EXHIBIT 10.34
[LOGO OF MERRILL LYNCH] WCMA(R) REDUCING REVOLVER- LOAN AGREEMENT
WCMA REDUCING REVOLVER- LOAN AGREEMENT NO. 54F-07230 ("Loan Agreement") dated as
of April 25, 2001, between EVERGREEN INTERNATIONAL AIRLINES, INC., a corporation
organized and existing under the laws of the State of Oregon having its
principal office at 3850 NE Three Mile Lane, McMinnville, OR 97128 ("Customer"),
and MERRILL LYNCH BUSINESS FINANCIAL SERVICES INC., a corporation organized and
existing under the laws of the State of Delaware having its principal office at
222 North LaSalle Street, Chicago, IL 60601 ("MLBFS").
In accordance with that certain WORKING CAPITAL MANAGEMENT(R) ACCOUNT AGREEMENT
NO. 54F-07230 ("WCMA Agreement") between Customer and MLBFS' affiliate, MERRILL
LYNCH, PIERCE, FENNER & SMITH INCORPORATED ("MLPF&S"), Customer has subscribed
to the WCMA Program described in the WCMA Agreement. The WCMA Agreement is by
this reference incorporated as a part hereof. In conjunction therewith, Customer
has requested that MLBFS make a WCMA Reducing Revolver Loan (a "Reducing
Revolver") to Customer in the amount and upon the terms hereafter specified,
and, subject to the terms and conditions hereafter set forth, MLBFS has agreed
to provide a Reducing Revolver for Customer.
A Reducing Revolver is a term credit facility, similar to a conventional term
loan, but funded out of a line of credit under the WCMA Program ("WCMA Line of
Credit") In the amount of the initial loan. With a Reducing Revolver: (i)
interest will generally be charged each month to Customer's WCMA account, and,
so long as the WCMA Line of Credit is in effect, paid with an additional loan
under the WCMA Line of Credit (i.e., added to the loan balance), (ii) the
maximum WCMA Line of Credit will be reduced each month by the amount that would
be payable on account of principal if the Reducing Revolver were a conventional
term loan amortized over the same term and in the same manner as the Reducing
Revolver, and (iii) Customer will be required to make sufficient payments on
account of the Reducing Revolver to assure that the outstanding balance of the
Reducing Revolver does not at any time exceed the Maximum WCMA Line of Credit,
as reduced each month.
Absent a prepayment by Customer, this structure results in required monthly
payments for the Reducing Revolver that are substantially the same as the
required monthly payments for a conventional term loan with the same term and
amortization. However, unlike most conventional term loans, because it is funded
out of a line of credit, the Reducing Revolver permits both a prepayment in
whole or in part at any time, and, subject to certain conditions, the
re-borrowing on a revolving basis of any such prepaid amounts up to the Maximum
WCMA Line of Credit, as reduced each month. The structure therefore will enable
Customer at its option to use any excess or temporary cash balances that it may
have from time to time to prepay the Reducing Revolver and thereby effectively
reduce interest expense on the Reducing Revolver without impairing its working
capital.
Accordingly, and in consideration of the premises and of the mutual covenants of
the parties hereto, Customer and MLBFS hereby agree as follows:
ARTICLE I. DEFINITIONS
1.1 Specific Terms. In addition to terms defined elsewhere in this Loan
Agreement, when used herein the following terms shall have the following
meanings:
(a) "Additional Agreements" shall mean all agreements, instruments,
documents and opinions other than this Loan Agreement, whether with or from
Customer or any other party, which are contemplated hereby or otherwise
reasonably required by MLBFS in connection herewith, or which evidence the
creation, guaranty or collateralization of any of the Obligations or the
granting or perfection of liens or security interests upon any collateral for
the Obligations.
(b) "Bankruptcy Event" shall mean any of the following: (i) a proceeding
under any bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt or receivership law or statute shall be filed or consented to by Customer;
or (ii) any such proceeding shall be filed against Customer and shall not be
dismissed or withdrawn within sixty (60) days after filing; or (iii) Customer
shall make a general assignment for the benefit of creditors; or (iv) Customer
shall generally fail to pay or admit in writing its inability to pay its debts
as they become due; or (v) Customer shall be adjudicated a bankrupt or
insolvent.
(c) "Business Day" shall mean any day other than a Saturday, Sunday, federal
holiday or other day on which the New York Stock Exchange is regularly closed.
(d) "Closing Date" shall mean the date upon which all conditions precedent
to MLBFS' obligation to make the Loan shall have been met to the satisfaction of
MLBFS.
(e) "Commitment Expiration Date" shall mean May 24, 2001.
(f) "Commitment Fee" shall mean a fee of $35,000.00 due to MLBFS in
connection with this Loan Agreement.
(g) "Default" shall mean either an "Event of Default" as defined in Section
4.4 hereof, or an event which with the giving of notice, passage of time, or
both, would constitute such an Event of Default.
(h) "General Funding Conditions" shall mean each of the following conditions
precedent to the obligation of MLBFS to make the Loan or any Subsequent WCMA
Loan hereunder: (i) Customer shall have validly subscribed to and continued to
maintain the WCMA Account with MLPF&S, and the WCMA Account shall then be
reflected as an active "Commercial" WCMA Account (i.e., one with line of credit
capabilities) on MLPF&S' WCMA computer system; (ii) no Default shall have
occurred and be continuing or would result from the making of the Loan or such
Subsequent WCMA Loan by MLBFS; (iii) there shall not
have occurred and be continuing any material adverse change in the business or
financial condition of Customer; (iv) all representations and warranties of
Customer herein or in any Additional Agreements shall then be true and correct
in all material respects; (v) MLBFS shall have received this Loan Agreement and
all Additional Agreements, duly executed and filed or recorded where applicable,
all of which shall be in form and substance reasonably satisfactory to MLBFS;
(vi) the Commitment Fee shall have been paid in full; (vii) MLBFS shall have
received, as and to the extent applicable, copies of invoices, bills of sale,
loan payoff letters and/or other evidence reasonably satisfactory to it that the
proceeds of the Loan will satisfy the Loan Purpose; (viii) MLBFS shall have
received evidence reasonably satisfactory to it as to the ownership of and the
perfection and priority of MLBFS' liens and security interests on any collateral
for the Obligations furnished pursuant to any of the Additional Agreements; and
(ix) any additional conditions specified in the "WCMA Reducing Revolver Loan
Approval" letter executed by MLBFS with respect to the transactions contemplated
hereby shall have been met to the reasonable satisfaction of MLBFS.
(i) "Interest Due Date" shall mean the last Business Day of each calendar
month during the term hereof (or, if Customer makes special arrangements with
MLPF&S, on the last Friday of each calendar month during the term hereof).
(j) "Interest Rate" shall mean a variable per annum rate equal to the sum of
(i) 2.40% per annum, and (ii) the interest rate from time to time published in
the "Money Rates" section of The Wall Street Journal as the "Dealer Commercial
Paper" rate for 30-day high-grade unsecured notes sold through dealers by major
corporations (the "30-day Dealer Commercial Paper Rate"). The Interest Rate will
change as of the date of publication in The Wall Street Journal of a 30-day
Dealer Commercial Paper Rate that is different from that published on the
preceding Business Day. In the event that The Wall Street Journal shall, for any
reason, fail or cease to publish the 30-day Dealer Commercial Paper Rate, MLBFS
will choose a reasonably comparable index or source to use as the basis for the
interest Rate.
(k) "Loan" shall mean the specific Reducing Revolver by MLBFS to Customer
pursuant to this Agreement for the Loan Purpose and in the Loan Amount.
(l) "Loan Amount" shall mean an amount equal to the lesser of: (i) 100% of
the amount required by Customer to satisfy or fulfill the Loan Purpose, (ii) the
aggregate amount which Customer shall request be advanced by MLBFS on account of
the Loan Purpose on the Closing Date, or (iii) $3,500,000.00.
(m) "Loan Purpose" shall mean the purpose for which the proceeds of the Loan
will be used; to wit: to purchase of reimburse Customer for the purchase of one
747 Pratt Whitney aircraft jet engine Model No. JT9D-7J.
(n) "Maximum WCMA Line of Credit" shall mean the maximum aggregate line of
credit which MLBFS will extend to Customer subject to the terms and conditions
hereof, as the same shall be reduced each month in accordance with the terms
hereof. On the Closing Date, the Maximum WCMA Line of Credit will equal the Loan
Amount.
(o) "Obligations" shall mean all liabilities, indebtedness and other
obligations of Customer or Evergreen Aircraft Sales and Leasing Co. to MLBFS,
howsoever created, arising or evidenced, whether now existing or hereafter
arising, whether direct or indirect, absolute or contingent, due or to become
due, primary or secondary or joint or several, and, without limiting the
foregoing, shall include interest accruing after the filing of any petition in
bankruptcy, and all present and future liabilities, indebtedness and obligations
of Customer under the Loan Documents, and of Evergreen Aircraft Sales and
Leasing Co. under that certain WCMA Loan Agreement No. 25F-07164.
(p) "Subsequent WCMA Loan" shall mean each WCMA Loan other than the loan,
including, without limitation, each WCMA Loan to pay accrued interest.
(q) "Termination Date" shall mean the first to occur of: (i) the last
Business Day of the sixtieth (60th) full calendar month following the Closing
Date, or (ii) if earlier, the date of termination of the WCMA Line of Credit
pursuant to the terms hereof.
(r) "WCMA Account" shall mean and refer to the Working Capital Management
Account of Customer with MLPF&S identified as WCMA Account No. 54F-07230 and any
successor Working Capital Management Account of Customer with MLPF&S.
(s) "WCMA Loan" shall mean each advance made by MLBFS pursuant to the WCMA
Line of Credit, including the Loan and each Subsequent WCMA Loan.
(t) "WCMA Loan Balance" shall mean an amount equal to the aggregate unpaid
principal balance of all WCMA loans.
(u) "Condemnation Event" shall mean an event pursuant to which the Parent
Company or any of the Subsidiaries has the right to collect and receive proceeds
as a result of any action or proceeding for the taking of any property of the
Parent Company or any Subsidiary (other than any taking of the Purchased
Aircraft that is an Event of Loss), or any part thereof or interest therein, for
public or quasi-public use under the power of eminent domain, by reason of any
public improvement of condemnation proceeding, or in any other manner.
(v) "Consolidated Aircraft Rentals" shall mean, for any period, the total
consolidated rental expense of the Parent Company and the Subsidiaries for such
period in respect of any aircraft or aircraft engines, determined on a
consolidated basis in accordance with GAAP.
(w) "Capital Expenditures" shall mean, for any period, without duplication,
(a) the aggregate amount of all expenditures (whether paid in cash or other
consideration or accrued as a liability) by the Parent Company and the
Subsidiaries during such period that, in accordance with GAAP, are or should be
included in "additions to property, plant or equipment", "purchases of property
and equipment, and overhauls" or similar items reflected in the consolidated
statement of cash flows of the Parent Company and its Subsidiaries for such
period; and (b) the aggregate principal amount Capital Lease Obligations
incurred by the Parent Company and the Subsidiaries during such period;
provided, however, that Capital Expenditures by the Parent Company and the
Subsidiaries shall not include expenditures of cash proceeds received in
connection with an asset disposition resulting from a Casualty Event or
Condemnation Event to the extent such expenditures are made to replace, repair
or rebuild the damaged or condemned asset, as applicable, within 360 days of
receipt of such proceeds.
(x) "Consolidated EBITDA" shall mean, for any period, consolidated net
income for such period, plus, without duplication and to the extent deducted
from revenues in determining Consolidated Net Income, the sum of (a) the
aggregate amount of consolidated interest expense (including interest expense
attributable to capital lease obligations) for such period, (b) the aggregate
amount of amortization or writeoff of debt discount and debt issuance costs and
commissions; discounts and other fees and charges (including, without
limitation, charges relating to any premium or penalty for redemption, prepaying
or retiring any indebtedness prior to the stated maturity thereof) associated
with indebtedness (including the loans), L/C participation fees and other letter
of credit fees accrued during such period, (c) the aggregate amount of income
tax expense for such period, (d) all amounts attributable to depreciation and
amortization for such period and (e) all non-cash non-recurring charges
(including any such charges relating to the GATX Aircraft) and all other
extraordinary losses during such period, and minus, without duplication and to
the extent added to revenues in determining consolidated net income for such
period, all gains from the sale of assets not in the ordinary course of business
and all other extraordinary gains during such period, all as determined on a
consolidated basis with respect to the Parent Company and the Subsidiaries in
accordance with GAAP. For purposes of calculating Consolidated EBITDA for any
period (each, a "reference period") in connection with a determination of the
Leverage Ratio or the Coverage Ratio for such period, if during such reference
period (or, in the case of pro forma calculations, during the period from the
last day of such reference period to and including the date as of which such
calculation is made) the Parent Company or any Subsidiary shall have made a
permitted acquisition or material disposition, Consolidated EBITDA for such
reference period shall be calculated after giving pro forma effect thereto as if
such permitted acquisition or material disposition occurred on the first day of
such reference period (with the reference period for the purposes of pro forma
calculations being the most recent period of four consecutive fiscal quarters
for which the relevant financial information is available), without giving
effect to cost savings. As used in this definition, "Material Disposition" means
any disposition of property or series of related dispositions of property that
involves assets comprising all or substantially all of an operating unit of a
business or constitutes all or substantially all of the capital stock or other
equity interests of a Subsidiary.
(y) "Parent Company" shall mean Evergreen International Aviation, Inc., an
Oregon corporation.
(z) "Consolidated Interest Expense" shall mean, for any period, the total
interest expense of the Parent Company and the Subsidiaries during such period,
minus (i) any interest income of the Parent Company and the Subsidiaries during
such period and (ii) to the extent included in interest expense for such period,
the amortization of all prepaid expenses and deferred charges or unamortized
debt discount and expense and all capitalized fees and expenses relating to the
Transactions during such period, in each case; as determined on a consolidated
basis in accordance with GAAP.
(aa) "Total Debt" shall mean, as of any date of determination, without
duplication, the aggregate principal amount of indebtedness of the Parent
Company and the Subsidiaries outstanding as of such date, determined on a
consolidated basis (other than (a) Indebtedness of the type referred to in
clauses (i) and (j) of the definition of the term "Indebtedness", except in the
case of clause (j) to the extent of any unreimbursed drawings thereunder and (b)
Indebtedness permitted by Section 6.01 (j) of the Evergreen Credit Agreement and
Section 7.01 (j) of the Participation Agreement).
(bb) "Transactions" shall mean (a) the obtaining of the Tranche B-1 Evergreen
Loans under the Evergreen Credit Agreement and (b) the amendment and restatement
of the Existing Documentation as provided in the Transaction Documents.
(cc) "Casualty Event" shall mean an event pursuant to which the Parent
Company or any of the Subsidiaries has the right to collect insurance proceeds
under any insurance policies with respect to any insured casualty or other
insured damage to any property of the Parent Company or any of the Subsidiaries
(other than any damage to the purchased aircraft that is an Event of Loss).
(dd) "GAAP" shall mean generally accepted accounting principles.
(ee) "Vintage Subsidiary" shall mean Evergreen Vintage Aircraft, Inc., an
Oregon corporation.
(ff) "Subsidiary" shall mean (i) any subsidiary of the Parent Company and
(ii) until such times as the collateral agent shall have released all liens on
the Vintage Aircraft held by it on behalf of the Evergreen secured parties.
(gg) "Refinancing" shall mean (a) the obtaining of the obtaining of the
aircraft loan under the Existing Aircraft Credit Agreement and the obtaining of
the Evergreen Loans under the Existing Evergreen Credit Agreement, (b) the
Sale-Leaseback, (c) the Repayment Transactions and (d) the payment of the
Refinancing Costs.
(hh) "GATX Aircraft" shall mean airframes identified as "GATX Affiliates".
1.2 Other Terms. Except as otherwise defined herein: (i) all terms used in this
Loan Agreement which are defined in the Uniform Commercial Code of Illinois
("UCC") shall have the meanings set forth in the UCC, and (ii) capitalized terms
used herein which are defined in the WCMA Agreement (including, without
limitation, "Money Accounts", "Minimum Money Accounts Balance", "WCMA Directed
Reserve Program" and "WCMA Program") shall have the meanings set forth in the
WCMA Agreement.
ARTICLE II. THE LOAN
2.1 Commitment. Subject to the terms and conditions hereof, MLBFS hereby agrees
to make the Loan to Customer, and Customer hereby agrees to borrow the Loan from
MLBFS. Except as otherwise provided in Section 3.1 hereof, the entire proceeds
of the Loan will be disbursed by MLBFS out of the WCMA Line of Credit either
directly to the applicable third party or parties on account of the Loan Purpose
or to reimburse Customer for amounts directly expended by it for the Loan
Purpose; all as directed by Customer in a Closing Certificate to be executed and
delivered to MLBFS prior to the date of funding.
2.2 Conditions of MLBFS' Obligations. The Closing Date and MLBFS' obligations to
activate the WCMA Line of Credit, as hereafter set forth, and make the Loan on
the Closing Date are subject to the prior fulfillment of each of the following
conditions: (a) not less than two Business Days prior to any requested funding
date, MLBFS shall have received a Closing Certificate, duly executed by
Customer, setting forth, among other things, the amount of the Loan and
the method of payment and payee(s) of the proceeds thereof; (b) after giving
effect to the Loan, the WCMA Loan Balance will not exceed either the Maximum
WCMA Line of Credit or the Loan Amount; (c) the Commitment Expiration Date
shall not then have occurred; and (d) each of the General Funding Conditions
shall then have been met or satisfied to the reasonable satisfaction of MLBFS.
2.3 Commitment Fee. In consideration of the agreement by MLBFS to extend the
Loan and any Subsequent WCMA Loans to Customer in accordance with and subject to
the terms hereof, Customer has paid or shall, on or before the Closing Date pay,
the Commitment Fee to MLBFS. Customer acknowledges and agrees that the
Commitment Fee has been fully earned by MLBFS, and that it will not under any
circumstances be refundable.
2.4 Use of Loan Proceeds. Unless otherwise agreed by MLBFS in writing, the
proceeds of the Loan shall be used solely for the Loan Purpose. The Proceeds of
each Subsequent WCMA Loan initiated by Customer shall be used by Customer solely
for working capital in the ordinary course of its business, or, with the prior
written consent of MLBFS, for other lawful business purposes of Customer not
prohibited hereby. Customer agrees that under no circumstances will the proceeds
of the Loan or any Subsequent WCMA Loan be used: (i) for personal, family or
household purposes of any person whatsoever, or (ii) to purchase, carry or trade
in securities, or repay debt incurred to purchase, carry or trade in securities,
whether in or in connection with the WCMA Account, another account of Customer
with MLPF&S or an account of Customer at any other broker or dealer in
securities, or (iii) unless otherwise consented to in writing by MLBFS, to pay
any amount to Merrill Lynch and Co., Inc. or any of its subsidiaries, other than
Merrill Lynch Bank USA, Merrill Lynch Bank & Trust Co. or any subsidiary of
either of them (including MLBFS and Merrill Lynch Credit Corporation).
ARTICLE III. THE WCMA LINE OF CREDIT
3.1 Activation of the WCMA Line of Credit. Subject to the terms and conditions
hereof, on the Closing Date MLBFS will activate a WCMA Line of Credit for
Customer in the Loan Amount. The Loan will be funded out of the WCMA Line of
Credit immediately after such activation (or, If and to the extent otherwise
expressly contemplated in the definition of Loan Purpose or otherwise directed
in the Closing Certificate and hereafter expressly agreed by MLBFS, all or part
of the Loan may be made available as a WCMA Line of Credit and funded by
Customer).
3.2 Subsequent WCMA Loans. Subject to the terms and conditions hereof, during
the period from and after the Closing Date to the Termination Date: (a) Customer
may repay the WCMA Loan Balance in whole or in part at any time without premium
or penalty, and request a re-borrowing of amounts repaid on a revolving basis,
and (b) in addition to Subsequent WCMA Loans made automatically to pay accrued
interest, as hereafter provided, MLBFS will make such Subsequent WCMA Loans as
Customer may from time to time request or be deemed to have requested in
accordance with the terms hereof. Customer may request Subsequent WCMA Loans by
use of WCMA Checks, FTS, Visa(R) charges, wire transfers, or such other means of
access to the WCMA Line of Credit as may be permitted by MLBFS from time to
time; It being understood that so long as the WCMA Line of Credit shall be in
effect, any charge or debit to the WCMA Account which but for the WCMA Line of
Credit would under the terms of the WCMA Agreement result in an overdraft, shall
be deemed a request by Customer for a Subsequent WCMA Loan.
3.3 Conditions of Subsequent WCMA Loans. Notwithstanding the foregoing, MLBFS
shall not be obligated to make any Subsequent WCMA Loan, and may without notice
refuse to honor any such request by Customer, if at the time of receipt by MLBFS
of Customer's request: (a) the making of such Subsequent WCMA Loan would cause
the Maximum WCMA Line of Credit, as reduced pursuant to the provisions of
Section 3.6 hereof, to be exceeded; or (b) the Termination Date shall have
occurred; or (c) an event shall have occurred and be continuing which shall have
caused any of the General Funding Conditions to not then be met or satisfied to
the reasonable satisfaction of MLBFS. The making by MLBFS of any Subsequent WCMA
Loan (Including, without limitation, the making of a Subsequent WCMA Loan to pay
accrued interest or late charges, as hereafter provided) at a time when any one
or more of said conditions shall not have been met shall not in any event be
construed as a waiver of said condition or conditions or of any Default, and
shall not prevent MLBFS at any time thereafter while any condition shall not
have been met from refusing to honor any request by Customer for a Subsequent
WCMA Loan.
3.4 WCMA Note. Customer hereby promises to pay to the order of MLBFS, at the
times and in the manner set forth in this Loan Agreement, or in such other
manner and at such place as MLBFS may hereafter designate in writing: (a) the
WCMA Loan Balance; (b) Interest at the Interest Rate on the outstanding WCMA
Loan Balance (computed for the actual number of days elapsed on the basis of a
year consisting of 360 days), from and including the date on which the Loan is
made until the date of payment of all WCMA Loans in full; and (c) on demand, all
other sums payable pursuant to this Loan Agreement, including, but not limited
to, any late charges. Except as otherwise expressly set forth herein, Customer
hereby waives presentment, demand for payment, protest and notice of protest,
notice of dishonor, notice of acceleration, notice of intent to accelerate and
all other notices and formalities in connection with this WCMA Note and this
Loan Agreement.
3.5 Interest. (a) An amount equal to accrued Interest on the WCMA Loan Balance
shall be payable by Customer monthly on each Interest Due Date, commencing with
the Interest Due Date occurring in the calendar month in which the Closing Date
shall occur. Unless otherwise hereafter directed in writing by MLBFS on or after
the Termination Date, such interest will be automatically charged to the WCMA
Account on the applicable Interest Due Date, and, to the extent not paid with
free credit balances or the proceeds of sales of any Money Accounts then in the
WCMA Account, as hereafter provided, such interest will be paid by a Subsequent
WCMA Loan and added to the WCMA Loan Balance. All interest shall be computed for
the actual number of days elapsed on the basis of a year consisting of 360 days.
(b) Notwithstanding any provision to the contrary in this Agreement or any of
the Additional Agreements, no provision of this Agreement or any of the
Additional Agreements shall require the payment or permit the collection of any
amount in excess of the maximum amount of interest permitted to be charged by
law ("Excess Interest"). If any Excess Interest is provided for, or is
adjudicated as being provided for, in this Agreement or any of the Additional
Agreements, then: (i) Customer shall not be obligated to pay any Excess
Interest; and (ii) any Excess Interest that MLBFS may have received hereunder or
under any of the Additional Agreements shall, at the option of MLBFS, be either
applied as a credit against the then WCMA Loan Balance, or refunded to the payer
thereof.
3.6 Periodic Reduction of Maximum WCMA Line of Credit. Commencing on the last
Business Day of the first full calendar month following the Closing Date, and
continuing on the last Business Day of each calendar month thereafter to and
including the last Business Day of the fifty-ninth (59th) such calendar month,
the Maximum WCMA Line of Credit shall be reduced by an amount equal to
one-sixtieth (1/60th) of the Loan Amount per month. Unless the WCMA Line of
Credit shall have been earlier terminated pursuant to the terms hereof, on the
last Business Day of the sixtieth (60th) calendar month following the Closing
Date, the WCMA Line of Credit shall, without further action of either of the
parties hereto, be terminated, Customer shall pay to MLBFS the entire WCMA Loan
Balance, if any, and all other Obligations, and the WCMA Account, at the option
of Customer, will either be converted to a WCMA Cash Account (subject to any
requirements of MLPF&S) or terminated. No failure or delay on the part of MLBFS
in entering into the WCMA computer system any scheduled reduction. In the
Maximum WCMA Line of Credit pursuant to this Section shall have the effect of
preventing or delaying such reduction.
3.7 Mandatory Payments. CUSTOMER AGREES THAT IT WILL, WITHOUT DEMAND, INVOICING
OR THE REQUEST OF MLBFS, FROM TIME TO TIME MAKE SUFFICIENT PAYMENTS ON ACCOUNT
OF THE WCMA LOAN BALANCE TO ASSURE THAT THE WCMA LOAN BALANCE WILL NOT AT ANY
TIME EXCEED THE MAXIMUM WCMA LINE OF CREDIT, AS REDUCED EACH MONTH PURSUANT TO
SECTION 3.6 HEREOF.
3.8 Method of Making Payments. All payments required or permitted to be made
pursuant to this Loan Agreement shall be made in lawful money of the United
States. Unless otherwise hereafter directed by MLBFS, such payments may be made
by the delivery of checks (other than WCMA Checks), or by means of FTS or wire
transfer of funds (other than funds from the WCMA Line of Credit) to MLPF&S for
credit to the WCMA Account. Payments to MLBFS from funds in the WCMA Account
shall be deemed to be made by Customer upon the same basis and schedule as funds
are made available for investment in the Money Accounts in accordance with the
terms of the WCMA Agreement. The acceptance by or on behalf of MLBFS of a check
or other payment for a lesser amount than shall be due from Customer, regardless
of any endorsement or statement thereon or transmitted therewith, shall not be
deemed an accord and satisfaction or anything other than a payment on account,
and MLBFS or anyone acting on behalf of MLBFS may accept such check or other
payment without prejudice to the rights of MLBFS to recover the balance actually
due or to pursue any other remedy under this Loan Agreement or applicable law
for such balance. All checks accepted by or on behalf of MLBFS in connection
with this Loan Agreement are subject to final collection.
3.9 Irrevocable Instructions to MLPF&S. In order to minimize the WCMA Loan
Balance, Customer hereby irrevocably authorizes and directs MLPF&S, effective on
the Closing Date and continuing thereafter so long as this Agreement shall be in
effect: (a) to immediately and prior to application for any other purpose pay to
MLBFS to the extent of any WCMA Loan Balance or other amounts payable by
Customer hereunder all available free credit balances from time to time in the
WCMA Account; and (b) if such available free credit balances are insufficient to
pay the WCMA Loan Balance and such other amounts, and there are in the WCMA
Account at any time any investments in Money Accounts (other than any
investments constituting any Minimum Money Accounts Balance under the WCMA
Directed Reserve Program), to immediately liquidate such investments and pay to
MLBFS to the extent of any WCMA Loan Balance and such other amounts the
available proceeds from the liquidation of any such Money Accounts.
3.10 Late Charge. Any payment or deposit required to be made by Customer
pursuant to this Loan Agreement or any of the Additional Agreements not paid or
made within ten (10) days of the applicable due date shall be subject to a late
charge in an amount equal to the lesser of: (a) 5% of the overdue amount, or (b)
the maximum amount permitted by applicable law. Such late charge shall be
payable on demand, or, without demand, may in the sole discretion of MLBFS be
paid by a Subsequent WCMA Loan and added to the WCMA Loan Balance in the same
manner as provided herein for accrued interest with respect to the WCMA Line of
Credit.
3.11 Prepayment. Customer may prepay the Loan and any Subsequent WCMA Loan at
any time in whole or in part without premium or penalty; provided, however, that
any refinancing of the WCMA Loan Balance by another financial institution shall:
(a) if such refinancing shall occur prior to the first anniversary of the
Closing Date, be accompanied by a premium in an amount equal to 3% of the amount
prepaid by such refinancing; (b) if such refinancing shall occur thereafter, but
prior to the second anniversary of the Closing Date, be accompanied by a premium
in an amount equal to 2% of the amount prepaid by such refinancing; and (c) if
such refinancing shall occur on or at any time after the second anniversary of
the Closing Date, be accompanied by a premium in an amount equal to 1% of the
amount prepaid by such refinancing.
3.12 Option of Customer to Terminate. Customer will have the option to terminate
the WCMA Line of Credit at any time upon written notice to MLBFS. Concurrently
with any such termination, Customer shall pay to MLBFS the entire WCMA Loan
Balance and all other Obligations.
3.13 Limitation of Liability. MLBFS shall not be responsible, and shall have no
liability to Customer or any other party, for any delay or failure of MLBFS to
honor any request of Customer for a WCMA Loan or any other act or omission of
MLBFS, MLPF&S or any of their affiliates due to or resulting from any system
failure, error or delay in posting or other clerical error, loss of power, fire,
Act of God or other cause beyond the reasonable control of MLBFS, MLPF&S or any
of their affiliates unless directly arising out of the willful wrongful act or
active gross negligence of MLBFS. In no event shall MLBFS be liable to Customer
or any other party for any incidental or consequential damages arising from any
act or omission by MLBFS, MLPF&S or any of their affiliates in connection with
the WCMA Line of Credit or this Loan Agreement.
3.14 Statements. MLPF&S will include in each monthly statement it issues under
the WCMA Program information with respect to WCMA Loans and the WCMA Loan
Balance. Any questions that Customer may have with respect to such information
or the Loan should be directed to MLBFS; and any questions with respect to any
other matter in such statements or about or affecting the WCMA Program should be
directed to MLPF&S.
ARTICLE IV. GENERAL PROVISIONS
4.1 Representations and Warranties.
Customer represents and warrants to MLBFS that:
(a) Organization and Existence. Customer is a corporation, duly organized
and validly existing in good standing under the laws of the State of Oregon and
is qualified to do business and in good standing in each other state where the
nature of its business or the property owned by it make such qualification
necessary.
(b) Execution, Delivery and Performance. The execution, delivery and
performance by Customer of this Loan Agreement and such of the Additional
Agreements to which it is a party: (i) have been duly authorized by all
requisite action, (ii) do not and will not violate or conflict with any law or
other governmental requirement, or any agreements, instruments or documents
which formed or govern Customer, and (iii) do not and will not breach or violate
any of the provisions of, and will not result in a default by Customer under,
any other agreement, instrument or document to which it is a party or by which
it or its properties are bound.
(c) Notices and Approvals. Except as may have been given or obtained, no
notice to or consent or approval of any governmental body or authority or other
third party whatsoever (including, without limitation, any other creditor) is
required in connection with the execution, delivery or performance by Customer
of such of this Loan Agreement and the Additional Agreements to which it is a
party.
(d) Enforceability. This Loan Agreement and such of the Additional
Agreements to which Customer is a party are the legal, valid and binding
obligations of Customer, enforceable against it in accordance with their
respective terms, except as enforceability may be limited by bankruptcy and
other similar laws affecting the rights of creditors generally or by general
principles of equity.
(e) Financial Statements. Except as expressly set forth in Customer's
financial statements, all financial statements of Customer furnished to MLBFS
have been prepared in conformity with generally accepted accounting principles,
consistently applied, are true and correct in all material respects, and fairly
present the financial condition of it as at such dates and the results of its
operations for the periods then ended (subject, in the case of interim unaudited
financial statements, to normal year-end adjustments); and since the most recent
date covered by such financial statements, there has been no material adverse
change in any such financial condition or operation.
(f) Litigation. No litigation, arbitration, administrative or governmental
proceedings are pending or, to the knowledge of Customer, threatened against
Customer, which would, if adversely determined, materially and adversely affect
the liens and security interests of MLBFS hereunder or under any of the
Additional Agreements, the financial condition of Customer or the continued
operations of Customer.
(g) Tax Returns. All federal, state and local tax returns, reports and
statements required to be filed by Customer have been filed with the appropriate
governmental agencies and all taxes due and payable by Customer have been timely
paid (except to the extent that any such failure to file or pay will not
materially and adversely affect either the liens and security interests of MLBFS
hereunder or under any of the Additional Agreements, the financial condition of
Customer, or the continued operations of Customer).
(h) No Outside Broker. Except for employees of MLBFS, MLPF&S or one of their
affiliates, Customer has not in connection with the transactions contemplated
hereby directly or indirectly engaged or dealt with, and was not introduced or
referred to MLBFS by, any broker or other loan arranger.
Each of the foregoing representations and warranties: (i) has been and will be
relied upon as an inducement to MLBFS to make the Loan and each Subsequent WCMA
Loan, and (ii) is continuing and shall be deemed remade by Customer on the
Closing Date, and concurrently with each request by Customer for a Subsequent
WCMA Loan.
4.2 Financial and Other Information.
(a) Customer shall furnish or cause to be furnished to MLBFS during the term
of this Loan Agreement all of the following:
(i) Annual Financial Statements. Within 120 days after the close of each
fiscal year of Parent Company, a copy of the annual, audited and consolidated
financial statements of Parent Company, including in reasonable detail, a
balance sheet and statement of retained earnings as at the close of such fiscal
year and statements of profit and loss and cash flow for such fiscal year;
(ii) Interim Financial Statements. Within 45 days after the close of each
fiscal quarter of Parent Company, a copy of the interim consolidated financial
statements of Parent Company for such fiscal quarter (including in reasonable
detail both a balance sheet as of the close of such fiscal period, and
statement of profit and loss for the applicable fiscal period);
(iii) Quarterly Compliance Recap. MLBFS requires a copy of the (certified by
an officer of Parent Company) compliance recap that is submitted to the
Customer's secured creditors on a quarterly basis. The recap is required within
45 days of each fiscal quarter end and 120 days within the Customer's fiscal
year end. The certification must attest to the accuracy and compliance of all
covenants; and
(iv) Other Information. Such other information as MLBFS may from time to time
reasonably request relating to Customer.
(b) General Agreements With Respect to Financial Information. Customer
agrees that except as otherwise specified herein or otherwise agreed to in
writing by MLBFS: (i) all annual financial statements required to be furnished
by Customer to MLBFS hereunder will be prepared by either the current
independent accountants for Customer or other independent accountants reasonably
acceptable to MLBFS, and (ii) all other financial information required to be
furnished by Customer to MLBFS hereunder will be certified as correct in all
material respects by the party who has prepared such information, and, in the
case of internally prepared information with respect to Customer, certified as
correct by its chief financial officer.
4.3 Other Covenants. Customer further covenants and agrees during the term of
this Loan Agreement that:
(a) Financial Records; Inspection. Customer will: (i) maintain at its
principal place of business complete and accurate books and records, and
maintain all of its financial records in a manner consistent with the financial
statements heretofore furnished to MLBFS, or prepared on such other basis as may
be approved in writing by MLBFS; and (ii) permit MLBFS or its duly authorized
representatives, upon reasonable notice and at reasonable times, to inspect its
properties (both real and personal), operations, books and records.
(b) Taxes. Customer will pay when due all taxes, assessments and other
governmental charges, howsoever designated, and all other liabilities and
obligations, except to the extent that any such failure to pay will not
materially and adversely affect either any liens and security interests of MLBFS
under any Additional Agreements, the financial condition of Customer or the
continued operations of Customer.
(c) Compliance With Laws and Agreements. Customer will not violate any law,
regulation on other governmental requirement, any judgment or order of any court
or governmental agency or authority, or any agreement, instrument or document to
which it is a party or by which it is bound, if any such violation will
materially and adversely affect either any liens and security interests of MLBFS
under any Additional Agreements, or the financial condition or the continued
operations of Customer.
(d) No Use of Merrill Lynch Name. Customer will not directly or indirectly
publish, disclose or otherwise use in any advertising or promotional material,
or press release or interview, the name, logo or any trademark of MLBFS, MLPF&S,
Merrill Lynch and Co., incorporated or any of their affiliates.
(e) Notification By Customer. Customer shall provide MLBFS with prompt
written notification of: (i) any Default; (ii) any materially adverse change in
the business, financial condition or operations of Customer; (iii) any
information which indicates that any financial statements of Customer fail in
any material respect to present fairly the financial condition and results of
operations purported to be presented in such statements; and (iv) any change in
Customer's outside accountants. Each notification by Customer pursuant hereto
shall specify the event or information causing such notification, and, to the
extent applicable, shall specify the steps being taken to rectify or remedy such
event or information.
(f) Notice of Change. Customer shall give MLBFS not less than 30 days prior
written notice of any change in the name (including any fictitious name) or
principal place of business or residence of Customer.
(g) Continuity. Except upon the prior written consent of MLBFS, which
consent will not be unreasonably withheld: (i) Customer shall not be a party to
any merger or consolidation with, or purchase or otherwise acquire all or
substantially all of the assets of, or any material stock, partnership, joint
venture or other equity interest in, any person or entity, or sell, transfer or
lease all or any substantial part of its assets, if any such action would result
in either: (A) a material change in the principal business, ownership or control
of Customer, or (B) a material adverse change in the financial condition or
operations of Customer; (ii) Customer shall preserve its existence and good
standing in the jurisdiction(s) of establishment and operation; (iii) Customer
shall not engage in any material business substantially different from its
business in effect as of the date of application by Customer for credit from
MLBFS, or cease operating any such material business; (iv) Customer shall not
cause or permit any other person or entity to assume or succeed to any material
business or operations of Customer; and (v) Customer shall not cause or permit
any material change in its controlling ownership.
(h) Minimum Tangible Net Worth. Customer's consolidated "tangible net
worth" shall at all times exceed $125,000,000.00. For the purposes hereof, the
term "Consolidated Tangible Net Worth" shall mean, at any date of determination,
(a) the total stockholder's equity of the Parent Company and the Subsidiaries
(other than the Vintage Subsidiary) as of such date determined on a consolidated
basis in accordance with GAAP minus (b) the portion of the consolidated assets
of the Parent Company and the Subsidiaries (other than the Vintage Subsidiary)
as of such date of determination that are required to be treated as intangibles
in conformity with GAAP (other than all prepaid expenses and deferred charges or
unamortized debt discount and expense and all capitalized fees and expenses
relating to the Transactions and the Refinancing), plus (c) the amount of any
non-recurring, non-cash expenses or losses deducted in determining Consolidated
Net income relating to (i) the GATX Aircraft or (ii) a write-off in connection
with the Transactions of prepaid expenses and deferred charges or unamortized
debt discount and expense and all capitalized fees and expenses related to the
Refinancing.
(i) Coverage Ratio. The Coverage Ratio of Customer's, determined as
aforesaid, shall at all times exceed 1.25 to 1. For the purposes hereof, the
term "Coverage Ratio" shall mean, as of the last day of any fiscal quarter, the
ratio of (a) Consolidated EBITDA plus, to the extent deducted in calculating
Consolidated EBITDA, Consolidated Aircraft Rentals and minus Capital
Expenditures, in each case for the period of four consecutive fiscal quarters
ended on such day to (b) Consolidated Interest Expense plus Consolidated
Aircraft Rentals for such period.
(j) Leverage Ratio. The Leverage Ratio of Customer's, determined as
aforesaid, shall not at any time exceed 3.00 to 1. For the purposes hereof, the
term "Leverage Ratio" shall mean, as of any date, the ratio of (a) Total Debt as
of such date to (b) Consolidated EBITDA for the period of four consecutive
fiscal quarters ended on such date (or, if such date is not the last day of a
fiscal quarter of the Parent Company, the period of four consecutive fiscal
quarters of the Parent Company most recently ended prior to such date), all
determined on a consolidated basis in accordance with GAAP.
4.4 Events of Default.
The occurrence of any of the following events shall constitute an "Event of
Default" under this Loan Agreement:
(a) Failure to Pay. (i) Customer shall fail to deposit into the WCMA Account
an amount sufficient to assure that the WCMA Loan Balance does not exceed the
Maximum WCMA Line of Credit, as reduced in accordance with the provisions
hereof, or (ii) Customer shall fail to pay to MLBFS or deposit into the WCMA
Account when due any other amount owing or required to be paid or deposited by
Customer under this Loan Agreement, or (iii) Customer shall fail to pay when due
any other Obligations; and any such failure shall continue for more than five
(5) Business Days after written notice thereof shall have been given by MLBFS to
Customer.
(b) Failure to Perform. Customer shall default in the performance or
observance of any covenant or agreement on its part to be performed or observed
under this Loan Agreement or any of the Additional Agreements (not constituting
an Event of Default under any other clause of this Section), and such default
shall continue unremedied for ten (10) Business Days after written notice
thereof shall have been given by MLBFS to Customer.
(c) Breach of Warranty. Any representation or warranty made by Customer or
any other party providing collateral for the Obligations contained in this Loan
Agreement or any of the other Additional Agreements shall at any time prove to
have been incorrect in any material respect when made.
(d) Default Under Other Agreement. A default or Event of Default by
Customer, Delford M. Smith under that certain WCMA Reducing Revolver Loan and
Security Agreement No. 25F-07097, or Evergreen Aircraft Sales and Leasing Co.,
shall occur under the terms of any other agreement, instrument or document with
or intended for the benefit of MLBFS, MLPF&S or any of their affiliates, and any
required notice shall have been given and required passage of time shall have
elapsed.
(e) Bankruptcy Event. Any Bankruptcy Event shall occur.
(f) Material Impairment. Any event shall occur which shall reasonably cause
MLBFS to in good faith believe that the prospect of full payment or performance
by Customer of its liabilities or obligations under this Loan Agreement or any
of the Additional Agreements to which Customer is a party has been materially
impaired. The existence of such a material impairment shall be determined in a
manner consistent with the intent of Section 1-208 of the UCC.
(g) Acceleration of Debt to Other Creditors. Any event shall occur which
results in the acceleration of the maturity of any indebtedness of
$10,000,000.00 or more of Customer to another creditor under any indenture,
agreement, undertaking, or otherwise.
4.5 Remedies.
(a) Remedies Upon Default. Upon the occurrence and during the continuance of
any Event of Default, MLBFS may at its sole option do any one or more or all of
the following, at such time and in such order as MLBFS may in its sole
discretion choose:
(i) Termination. MLBFS may without notice terminate its obligation to make
the Loan (if the Loan has not then been funded), terminate the WCMA Line of
Credit, and terminate any obligation to make any Subsequent WCMA Loan
(including, without limitation, any Subsequent WCMA Loan to pay accrued
interest) or otherwise extend any credit to or for the benefit of Customer (it
being understood that upon the occurrence of any Bankruptcy Event the WCMA Line
of Credit and all such obligations shall automatically terminate without any
action on the part of MLBFS); and upon any such termination MLBFS shall be
relieved of all such obligations.
(ii) Acceleration. MLBFS may declare the WCMA Loan Balance and all other
Obligations to be forthwith due and payable, whereupon all such amounts shall be
immediately due and payable, without presentment, demand for payment, protest
and notice of protest, notice of dishonor, notice of acceleration, notice of
intent to accelerate or other notice or formality of any kind, all of which are
hereby expressly waived; provided, however, that upon the occurrence of any
Bankruptcy Event the WCMA Loan Balance and other Obligations shall automatically
become due and payable without any action on the part of MLBFS.
(b) Set-Off. MLBFS shall have the further right upon the occurrence and
during the continuance of an Event of Default to set-off, appropriate and apply
toward payment of any of the Obligations, in such order of application as MLBFS
may from time to time and at any time elect, any cash, credit, deposits,
accounts, financial assets, investment property, securities and any other
property of Customer which is in transit to or in the possession, custody or
control of MLBFS, MLPF&S or any agent, bailee, or affiliate of MLBFS or MLPF&S.
Customer hereby collaterally assigns and grants to MLBFS a continuing security
interest in all such property as additional security for the Obligations. Upon
the occurrence and during the continuance of an Event of Default, MLBFS shall
have all rights in such property available to collateral assignees and secured
parties under all applicable laws, including, without limitation, the UCC.
(c) Remedies are Severable and Cumulative. All rights and remedies of MLBFS
herein are severable and cumulative and in addition to all other rights and
remedies available in the Additional Agreements, at law or in equity, and any
one or more of such rights and remedies may be exercised simultaneously or
successively.
4.6 Miscellaneous.
(a) Non-Waiver. No failure or delay on the part of MLBFS in exercising any
right, power or remedy pursuant to this Loan Agreement or any of the Additional
Agreements shall operate as a waiver thereof, and no single or partial exercise
of any such right, power or remedy shall preclude any other or further exercise
thereof, or the exercise of any other right, power or remedy. Neither any waiver
of any provision of this Loan Agreement or any of the Additional Agreements, nor
any consent to any departure by Customer therefrom, shall be effective unless
the same shall be in writing and signed by MLBFS. Any waiver of any provision of
this Loan Agreement or any of the Additional Agreements and any consent to any
departure by Customer from the terms thereof shall be effective only in the
specific instance and for the specific purpose for which given. Except as
otherwise expressly provided herein, no notice to or demand on Customer shall in
any case entitle Customer to any other or further notice or demand in similar or
other circumstances.
(b) Disclosure. Customer hereby irrevocably authorizes MLBFS and each of its
affiliates, including without limitation MLPF&S, to at any time (whether or not
an Event of Default shall have occurred) obtain from and disclose to each other
any and all financial and other information about Customer.
(c) Communications. All notices and other communications required or
permitted hereunder or in connection with any of the Additional Agreements shall
be in writing, and shall be either delivered personally, mailed by postage
prepaid certified mail or sent by express overnight courier or by facsimile.
Such notices and communications shall be deemed to be given on the date of
personal delivery, facsimile transmission or actual delivery of certified mail,
or one Business Day after delivery to an express overnight counter. Unless
otherwise specified in a notice sent or delivered in accordance with the terms
hereof, notices and other communications in writing shall be given to the
parties hereto at their respective addresses set forth at the beginning of this
Loan Agreement, or, in the case of facsimile transmission, to the parties at
their respective regular facsimile telephone number.
(d) Fees, Expenses and Taxes. Customer shall pay or reimburse MLBFS for: (i)
all Uniform Commercial Code filing and search fees and expenses incurred by
MLBFS in connection with the verification, perfection or preservation of MLBFS'
rights hereunder or in any collateral for the Obligations; (ii) any and all
stamp, transfer and other taxes and fees payable or determined to be payable in
connection with the execution, delivery and/or recording of this Loan Agreement
or any of the Additional Agreements; and (iii) all reasonable fees and
out-of-pocket expenses (including, but not limited to, reasonable fees and
expenses of outside counsel) incurred by MLBFS in connection with the collection
of any sum payable hereunder or under any of the Additional Agreements not paid
when due, the enforcement of this Loan Agreement or any of the Additional
Agreements and the protection of MLBFS' rights hereunder or thereunder,
excluding, however, salaries and normal overhead attributable to MLBFS'
employees. Customer hereby authorizes MLBFS, at its option, to either cause any
and all such fees, expenses and taxes to be paid with a WCMA Loan, or invoice
Customer therefor (in which event Customer shall pay all such fees, expenses
and taxes within 5 Business Days after receipt of such invoice). The obligations
of Customer under this paragraph shall survive the expiration or termination of
this Loan Agreement and the discharge of the other Obligations.
(e) Right to Perform Obligations. If Customer shall fail to do any act or
thing which it has covenanted to do under this Loan Agreement or any
representation or warranty on the part of Customer contained in this Loan
Agreement shall be breached, MLBFS may, in its sole discretion, after 5 Business
Days written notice is sent to Customer (or such lesser notice as is reasonable
under the circumstances), do the same or cause it to be done or remedy any such
breach, and may expend its funds for such purpose. Any and all reasonable
amounts so expended by MLBFS shall be repayable to MLBFS by Customer upon
demand, with interest at the Interest Rate during the period from and including
the date funds are so expended by MLBFS to the date of repayment, and all such
amounts shall be additional Obligations. The payment or performance by MLBFS of
any of Customer's obligations hereunder shall not relieve Customer of said
obligations or of the consequences of having failed to pay or perform the same,
and shall not waive or be deemed a cure of any Default.
(f) Further Assurances. Customer agrees to do such further acts and things
and to execute and deliver to MLBFS such additional agreements, instruments and
documents as MLBFS may reasonably require or deem advisable to effectuate the
purposes of this Loan Agreement or any of the Additional Agreements.
(g) Binding Effect. This Loan Agreement and the Additional Agreements shall
be binding upon and shall inure to the benefit of MLBFS, Customer and their
respective successors and assigns. Customer shall not assign any of its rights
or delegate any of its obligations under this Loan Agreement or any of the
Additional Agreements without the prior written consent of MLBFS. Unless
otherwise expressly agreed to in a writing signed by MLBFS, no such consent
shall in any event relieve Customer of any of its obligations under this Loan
Agreement or any of the Additional Agreements.
(h) Headings. Captions and section and paragraph headings in this Loan
Agreement are inserted only as a matter of convenience, and shall not affect the
interpretation hereof.
(i) Governing Law. This Loan Agreement and, unless otherwise expressly
provided therein, each of the Additional Agreements, shall be governed in all
respects by the laws of the State of Illinois.
(j) Severability of Provisions. Whenever possible, each provision of this
Loan Agreement and the Additional Agreements shall be interpreted in such manner
as to be effective and valid under applicable law. Any provision of this Loan
Agreement or any of the Additional Agreements which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without invalidating
the remaining provisions of this Loan Agreement and the Additional Agreements or
affecting the validity or enforceability of such provision in any other
jurisdiction.
(k) Term. This Loan Agreement shall become effective on the date accepted
by MLBFS at its office in Chicago, Illinois, and, subject to the terms hereof,
shall continue in effect so long thereafter as: (i) MLBFS shall be obligated to
make the Loan, (ii) The WCMA Line of Credit shall be in effect, (iii) there
shall be any moneys outstanding under this Loan Agreement, or (iv) there shall
be any other Obligations outstanding.
(l) Counterparts. This Loan Agreement may be executed in one or more
counterparts which, when taken together, constitute one and the same agreement.
(m) Jurisdiction; Waiver. CUSTOMER ACKNOWLEDGES THAT THIS LOAN AGREEMENT IS
BEING ACCEPTED BY MLBFS IN PARTIAL CONSIDERATION OF MLBFS' RIGHT AND OPTION, IN
ITS SOLE DISCRETION, TO ENFORCE THIS LOAN AGREEMENT AND THE ADDITIONAL
AGREEMENTS IN EITHER THE STATE OF ILLINOIS OR IN ANY OTHER JURISDICTION WHERE
CUSTOMER OR ANY COLLATERAL FOR THE OBLIGATIONS MAY BE LOCATED. CUSTOMER
IRREVOCABLY SUBMITS ITSELF TO JURISDICTION IN THE STATE OF ILLINOIS AND VENUE IN
ANY STATE OR FEDERAL COURT IN THE COUNTY OF COOK FOR SUCH PURPOSES, AND CUSTOMER
WAIVES ANY AND ALL RIGHTS TO CONTEST SAID JURISDICTION AND VENUE AND THE
CONVENIENCE OF ANY SUCH FORUM, AND ANY AND ALL RIGHTS TO REMOVE SUCH ACTION FROM
STATE TO FEDERAL COURT. CUSTOMER FURTHER WAIVES ANY RIGHTS TO COMMENCE ANY
ACTION AGAINST MLBFS IN
ANY JURISDICTION EXCEPT IN THE COUNTY OF COOK AND STATE OF ILLINOIS. MLBFS AND
CUSTOMER HEREBY EACH EXPRESSLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES AGAINST
THE OTHER PARTY WITH RESPECT TO ANY MATTER RELATING TO, ARISING OUT OF OR IN ANY
WAY CONNECTED WITH THE LOAN, THIS LOAN AGREEMENT, ANY ADDITIONAL AGREEMENTS
AND/OR ANY OF THE TRANSACTIONS WHICH ARE THE SUBJECT MATTER OF THIS LOAN
AGREEMENT. CUSTOMER FURTHER WAIVES THE RIGHT TO BRING ANY NON-COMPULSORY
COUNTERCLAIMS.
(n) Integration. THIS LOAN AGREEMENT, TOGETHER WITH THE ADDITIONAL
AGREEMENTS, CONSTITUTES THE ENTIRE UNDERSTANDING AND REPRESENTS THE FULL AND
FINAL AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF,
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR WRITTEN AGREEMENTS OR PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS OF THE PARTIES. WITHOUT LIMITING THE FOREGOING,
CUSTOMER ACKNOWLEDGES THAT: (I) NO PROMISE OR COMMITMENT HAS BEEN MADE TO IT BY
MLBFS, MLPF&S OR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS OR REPRESENTATIVES TO
MAKE THE LOAN OR ANY SUBSEQUENT WCMA LOAN ON ANY TERMS OTHER THAN AS EXPRESSLY
SET FORTH HEREIN, OR TO MAKE ANY OTHER LOAN OR OTHERWISE EXTEND ANY OTHER CREDIT
TO CUSTOMER OR ANY OTHER PARTY; AND (II) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
HEREIN, THIS LOAN AGREEMENT SUPERSEDES AND REPLACES ANY AND ALL PROPOSALS,
LETTERS OF INTENT AND APPROVAL AND COMMITMENT LETTERS FROM MLBFS TO CUSTOMER,
NONE OF WHICH SHALL BE CONSIDERED AN ADDITIONAL AGREEMENT. NO AMENDMENT OR
MODIFICATION OF THIS AGREEMENT OR ANY OF THE ADDITIONAL AGREEMENTS TO WHICH
CUSTOMER IS A PARTY SHALL BE EFFECTIVE UNLESS IN A WRITING SIGNED BY BOTH MLBFS
AND CUSTOMER.
IN WITNESS WHEREOF, this Loan Agreement has been executed as of the day and year
first above written.
EVERGREEN INTERNATIONAL AIRLINES, INC.
By: /s/ John A. Irwin
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Signature (1) Signature (2)
JOHN A. IRWIN
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Printed Name Printed Name
VICE PRESIDENT - FINANCE
- --------------------------------------------------------------------
Title Title
Accepted at Chicago, Illinois:
MERRILL LYNCH BUSINESS FINANCIAL
SERVICES INC.
By: /s/ Roberta Linderman
------------------------------------
Roberta Linderman