Exhibit 10.37
SECOND AMENDMENT TO CREDIT, GUARANTY AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO CREDIT, GUARANTY AND SECURITY AGREEMENT, dated as
of August 15, 2003 (this "Second Amendment"), by and among Evergreen
International Aviation, Inc., an Oregon corporation ("Borrower"), the various
Subsidiaries (direct and indirect) of Borrower whose names appear on the
signature pages to the Credit Agreement (as defined below) or who may thereafter
become parties thereto by executing and delivering an Instrument of Joinder (the
"Subsidiary Parties"), a trust created pursuant to that certain Trust Agreement
dated as of May 1, 1997, by and between Boomer Air, Inc., a Delaware
corporation, as owner participant, and First Security Bank, National
Association, a national banking association (predecessor in interest to Wells
Fargo Bank Northwest, N. A.), not in its individual capacity, but as owner
trustee (the "Evergreen Aircraft Trust"), Evergreen Holdings, Inc., an Oregon
corporation ("Parent Company"), a Delaware common law trust created pursuant to
that certain Trust Agreement, dated as of February 25, 1986, as amended and
restated pursuant to the Amended and Restated Trust Agreement, dated as of
August 31, 1987, as amended on August 31, 1988, and as amended and restated
pursuant to the Second Amended and Restated Trust Agreement, dated as of
September 29, 1995, as amended as of May 8, 2003, among the Borrower (an
assignee of the Parent Company) as successor to 747, Inc. and King, Christian
Inc. and Delford M. Smith, as Beneficiaries, and Wilmington Trust Company, not
in its individual capacity, but solely as owner trustee (the "1986 Trust"), the
financial institutions which are now or which hereafter become a party to the
Credit Agreement (collectively, the "Lenders" and individually a "Lender"), PNC
Bank, National Association ("PNC"), as the Administrative Agent for Lenders and
Lead Arranger (PNC, in such capacity, the "Agent"), and GE CAPITAL PUBLIC
FINANCE, INC, as the Documentation Agent (in such capacity, the "Documentation
Agent"). The Borrower, the Subsidiary Parties and the Evergreen Aircraft Trust
are sometimes referred to collectively as the "Credit Parties" and individually
as a "Credit Party". The Subsidiary Parties, the Parent Company, the Evergreen
Aircraft Trust and the 1986 Trust are sometimes referred to as the "Guarantors"
and individually as a "Guarantor".
A. The Credit Parties, Parent Company, the 1986 Trust, Lenders and Agent
have previously entered into that certain Credit, Guaranty and Security
Agreement, dated as of May 16, 2003, as amended by that First Amendment to
Credit, Guaranty and Security Agreement dated as of August 14, 2003 (as the same
may be further amended, modified, supplemented or restated from time to time,
the "Credit Agreement"), pursuant to which Lenders and Agent have extended and
have agreed to extend and make available to Borrower certain advances of money
under a revolving credit facility (the "Revolving Credit Facility" in the amount
of up to One Hundred Million Dollars ($100,000,000) upon the terms and
conditions set forth in the Credit Agreement, and any and all agreements,
documents and instruments now existing or hereafter executed and delivered in
connection with the Revolving Credit Facility (collectively, the "Loan
Documents").
B. The parties desire to enter into this Second Amendment to modify the
Credit Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. All capitalized terms used in this Second Amendment and not
otherwise defined herein have the meanings ascribed to such capitalized terms in
the Credit Agreement.
2. Amendment to Add Definition. The following definition is hereby added to
the Credit Agreement:
"Related Funds" shall have the meaning set forth in Section 16.3(c)
hereof.
3. Revision of Certain Other Provisions. The following provisions of the
Credit Agreement are hereby revised as follows:
(a) Any instance in Section 3.2 of the Credit Agreement in which
"three hundred" is referenced is revised to read "three hundred sixty".
(b) The second sentence of Section 6.5 of the Credit Agreement is
deleted in its entirety.
(c) The second sentence Section 6.6 of the Credit Agreement is deleted
in its entirety.
(d) The second sentence of Section 13.1(a) of the Credit Agreement is
deleted in its entirety and replaced with the following:
"Upon the written request of Borrower made at least 60 days prior to
the end of the then applicable Term, the Term may be extended for an
additional period but only with the written consent of all Lenders
received prior to the end of the then applicable Term."
(e) Section 16.3(b) of the Credit Agreement is deleted in its entirety
and replaced with the following:
"Any Lender may, without the consent of the Credit Parties or the
Guarantors, sell participations to one or more banks or other entities
(each, a "Transferee") in all or a portion of such Lender's rights and
obligations under this Agreement; provided that (i) such Lender's
obligations under this Agreement remain unchanged, (ii) such Lender
remains solely responsible to the other parties hereto for the
performance of such obligations and (iii) all parties continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement
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or instrument pursuant to which a Lender sells such a participation to
a Transferee shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement. Unless
contrary to this Agreement or applicable law, each Transferee has the
right to receive the applicable portion of all principal and interest
payments and such other payments made in connection with the
participation, provided that a Transferee shall not be entitled to
receive any greater payment than the applicable Lender would have been
entitled to receive with respect to the participation sold to such
Transferee."
(f) The following additional language is added following the last
sentence of Section 16.3(c) of the Credit Agreement:
"Notwithstanding anything herein to the contrary, A3 Funding LP (or
any Related Fund (as hereinafter defined) which is an assignee of A3
Funding LP) shall be permitted to assign to one or more Related Funds
or A3 Funding LP, as the case may be, all or any part of its rights
and obligations under this Agreement and the Other Documents without
the prior written consent of Agent, in minimum amounts of not less
than $1,000,000; provided, however, that (i) any such assignment that
does not comply with this clause (c) shall be treated for purposes of
this Agreement as a sale of a participation in such rights and
obligations in accordance with Section 16.3(b) and (ii) no such
assignment shall be effective for purposes of this Agreement unless
the Related Fund or A3 Funding LP, as the case may be, has executed
and delivered a Commitment Transfer Supplement to Agent and Agent has
recorded the assignment in the Register (as defined in Section
16.3(d)). For the purpose of the foregoing sentence, a "Related Fund"
shall mean any Person (other than a natural person) that (A) is
creditworthy, (B) is or will be (upon such assignment being made)
engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary
course of business and (C) is an affiliate of A3 Funding LP or is
managed or advised with full investment discretion by A3 Funding LP."
4. Representations and Warranties. In order to induce Agent to enter into
this Second Amendment, Borrower hereby represents and warrants to Agent as
follows:
(a) After giving effect to this Second Amendment: (i) the
representations and warranties contained in the Loan Documents (other than those
that expressly speak as of a different date) are true, accurate and complete in
all material respects as of the date hereof and (ii) no Default or Event of
Default has occurred and is continuing;
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(b) Borrower has the corporate power and authority to execute and
deliver this Second Amendment and to perform its obligations under the Loan
Documents to which it is a party;
(c) The articles of incorporation, bylaws and other organizational
documents of Borrower delivered to Agent pursuant to the Credit Agreement are
true, accurate and complete and have not been amended, supplemented or restated
and continue to be in full force and effect, except as certified to Agent at the
time of their delivery to Agent;
(d) The execution and delivery by Borrower of this Second Amendment
and the performance by Borrower of its obligations under the Credit Agreement
and each of the other Loan Documents to which Borrower is a party have been duly
authorized by all necessary corporate action on the part of Borrower;
(e) The execution and delivery by Borrower of this Second Amendment
and the performance by Borrower of its obligations under the Loan Documents do
not and will not contravene (i) any law or regulation binding on or affecting
Borrower, (ii) the articles of incorporation or bylaws of Borrower, (iii) any
order, judgment or decree of any court or other governmental or public body or
authority, or subdivision thereof, binding on Borrower or (iv) any contractual
restriction binding on or affecting Borrower;
(f) The execution and delivery by Borrower of this Second Amendment
and the performance by Borrower of its obligations under each Loan Document to
which it is a party do not require any order, consent, approval, license,
authorization or validation of, or filing, recording or registration with, or
exemption by any governmental or public body or authority, or subdivision
thereof, binding on Borrower, except as already has been obtained or made; and
(g) This Second Amendment has been duly executed and delivered by
Borrower and is the binding obligation of Borrower, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar
laws of general application and equitable principles relating to or affecting
creditors' rights.
5. Conditions Precedent. The legal effectiveness of this Second Amendment
is subject to the full satisfaction, in Agent's sole discretion, of the
following conditions precedent:
(a) Borrower shall have duly executed this Second Amendment and
delivered the same to Agent;
(b) Agent shall have received a certificate of the Secretary of
Borrower with respect to incumbency containing sample signatures and resolutions
authorizing the execution and delivery of each of this Second Amendment and the
performance of the transactions contemplated by this Second Amendment;
(c) Borrower shall have paid any and all amounts that are due to
Agent, including, but not limited to the estimated reasonable fees and expenses
of Agent's legal counsel in connection with preparation, negotiation and
execution of this Second Amendment; and
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(d) Agent shall have received any and all consents and other documents
necessary to permit the effectuation of the transactions contemplated by this
Second Amendment and the Credit Agreement.
6. Severability. Any provision of this Second Amendment that is held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Second Amendment and the effect thereof
shall be confined to the provisions so held to be invalid or unenforceable.
7. Successors and Assigns. This Second Amendment is binding upon and shall
inure to the benefit of Borrower, Agent and their respective successors and
permitted assigns, except as limited by applicable law and/or by the terms of
the Credit Agreement.
8. Effect of this Second Amendment. Except as expressly provided for in
this Second Amendment, this Second Amendment shall not, in any way or manner,
rescind, supplement or modify any existing term or provision of the Credit
Agreement or any other Loan Document or waive or diminish any right or remedy of
Lenders under the Credit Agreement, or any other Loan Document, at law in or
equity. All of the amendments set forth in this Second Amendment shall be
effective as of the date hereof.
9. Further Assurances. Borrower agrees that it shall do and perform such
acts and execute and deliver such additional documents and instruments as may be
necessary to effectuate the purposes of this Second Amendment, including,
without limitation, documents and instruments relating to the perfection and
continuation of the security interest of Agent, on behalf of Lenders, granted
under the Credit Agreement.
10. Headings. The headings in this Second Amendment are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
11. General Release. Borrower, on behalf of itself and its officers,
agents, attorneys, employees, directors, members, shareholders, parent entities,
subsidiaries and affiliates, and any other person or entities who may claim
through any one or all of them (collectively, including Borrower, the "Releasing
Parties"), does hereby release and forever discharges Agent, each Lender and
each of their respective present and former affiliates, subsidiaries,
predecessors, successors, assigns, shareholders, officers, directors, employees,
representatives, administrators and attorneys (collectively, the "Released
Parties"), of and from any and all causes of action, in law or in equity, suits,
debts, liens, claims, demands, damages, losses, costs or expenses, of any nature
whatsoever, known or unknown, suspected or unsuspected, fixed or contingent,
past or present, that any one or all of the Releasing Parties now have, hold or
own or may hereafter have, own or hold, or that any or all of them may ever
have, own or hold, by reason of any matter, cause, fact or thing, act or
omission whatsoever, against the Released Parties by reason of any of the Loan
Documents or any matter, cause or thing whatsoever, at any time, related to the
Loan Documents, the business relationships between Borrower and Lenders, or
otherwise Parties (all of the foregoing, collectively, the "Released Claims").
It is the mutual intention of the parties that this release be unqualifiedly
general in scope and effect and that the foregoing release shall be effective as
a bar against all actions, causes of action, suits, claims or demands of every
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kind, nature or character whatsoever, known or unknown, suspected or
unsuspected, fixed or contingent, against the Released.
THE RELEASING PARTIES ACKNOWLEDGE THAT THEY HAVE HAD AN OPPORTUNITY TO
CONSULT WITH LEGAL COUNSEL AND ARE FAMILIAR WITH THE PROVISIONS OF CALIFORNIA
CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
THE RELEASING PARTIES EXPRESSLY WAIVE AND RELINQUISH ANY AND ALL RIGHTS OR
BENEFITS THAT THEY MAY HAVE, OR WHICH MAY BE CONFERRED UPON THEM BY, THE
PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE TO THE FULLEST EXTENT
THAT THEY MAY LAWFULLY WAIVE SUCH RIGHTS OR BENEFITS PERTAINING TO THE SUBJECT
MATTER OF THE ABOVE-DESCRIBED RELEASE. In connection with such waiver and
relinquishment, the Releasing Parties hereby acknowledge that they are aware
that they, or their attorneys, may hereafter discover claims or fact in addition
to, or different from, those that they now know or believe to exist with respect
to the subject matter of this Second Amendment, but that it is nonetheless the
intention of the Releasing Parties to hereby fully, finally and forever settle
and release all disputes and differences, known or unknown, suspected or
unsuspected, that constitute the Released Claims.
12. Governing Law. THIS SECOND AMENDMENT SHALL BE GOVERNED BYAND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS.
13. Integration. This Second Amendment (and all Exhibits attached hereto,
which are hereby incorporated by reference in this Second Amendment) and the
Credit Agreement, as modified hereby, constitute the entire agreement among the
parties hereto and supersedes all prior and contemporaneous agreements, oral or
written, among the parties concerning the subject matter hereof. No term of this
Second Amendment shall be amended, supplemented, modified or waived except by a
writing signed by the parties hereto.
14. Construction. Each party to this Second Amendment has reviewed and
participated in the formulation of the components of this Second Amendment.
Accordingly, this Second Amendment shall be construed simply according to its
fair meaning and not strictly for or against any party.
15. Attorney's Fees. Borrower agrees to pay to Agent, in addition to any
other amounts otherwise due and owing to Agent, all of Agent's reasonable
attorney's fees, costs and expenses incurred in connection with the preparation
of this Second Amendment and the resolution of the matters discussed herein.
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16. Counterparts. This Second Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which, taken
together, shall constitute one and the same agreement.
[Remainder of page intentionally left blank, signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
as of the day and year first written above.
EVERGREEN INTERNATIONAL AVIATION,
INC., as Borrower
By: /s/ Michael R. Barr
-------------------------------
Name: Michael R. Barr
Title: CFO
PNC BANK NATIONAL ASSOCIATION,
as Agent and Lender
By: /s/ Laurence Weinstein
-------------------------------
Name: Laurence Weinstein
Title: Vice President
Commitment Percentage: 60%
GE CAPITAL PUBLIC FINANCE, INC.,
as Documentation Agent and Lender
By: /s/ Ronald E. Les
-------------------------------
Name: Ronald E. Les
Title: Senior Risk Officer
Commitment Percentage: 25%
HSBC BANK, USA,
as Lender
By: /s/ L.K. Todd
-------------------------------
Name: L.K. Todd
Title: Senior Vice President
Commitment Percentage: 15%
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EVERGREEN INTERNATIONAL AIRLINES,
INC.
By: /s/ John A. Irwin
-------------------------------
Name: John A. Irwin
Title: 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: Treasurer
EVERGREEN AIR CENTER, INC.
By: /s/ Gwenna R. Wootress
-------------------------------
Name: Gwenna R. Wootress
Title: Corporate Secretary
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EVERGREEN AIRCRAFT SALES AND
LEASING CO.
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: Treasurer
EVERGREEN HELICOPTERS OF ALASKA,
INC.
By: /s/ John A. Irwin
-------------------------------
Name: John A. Irwin
Title: Treasurer
BOOMER AIR, INC.
By: /s/ John A. Irwin
-------------------------------
Name: John A. Irwin
Title: Treasurer
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Sys-tems Logisti X, Inc.
(formerly known as EZ EXPRESS CORP.)
By: /s/ John A. Irwin
-------------------------------
Name: John A. Irwin
Title: Treasurer
THE EVERGREEN AIRCRAFT TRUST
By: WELLS FARGO NORTHWEST, N.A.,
not in its individual capacity
but solely as the owner trustee
of Evergreen Aircraft Trust
By: /s/ Val T. Orton
----------------------------
Name: Val T. Orton
Title: Vice President
EVERGREEN HOLDINGS, INC.
By: /s/ John A. Irwin
-------------------------------
Name: John A. Irwin
Title: Treasurer
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as the owner trustee of the
1986 Trust
By: /s/ Irene A. Lennon
-------------------------------
Name: Irene A. Lennon
Title: Senior Financial Services
Officer
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