EXHIBIT 10.48
SECOND AMENDMENT AGREEMENT
This SECOND AMENDMENT AGREEMENT, dated as of May 10, 2004 (this "Second
Amendment Agreement"), to the Secured Loan Agreement, dated as of May 7, 1997
(the "Secured Loan Agreement"), among FINOVA Capital Corporation, Wilmington
Trust Company, not in its individual capacity, except as expressly set forth
therein, but solely as owner trustee ("Owner Trustee") under the Trust Agreement
(as defined below), 747 Inc., an Oregon corporation ("747"), Xxxxxxx X. Xxxxx, a
natural person, and Xxxx, Xxxxxxxxx Inc., a Nevada corporation ("Xxxx
Xxxxxxxxx"), as amended by the Amendment Agreement, dated as of May 9, 2003 (as
amended, the "Existing Secured Loan Agreement"), is hereby given by FINOVA
CAPITAL CORPORATION, a Delaware corporation ("FINOVA"), WILMINGTON TRUST
COMPANY, not in its individual capacity, but solely as Owner Trustee, EVERGREEN
INTERNATIONAL AVIATION, INC., an Oregon corporation ("Aviation"), as assignee of
Evergreen Holdings, Inc., an Oregon corporation ("Holdings") (successor to 747
and Xxxx Xxxxxxxxx), and XXXXXXX X. XXXXX.
WHEREAS, the Secured Loan Agreement was entered into on May 7, 1997 among
FINOVA, as lender, Wilmington Trust Company, not in its individual capacity,
except as expressly set forth therein, but solely as Owner Trustee of the trust
created pursuant to the Trust Agreement, as borrower, and 747, Xxxxxxx X. Xxxxx
and Xxxx Xxxxxxxxx, as owner participants.
WHEREAS, a trust (the "1986 Trust") was created pursuant to the Trust
Agreement, dated as of February 25, 1986, as amended and restated by the Amended
and Restated Trust Agreement, dated as of August 31, 1987, as amended on August
31, 1988, as amended and restated by the Second Amended and Restated Trust
Agreement, dated as of September 29, 1995, as amended by the First Amendment
thereto as of May 8, 2003, as amended by the Second Amendment thereto as of
January 14, 2004, and as amended by the Third Amendment thereto as of May 10,
2004, among Aviation, as assignee of Holdings (successor to 747 and Xxxx
Xxxxxxxxx), and Xxxxxxx X. Xxxxx, as Beneficiaries, and Wilmington Trust
Company, not in its individual capacity, but as Owner Trustee (as restated and
amended, the "Trust Agreement").
WHEREAS, pursuant to the Articles of Merger filed on August 11, 1998 with
the Secretary of State of the State of Oregon, each of 747 and Xxxx Xxxxxxxxx
were merged with and into Holdings, with Holdings as the surviving corporation.
WHEREAS, the Assignment, Assumption and Amendment, dated as of July 31,
1998, was entered into among Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee, Xxxxxxx X. Xxxxx, Holdings, Aviation and
FINOVA, whereby Holdings (as successor to 747 and Xxxx Xxxxxxxxx) assigned all
its right, title and interest in, to and under the Secured Loan Agreement to
Aviation, and Aviation assumed all Holdings' obligations thereunder.
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WHEREAS, the Assignment and Assumption Agreement, dated as of July 31,
1998, was entered into between Holdings and Aviation, whereby Holdings assigned
all its rights, title and interests in, to and under the Trust Agreement to
Aviation, and Aviation assumed all Holdings' obligations thereunder.
WHEREAS, certain subsidiaries (the "Borrowers") of Aviation are entering
into the Loan and Security Agreement, to be dated on or about May 12, 2004 (the
"Loan and Security Agreement"), by and among Aviation, the Borrowers, the
lenders that are signatories thereto, and Xxxxx Fargo Foothill, Inc., as the
arranger and administrative agent.
WHEREAS, pursuant to the Loan and Security Agreement, the Owner Trustee
will unconditionally guarantee (the "General Continuing Guaranty") the
Borrowers' obligations under the Loan and Security Agreement by executing the
General Continuing Guaranty.
WHEREAS, as a condition to giving its consent under the Secured Loan
Agreement to the General Continuing Guaranty, FINOVA has requested that the
Secured Loan Agreement be amended to provide that an event of default under the
Loan and Security Agreement (a "Loan and Security Agreement Event of Default")
constitute an event of default under the Secured Loan Agreement.
WHEREAS, the parties hereby desire to amend certain provisions in the
Secured Loan Agreement to reflect the agreement of the parties with respect to
the contemplated transactions described above.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are acknowledged,
the parties hereto agree as follows:
Section 1. AMENDMENT OF SECTION 1.2 OF THE SECURED LOAN AGREEMENT. The
parties hereto agree that Section 1.2 of the Secured Loan Agreement is hereby
amended to delete the definition of "Credit Facility Event of Default" and to
include the following definitions:
"Loan and Security Agreement Event of Default" an Event of Default
under the Loan and
Security Agreement, to
be dated on or about May
12, 2004 (the "Loan and
Security Agreement"), by
and among Evergreen
International Aviation,
Inc. ("Aviation"),
certain subsidiaries of
Aviation, the lenders
that are signatories
thereto, and Xxxxx Fargo
Foothill, Inc., as the
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arranger and
administrative agent (as
such event of default is
defined therein).
"Xxxxx Fargo Foothill Financing" the financing pursuant
to the Loan and Security
Agreement.
Section 2. AMENDMENT OF SECTION 10.3(H) OF THE SECURED LOAN AGREEMENT. The
parties hereto agree that Section 10.3(h) of the Secured Loan Agreement is
hereby deleted in its entirety and replaced with the following:
"(h) Except for the assignment of Aviation's beneficial interest in the
Trust Estate as contemplated by the Xxxxx Fargo Foothill Financing, the Owner
Participants shall not sell, lease, transfer, abandon or otherwise dispose of
(or enter into any commitment to sell, lease, transfer, abandon or otherwise
dispose of) all or any part of its beneficial interest in the Trust Estate or
its obligations or rights under any Transaction Document without Lender's prior
written consent."
Section 3. AMENDMENT OF SECTION 13.1 OF THE SECURED LOAN AGREEMENT. The
parties hereto agree that Section 13.1(k) of the Secured Loan Agreement is
hereby deleted in its entirety and replaced with the following:
"(k) A Loan and Security Agreement Event of Default shall occur and be
continuing."
Section 4. ENTIRE AGREEMENT. This Agreement and the other documents
attached hereto or incorporated by reference herein constitute the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all other understandings, oral and written, with respect to the
subject matter hereof.
Section 5. APPLICABLE LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN
NEGOTIATED AND MADE IN, AND SHALL BE GOVERNED AND INTERPRETED UNDER THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE BY RESIDENTS THEREOF TO BE
ENTIRELY PERFORMED THEREIN.
Section 6. COUNTERPARTS. The Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
Section 7. LIMITATION OF LIABILITY. Notwithstanding anything contained
herein to the contrary, it is expressly understood and agreed by the parties
hereto that (a) this Agreement is executed and delivered by Wilmington Trust
Company, not individually or personally but solely as Owner Trustee, in the
exercise of the powers and authority conferred and vested in it under the Trust
Agreement (b) each of the
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representations, undertakings and agreements herein made on the part of the
Owner Trustee is made and intended not as personal representations, undertakings
and agreements by Wilmington Trust Company but is made and intended for the
purpose for binding only the Trust Estate (as defined in the Trust Agreement)
and (c) under no circumstances shall Wilmington Trust Company be personally
liable for the payment of any indebtedness or expenses of the Owner Trustee or
be liable for the breach or failure of any obligation, representation, warranty
or covenant made or undertaken by the Owner Trustee under this Agreement or the
other related documents.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
Agreement to be duly executed by their duly authorized officers as of the day
and year first above written.
As Lender:
FINOVA CAPITAL CORPORATION
By: /S/ XXXXX X. XXXXXXXXX
----------------------
Name: Xxxxx X. XxxXxxxxx
Title: Senior Vice President
As Borrower:
WILMINGTON TRUST COMPANY,
not in its individual capacity,
except as expressly set forth
in Section 9.1 or 10.1 of the
Secured Loan Agreement, but
solely as Owner Trustee
By: /S/ XXXXX X. XXXX
-----------------
Name: Xxxxx X. Xxxx
Title: Financial Services Officer
As Owner Participants:
EVERGREEN INTERNATIONAL AVIATION, INC.
By: /S/ XXXX X. XXXXX
-----------------
Name: Xxxx X. Xxxxx
Title: Treasurer
XXXXXXX X. XXXXX
/S/ XXXXXXX X. XXXXX
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