other Government Contracts and the related
Other Government Accounts, but rather the Collateral Agent's security interest,
as stated above, shall extend to Payments under any and all Other Government
Contracts and the related Other Government Accounts and proceeds thereof, now or
hereafter owned or acquired by the Grantor. Each such Person is now in
compliance and hereby covenants and agrees that it will in the future comply
with any and all of the requirements of the Assignment of Claims Act and
applicable State Government Contracts Law, where such statutes are applicable to
any U.S. Government Contract or Other Government Contract.
2.6 Additional Remedy for Failure to Assign Payments. The Grantors
acknowledge that the Collateral Agent will be irreparably harmed if a Grantor
fails to assign Payments due or to become due under any Government Contract when
required by this Agreement in the event a Receivable which constitutes an
Eligible Receivable becomes a Receivable that is not an Eligible Receivable, and
that the Collateral Agent shall, under such circumstances, have no adequate
remedy at law. Therefore, the Grantors agree that the Collateral Agent shall be
entitled to the following remedies in such event, in addition to all other
remedies allowed by law or under this Agreement,
(a) an injunction compelling the Grantors' compliance with the
provisions of this Agreement requiring the Grantor to assign Payments due
or to become due under any Government Contract;
(b) the appointment of a receiver, with instructions that the
receiver shall comply, in the Grantor's name and on its behalf, with the
provisions of this Agreement requiring the Grantor to assign Payments due or to
become due under any Government Contract; and
15
(c) such other or further equitable relief as may be necessary or
desirable to secure to the Collateral Agent the benefits of the rights of
an assignee under the Assignment of Claims Act or State Government
Contracts Law.
Sections 2.4, 2.5 and 2.6 herein shall apply, to the extent
practicable, after giving effect to Sections 4.4, 4.5 and 4.6 of the Credit
Agreement.
2.7 Preservation of Collateral. If a Default or Event of Default
occurs and is continuing, in addition to the rights and remedies set forth in
Section 5.1 hereof, the Collateral Agent: (a) may at any time take such steps as
the Collateral Agent deems necessary to protect the Collateral Agent's interest
in and to preserve the Collateral, including the hiring of such security guards
or the placing of other security protection measures as the Collateral Agent may
deem appropriate; (b) may employ and maintain at any of the Grantors' premises a
custodian who shall have full authority to do all acts necessary to protect the
Collateral Agent's interests in the Collateral; (c) may lease warehouse
facilities to which the Collateral Agent may move all or part of the Collateral;
(d) may use the Grantors' owned or leased lifts, hoists, trucks and other
facilities or equipment for handling or removing the Collateral; and (e) shall
have, and is hereby granted, a right of ingress and egress to the places where
the Collateral is located, and may proceed over and through any of the Grantors'
owned or leased property. Collateral Agent shall attempt in good faith to
exercise such right of ingress and egress during normal business hours. Company
shall cooperate fully with all of the Collateral Agent's efforts to preserve the
Collateral and will take such actions to preserve the Collateral as the
Collateral Agent may direct. All of the Collateral Agent's expenses of
preserving the Collateral, including any expenses relating to the bonding of a
custodian, shall be charged to Company's Account as a Revolving Advance and
added to the Obligations.
2.8 Ownership of Collateral. With respect to the Collateral, at the
time the Collateral becomes subject to the Collateral Agent's security interest:
(a) the applicable Grantor shall be the sole owner of and fully authorized and
able to sell, transfer, pledge and/or grant a security interest, which shall be
of second priority subject to Permitted Liens, in each and every item of its
respective Collateral to the Collateral Agent; and, except for such Permitted
Liens the Collateral shall be free and clear of all Liens and encumbrances
whatsoever; or (b) each document and agreement executed by the Grantors (or any
of them) or delivered to the Collateral Agent or any Secured Party in connection
with this Agreement shall be true and correct in all respects; and (c) all
signatures and endorsements of any Grantor that appear on such documents and
agreements shall be genuine and Company shall have full capacity to execute
same. Schedule 2.8A sets forth a true, correct and complete list of each
Grantor's Aircraft (including Small Fixed-Wing Aircraft and Rotary Wing
Aircraft), Engines and Propellers each capable of producing at least 750
horsepower or the equivalent thereof, identifying which of the foregoing
categories in which each such item is properly categorized, identifying each
such item by manufacturer, model and serial number and in the case of Aircraft,
federal identification number. Schedule 2.8B sets forth a true, correct and
complete list of the locations where all inventory and Parts of the Grantors are
located. All Inventory, Equipment and Parts shall at all times (other than as
consented to by the Collateral Agent in writing) be located at the locations set
forth on Schedule 2.8B, except with respect to (i) the sale of Inventory in the
ordinary course of business; (ii) Collateral which is in transit in the ordinary
course of such Grantor's business and (iii) Aircraft, Engines, Propellers and
Parts and other related Equipment in use or subject to off-site
16
maintenance in the ordinary course of such Grantor's business and (iii) other
Collateral to the extent permitted by the Indenture and the Other Documents.
Schedule 2.8B sets forth each location where the Company or any Grantor conducts
business (the "Premises"). No Grantor may maintain any item of Collateral
consisting of Rotary Wing Aircraft or Small Fixed-Wing Aircraft in a location
outside the United States for a period in excess of thirty (30) days in any
fiscal year without the prior written consent of the Collateral Agent, which
consent shall not be unreasonably withheld. Days during which such item of
Collateral is in transit are not counted toward such thirty (30) day limitation.
Each Grantor shall provide to the Collateral Agent prompt written notice when
the location of any item of Collateral consisting of Rotary Wing Aircraft and
Small Fixed-Wing Aircraft is moved to a location outside the United States.
2.9 Defense of the Collateral Agent's and Secured Parties'
Interests. Until (a) payment and performance in full of all of the Obligations
and (b) termination of this Agreement, the Collateral Agent's interests in the
Collateral shall continue in full force and effect. During such period no
Grantor shall, without the Collateral Agent's prior written consent, pledge,
sell (except Inventory in the ordinary course of business and Equipment to the
extent permitted in Section 2.3 hereof), assign, transfer, create or suffer to
exist a Lien upon or encumber or allow or suffer to be encumbered in any way
except for Permitted Liens, any part of the Collateral. The Grantors shall
defend the Collateral Agent's interests in the Collateral against any and all
Persons whatsoever. At any time following demand by the Collateral Agent for
payment of all Obligations, the Collateral Agent shall have the right to take
possession of the indicia of the Collateral and the Collateral in whatever
physical form contained, including without limitation: labels, stationery,
documents, instruments and advertising materials. If the Collateral Agent
exercises this right to take possession of the Collateral, the Grantors shall,
upon demand, assemble it in the best manner possible and make it available to
the Collateral Agent at a place reasonably convenient to the Collateral Agent.
In addition, with respect to all Collateral, the Collateral Agent and Secured
Parties shall be entitled to all of the rights and remedies set forth herein and
further provided by the Uniform Commercial Code or other applicable law. If an
Event of Default has occurred and is continuing, the Grantors shall at the
request of the Collateral Agent, and the Collateral Agent may, at its option,
instruct all suppliers, carriers, forwarders, warehousers or others receiving or
holding cash, checks, Inventory, documents or instruments in which the
Collateral Agent holds a security interest to deliver same to the Collateral
Agent and/or subject to the Collateral Agent's order and if they shall come into
any Grantor's possession, they, and each of them, shall be held by such Grantor
in trust as the Collateral Agent's trustee, and such Grantor will promptly, an
in any event within one Business Day of receipt, deliver them to the Collateral
Agent in their original form together with any necessary endorsement.
2.10 Compliance with Laws. Each Grantor shall comply with all acts,
rules, regulations and orders of any legislative, administrative or judicial
body or official applicable to the Collateral or any part thereof or to the
operation of such Grantor's business the non-compliance with which could
reasonably be expected to have a Material Adverse Effect. Each Grantor may,
however, contest or dispute any acts, rules, regulations, orders and directions
of those bodies or officials in any reasonable manner, provided that any related
Lien is inchoate or stayed and sufficient reserves are established to the
reasonable satisfaction of the Collateral Agent to protect the Collateral
Agent's Lien on or security interest in the Collateral. The Collateral at all
times shall be maintained in accordance with the requirements of all insurance
17
carriers which provide insurance with respect to the Collateral so that such
insurance shall remain in full force and effect.
2.11 Inspection of Premises. At all reasonable times the Collateral
Agent (on behalf of one or more Secured Parties) upon reasonable notice to the
Grantors shall have full access to and the right to audit, check, inspect and
make abstracts and copies from the Grantors' books, records, audits,
correspondence and all other papers relating to the Collateral and the operation
of Company's business. The Collateral Agent (on behalf of one or more Secured
Parties) may enter upon any of the Grantors' premises at any time during
business hours and at any other reasonable time, and from time to time, for the
purpose of inspecting the Collateral and any and all records pertaining thereto
and the operation of the Grantors' businesses.
2.12 Insurance. To the extent practicable, at its own cost and
expense in amounts and with carriers that in the reasonable good faith judgment
of the Company is appropriate, each Grantor shall as soon as practicable after
the Closing Date furnish appropriate loss payable endorsements in form and
substance acceptable to the Collateral Agent, naming the Collateral Agent as an
additional insured or if acceptable to the Collateral Agent, loss payee, as its
interests may appear with respect to all insurance coverage, and providing (A)
that all proceeds thereunder shall be payable to the Collateral Agent, (B) no
such insurance shall be affected by any act or neglect of the insured or owner
of the property described in such policy, and (C) that such policy and
additional insured or loss payable clauses may not be cancelled, amended or
terminated unless at least seven days' prior written notice is given to the
Collateral Agent. In the event of any loss thereunder, the carriers named
therein hereby are directed by the Collateral Agent and such Grantor to make
payment for such loss to the Collateral Agent and not to such Grantor and the
Collateral Agent jointly.
2.13 Payment of Leasehold Obligations. Each Grantor shall at all
times pay, when and as due, its rental obligations under all leases under which
it is a tenant, and shall otherwise comply, in all material respects, with all
other terms of such leases and keep them in full force and effect and, at the
Collateral Agent's reasonable request will provide evidence of having done so,
except to the extent that the aggregate rental payments under such lease is not
in excess of $2,000,000.
2.14 Receivables.
(a) Location of Chief Executive Offices. Company's chief executive
office and principal place of business is located at 3850 Three Mile Lane,
McMinnville, Oregon 97128. Each Subsidiary's chief executive office and
principal place of business is located at the address set forth on Schedule
2.14(a). Until written notice is given to the Collateral Agent by Company of any
other office at which Company keeps its records pertaining to Receivables, all
such records shall be kept at such chief executive office. The chief executive
office and principal place of business of each Grantor is as set forth on
Schedule 2.14(a) hereto. Until written notice is given to the Collateral Agent
by a Grantor of any other office at which a Grantor keeps its records pertaining
to receivables, all such records shall be kept at such chief executive office
or, if different, principal place of business.
18
(b) Collection of Receivables. Until the Grantors' (or any one or
more thereof) authority to do so is terminated by the Collateral Agent (which
notice the Collateral Agent may give at any time following the occurrence of and
during the continuation of an Event of Default or a Default, or when the
Collateral Agent otherwise requests, each Grantor will, at its sole cost and
expense, but on the Collateral Agent's behalf and for the Collateral Agent's
account, collect as the Collateral Agent's property and in trust for the
Collateral Agent all amounts received on Receivables, and shall not commingle
such collections with such Grantor's funds or use the same except to pay
Obligations. Each Grantor shall deposit such amounts in the Blocked Account or,
upon request by the Collateral Agent, deliver to the Collateral Agent, in
original form and on the date of receipt thereof, whether in the form of checks,
drafts, notes, money orders, acceptances, cash and other evidences of
Indebtedness.
(c) Notification of Assignment of Receivables. At any time following
the occurrence of an Event of Default and during the continuation thereof, the
Collateral Agent shall have the right to send notice of the assignment of, and
the Collateral Agent's security interest in, the Receivables to any and all
Customers or any third party holding or otherwise concerned with any of the
Collateral. At such time, the Collateral Agent shall have the sole right to
collect the Receivables, take possession of the Collateral, or both. The
Collateral Agent's actual collection expenses, including, but not limited to,
stationery and postage, telephone and telegraph, secretarial and clerical
expenses and the salaries of any collection personnel used for collection, may
be charged to Company's Account and added to the Obligations.
(d) Power of the Collateral Agent to Act on Company's Behalf. Under
the circumstances provided in paragraphs (d) or (e) of this Section 2.14, the
Collateral Agent shall have the right to receive, endorse, assign and/or deliver
in the name of the Collateral Agent or any Grantor any and all checks, drafts
and other instruments for the payment of money relating to the Receivables, and
each Grantor waives notice of presentment, protest and non-payment of any
instrument so endorsed. Each Grantor hereby constitutes the Collateral Agent or
the Collateral Agent's designee as such Grantor's attorney with power (i) to
endorse such Grantor's name upon any notes, acceptances, checks, drafts, money
orders or other evidences of payment or Collateral; (ii) to sign such Grantor's
name on any invoice or bill of lading relating to any of the Receivables, drafts
against Customers, assignments and verifications of Receivables; (iii) to send
verifications of Receivables to any Customer; (iv) to sign such Grantor's name
on all financing statements or any other documents or instruments deemed
necessary or appropriate by the Collateral Agent to preserve, protect, or
perfect the Collateral Agent's interest in the Collateral and to file same; (v)
to demand payment of the Receivables; (vi) to enforce payment of the Receivables
by legal proceedings or otherwise; (vii) to exercise all of such Grantor's
rights and remedies with respect to the collection of the Receivables and any
other Collateral; (viii) to settle, adjust, compromise, extend or renew the
Receivables; (ix) to settle, adjust or compromise any legal proceedings brought
to collect Receivables; (x) to prepare, file and sign such Grantor's name on a
proof of claim in bankruptcy or similar document against any Customer; (xi) to
prepare, file and sign Company's name on any notice of Lien, assignment or
satisfaction of Lien or similar document in connection with the Receivables; and
(xii) to do all other acts and things necessary to carry out this Agreement. All
acts of such attorney or designee are hereby ratified and approved, and said
attorney or designee shall not be liable for any acts of omission or commission
nor for any error of judgment or mistake of fact or of law, unless done
maliciously or with gross (not mere) negligence; this power being coupled with
an interest is irrevocable
19
while any of the Obligations remain unpaid. The Collateral Agent shall have the
right at any time following the occurrence and during the continuation of an
Event of Default, to change the address for delivery of mail addressed to any
Grantor to such address as the Collateral Agent may designate and to receive,
open and dispose of all mail addressed to such Grantor.
(e) No Liability. Neither the Collateral Agent nor any Secured Party
shall, under any circumstances or in any event whatsoever, have any liability
for any error or omission or delay of any kind occurring in the settlement,
collection or payment of any of the Receivables or any instrument received in
payment thereof, or for any damage resulting therefrom except as a result of the
gross negligence or willful misconduct of the Collateral Agent or such Secured
Party. Following the occurrence of an Event of Default and during the
continuation thereof the Collateral Agent may, without notice or consent from
any Grantor, sue upon or otherwise collect, extend the time of payment of,
compromise or settle for cash, credit or upon any terms any of the Receivables
or any other securities, instruments or insurance applicable thereto and/or
release any obligor thereof. The Collateral Agent is authorized and empowered to
accept following the occurrence of an Event of Default or Default and during the
continuation thereof the return of the goods represented by any of the
Receivables, without notice to or consent by any Grantor, all without
discharging or in any way affecting any Grantor's liability hereunder.
(f) Establishment of Deposit Accounts. Pursuant to the Credit
Agreement, the Grantors will from time to time enter into one or more agreements
with depositary institutions relating to one or more deposit accounts (each a
"Blocked Account") at each such institution as more fully described in the
Credit Agreement (each such agreement, together with any replacements,
amendments and modifications thereof, a "Blocked Account Agreement)." Pursuant
to the Blocked Account Agreements proceeds of Receivables shall be deposited
into the Blocked Accounts. Upon termination of the Credit Agreement, the
Grantors shall enter into arrangements substantially similar to those of the
Blocked Account Agreements and Blocked Accounts for the benefit of the
Collateral Agent and the other Secured Parties.
2.15 Inventory. To the extent Inventory has been produced by a
Grantor, it has been and will be produced by such Grantor in accordance in all
material respects with the Federal Fair Labor Standards Act of 1938, as amended,
and all rules, regulations and orders thereunder.
2.16 Maintenance and Valuation of Equipment. The Equipment shall be
maintained in such operating condition and repair (reasonable wear and tear
excepted) and such necessary replacements of and repairs thereto shall be made
so that the value and operating efficiency of the Equipment shall be maintained
and preserved, in either case, in accordance with prudent industry standards
excluding unused and obsolete equipment not material to the business of the
Grantors. No Grantor shall use or operate the Equipment in violation of any law,
statute, ordinance, code, rule or regulation. The Grantors shall have the right
to sell Equipment to the extent set forth in Section 2.3 hereof.
2.17 Exculpation of Liability. Nothing herein contained shall be
construed to constitute the Collateral Agent or any Secured Party as any
Grantor's agent for any purpose whatsoever, nor shall the Collateral Agent or
any Secured Party be responsible or liable, except as a result of the gross
negligence or willful misconduct of the Collateral Agent or Secured Party,
20
as applicable, for any shortage, discrepancy, damage, loss or destruction of any
part of the Collateral wherever the same may be located and regardless of the
cause thereof. Neither the Collateral Agent nor any Secured Party, whether by
anything herein or in any assignment or otherwise, assume any of the Grantors'
obligations under any contract or agreement assigned to the Collateral Agent or
such Secured Party, and neither the Collateral Agent nor any Secured Party shall
be responsible in any way for the performance by such Grantor of any of the
terms and conditions thereof.
2.18 Financing Statements. Except as respects the financing
statements filed by the Collateral Agent and the financing statements described
on Schedule 1.2, no financing statement effective to perfect a Lien covering any
of the Collateral or any proceeds thereof is on file in any public office except
such financing statements as relate solely to Permitted Liens.
2.19 Certain Additional Provisions Concerning Aircraft-Related
Collateral. (a) Each Grantor will perform each and all of the following:
(i) Record, register and file this Agreement, as well as such
notices, financing statements, Supplements, and/or other documents or
instruments as may, from time to time, be requested by the Collateral
Agent to fully carry out the intent of this Agreement, with the FAA in
Oklahoma City, Oklahoma, United States of America (or at such other office
as the FAA may designate), promptly after the execution and delivery of
this Agreement or any Supplement, and such other administrative or
governmental agencies, whether domestic or foreign, as may be determined
by the Collateral Agent to be necessary or advisable in order to
establish, confirm, maintain and/or perfect the security interest and Lien
created hereunder, as a legal, valid, and binding, security interest and
Lien, which shall be of second priority subject to Permitted Liens, upon
the Aircraft-Related Collateral;
(ii) Furnish to the Collateral Agent evidence of every such
recording, registering and filing; and
(iii) Execute and deliver or perform, or cause to be executed and
delivered or performed, such further and other instruments and/or acts as
the Collateral Agent determines are necessary or required to fully carry
out the intent and purpose of this Agreement or to subject the
Aircraft-Related Collateral to the security interest and Lien created
hereunder, including, without limitation: (i) any and all acts and things
which may be reasonably requested by the Collateral Agent with respect to
complying with or remaining subject to the Geneva Convention, the laws and
regulations of the FAA, or the laws and regulations of any of the various
states or countries in which the Aircraft-Related Collateral owned by it
is or may fly over, operate in, or become located at; and (ii) defending
the title of such Grantor to the Aircraft-Related Collateral by means of
negotiation and, if necessary, appropriate legal proceedings, against each
and every party claiming an interest therein contrary or adverse to such
Grantor's title to same.
(b) Schedule 2.19 sets forth the location of each item of
Aircraft-Related Collateral constituting Spare Parts (the location of each such
item, as modified from time to time in accordance with this Section 2.19, its
"Designated Location"). Except as provided in this
21
paragraph and paragraph (e) below, no Grantor shall move any Aircraft-Related
Collateral consisting of Spare Parts from a Designated Location; provided that
the Grantors may move or otherwise take actions with respect to Spare Parts
provided that the aggregate value of such Spare Parts as determined in
accordance with the Stock Status Reports shall not at any time exceed $5,000,000
except as such parts are used in or on other Aircraft Related Collateral in use
or subject to off-site maintenance. The Spare Parts will be maintained by or on
behalf of Evergreen International Airlines, Inc. or Evergreen Helicopters, Inc.
(c) Upon (i) a Grantor's acquiring rights in or to any airframe,
engine, propeller, or "spare part" or "appliance" (as such terms are defined in
49 U.S.C. Sec. 40102(a)(38)) which, at the time such Grantor acquires such
rights, is not Aircraft-Related Collateral hereunder, (ii) the replacement or
substitution of any item of Aircraft-Related Collateral, or (iii) the movement
of any Aircraft-Related Collateral constituting Spare Parts to a location which
is not a Designated Location (except as may otherwise be allowed under this
Agreement), the Grantor shall promptly notify the Collateral Agent of such event
and execute and deliver to the Collateral Agent a supplement in such form so as
to provide, upon the filing thereof in the manner provided in this Section 2.19,
for the Collateral Agent's having a perfected Lien in and to such additional
asset or replacement item, which shall be of first priority subject to any
Permitted Lien, or in and to any Spare Parts kept at such new location (a
"Supplement").
III. REPRESENTATIONS AND WARRANTIES.
Each Grantor represents and warrants as follows:
3.1 Authority. The execution, delivery and performance of this
Agreement by each Grantor will not conflict with nor result in any breach in any
of the provisions of or constitute a default under or result in the creation of
any Lien except Permitted Liens upon any asset of any such Person under the
provisions of any material agreement, charter document, instrument, by-law, or
other instrument to which any such Person is a party or by which it or its
property may be bound, except to the extent such contract, instrument or
agreement cannot be assigned pursuant to its terms and such nonassignment
provision would not be rendered ineffective pursuant to Sections 9-406, 9-407,
9-408 or 9-409 of the Uniform Commercial Code.
3.2 Formation and Qualification. Each such Person is qualified to do
business and is in good standing in all states in which qualification and good
standing are necessary for such Person to conduct its business and own its
property and where the failure to so qualify could reasonably be expected to
have a Material Adverse Effect. No such Person has filed a certificate or
incorporation, articles of incorporation or other similar constituent documents
in a jurisdiction other than its jurisdiction of incorporation. Each such Person
will promptly notify the Collateral Agent of any amendment or changes to its
certificate of incorporation articles of incorporation or other constituent
documents and by-laws that would materially affect the rights or remedies of
Collateral Agent or any other Secured Party hereunder. The state of
incorporation of each such Person is set forth on Schedule 3.2.
3.3 Survival of Representations and Warranties. All representations
and warranties of the Grantors contained in this Agreement shall be true at the
time of their execution
22
of this Agreement, and shall survive the execution, delivery and acceptance
thereof by the parties thereto and the closing of the transactions described
therein or related thereto.
3.4 Corporate Name. None of such Persons has been known by any other
corporate name in the past five years and does not sell Inventory under any
other name except as set forth on Schedule 3.4, nor has any such Person been the
surviving corporation of a merger or consolidation or acquired all or
substantially all of the assets of any other Person during the preceding five
(5) years.
3.5 Solvency. After giving effect to the Transactions, each such
Person is solvent, able to pay its debts as they mature, has capital sufficient
to carry on its business and all businesses in which it is about to engage, and
(i) as of the Closing Date, the fair present saleable value of its assets,
calculated on a going concern basis, is in excess of the amount of its
liabilities, and (ii) subsequent to the Closing Date, the fair saleable value of
its assets (calculated on a going concern basis) will be in excess of the amount
of its liabilities.
3.6 Patents, Trademarks, Copyrights and Licenses. Set forth on
Schedule 3.6 are all patents, patent applications, registered or material
unregistered trademarks, trademark applications, registered or material
unregistered service marks, service mark applications, tradenames, assumed
names, registered or material unregistered copyrights and copyright applications
owned by the Grantors and material licenses of the Grantors' to intellectual
property. Except as set forth on Schedule 3.6, to the Grantors' knowledge, the
Intellectual Property Collateral is valid and subsisting in all material
respects and, to the Grantors' knowledge, has not been adjudged invalid or
unenforceable, in whole or in part. To the Grantors' knowledge, the Intellectual
Property Collateral and any third party intellectual property licensed to the
Grantors constitute all of the intellectual property rights which are necessary
for the operation of its business as currently conducted. To the Grantors'
knowledge, there is no objection or pending challenge to the validity of the
Intellectual Property Collateral that could reasonably be expected to have a
Material Adverse Effect, except as set forth in Schedule 3.6. Each patent,
patent application, patent license, trademark, trademark application, trademark
license, service mark, service mark application, service mark license, design
right, copyright, copyright application and copyright license owned or held by
any Grantor and all trade secrets used by any Grantor consist of original
material or property developed by or licensed to a Grantor or was lawfully
acquired by the applicable Grantor from the proper and lawful owner or licenor
thereof.
3.7 Government Contracts. To the best knowledge of any such Person,
such Person is not currently in default as to the terms of any Government
Contract, and, except as set forth in Schedule 3.7 no Government Contract has
been canceled or terminated prior to the scheduled expiration date thereof by
the U.S. Government or Other Government in the past ten years. No Government
Contract for which Payments have been assigned to the Collateral Agent as
Collateral is dependent on appropriations, except as set forth in Schedule 3.7
attached hereto and made a part hereof.
3.8 Assignment of Payments. To the best knowledge of each such
Person, such Grantor has the right to assign to the Collateral Agent all
Payments due or to become due under each Government Contracts (except as set
forth on Schedule 3.8 attached hereto and made a part
23
hereof for Government Contracts entered into after the execution of this
Agreement and certain classified Government Contracts, and there exists no
uncancelled prior assignment of payments under any of a Grantor's Government
Contracts.
3.9 Conflicting Agreements. No provision of any mortgage, indenture,
contract, agreement, judgment, decree or order binding on any such Person or
affecting the Collateral conflicts with, or requires any Consent which has not
already been obtained to, or would in any way prevent the execution, delivery or
performance of, the terms of this Agreement or the Other Documents, except to
the extent that such contract or agreement cannot be assigned pursuant to its
terms and such nonassignment provision would not be rendered ineffective
pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial
Code.
3.10 Aircraft and Aircraft-Related Collateral. All Aircraft
(including without limitation Small Fixed-Wing Aircraft and Rotary Wing
Aircraft) that are in use by any Grantor, and all Engines, Propellers and Spare
Parts, are in material compliance with all requirements of any applicable
Aeronautics Authority and any other applicable Governmental Body, whether of the
United States of America or any other nation. Without limiting the generality of
the foregoing, all Aircraft, Engines, Propellers and Spare Parts required to be
registered with the FAA or other Aeronautics Authority are so registered.
3.11 Status As Air Carrier. Each Grantor, including without
limitation Evergreen International Airlines, Inc. and Evergreen Helicopters,
Inc., that must be so authorized in order to conduct its business as currently
conducted, (i) is authorized to engage in all cargo domestic and international
air service under certificates issued pursuant to 49 U.S.C. Section 41103, 49
U.S.C. Section 41102(a) and 49 U.S.C. Section 44705, respectively, and (ii) is
the holder of a valid and effective operating certificate issued by the FAA
pursuant to Part 119 of the regulations under the Federal Aviation Act. Such
certificates are in full force and effect and are adequate for the conduct of
the business of such Grantors as now conducted. There are no actions,
proceedings or investigations pending or, to the knowledge of any Grantor,
threatened (or any basis therefor known to the Company) to amend, modify,
suspend or revoke any such certificate in whole or in part, which would have any
material adverse effect on any such certificate or any of the operations of the
Grantors.
IV. COVENANTS.
Until payment in full of the Obligations and termination of this
Agreement:
4.1 Conduct of Business and Maintenance of Existence and Assets.
Each Grantor shall maintain all licenses, patents, copyrights, design rights,
tradenames, trade secrets and trademarks that are material to the conduct of the
Grantors' business and take all actions reasonably necessary to enforce and
protect the validity of any such intellectual property right or other material
right included in the Collateral.
4.2 Execution of Supplemental Instruments. Each Grantor shall
execute and deliver to the Collateral Agent from time to time, upon demand, such
supplemental agreements, statements, assignments and transfers, or instructions
or documents relating to the Collateral, and
24
such other instruments as the Collateral Agent may request, in order that the
full intent of this Agreement may be carried into effect.
4.3 Maintenance and Repair Covenant. (a) During the effectiveness of
this Agreement, each Grantor shall, at its expense, do or cause to be done each
and all of the following:
(i) Maintain and keep the Collateral in as good condition and repair
as it is on the date of this Agreement, ordinary wear and tear
excepted;
(ii) Maintain and keep the Collateral in good order and repair and
airworthy condition in accordance with prudent industry
practice;
(iii) Replace in or on each Airframe, any and all Engines, Propellers,
and Parts which may be worn out, lost, destroyed or otherwise
rendered unfit for use in accordance with prudent industry
practice; and
(iv) Without limiting the foregoing, cause to be performed, on all
Airframes, Engines, Propellers, and Parts all applicable
mandatory Airworthiness Directives, Federal Aviation
Regulations, Special Federal Aviation Regulations, and
manufacturers' service bulletins relating to airworthiness, the
compliance date of which shall occur during the term of this
Agreement, to the extent consistent with prudent industry
practice.
(b) Each Grantor shall be responsible to perform or cause to be
performed all required inspections of the Airframes, Engines, Propellers, and
Parts and licensing or re-licensing of the same in accordance with all
applicable FAA and other governmental requirements. Each Grantor shall at all
times cause each Airframe to have, on board and in a conspicuous location, a
current Certificate of Airworthiness issued by the FAA.
(c) All inspections, maintenance, modifications, repairs, and
overhauls of any Airframe, Engine, Propeller, or Parts shall be performed by
personnel authorized by the FAA to perform such services to the extent use of
such authorized personnel is customary in accordance with prudent industry
practice.
(d) If any item of Collateral shall reach such a condition as to
require overhaul, repair or replacement, for any cause whatever, in order to
comply with the standards for maintenance and other provisions set forth in this
Agreement, a Grantor may:
(i) Replace such unsatisfactory item with an item of substantially
the same type in temporary replacement of such unsatisfactory
item, pending overhaul or repair of the unsatisfactory item;
provided, however, that such replacement items must be in such a
condition as to be permissible for use in accordance with the
standards for maintenance and other provisions set forth in this
Agreement; provided further, however, that the Grantor must, at
all times, retain unencumbered title to any and all items
temporarily replaced; or
25
(ii) Install an item of substantially the same type in permanent
replacement of such unsatisfactory item; provided, however, that
such replacement items must be in such condition as to be
permissible for use in accordance with the standards for
maintenance and other provisions set forth in this Agreement;
provided further, however, that Grantor must first comply with
each of the requirements of subsection (e) set out below.
(e) In the event that during the effectiveness of this Agreement,
any Grantor shall be required or permitted to permanently replace an
unsatisfactory item of Collateral, such Grantor may do so provided that, in
addition to any other requirements provided for in this Agreement and the other
Documents regarding the disposition, maintenance, or sale of the Grantors'
assets:
(i) the Collateral Agent is not divested of its security interest in
and Lien upon any unsatisfactory item and that no such
unsatisfactory item shall be or become subject to the Lien of
any Person, unless and until such item is replaced by an item of
the type and condition required by this Agreement, title to
which is validly vested in the applicable Grantor, free and
clear of any Liens, of any kind or nature, of any Person other
than the Collateral Agent (other than Permitted Liens), and if
requested by the Collateral Agent, the Grantors execute and
deliver such documents as the Collateral Agent may reasonably
request covering such replacement item;
(ii) The relevant Grantor's title to every replacement item shall
immediately be and become subject to the security interest and
Lien of the Collateral Agent (which shall be of first priority
subject only to any applicable Permitted Lien), either by virtue
of this Agreement or any Other Document delivered pursuant
hereto, and each of the provisions of this Agreement, and each
such replacement item shall remain so encumbered and so subject
unless it is, in turn, replaced by a substitute item in the
manner permitted herein; and
(iii) the Collateral Agent's Lien on an unsatisfactory item shall be
subject to release by the Collateral Agent only if (A) such
unsatisfactory item is replaced in accordance with the
requirements of this Agreement, (B) the replacement item
satisfies the requirements of this Agreement, including the
terms and conditions of subsections (i) and (ii) hereinabove and
(C) if requested by the Collateral Agent, it shall have received
an Opinion of Counsel prior to such release.
(f) In the event that any Engine, Propeller, or Part is installed
upon an Airframe, and is not in substitution for or in replacement of an
existing item, such additional item shall be considered as an accession to the
Airframe (subject to any Permitted Lien), and, if requested by the Collateral
Agent, the Grantors shall execute and deliver such documents as the Collateral
Agent may reasonably request covering such additional item.
26
(g) Upon termination of the Credit Agreement, to the extent the
security interests granted herein are still in effect, each Grantor shall cause
to be affixed at all times to each Engine and Propeller in a conspicuous, safe
location and cause to be displayed at all times in the cockpit of each Airframe
adjacent to the certificate of airworthiness displayed therein, a metal
nameplate in form acceptable to the Collateral Agent, and provided by Collateral
Agent, bearing substantially the following inscription (or such other
subscription which the Collateral Agent shall approve): "MORTGAGED TO BANK ONE,
NATIONAL ASSOCIATION, AS THE COLLATERAL AGENT."
4.4 Citizenship and Regulatory Certificates. The Company will cause
each Grantor and each other applicable Subsidiary to continue to be (a) a
citizen of the United States, as defined in 49 U.S.C. Section 40102(a)(15), (b)
authorized to engage in all cargo domestic and international air service under
certificates issued pursuant to 49 U.S.C. Section 41103 and 49 U.S.C. Section
41102(a) and 49 U.S.C. Section 44705, respectively, (c) the holder of all other
certificates, rights, permits, franchises and concessions from appropriate
Governmental Bodies necessary or appropriate to enable the Company and its
Subsidiaries to conduct their respective businesses in all material respects as
presently being conducted, and (d) the holder of a valid and effective operating
certificate issued by the FAA pursuant to Part 119 of the regulations under the
Federal Aviation Act. The Company will, and will cause each of its Subsidiaries
to, use its best efforts to maintain, preserve and keep in full force and effect
its material certificates, rights, permits, franchises and concessions from
appropriate Governmental Bodies and use its best efforts from time to time to
obtain appropriate renewals or replacements. Except as set out on Schedule 4.4,
none of the Grantors or any other Subsidiary is a Person constituting a national
or citizen of any foreign country as designated in any applicable law or
regulation or a national or a citizen of any foreign country designated in the
Foreign Assets Control Regulations or in the Cuban Assets Control Regulations of
the United States Treasury Department, 31 C.F.R., Chapter V, as amended.
4.5 Additional Documents. Each Grantor shall execute and deliver to
the Collateral Agent, upon request, such documents and agreements as the
Collateral Agent may, from time to time, reasonably request to carry out the
purposes, terms or conditions of this Agreement.
V. RIGHTS AND REMEDIES AFTER DEFAULT.
5.1 Rights and Remedies. Upon the occurrence and during the
continuation of any Event of Default, the Collateral Agent shall have the right
to exercise any and all other rights and remedies provided for herein, the
Indenture, under the Uniform Commercial Code and at law or equity generally,
including, without limitation, the right to foreclose the security interests
granted herein and to realize upon any Collateral by any available judicial
procedure and/or to take possession of and sell any or all of the Collateral
with or without judicial process. The Collateral Agent may enter any of the
Grantors' premises or other premises without legal process and without incurring
liability to any Grantor therefor, and the Collateral Agent may thereupon, or at
any time thereafter, in its discretion without notice or demand, take the
Collateral and remove the same to such place as the Collateral Agent may deem
advisable and the Collateral Agent may require the Grantors to make the
Collateral available to the Collateral Agent at a convenient place. With or
without having the Collateral at the time or place of sale, the
27
Collateral Agent may sell the Collateral, or any part thereof, at public or
private sale, at any time or place, in one or more sales, at such price or
prices, and upon such terms, either for cash, credit or future delivery, as the
Collateral Agent may elect. Except as to that part of the Collateral which is
perishable or threatens to decline speedily in value or is of a type customarily
sold on a recognized market, the Collateral Agent shall give Company reasonable
notification of such sale or sales, it being agreed that in all events written
notice mailed to Company at least five (5) days prior to such sale or sales is
reasonable notification. At any public sale the Collateral Agent or any Secured
Party may bid for and become the purchaser, and the Collateral Agent, any
Secured Party or any other purchaser at any such sale thereafter shall hold the
Collateral sold absolutely free from any claim or right of whatsoever kind,
including any equity of redemption and such right and equity are hereby
expressly waived and released by the Grantors. In connection with the exercise
of the foregoing remedies, solely for the purpose of enabling Collateral Agent
to exercise rights and remedies under this Article V and at such time as
Collateral Agent shall be lawfully entitled to exercise such rights and
remedies, the Grantors hereby grant to Collateral Agent, to the extent they have
the right to do so, (a) a non-exclusive license (exercisable without payment of
royalty or any other compensation to the Grantors) to use, operate under,
license, or sublicense any Intellectual Property Collateral now owned or
hereinafter acquired by the Grantors, in each case as used in connection with
Inventory, for the purpose of disposing of such Inventory, and until any such
sale of Inventory is complete, subject, in the case of trademarks, trademark
applications, service marks and service mark applications, to sufficient rights
to quality control and inspection in favor of the Grantors to avoid the risk of
invalidation of said trademarks, trademark applications, service marks and
service mark applications, and (b) permission to use all of the Grantors'
Equipment for the purpose of completing the manufacture of unfinished goods. The
proceeds realized from the sale of any Collateral shall be applied in the order
set forth in Section 5.5 hereof. If any deficiency shall arise, the Grantors
shall remain liable to the Collateral Agent and Secured Parties therefor.
5.2 The Collateral Agent's Discretion. The Collateral Agent shall
have the right to determine which rights, Liens, security interests or remedies
the Collateral Agent may at any time pursue, relinquish, subordinate, or modify
or to take any other action with respect thereto and such determination will not
in any way modify or affect any of the Collateral Agent's or Secured Parties'
rights hereunder, provided that the Grantors shall at all times be required to
perfect, protect and maintain the security interests and Liens granted herein in
favor of the Collateral Agent and (i) every three years on the anniversary of
the Closing Date and (ii) within 15 days after the Collateral Agent's request,
shall furnish an Opinion of Counsel with respect to such perfection and
maintenance.
5.3 Set-Off. In addition to any other rights which the Collateral
Agent or any Secured Party may have under applicable law, upon the occurrence of
an Event of Default hereunder, the Collateral Agent and such Secured Party shall
have a right to apply any Grantor's property held by the Collateral Agent and
such Secured Party to reduce the Obligations.
5.4 Rights and Remedies Not Exclusive. The enumeration of the
foregoing rights and remedies is not intended to be exhaustive and the exercise
of any rights or remedy shall not preclude the exercise of any other right or
remedies provided for herein or otherwise provided by law, all of which shall be
cumulative and not alternative.
28
5.5 Allocation of Payments After Event of Default. Notwithstanding
any other provisions of this Agreement to the contrary, after the occurrence and
during the continuance of an Event of Default, all amounts collected or received
by the Collateral Agent on account of the Obligations or any other amounts
outstanding under any of the Other Documents or in respect of the Collateral
may, at the Collateral Agent's discretion, be paid over or delivered as follows:
FIRST, to the payment of all fees, reasonable costs and expenses
(including without limitation, reasonable attorneys' fees) of the
Collateral Agent in connection with enforcing its rights and the rights of
the Secured Parties under this Agreement and the Other Documents and any
protective advances made by the Collateral Agent with respect to the
Collateral under or pursuant to the terms of this Agreement;
SECOND, to the payment of all fees, reasonable costs and expenses
(including without limitation, reasonable attorneys' fees) of the Trustee
in connection with enforcing its rights and the rights of the Secured
Parties under this Agreement and the Other Documents and any protective
advances made by the Trustee with respect to the Collateral under or
pursuant to the terms of this Document;
THIRD, to the payment of all reasonable costs and expenses (including
without limitation, reasonable attorneys' fees) of each of the Secured
Parties in connection with enforcing its rights under this Agreement and
the Other Documents or otherwise with respect to the Obligations owing to
such Secured Party;
FOURTH, to the payment of all of the Obligations consisting of accrued
interest;
FIFTH, to the payment of the outstanding principal amount of the
Obligations;
SIXTH, to all other Obligations and other obligations which shall have
become due and payable under the Other Documents or otherwise and not
repaid pursuant to clauses "FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category.
VI. WAIVERS AND JUDICIAL PROCEEDINGS.
6.1 Waiver of Notice. Each Grantor hereby waives notice of
non-payment of any of the Receivables, demand, presentment, protest and notice
thereof with respect to any and all instruments, notice of acceptance hereof,
notice of loans or advances made, credit extended, Collateral received or
delivered, or any other action taken in reliance hereon, and all other demands
and notices of any description, except such as are expressly provided for
herein.
6.2 Delay. No delay or omission on the Collateral Agent's or any
Secured Party's part in exercising any right, remedy or option shall operate as
a waiver of such or any other right, remedy or option or of any default.
29
6.3 Jury Waiver. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION (A) ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (B) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS
RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE AND EACH PARTY
HEREBY CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENTS OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
VII. EFFECTIVE DATE AND TERMINATION.
7.1 Term. This Agreement, which shall inure to the benefit of and
shall be binding upon the respective successors and permitted assigns of Company
and the other Grantors, the Collateral Agent and each Secured Party, shall
become effective on the date hereof and shall continue in full force and effect
until payment in full in cash of all Obligations.
7.2 Termination. The termination of the Agreement shall not affect
Company's, Grantors', the Collateral Agent's or any Secured Party's rights, or
any of the Obligations having their inception prior to the effective date of
such termination, and the provisions hereof shall continue to be fully operative
until all transactions entered into, rights or interests created or Obligations
have been fully disposed of, concluded or liquidated. The security interests,
Liens and rights granted to the Collateral Agent and Secured Parties hereunder
and the financing statements filed hereunder shall continue in full force and
effect, notwithstanding the termination of this Agreement, until all of the
Obligations have been paid or performed in full after the termination of this
Agreement or the Grantors have furnished the Collateral Agent and Secured
Parties with an indemnification acceptable to the Collateral Agent and Secured
Parties with respect thereto. Accordingly, each of the Grantors waives any
rights which it may have under the Uniform Commercial Code to demand the filing
of termination statements with respect to the Collateral, and the Collateral
Agent shall not be required to send such termination statements to the Grantors,
or to file them with any filing office, unless and until this Agreement shall
have been terminated in accordance with its terms and all Obligations paid in
full in immediately available funds. All representations, warranties, covenants,
waivers and agreements contained herein shall survive termination hereof until
all Obligations are paid or performed in full.
7.3 Release. Subject to Section 7.2, the Collateral Agent shall
execute and deliver to each Grantor, or to such person or persons as such
Grantor shall reasonably designate, one or more Uniform Commercial Code
termination statements and/or similar documents prepared by such Grantor and
reasonably acceptable to the Collateral Agent to reflect the termination of the
lien or security interest granted the Collateral Agent under this Agreement in
any asset which the
30
Collateral Agent has concluded was sold in accordance with the terms of this
Agreement or the Other Documents. The foregoing shall not apply to inventory
sold in the ordinary course of business.
VIII. SECURITY INTEREST ABSOLUTE.
IX. REGARDING THE AGENT.
9.1 Appointment; Nature of Duties. Each Secured Party hereby
appoints Bank One to act as the Collateral Agent for such Secured Party under
this Agreement and the Other Documents. Each Secured Party hereby irrevocably
authorizes the Collateral Agent to take such action on its behalf under the
provisions of this Agreement and the Other Documents and to exercise such powers
and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Collateral Agent by the terms hereof and thereof
and such other powers as are reasonably incidental thereto and the Agent shall
hold all Collateral, charges and collections received pursuant to this
Agreement, for the ratable benefit of the Secured Parties. The Collateral Agent
may perform any of its duties hereunder by or through its agents or employees.
As to any matters not expressly provided for by this Agreement (including
without limitation, collection of the Notes) the Collateral Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Secured Parties,
and such instructions shall be binding; provided, however, that the Collateral
Agent shall not be required to take any action which in the Collateral Agent's
reasonable discretion exposes it to liability or which is contrary to this
Agreement or the Other Documents or applicable law unless the Agent is furnished
with an indemnification reasonably acceptable to the Agent in its sole
discretion with respect thereto. The Collateral Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and the
Other Documents. Neither the Collateral Agent nor any of its officers,
directors, employees or agents shall be (i) liable for any action taken or
omitted by them as such hereunder or in connection herewith, unless caused by
their gross (not mere) negligence or willful misconduct, or (ii) responsible in
any manner for any recitals, statements, representations or warranties made by
the Grantors or any officer thereof contained in this Agreement, or in any of
the Other Documents or in any certificate, report, statement or other document
referred to or provided for in, or received by the Collateral Agent under or in
connection with, this Agreement or any of the Other Documents or for the value,
validity, effectiveness, genuineness, due execution, enforceability or
sufficiency of this Agreement, or any of the Other Documents or for any failure
of any Grantor to perform its obligations hereunder. The Collateral Agent shall
not be under any obligation to any Secured Party to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any of the Other Documents, or to inspect the
properties, books or records of any Grantor. The Collateral Agent shall not have
by reason of this Agreement a fiduciary relationship in respect of any Secured
Party; and nothing in this Agreement, expressed or implied, is intended to or
shall be so construed as to impose upon the Collateral Agent any obligations in
respect of this Agreement except as expressly set forth herein.
9.2 Lack of Reliance on the Collateral Agent and Resignation. The
Collateral Agent shall have no duty or responsibility, either initially or on a
continuing basis, to provide any
31
Secured Party with any credit or other information with respect thereto, except
as shall be provided by the Grantors pursuant to the terms hereof. The
Collateral Agent shall not be responsible to any Secured Party for any recitals,
statements, information, representations or warranties herein or in any
agreement, document, certificate or a statement delivered in connection with or
for the execution, effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of this Agreement or any Other Documents, or of
the financial condition of the Grantors, or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of this Agreement, the Other Documents or the financial condition
of the Grantors, or the existence of any Event of Default or any Default.
The Collateral Agent may resign on sixty (60) days' written notice to
each of Secured Parties and Company and upon such resignation, the Required
Secured Parties will promptly designate a successor to the Collateral Agent
reasonably satisfactory to Company, provided that Company's satisfaction need
not be sought if at the time such successor Collateral Agent is designated there
exists an Event of Default.
Any such successor Collateral Agent shall succeed to the rights,
powers and duties of the Collateral Agent, and the term "Collateral Agent" shall
mean such successor Collateral Agent effective upon its appointment, and the
former the Collateral Agent's rights, powers and duties as the Collateral Agent
shall be terminated, without any other or further act or deed on the part of
such former the Collateral Agent. After any Collateral Agent's resignation as
Collateral Agent, the provisions of this Article IX shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was the Collateral
Agent under this Agreement.
9.3 Certain Rights of the Collateral Agent. If the Collateral Agent
shall request instructions from Secured Parties with respect to any act or
action (including failure to act) in connection with this Agreement or any Other
Documents, the Collateral Agent shall be entitled to refrain from such act or
taking such action unless and until the Collateral Agent shall have received
instructions from the Required Secured Parties; and the Collateral Agent shall
not incur liability to any Person by reason of so refraining. Without limiting
the foregoing, Secured Parties shall not have any right of action whatsoever
against the Collateral Agent as a result of its acting or refraining from acting
hereunder in accordance with the instructions of the Required Secured Parties.
9.4 Reliance. The Collateral Agent shall be entitled to rely,
including, without limitation, on an Opinion of Counsel (and shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Opinion of Counsel), and shall be fully protected in relying, upon any note,
writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cablegram, order or other document or telephone message
believed by it to be genuine and to have been signed, sent or made by the proper
person or entity, and, with respect to all legal matters pertaining to this
Agreement and the Other Documents and its duties hereunder, upon advice of
counsel selected by it. The Collateral Agent may employ agents and
attorneys-in-fact and shall not be liable for the default or misconduct of any
such agents or attorneys-in-fact selected by the Collateral Agent with
reasonable care.
32
9.5 Notice of Default. Notwithstanding anything herein to the
contrary, the Collateral Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default or Event of Default hereunder or under the
Other Documents, unless the Collateral Agent has received notice from a Secured
Party or a Grantor referring to this Agreement or the Other Documents,
describing such Default or Event of Default and stating that such notice is a
"notice of default". In the event that the Collateral Agent receives such a
notice, the Collateral Agent shall give notice thereof to Secured Parties. The
Collateral Agent shall take such action with respect to such Default or Event of
Default as shall be reasonably directed by the Required Secured Parties;
provided, that, unless and until the Collateral Agent shall have received such
directions, the Collateral Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of Secured
Parties.
9.6 Grantors' Undertaking to the Collateral Agent. Without prejudice
to its obligations to Secured Parties under the other provisions of this
Agreement, each Grantor hereby undertakes with the Collateral Agent to pay to
the Collateral Agent from time to time on demand all amounts from time to time
due and payable by it for the account of the Collateral Agent or Secured Parties
or any of them pursuant to this Agreement to the extent not already paid. Any
payment made pursuant to any such demand shall pro tanto satisfy the relevant
Grantor's obligations to make payments for the account of Secured Parties or the
relevant one or more of them pursuant to this Agreement.
X. MISCELLANEOUS.
10.1 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applied to contracts to be
performed wholly within the State of New York. Any judicial proceeding brought
by or against any Grantor or any Grantor with respect to any of the Obligations,
this Agreement, the Other Documents or any related agreement may be brought in
any court of competent jurisdiction in the State of New York, United States of
America, and, by execution and delivery of this Agreement, each Grantor accepts
for itself and in connection with its properties, generally and unconditionally,
the non-exclusive jurisdiction of the aforesaid courts, and irrevocably agrees
to be bound by any judgment rendered thereby in connection with this Agreement.
Each Grantor hereby waives personal service of any and all process upon it and
consents that all such service of process may be made by registered mail (return
receipt requested) directed to such Grantor at its address set forth in Section
10.7 and service so made shall be deemed completed five (5) days after the same
shall have been so deposited in the mails of the United States of America.
Nothing herein shall affect the right to serve process in any manner permitted
by law or shall limit the right of the Collateral Agent or any Secured Party to
bring proceedings against any Grantor in the courts of any other jurisdiction.
Each Grantor and each Grantor waives any objection to jurisdiction and venue of
any action instituted hereunder and shall not assert any defense based on lack
of jurisdiction or venue or based upon forum non conveniens. Each Grantor and
each Grantor waives the right to remove any judicial proceeding brought against
it in any state court to any federal court. Any judicial proceeding by a Grantor
against the Collateral Agent or any Secured Party involving, directly or
indirectly, any matter or claim in any way arising out of, related to or
connected with this Agreement or any related agreement, shall be brought only in
a federal or state court located in the County of New York, State of New York.
33
10.2 Entire Understanding. (a) This Agreement and the documents
executed concurrently herewith contain the entire understanding between the
Grantors, the Grantors, the Collateral Agent and each Secured Party and
supersedes all prior agreements and understandings, if any, relating to the
subject matter hereof. Any promises, representations, warranties or guarantees
not herein contained and hereinafter made shall have no force and effect unless
in writing, signed by the Grantors', the Grantors', the Collateral Agent's and
each Secured Party's respective officers. Neither this Agreement nor any portion
or provisions hereof may be changed, modified, amended, waived, supplemented,
discharged, cancelled or terminated orally or by any course of dealing, or in
any manner other than by an agreement in writing, signed by the party to be
charged. Each Grantor acknowledges that it has been advised by counsel in
connection with the execution of this Agreement and Other Documents and is not
relying upon oral representations or statements inconsistent with the terms and
provisions of this Agreement.
(b) The Collateral Agent and the Grantors may, subject to the
provisions of the Indenture, from time to time enter into written supplemental
agreements to this Agreement or the Other Documents executed by the applicable
Grantors, for the purpose of adding or deleting any provisions or otherwise
changing, varying or waiving in any manner the rights of Secured Parties, the
Collateral Agent and the Grantors thereunder or the conditions, provisions or
terms thereof.
Any such supplemental agreement shall apply equally to each Secured
Party and shall be binding upon the Grantors, Secured Parties and the Collateral
Agent and all future holders of the Obligations. In the case of any waiver, the
Grantors, the Grantors, the Collateral Agent and Secured Parties shall be
restored to their former positions and rights, and any Event of Default waived
shall be deemed to be cured and not continuing, but no waiver of a specific
Event of Default shall extend to any subsequent Event of Default (whether or not
the subsequent Event of Default is the same as the Event of Default which was
waived), or impair any right consequent thereon.
10.3 Successors and Assigns; New Secured Parties. This Agreement
shall be binding upon and inure to the benefit of each Grantor, the Collateral
Agent, each Secured Party, all future holders of the Notes and their respective
successors and assigns and otherwise in accordance with the Indenture, except
that no Grantor may assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of the Collateral Agent.
10.4 Application of Payments. The Collateral Agent shall have the
continuing and exclusive right to apply or reverse and re-apply any payment and
any and all proceeds of Collateral to any portion of the Obligations. To the
extent that any Grantor makes a payment or the Collateral Agent or any Secured
Party receives any payment or proceeds of the Collateral for the Grantors'
benefit, which are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, debtor in
possession, receiver, custodian or any other party under any bankruptcy law,
common law or equitable cause, then, to such extent, the Obligations or part
thereof intended to be satisfied shall be revived and continue as if such
payment or proceeds had not been received by the Collateral Agent or such
Secured Party.
34
10.5 Indemnity. The Grantors, jointly and severally, shall indemnify
the Collateral Agent, each Secured Party and each of their respective officers,
directors, Affiliates, attorneys, employees and agents from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses and disbursements of any kind or nature whatsoever
(including, without limitation, fees and disbursements of counsel) which may be
imposed on, incurred by, or asserted against the Collateral Agent or any Secured
Party in any litigation, proceeding or investigation instituted or conducted by
any governmental agency or instrumentality or any other Person with respect to
any aspect of, or any transaction contemplated by, or referred to in, or any
matter related to, this Agreement or the Other Documents, whether or not the
Collateral Agent or any Secured Party is a party thereto, except to the extent
that any of the foregoing arises out of the gross negligence or willful
misconduct of the party being indemnified.
10.6 Notice. Any notice or communication shall be sufficiently given
if in writing and delivered in person, mailed by first-class mail or sent by
telecopier transmission addressed as follows:
if to the Company or any Grantor
Evergreen International Aviation, Inc.
3850 Three Mile Land
McMinnville, Oregon 98128
Attention: Vice President, Finance
Fax: (503) 434-4153
If to the Collateral Agent
Bank One, National Association
1111 Polaris Parkway, Suite OH1-0181
Columbus, Ohio 43215
Attention: Corporate Trust Administration
Fax.: (614) 248-5195
The parties by notice to the others may designate additional or
different addresses for subsequent notices or communications.
10.7 Survival. The obligations of the Grantors under Section 10.5
shall survive termination of this Agreement and the Other Documents and payment
in full of the Obligations.
10.8 Severability. If any part of this Agreement is contrary to,
prohibited by, or deemed invalid under applicable laws or regulations, such
provision shall be inapplicable and deemed omitted to the extent so contrary,
prohibited or invalid, but the remainder hereof shall not be invalidated thereby
and shall be given effect so far as possible.
35
10.9 Expenses. All costs and expenses including, without limitation,
reasonable attorneys' fees (including the allocated costs of in house counsel)
and disbursements incurred by the Collateral Agent on its behalf or on behalf of
Secured Parties (a) in all efforts made to enforce payment of any Obligation or
effect collection of any Collateral, or (b) in connection with the entering
into, modification, amendment, administration and enforcement of this Agreement
or any consents or waivers hereunder and all related agreements, documents and
instruments, or (c) in instituting, maintaining, preserving, enforcing and
foreclosing on the Collateral Agent's security interest in or Lien on any of the
Collateral, whether through judicial proceedings or otherwise, or (d) in
defending or prosecuting any actions or proceedings arising out of or relating
to the Collateral Agent's or any Secured Party's transactions with any Grantor,
or (e) in connection with any advice given to the Collateral Agent or any
Secured Party with respect to its rights and obligations under this Agreement
and all related agreements shall be borne by the Company and shall be part of
the Obligations.
10.10 Injunctive Relief. Each Grantor acknowledges that, in the event
that any of the Grantors fails to perform, observe or discharge any of its
obligations or liabilities under this Agreement, any remedy at law may prove to
be inadequate relief to Secured Parties; therefore, the Collateral Agent, if the
Collateral Agent so requests, shall be entitled to temporary and permanent
injunctive relief in any such case without the necessity of proving that actual
damages are not an adequate remedy.
10.11 Consequential Damages. Neither the Collateral Agent nor any
Secured Party, nor any agent or attorney for any of them, shall be liable to any
Grantor for consequential damages arising from any breach of contract, tort or
other wrong relating to the establishment, administration or collection of the
Obligations.
10.12 Captions. The captions at various places in this Agreement are
intended for convenience only and do not constitute and shall not be interpreted
as part of this Agreement.
10.13 Counterparts; Facsimile Signatures. This Agreement may be
executed in any number of and by different parties hereto on separate
counterparts, all of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute one and the same agreement. Any signature
delivered by a party by facsimile transmission shall be deemed to be an original
signature hereto.
10.14 Holdings Collateral. All representations, warranties and
covenants with respect to Collateral made by Holdings herein shall only apply to
Holdings Collateral.
10.15 Construction. The parties acknowledge that each party and its
counsel have reviewed this Agreement and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or any amendments,
schedules or exhibits thereto.
10.16 Intercreditor Agreement. Without limiting the obligations of the
Grantors hereunder, the parties acknowledge that the security interests granted
hereunder and the rights and remedies granted to the Collateral Agent are
subject to the Intercreditor Agreement. In the
36
event of any conflict between this Agreement and the Intercreditor Agreement the
Intercreditor Agreement shall prevail.
Exhibit 10.2
IN WITNESS WHEREOF, each Grantor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
EVERGREEN HOLDINGS, INC.
By: /s/ John A. Irwin
----------------------------------
Name: John A. Irwin
----------------------------------
Title: Treasurer and Vice President
of Risk Management
----------------------------------
EVERGREEN INTERNATIONAL AVIATION, INC.
By: /s/ John A. Irwin
----------------------------------
Name: John A. Irwin
----------------------------------
Title: Treasurer
----------------------------------
EVERGREEN INTERNATIONAL AIRLINES, INC.
By: /s/ John A. Irwin
----------------------------------
Name: John A. Irwin
----------------------------------
Title: Vice President of Finance
and Treasurer
----------------------------------
EVERGREEN AVIATION GROUND
LOGISTICS ENTERPRISES, INC.
By: /s/ John A. Irwin
----------------------------------
Name: John A. Irwin
----------------------------------
Title: Treasurer
----------------------------------
EVERGREEN HELICOPTERS, INC.
By: /s/ John A. Irwin
----------------------------------
Name: John A. Irwin
----------------------------------
Title: Senior Vice President of
Finance and Treasurer
----------------------------------
EVERGREEN AIR CENTER, INC.
2
By: /s/ Michael F. Melvin
----------------------------------
Name: Michael F. Melvin
----------------------------------
Title: Vice President of Finance
and Treasurer
----------------------------------
EVERGREEN AIRCRAFT
SALES & LEASING, CO.
By: /s/ John A. Irwin
----------------------------------
Name: John A. Irwin
----------------------------------
Title: Treasurer
----------------------------------
E Z EXPRESS CORPORATION
By: /s/ John A. Irwin
----------------------------------
Name: John A. Irwin
----------------------------------
Title: Treasurer
----------------------------------
EVERGREEN HELICOPTERS
INTERNATIONAL, INC.
By: /s/ John A. Irwin
----------------------------------
Name: John A. Irwin
----------------------------------
Title: Treasurer
----------------------------------
EVERGREEN EQUITY, INC.
By: /s/ John A. Irwin
----------------------------------
Name: John A. Irwin
----------------------------------
Title: Vice President and Treasurer
----------------------------------
3
EVERGREEN HELICOPTERS OF ALASKA, INC.
By: /s/ John A. Irwin
----------------------------------
Name: John A. Irwin
----------------------------------
Title: Vice President and Treasurer
----------------------------------
BOOMER AIR, INC.
By: /s/ John A. Irwin
----------------------------------
Name: John A. Irwin
----------------------------------
Title: Treasurer
----------------------------------
4
WELLS FARGO BANK NORTHWEST,
N.A., not in its individual capacity but
solely as owner trustee under the
Evergreen Aircraft Trust Agreement
By: /s/ Val T. Orton
----------------------------------
Name: Val T. Orton
----------------------------------
Title: Vice President
----------------------------------
5
BANK ONE, NATIONAL ASSOCIATION,
as Collateral Agent and Attorney-in-Fact
for the Holders
By: /s/ David B. Knox
----------------------------------
Name: David B. Knox
----------------------------------
Title: Vice President
----------------------------------