EXHIBIT 10.25
SECURED LOAN AGREEMENT
-among-
FINOVA CAPITAL CORPORATION,
as Lender,
WILMINGTON TRUST COMPANY,
not in its individual capacity, except as expressly set forth herein,
but solely as Owner Trustee,
as Borrower
-and-
747 INC.,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ INC.,
as Owner Participants
SECURED LOAN AGREEMENT
THIS SECURED LOAN AGREEMENT is made as of May 7, 1997, among FINOVA
CAPITAL CORPORATION, a corporation organized and existing under the laws of the
State of Delaware, WILMINGTON TRUST COMPANY, a Delaware banking corporation, not
in its individual capacity, except as expressly set forth herein, but solely as
Owner Trustee under the Trust Agreement (as hereinafter defined), and 747 INC.,
an Oregon corporation, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, a natural person, and ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
INC., a Nevada corporation.
1. PURPOSE AND DEFINITIONS.
1.1 Purpose. This Agreement sets out the terms and conditions
upon which the Lender (defined below) will loan to the Borrower (defined below)
the amount of the Commitment (defined below). Lender agrees to make the Loan
(defined below) to Borrower in order to enable Borrower to refinance the
Aircraft. Borrower agrees to use the proceeds of the Commitment for such
purpose.
1.2 Definitions. In this Agreement, the following words and
expressions, except where the context otherwise requires, shall have the
following meanings:
Words Meanings
----- --------
"Affiliate" with respect to a specified Person, means any
other Person directly or indirectly controlling or
controlled by, or under direct or indirect common
control with, such Person. For the purposes of
this definition, "control," when used with respect
to any specified Person, means the power to direct
the management and policies of such Person,
directly or indirectly, whether through the
ownership of voting securities, by contract or
otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the
foregoing.
"Agreement" this Secured Loan Agreement.
"Aircraft" collectively, the 747 Aircraft and the DC-9
Aircraft.
"747 Aircraft" one Boeing Model 747-273C Aircraft bearing
manufacturer's serial number 20651 and FAA
Registration No. N471EV, together with two ▇▇▇▇▇ &
Whitney JT9D-7J aircraft engines bearing
manufacturer's serial numbers P662205CN and
P662254, and two ▇▇▇▇▇ & ▇▇▇▇▇▇▇ JT9D-7F aircraft
engines bearing manufacturer's serial numbers
P685607 and P689542, as more fully described in
the Security Agreement.
"DC-9 Aircraft" three ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ DC-9-33F Aircraft bearing
manufacturer's serial number 47191, 47194 and
47279 and FAA Registration No. N933F, N944F and
N945F, respectively, together with six ▇▇▇▇▇ &
Whitney JT8D-9A aircraft engines bearing
manufacturer's serial numbers 665815, 678072,
P666937, P653895, 666348, and P656041, as more
fully described in the Security Agreement.
"Airlines" Evergreen International Airlines, Inc., and Oregon
corporation, having its principal place of
business and chief executive office at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇;
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇;
Telefax No.: (▇▇▇) ▇▇▇-▇▇▇▇.
"Banking Day" in the context of the Closing Date, shall mean a
day on which federally chartered banking
institutions and the Borrower are open for the
transaction of the business required for Lender to
advance the Commitment and in the context of any
date on which a payment of interest or principal
is due hereunder, a day on which federally
chartered banking institutions in Phoenix, Arizona
and Portland, Oregon and the Borrower are open for
the transaction of business of the nature required
by this Agreement.
-2-
"Borrower" WILMINGTON TRUST COMPANY, a Delaware banking
corporation, not in its individual capacity but
solely as Owner Trustee under the Trust Agreement.
"Closing Date" a Banking Day to be selected by Borrower on not
less than one (1) Banking Day's notice (effective
on receipt) given to Lender on or after the date
of this Agreement.
"Collateral" all property which at the time of any
determination is subject to a Lien in favor of the
Lender, granted by the Borrower under the Security
Agreement
"Commitment" the obligation of the Lender to make a loan in an
amount not to exceed $30,000,000.00, to be made
available to the Borrower by the Lender on the
Closing Date for the Loan Term under this
Agreement and subject to the terms herein
contained.
"Commitment Amount" the amount set forth in the notice delivered by
Borrower to Lender pursuant to Paragraph 3.2 or
3.3 hereof.
"Default" an event which, with the passage of time or giving
of notice or both, would constitute an Event of
Default.
"Dollars" or "($)" the legal currency, at any relevant time
hereunder, of the United States of America.
"Event of Default" shall have the meaning set forth in Paragraph 13
hereof.
"Federal Aviation Act" Title 49 of the Unites States Code (which, among
other things, recodified the Federal Aviation Act
of 1958 as amended to the time of such
recodification), as amended.
"Guarantor" Evergreen International Aviation, Inc., an Oregon
corporation, having its principal place of
business and chief executive office at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇;
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇;
Telefax No.: (▇▇▇) ▇▇▇-▇▇▇▇.
-3-
"Guaranty" the Guaranty and Subordination Agreement dated as
of the Closing Date to be entered into by the
Guarantor for the benefit of the Borrower.
"Interest Rate" the annual rate of interest to be paid on the Loan
calculated pursuant to the provisions of Paragraph
6.1 hereof.
"Lease" the Second Amended and Restated Lease Agreement,
dated as of September 29, 1995, between Borrower,
as lessor, and Airlines, as lessee, as amended by
the Third Amendment to Lease.
"Lease Event of Default" an Event of Default under, and as defined in, the
Lease.
"Lender" FINOVA Capital Corporation, a corporation
organized and existing under the laws of the State
of Delaware and having its principal place of
business and chief executive office at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇;
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇;
Telefax No. (▇▇▇) ▇▇▇-▇▇▇▇.
"Liabilities" all indebtedness, liabilities, fees, indemnitees
and obligations of the Borrower to the Lender
arising under or related to the Loan Documents,
whether now or hereafter existing.
"Loan" the principal amount of the loan made by the
Lender pursuant to this Agreement outstanding from
time to time and due the Lender under this
Agreement and the Note.
"Loan Documents" collectively, this Agreement, the Note, the
Security Agreement, the Third Amendment to Lease
and all other documents executed in connection
with each of the foregoing agreements or
contemplated thereby or the transactions related
thereto.
"Loan Term" the period commencing on the Closing Date through
and including that date which shall be the earlier
of: (i)April
-4-
29, 2005; or (ii) the date on which the Loan
becomes payable in full under the provisions of
Paragraph 7 or 8.
"Margin" shall have the meaning set forth in Paragraph 6.3
hereof.
"Material Event of Default" any of the Events of Default set forth in
Paragraphs 13.1(a), (b)(i) or (ii), (e) or (f)
hereof.
"Mortgaged Property" shall have the meaning applied to such term in the
Security Agreement.
"Note" the Promissory Note to be executed and delivered
by the Borrower on the Closing Date pursuant to
the terms of this Agreement with respect to the
Commitment.
"Overdue Interest" the amount of interest accrued hereunder at
Overdue Interest Rate
"Overdue Interest Rate" the Interest Rate plus two (2%) percent.
"Owner Participant" collectively, 747, Inc., an Oregon corporation,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, a natural person, and ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ Inc., a Nevada corporation
"Person" any individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority
or other entity, of whatever nature.
"Prepayment Fee" the prepayment fee set forth in Paragraph 7.2(a)
hereof.
"Repayment Date" each of the dates noted on the Repayment Schedule
on which a payment of principal and interest is
due hereunder to be paid by Borrower.
"Repayment Schedule" the schedule attached hereto as Appendix I setting
forth the amounts and dates of payments of
principal required to be made by Borrower in
repayment of the Loan.
"Security Agreement" each of the First Priority Aircraft Chattel
Mortgage and Security Agreement, dated the Closing
Date, between Borrower and Lender.
-5-
"Third Amendment to Lease" the Third Amendment to Lease Agreement, dated
the Closing Date, between Borrower and
Lender.
"Transaction Documents" the Loan Documents, the Lease, the Trust
Agreement, the Guaranty and all documents
executed and delivered in connection
therewith and all transactions contemplated
hereby and thereby.
"Trust Agreement" the Second Amended and Restated Trust
Agreement, dated as of September 29, 1995,
between the Owner Participant and WTC, as
amended and supplemented.
"Trust Estate" shall have the meaning applied to such term
in the Trust Agreement.
"WTC" Wilmington Trust Company, a Delaware banking
corporation, having its principal place of
business and chief executive office at ▇▇▇▇▇▇
Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Telefax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Terms defined in the Security Agreement, unless otherwise defined herein, shall
be used herein as therein defined. Any defined term in this Paragraph 1.2 which
refers to a document, instrument or agreement shall include any amendments,
supplements or modifications entered into from time to time with respect to such
document, instrument or agreement.
2. COMMITMENT.
2.1 Subject always to the terms and conditions of this Agreement,
Lender hereby agrees with the Borrower that on the Closing Date, Lender will
make the Commitment available to Borrower and Borrower will borrow the
Commitment Amount from the Lender.
2.2 The obligation of the Lender to make the Commitment available
to the Borrower under this Agreement shall be expressly subject to the terms of
this Agreement in general and in particular to the fulfillment by Borrower of
all of the conditions set forth in Paragraph 5 hereof not later than at the time
or times therein specified. Lender shall have no obligation in respect of its
Commitment except as expressly set forth in this Agreement. The obligation of
Lender to make the Commitment available to the Borrower shall terminate on the
Closing Date.
-6-
3. LOAN.
3.1 The Commitment shall be made available to the Borrower on the
Closing Date in U.S. Dollars via wire transfer (and the Borrower shall borrow
the same), subject to the terms of this Agreement.
3.2 Borrower shall deliver a notice to the Lender at least one
Banking Day prior to the Closing Date specifying the Closing Date. The notice
may not be rescinded once received. The notice shall:
(a) be in writing and signed by the Borrower;
(b) be effective on receipt by the Lender; and once given
shall be irrevocable; and
(c) specify the Commitment Amount and the account(s) to
which the proceeds of the Loan are to be made
available.
3.3 In lieu of the foregoing notice, Borrower may send a telefax
to Lender, at telefax number: (▇▇▇) ▇▇▇-▇▇▇▇, Attn: ▇▇. ▇▇▇▇ ▇▇▇▇, setting forth
the information and meeting the requirements of Paragraph 3.2(c) above. In such
an event, Borrower shall on the Closing Date deliver a written notice to Lender
as required in Paragraph 3.2(a) above.
3.4 If Borrower shall have sent the notice specified in either
Paragraph 3.2 or 3.3 above and the Lender does not advance the Commitment Amount
to Borrower on the Closing Date specified in such notice for any reason other
than the gross negligence or willful misconduct of Lender, Borrower shall, upon
Lender's demand, indemnify Lender against all or any costs, losses, expenses,
damages, charges, premiums, penalties or fees (collectively, the "Costs")
incurred by Lender as a result (direct or indirect) of the Commitment Amount not
being advanced following the delivery of the notice specified in Paragraphs 3.2
or 3.3, including without limitation, in connection with funds borrowed by
Lender to fund the Commitment Amount or any portion thereof, the difference, if
any, between the amount of interest accrued upon the Commitment Amount less the
interest earned upon any funds deposited by Lender pursuant to this Paragraph.
4. DESCRIPTION OF SECURITY.
As collateral security for the prompt and complete payment of
Borrower's obligations hereunder and under the Note and other Loan Documents and
the payment of any sum advanced or subsequently advanced or obligation incurred
pursuant
-7-
to any provision hereof or thereof Borrower shall grant to Lender a first
priority Lien upon and security interest in the Mortgaged Property, pursuant to
the Security Agreement.
5. CONDITIONS PRECEDENT.
5.1 Lender's obligation to make the Loan is conditional upon the
following, all of which shall take place, occur or be delivered to Lender not
later than the Closing Date:
(a) Borrower shall have performed all of its agreements and
paid all sums hereunder to be performed or paid (and shall have made
arrangements acceptable to Lender to pay all sums payable under Paragraph 14.1
hereof) on or prior to the Closing Date and the representations and warranties
of Borrower, each Owner Participant, Airlines and the Guarantor contained in
each Loan Document to which each is a party shall be true and correct as of the
Closing Date as if made on and as of the Closing Date and Borrower shall have so
certified to Lender;
(b) Borrower, Owner Participant and Airlines, as the case
may be, shall have duly executed and delivered to Lender and Lender shall have
approved and accepted the Security Agreement, the Lessee's Consent, the Note,
all UCC-1 financing statements and assignments or other similar documents deemed
necessary by Lender to perfect, maintain and preserve the Liens in and to, and
the security interest in, all of the Mortgaged Property and to perfect, maintain
and preserve the rights of Borrower under the Lease, and such documents as
Lender may reasonably require in connection with the termination of any and all
liens, claims or encumbrances affecting any of the Mortgaged Property other than
Permitted Liens;
All such financing statements, assignments, releases or
other similar documents: (i) shall be suitable for filing in all public offices
deemed necessary by Lender to perfect the security interests granted to Lender
under the Security Agreement, (ii) shall have been executed by Borrower or
Airlines, as the case may be, and (iii) shall have been delivered to Lender.
Further, Borrower shall have furnished satisfactory proof to Lender that
Borrower has delivered an executed copy of the Security Agreement and related
documents to special FAA counsel, satisfactory to Lender, who shall have
approved the same as being in appropriate form for recordation with the Federal
Aviation Administration Aircraft Registry in accordance with title 14, Part 49
of the Code of Federal Regulations;.
(c) There shall not have occurred and not be continuing an
Event of Default under this Agreement or any other Loan Document, or an event
which,
-8-
with notice or lapse of time or both, would constitute an Event of Default (or
the equivalent thereof);
(d) All documents, instruments and certificates relating to
the making of the Commitment and delivery of the Note, and all proceedings in
connection with the transactions contemplated by this Agreement or any other
Loan Document shall be reasonably satisfactory in form and substance to Lender,
and Lender shall have received copies of all such instruments, certificates, and
other evidence as Lender may reasonably request with respect to such
transactions in form reasonably satisfactory to Lender and its counsel
including, but not limited to, the following:
(i) a certificate of insurance evidencing that
insurance conforming to all of the requirements of the
Security Agreement is in full force and effect with respect
to Aircraft and containing, or together with, a report of
the broker issuing such certificate that such insurance
complies with the provisions of the Leases;
(ii) a true copy of the aircraft registration
certificate reflecting that the Aircraft is registered in
the name of the Borrower, certified by the corporate
secretary of the Borrower;
(iii) a copy of a valid Federal Aviation Administration
Airworthiness Certificate for the Aircraft, certified by the
corporate secretary of the Borrower;
(iv) a favorable opinion, dated the Closing Date, in
form and substance reasonably satisfactory to Lender, of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel to Borrower;
(v) a favorable opinion, dated the Closing Date, in
form and substance reasonably satisfactory to Lender, of
in-house counsel to Borrower, Airlines and Guarantor
verifying, among other things, that the Borrower, as lessor
under the Lease, and the Lender, as assignee of Borrower's
interest of lessor, under the Security Agreement, would be
entitled to the protections of Section 1110 of the U.S.
Bankruptcy Code;
(vi) a favorable opinion of FAA counsel; and
-9-
(vii) the Guaranty, executed by the Guarantor.
(e) a copy of the Certificate of Incorporation and By-Laws
of WTC certified as being true, complete and accurate by an Assistant Secretary
of WTC, and a certificate of good standing relative to WTC certified by the
Secretary of State of Delaware as being in full force and effect;
(f) a copy of a resolution passed by the Board of Directors
of WTC, certified by an Assistant Secretary of WTC as being true, accurate and
complete, authorizing the entering into, and the performing of Borrower's
obligations under, this Agreement, and each other Loan Document to which
Borrower is a party, and all transactions contemplated herein and therein;
(g) a certificate, certified by an Assistant Secretary of
WTC as being true, accurate and complete, evidencing the signing authority of
the officers of WTC to sign this Agreement and each Loan Document to which
Borrower is a party and all documents and instruments executed in connection
herewith or therewith;
(h) a copy of the Certificate of Incorporation and By-Laws
of each corporate Owner Participant, Airlines and the Guarantor certified as
being true, complete and accurate by the corporate Secretary of each such
entity; and a certificate of good standing relative to each such entity
certified by the Secretary of State of its state of incorporation as being in
full force and effect
(i) a copy of a resolution passed by the Board of Directors
of each corporate Owner Participant, Airlines and the Guarantor, certified by
the corporate Secretary of each such entity as being true, accurate and
complete, authorizing the entering into, and the performing of such entity's
obligations under, each Loan Document to which such entity is a party, and all
transactions contemplated herein and therein;
(j) a certificate, certified by the corporate Secretary of
each corporate Owner Participant, Airlines and the Guarantor being true,
accurate and complete, evidencing the signing authority of the officers of such
entity to sign each Loan Document to which it is a party and all documents and
instruments executed in connection herewith or therewith;
(k) a certificate from an officer of Borrower certifying
that no Event of Default or, to the knowledge of such officer, Default has
occurred and is continuing;
-10-
(1) a certified true, accurate and complete copy of the
Trust Agreement, certified by the corporate Secretary of each corporate Owner
Participant;
(m) Lender shall have concluded a satisfactory inspection of
the Aircraft and a review of all records relating to the Aircraft and have
received an appraisal setting forth a value of the Aircraft reasonably
satisfactory to Lender;
(n) all outstanding loans from the Lender to Airlines,
Ventures, Evergreen Aviation, Inc. and any affiliates thereof shall have been
paid in full;
(o) not less than 95% of the unsecured bondholders of
Airlines, Ventures, Evergreen Aviation, Inc. and any affiliates thereof, shall
have been paid in full;
(p) the refinancing and securitization of the debt and
assets of Airlines, Aviation, Evergreen Aviation, Inc., and any affiliates
thereof (the "Chase Refinancing"), shall have been consummated pursuant to the
terms previously disclosed to Lender;
(q) the original chattel paper counterpart of the Lease, and
each supplement thereto, each of which shall bear a legend substantially as
follows:
"LESSOR HAS ASSIGNED TO THE LESSOR'S LENDER (AS DEFINED HEREIN)
CERTAIN OF ITS RIGHT, TITLE AND INTEREST IN AND TO THIS LEASE. TO THE
EXTENT THAT THIS LEASE CONSTITUTES CHATTEL PAPER (AS SUCH TERM IS
DEFINED IN THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN ANY APPLICABLE
JURISDICTION) NO SECURITY INTEREST IN THIS LEASE MAY BE CREATED
THROUGH THE TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE
ORIGINAL EXECUTED COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE
COUNTERPART CONTAINING THE RECEIPT THEREFOR EXECUTED BY THE LESSOR'S
LENDER ON THE SIGNATURE PAGE THEREOF."; and
(r) Lender shall have received lien, tax and litigation
search results on the Lessee and the Guarantor.
(s) Borrower shall have delivered any other item reasonably
requested by Lender.
-11-
6. INTEREST.
6.1 Interest payable on the Loan:
(i) shall accrue from the Closing Date and shall be
calculated at a fixed rate per annum equal to the sum of the Treasury Note Rate
determined in accordance with Paragraph 6.2 hereof, plus the Margin (such sum,
the "Interest Rate");
(ii) shall be paid by the Borrower, in advance, on each
Repayment Date and whenever else a payment of principal is due and payable; and
(iii) shall be calculated on the basis of a 360-day year and
charged for actual days elapsed.
6.2 For the purposes of this Agreement, the Treasury Note Rate
means at all times during the Commitment Period, the yield to maturity of that
issue of U.S. Treasury Notes maturing in April, 2005 with the highest yield, as
published in The Wall Street Journal one Banking Day preceding the Closing Date,
or, if such publication shall be suspended or terminated or such yield shall
otherwise not be so published for such Banking Day, on the basis of such yield
reported by dealers of U.S. Treasury Notes to and published by the Federal
Reserve Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations of such yield received by the Lender from
three New York dealers of U.S. Treasury Notes of recognized standing selected by
the Lender.
6.3 As used herein, the term Margin shall mean 4.42% per annum.
7. REPAYMENT AND PREPAYMENT.
7.1 Until the Loan shall be repaid, prepaid or discharged under
the provisions of this Agreement, in addition to any other sums which may become
payable hereunder or under any other Loan Document, Borrower shall repay the
Loan in the amounts, and on the dates, set forth on the Repayment Schedule;
provided, however, that the final payment hereunder shall be in an amount
necessary to pay in full all outstanding principal, accrued interest and all
other amounts due hereunder. Borrower hereby authorizes and directs Lender to
apply payments of rent and other amounts made to Lender on or before any
Repayment Date by Airlines, in connection with the assignment of Borrower's
right, title and interest in the Lease, in the amounts, and in the order of
priority, set forth in Paragraph 7.3 hereof.
-12-
7.2 (a) Provided no Event of Default has occurred or is
continuing, the Borrower shall be entitled to prepay the Loan in whole, but not
in part, on any date thereafter, on not less than 30 days prior written notice
specifying such Repayment Date, which notice shall become irrevocable upon
delivery to the Lender. Such prepayment made together with (i) accrued interest
on the amount of such prepayment through the date of such prepayment; and (ii)
so long as a Material Event of Default has never occurred at any time during the
Loan Term, a prepayment fee equal to the following percentage of the principal
amount of the Loan: (A) if such is made on or prior to the first year
anniversary of the Closing Date, 4% of such principal amount; (B) if such
prepayment is made after the first year anniversary and on or prior to the
second year anniversary of the Closing Date, 3% of such principal amount; (C) if
such prepayment is made after the second year anniversary and on or prior to the
third year anniversary of the Closing Date, 2% of such principal amount; and (D)
if such prepayment is made at any time after the third year anniversary of the
Closing Date, 1% of such principal amount. Notwithstanding the foregoing clause
(ii), if a Material Event of Default shall have occurred at any time during the
Loan Term prior to the date of any prepayment, whether or not such Material
Event of Default may have been cured as of such date, then each rate set forth
in clause (ii) above shall be increased by 2%.
(b) Any prepayment hereunder shall be applied pursuant to
the provisions of Paragraph 7.3 hereof.
7.3 The amount of any payment shall be applied: (a) first,
against the prepayment fees, if any, payable pursuant to Paragraph 7.2; second
to any past due payments of interest hereunder and to accrued interest through
the date of such payment, including any Overdue Interest; third, to any interest
on delinquent interest, late fees, overdue risk assessments, examination fees
and expenses, collection fees and expenses and any other fees and expenses due
to Lender hereunder; and fourth, the remaining balance if, any, to the unpaid
principal balance of the Loan. The amount of any prepayment applied to principal
shall be applied to the payments of principal due hereunder in inverse
chronological order.
8. MANDATORY PREPAYMENTS.
Immediately upon the earlier of (a) receipt from Airlines of the
Termination Value (as defined in the Lease) with respect to any Aircraft or a
similar amount under any other lease (including a Permitted Lease), (b) the 90th
day after an Event of Loss with respect to any Aircraft, (c) a sale, other
disposition or refinancing of any Aircraft consented to by Lender, (d) an Event
of Default under Paragraph 13.1(e) or (f) hereof, or (e) a declaration by the
Lender of an Event of Default (other than an Event of Default under Paragraph
13.1(e) or (f)) pursuant to Paragraph 13.2 hereof, then (A) in the case of
clause (d) or (e) above, or in the case of clause (a), (b) or (c) above, if,
-13-
immediately thereafter, there remains no Aircraft subject to a security interest
under the Security Agreement (i) the entire outstanding principal balance of the
Loan, (ii) all accrued but unpaid interest thereon and (iii) any and all other
fees which may be or become payable hereunder and under the Note, the Security
Agreement and any other Loan Document shall become immediately due and payable,
or (B) in all other cases, the Termination Value or, if greater, the amount
received from any insurer, or the net proceeds received from any sale or other
disposition, shall be paid to Lender and applied by Lender in the amounts, and
in the priority set forth in Section 7.3 hereof.
9. REPRESENTATIONS AND WARRANTIES.
9.1 WTC, in its individual capacity represents and warrants on
the date hereof and on the Closing Date as follows:
(a) WTC is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware, is a "citizen
of the United States" within the meaning of 49 U.S.C. (S) 40102(a)(15) and has
the power and authority to enter into and to perform its obligations under the
Trust Agreement and this Agreement
(b) The Trust Agreement and this Agreement have been duly
authorized, executed and delivered by the WTC, and, assuming due authorization,
execution and delivery by the other parties thereto, are legal, valid and
binding agreements of the WTC, enforceable in accordance with their respective
terms to the extent WTC is a party thereto.
(c) The execution and delivery by WTC,, of the Trust
Agreement and this Agreement are not, and the performance by WTC of its
obligations under each will not be, inconsistent with its charter or by-laws, do
not and will not contravene any law, governmental rule or regulation, judgment
or order applicable to it, and do not and will not contravene the provisions of,
or constitute a default or result in the creation of any Lien upon any property
of the Borrower (other than the Lien on the Collateral contemplated herein) or
WTC under any indenture, mortgage, contract, agreement or other instrument to
which it is a party or by which it is bound or require the consent or approval
of, the giving of notice to, the registration with or the taking of any action
in respect of or under any federal, state or local governmental authority or
agency with respect to Delaware and Federal banking trust powers, except such as
has been obtained, given or accomplished.
-14-
(d) The chief executive office of WTC and its records and
those of the Borrower with respect to the Collateral are located at ▇▇▇▇▇▇
Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(d) (e) There is no action, proceeding or investigation
pending or threatened (or any basis therefor known to WTC) which, individually
or in the aggregate, could reasonably be expected to materially impair the
ability of WTC to perform its obligations under the Trust Agreement or this
Agreement.
(f) On the Closing Date, the Aircraft shall be free of
Lessor Liens (as defined in the Lease) attributable to WTC in its individual
capacity.
9.2 The Borrower represents and warrants on the date hereof and
on the Closing Date as follows:
(a) The Borrower is duly qualified and in good standing in
all of the jurisdictions in which the character of the properties owned or
leased by it or the business conducted by it makes such qualification necessary
and the failure to so qualify would preclude the Borrower from being able to
enforce its rights with respect to the Transaction Documents.
(b) The Transaction Documents to which it is a party have
been duly authorized, executed and delivered by the Borrower be, and, assuming
due authorization, execution and delivery by the other parties thereto, are
legal, valid and binding agreements of the Borrower, enforceable in accordance
with their respective terms.
(c) The execution and delivery by the Borrower of the
Transaction Documents to which it is a party are not, and the performance by the
Borrower of its obligations under each will not be, inconsistent with its
charter or by-laws, do not and will not contravene any law, governmental rule or
regulation, judgment or order applicable to it, and do not and will not
contravene the provisions of, or constitute a default or result in the creation
of any Lien upon any property of the Borrower (other than the Lien on the
Collateral contemplated herein) or WTC under any indenture, mortgage, contract,
agreement or other instrument to which it is a party or by which it is bound or
require the consent or approval of, the giving of notice to, the registration
with or the taking of any action in respect of or under any federal, state or
local governmental authority or agency with respect to Delaware and Federal
banking trust powers, except such as has been obtained, given or accomplished.
-15-
(d) On the Closing Date, the Borrower shall have title to
the Aircraft, and the Aircraft shall be free of Liens other than Liens created
or granted by the Borrower in connection with the refinancing of the Aircraft
and Permitted Liens.
(e) There is no action, proceeding or investigation pending
or threatened (or any basis therefor known to Borrower) which, individually or
in the aggregate, could reasonably be expected to materially impair the ability
of Borrower to perform its obligations under any of the Transaction Documents.
(f) The sole business of the Borrower is its ownership and
lease of the Aircraft pursuant to the Transaction Documents.
9.3 Each Owner Participant represents and warrants on the date
hereof and on the Closing Date as follows:
(a) 747 Inc. is a corporation duly organized and validly
existing in good standing under the laws of the State of Oregon, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Inc. is a corporation duly organized and validly existing in good standing under
the laws of the State of Nevada, each Owner Participant is a "citizen of the
United States" within the meaning of 49 U.S.C. (S) 40102(a)(15) and has the
power and authority to enter into and to perform its obligations under the
Transaction Documents to which it is a party. Each corporate Owner Participant
is duly qualified and in good standing in all of the jurisdictions in which the
character of the properties owned or leased by it or the business conducted by
it makes such qualification necessary and the failure to so qualify would
preclude the Borrower from being able to enforce its rights with respect to the
Transaction Documents.
(b) The Transaction Documents to which it is a party have
been duly authorized, executed and delivered by each Owner Participant and,
assuming due authorization, execution and delivery by the other parties thereto,
are legal, valid and binding agreements of each Owner Participant enforceable in
accordance with their respective terms.
(c) The execution and delivery by each Owner Participant of
the Transaction Documents to which it is a party are not, and the performance by
each Owner Participant of its obligations under each will not be, inconsistent
with its charter or by-laws, do not and will not contravene any law,
governmental rule or regulation, judgment or order applicable to it, and do not
and will not contravene the provisions of, or constitute a default or result in
the creation of any Lien upon any property of any Owner Participant (other than
the Lien on the Collateral contemplated herein) under any indenture, mortgage,
contract, agreement or other instrument to which it is a party or by which it is
bound or require the consent or approval of, the giving of notice to, the
-16-
registration with or the taking of any action in respect of or under any
federal, state or local governmental authority or agency, except such as has
been obtained, given or accomplished.
(d) On the Closing Date, the Borrower shall have title to
the Aircraft, and the Aircraft shall be free of Liens other than the Liens
created or granted by the Borrower in connection with the refinancing of the
Aircraft. On the Closing Date, the Aircraft shall be free of Lessor Liens (as
defined in the Lease) attributable to the Borrower.
(e) The chief executive office of each corporate Owner
Participant, and the records of each Owner Participant with respect to the
Collateral are located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
(f) There is no action, proceeding or investigation pending
or threatened (or any basis therefor known to any Owner Participant) which,
individually or in the aggregate, could reasonably be expected to materially
impair the ability of any Owner Participant to perform its obligations under any
of the Transaction Documents.
(g) Financing statements under the Uniform Commercial Code,
in the form requested by the Lender, have been executed by the Borrower and each
Owner Participant and have been or shall be delivered to the Lender for filing
against the Borrower and each Owner Participant in all jurisdictions where such
filing is necessary or advisable in order to protect and establish the security
interest of the Lender granted under the Security Agreement and no further
action (including filing any financing statement in respect thereof under the
Uniform Commercial Code of any applicable jurisdiction) is necessary in order to
establish and perfect the Lender's security interest granted thereunder against
any third parties in any jurisdiction.
(h) On the Closing Date the Security Agreement shall create
a valid security interest in favor of the Lender in respect of the Mortgaged
Property, which security interest shall be superior in right to all claims of
creditors of the Borrower in respect of the Mortgaged Property , and to all
other security interests, liens, claims and encumbrances except the rights of
Airlines under the Lease and the Liens which Airlines is permitted to incur
pursuant to the Lease.
(i) No Default or Event of Default has occurred and is
continuing and no Event of Loss has occurred.
(j) The Borrower has delivered or caused to be delivered to
the Lender or will deliver or cause to be delivered on or before the Closing
Date the
-17-
original executed chattel paper counterpart of the Lease, any amendments to the
Lease, and except for amendments so disclosed to the Lender, the Lease has been
amended.
(k) Financing statements under the Uniform Commercial Code,
in the form requested by the Lender, have been executed by the Borrower and have
been or shall be delivered to the Lender for filing against the Borrower in all
jurisdictions where such filing is necessary or advisable in order to protect
and establish the security interest of the Lender granted under the Security
Agreement and no further action (including filing any financing statement in
respect thereof under the Uniform Commercial Code of any applicable
jurisdiction) is necessary in order to establish and perfect the Lender's
security interest granted thereunder against any third parties in any
jurisdiction.
(l) On the Closing Date the Security Agreement shall create
a valid security interest in favor of the Lender in respect of the Collateral
which security interest shall be superior in right to all claims of creditors of
the Borrower, and to all other security interests, liens, claims and
encumbrances except the rights of the Lessee under the Lease and the Liens which
the Lessee is permitted to incur pursuant to the Lease.
10. UNDERTAKINGS.
10.1 From the Closing Date and until the Note and all other
Liabilities shall have been paid in full, WTC shall at all times maintain (i)
its existence in good standing under the laws of Delaware and the United States,
(ii) its status as a citizen of the United States, as provided in Section 9.1 of
this Agreement and (iii) its right to transact business in Delaware.
10.2 From the Closing Date and until the Note and all other
Liabilities shall have been paid in full, the Borrower shall:
(a) Pay when due all taxes, assessments and other
liabilities payable by the Borrower, except as contested in good faith and by
appropriate proceedings, provided reserves reasonably deemed appropriate by the
Lender, and approved in advance in writing by the Lender such approval not to be
unreasonably withheld, have been established with respect thereto.
(b) Give prompt written notice to the Lender, in form and
detail satisfactory to the Lender, of any litigation or governmental proceeding
pending or, to its knowledge, threatened against the Borrower.
-18-
(c) Until the Lender has been paid all Liabilities under the
Loan Documents, the Borrower shall not without prior written consent of Lender
amend, modify, consent to any change in any of the terms or otherwise alter any
of the Transaction Documents (other than Rent payable in respect of the DC-9
Aircraft which Borrower causes Lessee to pay in order to retain quiet enjoyment
to the DC-9 Aircraft in accordance with the second paragraph of the Repayment
Schedule attached hereto).
(d) From time to time, upon written request of the Lender,
promptly and duly execute and deliver any and all such further instruments and
documents as the Lender may reasonably require (and provide in execution form)
in order to obtain the full benefits of the Lien created or intended to be
created under the Security Agreement, as well as all of the other obligations of
the Borrower under the Loan Documents and the other rights and powers herein
granted. Upon the instructions from time to time of the Lender, the Borrower
shall execute and cause to be filed any financing statements (and any
continuation statement with respect to any such financing statement), or any
other similar document or mortgage relating to this Agreement or the Lien of the
Security Agreement, or any other document or filing presented to it in proper
form for signing or filing as the Lender may reasonably deem necessary or
desirable in light of the Borrower's obligations under the Loan Documents, and
the Borrower shall pay or cause to be paid any filing or other fees in
connection therewith. The Borrower shall extinguish any Liens in favor of the
Prior Lender with respect to the Mortgaged Property on or prior to the Closing
Date or concurrently with the availability of the Commitment on the Closing
Date.
(e) The Borrower shall take all actions as are required to
keep representations and warranties applicable to it in Paragraph 9.1 (except in
the case of subparagraph (e) if the location of such office shall change,
Borrower shall provide the Lender with written notice of such change within ten
days' thereof), true and correct, in all material respects (but without regard
to when such representation or warranties were made or are expressed to be
effective), until such times as all of the Liabilities to the Lender shall have
been paid in full.
(f) Immediately after the occurrence of an Event of Default
becomes actually known to any officer of the Borrower, the Borrower shall
deliver to Lender a notice of such Event of Default and the nature and status
thereof.
(g) Borrower: (i) shall diligently enforce all of the
provisions of the Lease; and (ii) not waive any right or remedy granted to it as
lessor thereunder nor consent to any modification of or amendment to any
provision thereof nor grant to lessee thereunder any consent or approval (other
than Rent payable in respect of the DC-9 Aircraft which Borrower causes Lessee
to pay in order to retain quiet enjoyment to the DC-9 Aircraft in accordance
with the second paragraph of the Repayment Schedule
-19-
attached hereto) without the prior written consent of Lender which shall not
unreasonably be withheld; and promptly send to the Lender a copy of any notice
received from or sent to Airlines with respect thereto.
(h) Borrower shall not (a) sell, lease (except for the
Lease), abandon or otherwise dispose of any Aircraft without Lender's prior
written consent, which consent shall not be unreasonably withheld, (b) acquire
any assets other than the Mortgaged Property (as defined herein) without prior
written consent of Lender, (c) do or transact business under any trade or
assumed name without giving Lender at least 30 days prior written notice, or (d)
incur any additional indebtedness other than the indebtedness incurred pursuant
to this Agreement, and the other Transaction Documents.
10.3 From the Closing Date and until the Note and all other
Liabilities shall have been paid in full:
(a) each corporate Owner Participant shall at all times
maintain (i) its existence in good standing under the laws of the jurisdiction
of its incorporation and the United States, and (ii) its right to transact
business in each jurisdiction in which the character of the properties owned or
leased by it or the business conducted by it makes such qualification necessary
and the failure to so qualify would preclude the Borrower from enforcing its
rights with respect to the Lease or any other material assets; and each Owner
Participant shall maintain its status as a citizen of the United States,
(b) Each Owner Participant shall pay when due all taxes,
assessments and other liabilities payable by it, except as contested in good
faith and by appropriate proceedings, and reasonable reserves for which are
being maintained in accordance with GAAP.
(c) Each Owner Participant shall give prompt written notice
to the Lender, in form and detail satisfactory to the Lender, of any litigation
or governmental proceeding pending or, to its knowledge, threatened against it
which, if adversely determined, could reasonably be expected to have a material
adverse effect upon such Owner Participant's business or financial condition or
its ability to perform it obligations under the Loan Documents to which it is a
party.
(d) Until the Lender has been paid all Liabilities under the
Loan Documents, no Owner Participant shall without prior written consent of
Lender amend, modify, consent to any change in any of the terms or otherwise
alter any of the Transaction Documents (other than Rent payable in respect of
the DC-9 Aircraft which
-20-
Borrower causes Lessee to pay in order to retain quiet enjoyment to the DC-9
Aircraft in accordance with the second paragraph of the Repayment Schedule
attached hereto).
(e) From time to time, upon written request of the Lender,
each Owner Participant shall promptly and duly execute and deliver any and all
such further instruments and documents as the Lender may reasonably require in
order to obtain the full benefits of the Lien created or intended to be created
under the Security Agreement, as well as all of the other obligations of the
Owner Participants under the Loan Documents and the other rights and powers
herein granted. Upon the instructions from time to time of the Lender, each
Beneficiary shall execute and cause to be filed any financing statements (and
any continuation statement with respect to any such financing statement), or any
other similar document or mortgage relating to this Agreement or the Lien of the
Security Agreement, or any other document or filing presented to it in proper
form for signing or filing as the Lender may reasonably deem necessary or
desirable in light of the Owner Participant's obligations under the Loan
Documents, and the Owner Participant's shall pay or cause to be paid any filing
or other fees in connection therewith.
(f) The Owner Participants shall take all actions as are
required to keep representations and warranties in Paragraph 9.1 (except in the
case of subparagraph (e) if the location of such office shall change, the Owner
Participants shall provide the Lender with not less than ten (10) days' prior
written notice of such change) true and correct in all material respects (but
without regard to when such representation or warranties were made or are
expressed to be effective) until such times as all of the Liabilities to the
Lender shall have been paid in full.
(g) Immediately after the occurrence of a Default or an
Event of Default becomes known to ▇▇▇▇▇▇▇ ▇▇▇▇▇ or any officer of either
corporate Owner Participant, the Owner Participant shall deliver to Lender a
notice of such Default or Event of Default and the nature and status thereof.
(h) Except as contemplated by the Chase Refinancing, 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.
(i) Each Owner Participant shall furnish to the Lender:
(i) within 15 days after the end of each calendar
quarter, a statement by a responsible officer of each corporate Owner
Participant that to the best of the knowledge of such officer there exists no
Event of Default or, if any Event of Default shall exist, stating the nature and
status thereof, together with a statement that
-21-
no material, adverse change in the financial condition of any Owner Participant
has occurred during such quarter;
(iv) (ii) from time to time, with reasonable
promptness, such other information regarding the business, operations, affairs
and financial condition of any Owner Participant as the Lender may reasonably
request; and
(v) (iii) promptly upon request therefor from the
Lender, copies of all notices, financial information, reports or other
communications received by any Owner Participant from Airlines, the manufacturer
of the Aircraft or the engines related thereto, or Airlines' insurance carrier
or broker and promptly upon request therefor from the Lender, copies of all
notices and communications sent by the Borrower to Airlines, any such
manufacturer or such insurance carrier or broker.
Except as the Lender may otherwise consent in writing, all financial statements
furnished to the Lender under this Agreement and all computations and
determinations required to be made pursuant to this Agreement shall be made in
accordance with generally accepted accounting principles and practice,
consistently applied.
(j) Each Owner Participant shall permit, as may be
reasonably requested, any duly authorized representatives of the Lender at all
reasonable times: to examine its books and records, to take memoranda and
extracts therefrom and to make copies thereof; to visit and inspect its
properties and operations; and, upon notice to each Owner Participant, to
discuss the affairs, finances and accounts of each Owner Participant with any of
its trustees, directors, employees or accountants.
(k) Each Owner Participant shall provide the Lender with the
following information regarding each Aircraft upon Lender's request: (A) at any
time after the occurrence of an Event of Default, or (B) otherwise, no more
frequently than once every quarter, within 15 days after the end of each
quarter:
(a) the current location of each Aircraft and each
Engine together with, if any Engine is attached to
another airframe, information identifying such
airframe and if such airframe is subject to a
lease, Owner Participant shall inform Lender of
the name and address of the lessee thereunder and
the term of such lease and such other information
as is reasonably requested by Lender regarding the
location of such Engine;
-22-
(b) the total number of hours and cycles with respect
to each Airframe and Engines; and
(c) the number of engine cycles remaining with respect
to each Engine prior to the next scheduled removal
for maintenance of such Engine from any airframe.
(d) with respect to the maintenance of any aircraft or
engines owned or leased by Airlines, whether the
FAA has during the preceding six months conducted
any inspection of any facility or records of
Airlines or any facility that performs maintenance
on any Aircraft for Airlines taken any action with
respect to any facility or procedure of Airlines
or any facility that performs maintenance on the
Aircraft for Airlines and, if so, the nature and
results and resolution of such inspection or
action (including, without limitation, any fines
and settlements in connection therewith).
(k) The Owner Participants shall at all times cause the
Borrower or the Lessee, at the Owner Participant's expense, to maintain the
insurance as is required pursuant to Section 3.6 of the Security Agreement.
11. FORCE MAJEURE, CHANGE IN LAW, INCREASED COSTS.
11.1 The Lender shall not be held responsible for any loss
or damage arising out of any action taken or omitted by Lender or to which
Lender becomes subject resulting from a legal enactment or any measure of a
public authority, or war, or strike, or boycott, or blockade or any other
cause beyond its control.
11.2 In the event that in the reasonable judgment of Lender,
the making or maintaining of the Loan by the Lender or the performance by
Borrower of any obligation on its part to be performed hereunder or under
any other Loan Document to which it is a party has become unlawful by
reason of any change after the date of this Agreement in any applicable law
or governmental regulation or order or in any requirement of any monetary
authority whether or not having the force of law, or in the interpretation
of any of the same, with respect to this Agreement, any other Loan Document
to which it is a party or the Loan, then the Lender shall notify the
Borrower
-23-
thereof immediately and to the extent that the Commitment has not been made
available, the obligation pursuant to Paragraph 2 of the Lender to make its
Commitment available shall terminate, and in the case the Commitment has
been made available the Borrower shall within 30 days after receipt of such
notice or any later date permitted by applicable law or governmental
regulation or order repay the Loan and pay interest accrued thereon at the
Interest Rate and all other sums payable hereunder and all reasonable
actual out-of-pocket expenses incurred by Lender in complying with any
changed law, governmental regulation or order or any requirement of any
monetary authority prior to the date on which Borrower repays the Loan, and
all accrued interest thereon, pursuant to this Paragraph 11.2, if and to
the extent such expenses are incurred in relation to the Commitment.
11.3 Should the Lender become subject to levies, imposts,
duties, fees, or sales, use, excise, gross receipts, value added, personal
property, stamp or documentary taxes, ad valorem taxes, license fees,
registration fees, assessments, fines, penalties or similar charges imposed
on any Aircraft or any of the Engines and all other taxes of whatsoever
kind imposed upon Lender with respect to any Aircraft or any of the Engines
or this Agreement, any other Loan Document, the transactions contemplated
by any of the aforesaid documents or any documents executed in connection
therewith or contemplated thereby, or the payments to be made pursuant to
this Agreement and the Note and any other payments of whatsoever kind
required to be paid by Borrower to Lender pursuant to the terms of this
Agreement excluding, however, any taxes imposed upon or measured by the
income, receipts or earnings and profits or net worth of Lender whether
resulting from the transactions contemplated by this Agreement or otherwise
(collectively, "Taxes"), which will increase the Lender's total cost with
respect to the Loan, then, in such event, the Borrower shall at the request
of the Lender pay to the Lender an amount which will compensate the Lender
for such increased costs (after taking into account any tax benefits
realized by Lender as a result of the payment or accrual of such Taxes).
11.4 Notwithstanding the provisions of Paragraph 7.2 hereof,
in the event that Borrower repays the Loan pursuant to Paragraph 11.2
hereof or Lender exercises its rights pursuant to Paragraph 11.3 hereof,
the Borrower may prepay the Loan together with interest accrued thereon and
all other sums payable hereunder (other than the prepayment fee set forth
in Paragraph 7.2(a)).
12. PAYMENTS.
12.1 All payments required to be made to the Lender
hereunder or under the Note shall be made in Dollars by wire transfer in
good, immediately available funds to the Lender to the following bank and
account:
-24-
Citibank, N.A.
For the Account of:
FINOVA Capital Corporation
Account No.: 4068-0522
ABA No.: ▇▇▇▇▇▇▇▇▇
Reference: N471EV
or to such other account as Lender may designate by written notice sent
pursuant to Paragraph 15 hereof.
12.2 All payments falling due on a date that is not a
Banking Day shall be paid on the next succeeding Banking Day.
12.3 Calculation of Interest and Application of Payments. In
calculating interest and applying payments under this Agreement and the Loan
Documents: (a) interest shall be calculated and collected through the date the
payment is actually received by Lender; (b) interest on the outstanding balance
shall be charged during any grace period permitted hereunder; (c) on each annual
anniversary of the closing date of the Loan, all past due interest and other
past due charges provided for hereunder shall be added to the principal balance
of the Loan; and (d) to the extent the Borrower makes a payment or Lender
receives any payment or proceeds of the Collateral for the Borrower's benefit
that is subsequently invalidated, set aside or required to be repaid to any
other Person, then, to such extent, the obligations intended to be satisfied
shall be revived and continue as if such payment or proceeds had not been
received by the Lender and the Lender may adjust the Loan balances as Lender, in
its sole discretion, deems appropriate under the circumstances.
12.4 Should the Borrower fail to pay any sum on the due date
for payment thereof, whether by acceleration, prepayment or otherwise, and
in addition to any other sum or fees which may become payable hereunder or
under the Note or the Security Agreement, Borrower shall pay interest on
such sum from the due date up to and including the date of actual payment
at an annual interest rate equal to the Overdue Interest Rate.
12.5 All payments by the Borrower under this Agreement shall
be made without deduction by reason of any defense, setoff or counterclaim
of any kind, nature or description whatever (subject to the provisions of
Paragraph 12.6 hereof).
12.6 All payments under this Agreement shall be made free
and clear of, and without deduction for, any Taxes, now or hereafter
imposed by or within any governmental authority or pursuant to any
governmental rule or regulation or any administrative subdivision or taxing
authority thereof or herein, respectively, unless the
-25-
Borrower is compelled by law to deduct or withhold such Taxes, in which event
the Borrower shall pay to the Lender such additional amounts as shall result in
the effective receipt by the Lender of the gross amount of all sums due the
Lender hereunder and under the Note had no such deduction or withholding been
made; provided, however, that Borrower shall have no obligation to pay any
additional amount with respect to United States withholding taxes imposed as a
result of any transfer, assignment or grant of a participation in Lender's
rights hereunder to a foreign party.
13. EVENTS OF DEFAULT.
13.1 Upon the occurrence of any of the following, each of which
is referred to as an Event of Default:
(a) Failure of Borrower to pay when due and payable any
principal of or interest on or other sum with respect to the Loan, the Note or
Security Agreement or other sums which may become due hereunder or under any
Loan Document, whether by reason of stated maturity or due date, notice of
prepayment, cancellation, acceleration or otherwise, and, in the case of
payments of principal and interest, such sum is not fully paid within five
Banking Days' of the date due, and in the case of all other payments, such sum
is not fully paid within five (5) Banking Days after notice to Borrower of
non-payment;
(b) (i) Any lapse of, or failure to maintain, insurance
coverage on the Aircraft required to be maintained under the Security Agreement
or any failure of Borrower to perform its obligations set forth in Paragraphs
10.1(g), (h) or (i) hereof, or failure of any Owner Participant to perform its
respective obligations set forth in Paragraphs 10.2(d) or (h) hereof or to
attempt to cannabalize or part-out any Aircraft or any failure of Lessee to
commence the maintenance of the Aircraft and refurbishment of the Engines in
accordance with Schedule I to the Lease, or, upon 30 days written notice to
Lender, within 60 days after such scheduled date, or such later date to which
Lender may agree in its sole discretion;
(ii) Any failure by Borrower to perform or cause to be
performed its obligations as set forth in the Security Agreement concerning (A)
the preparation or recordation of any document or instrument required by Lender
for the maintenance or perfection of any lien on the Mortgaged Property, or (B)
maintenance of the Flight Equipment, within five (5) Banking Days after notice
thereof from the Lender;
(iii) Any failure by the Borrower, Guarantor or any
Owner Participant to fulfill any other covenant or to perform any other
obligation on its part to be performed under any Loan Document to which it is a
party, any failure by Guarantor remove or cure any material tax liens or other
material liens revealed by the
-26-
searches referred to in Section 5.1(r) hereof, and any failure of any Owner
Participant to provide direction to the Borrower in those instances in the Loan
Documents in which Borrower will take action only upon the direction of an Owner
Participant and such failure is not cured within thirty days after such failure
shall have first occurred;
(c) Any representation or warranty made by any party in this
Agreement or any other Loan Document or any financial statement shall prove to
have been untrue, inaccurate or incomplete in any material respect at the time
when made or when effective and such party fails to do that which shall be
necessary in order that said representation or warranty shall be true, accurate
or complete within thirty days after earlier of actual knowledge thereof or of
receipt of notice thereof;
(d) Any approval required from or to be issued by the
Borrower or any Owner Participant, in connection with this Agreement or under
any Loan Document or the transactions contemplated herein or therein, shall be
revoked, rescinded, suspended or otherwise limited in effect and same shall not
have been reinstated within ten (10) days after the first effective date of such
revocation, rescission, suspension or limitation;
(e) Borrower or any Owner Participant shall file a voluntary
petition in bankruptcy or a voluntary petition or an answer seeking readjustment
of its debts or for any other relief under any bankruptcy, insolvency, or other
similar act or law of any jurisdiction, domestic or foreign, now or hereafter
existing, or any action by Borrower or any Owner Participant indicating its
consent to, approval of, or acquiescence in, any such petition or proceeding; or
Borrower or any Owner Participant shall apply or sustain the appointment by
consent or acquiescence of, a receiver or trustee for Borrower or any Owner
Participant or for all or a substantial part of its property; or if Borrower or
any Owner Participant shall make an assignment for the benefit of its creditors,
or if Borrower or any Owner Participant becomes unable to pay its debts as they
mature;
(f) An involuntary petition against Borrower or any Owner
Participant in bankruptcy or seeking readjustment of its debts or for any other
relief under any bankruptcy, insolvency, or other similar act or law of any
jurisdiction, domestic or foreign, now or hereafter existing; or a receiver or
trustee shall be involuntarily appointed for Borrower or any Owner Participant
or for all or a substantial part of its property; or a warrant of attachment,
execution or similar process against any substantial part of the property of
Borrower or any Owner Participant shall be served on Borrower or any Owner
Participant and any of such events continues for sixty (60) days undismissed,
unbonded or undischarged;
-27-
(g) This Agreement or any Loan Document shall at any time
after its respective execution and delivery and for any reason cease to be in
full force and effect or any certificate, instrument or documents issued and
executed pursuant hereto or thereto shall for any reason cease to be effective
to constitute a valid and perfected first priority Lien and security interest in
and to the Collateral, except for Permitted Liens;
(h) Any Aircraft or any part thereof shall be sold,
transferred, assigned, leased or otherwise disposed of by Borrower without
Lender's prior written consent, except for Permitted Liens and except to the
extent the Loan, interest thereon and all other amounts due hereunder are paid
in full; or
(h) (i) A Lease Event of Default shall occur and be
continuing (other than with respect to the payment of Rent in respect of the
DC-9 Aircraft which Borrower causes Lessee to pay in order to retain quiet
enjoyment to the DC-9 Aircraft in accordance with the second paragraph of the
Repayment Schedule attached hereto).
13.2 Upon the occurrence of any Event of Default set forth in
Paragraph 13.1(e) or (f) hereof or pursuant to Section 14(f), (g) or (h) of the
Lease automatically and without notice to Borrower, the outstanding principal
of, and all accrued interest on, the Loan and the Note, and any and all other
sums due to Lender under this Agreement, the Note and any other Loan Document
(including, without limitation, the prepayment fee in the amount set forth in
Section 7.2(a) hereof) shall be due and payable. Upon the occurrence and during
the continuance of any other Event of Default, Lender may declare the entire
outstanding principal of, and all accrued interest on, the Loan and the Note and
any and all other sums (including, without limitation, the prepayment fee in the
amount set forth in Section 7.2(a) hereof) due to Lender under this Agreement,
the Note or any other Loan Document to be forthwith due and payable and such
principal, interest and other amounts shall thereupon become due and payable.
Presentment, demand (other than as set forth in the immediately previous
sentence), protest or other notice of any kind are hereby expressly waived,
anything contained herein or in the Note or other Loan Document to the contrary
notwithstanding, and Lender may exercise any and all rights and remedies of a
secured party under the Arizona Uniform Commercial Code hereunder (including,
but without limitation, application of any security deposit) and under the
Security Agreement, or under any governing law.
13.3 If Lender shall be prevented by any order or any court or by
operation of any law from sending any notice permitted or required to commence a
period during which Borrower may cure any Event of Default hereunder, then the
period during which Borrower may cure such Event of Default shall commence to
run without notice on
-28-
the first date on which Lender would have been entitled to give such notice but
for the effectiveness of such order or law.
14. FEES AND EXPENSES.
14.1 Borrower will on the Closing Date and subsequently
thereafter upon receipt of invoices by Lender or upon Lender's demand, pay to or
reimburse Lender for all reasonable out-of-pocket expenses of Lender incurred in
connection with the negotiation, execution and delivery of this Agreement and
each Loan Document, including, without limitation, all filing and recordation
fees and fees of special FAA counsel incurred by Lender in connection with the
perfection of the security interest granted by Borrower to Lender pursuant to
the Security Agreement, inspection and appraisal fees, and all reasonable legal
fees and disbursements of Lender's counsel incurred in connection with all
professional services rendered and disbursements incurred by said lawyers with
respect thereto, including, without limitation, the amount of the fees and
disbursements incurred by ▇▇▇▇ & ▇▇▇▇, LLP in connection with the preparation,
negotiation and execution of the Loan Documents, and for all out-of-pocket
expenses of Lender incurred in connection with the preservation and/or
enforcement of any rights granted to the Lender hereunder or under any other
Loan Document.
14.2 Borrower shall pay to Lender on the Closing Date a
non-refundable loan fee of one-percent of the Commitment Amount advanced to
Borrower on the Closing Date. At the time of the payment of such fee by Buyer,
Lender will refund to Borrower the deposit in the amount of $150,000.00, without
interest, previously paid by Borrower to Lender.
15. NOTICES.
Except as otherwise specifically provided to the contrary herein
or in the Security Agreement:
15.1 Every notice or demand under this Agreement shall be in
writing and may be given or made by registered mail, return receipt requested or
by internationally recognized overnight courier service.
15.2 Every notice or demand shall be sent, in the case of
overnight courier or registered mail, to the Lender, the Owner Participant or to
the Borrower, at their respective addresses, as set forth in paragraph 1.2
hereof.
-29-
15.3 Every notice or demand shall, except so far as otherwise
expressly provided by this Agreement, be deemed to have been received in the
case of an internationally recognized overnight courier service or registered
mail, upon acknowledgment of receipt or as of the date on which receipt of such
notice delivered by overnight courier or registered mail is refused or such
courier or the U.S. Postal Service advises that such letter is not deliverable
at the address set out in Paragraph 15.2.
16. ENTIRE AGREEMENT: NO ORAL CHANGE.
This Agreement (including all Exhibits and Appendices hereto and
documents or instruments executed in connection herewith) embodies the entire
agreement and understanding between Borrower and Lender relating to the subject
matter hereof and thereof and supersedes all prior agreements and understandings
relating hereto and thereto and none of the parties hereto or thereof shall be
bound by or charged with any oral or written agreements, representations,
warranties, statements, promises or understandings not specifically set forth
herein or therein. This Agreement may not be changed and no right granted or
obligation imposed hereunder may be waived orally, but only by an instrument in
writing signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
17. GOVERNING LAW: JURISDICTION AND VENUE.
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
ARIZONA APPLICABLE TO AGREEMENTS MADE BY RESIDENTS THEREOF TO BE WHOLLY
PERFORMED THEREIN. Borrower, Owner Participant and Lender hereby agree that all
actions or proceedings initiated by Borrower, Owner Participant or Lender and
arising directly or indirectly out of this Loan Agreement may be litigated in
the Superior Court of Arizona, Maricopa County, or the United States District
Court for the District of Arizona. Borrower, Owner Participant and Lender hereby
expressly submit and consent in advance to such jurisdiction and venue in any
action or proceeding commenced by Borrower, Owner Participant or Lender in any
of such courts, agree that jurisdiction and venue is proper in such courts, and
hereby waive personal service of the summons and complaint, or other process or
papers issued therein, and agrees that such service of the summons and complaint
may be made by registered mail, return receipt requested, addressed to Borrower,
Owner Participant or Lender, as the case may be, at the address set forth in
Paragraph 15 hereof. Borrower and Owner Participant waive any claim that
Phoenix, Arizona or the District of Arizona is an inconvenient forum or an
improper forum based on lack of venue. Should Borrower, Owner Participant or
Lender, as the case may be, after being so served, fail to appear or answer any
summons, complaint, process or paper so served within 30 days after the mailing
thereof, Borrower,
-30-
Owner Participant and Lender acknowledge that as a result thereof, an order
and/or judgment may be entered by Lender, Owner Participant or Borrower against
the other as demanded or pleaded for in such summons, complaint, process or
papers. The choice of forum set forth herein shall not be deemed to preclude the
enforcement by Lender, Owner Participant or Borrower, as the case may be, of any
judgment in any other appropriate jurisdiction.
18. USURY.
Notwithstanding any provision to the contrary herein contained,
Lender shall not collect a rate of interest on any obligation owing by Borrower
to Lender in excess of the maximum rate of interest permitted by applicable law.
Borrower understands and believes that the lending transaction which is the
subject of this Agreement complies with all applicable usury laws; however, if
any interest or other charges in connection with such lending transaction is
ever determined to exceed the maximum amount permitted by law, then Borrower
agrees that (a) the amount of interest or charges payable pursuant to this
Agreement and the Note shall be reduced to the maximum amount permitted by law,
and (b) any excess amount previously collected from Borrower in connection with
this Agreement or Note that exceeds the maximum amount permitted by law shall be
credited against the principal amount of the Loan then outstanding. If the
outstanding principal balance of the Loan has been paid in full, the excess
amount paid shall be refunded to Borrower. The "contracted for rate of interest"
of the Commitment to be advanced pursuant to the terms hereof includes, without
limitation, the following: (i) the Interest Rate, calculated and applied to the
principal balance of the Loan in accordance with the provisions of this
Agreement and the Note; (ii) the Overdue Rate of Interest to be applied with
respect to the principal balance of the Loan outstanding in accordance with the
provisions of Paragraph 12.3 hereof; (iii) the amounts referred to in Paragraph
14 hereof, and (iv) all fees, charges, goods, things in action or any sum or
things of value ("Additional Sums") paid or payable by Borrower whether pursuant
to this Agreement or any other Loan Document. If any such Additional Sums may,
under applicable law, be deemed to be interest with respect to the lending
transaction which is the subject of this Agreement, then, for the purpose of any
applicable law that may limit the maximum amount of interest to be charged with
respect to the lending transaction which is the subject of this Agreement, such
Additional Sums shall be payable by Borrower as, and shall be deemed to be,
additional interest, and for such purposes only, the agreed upon and "contracted
for rate of interest" of this transaction shall be deemed to be increased by the
rate of interest resulting from the Additional Sums.
19. THE TRUST AGREEMENT AND THE BORROWER.
19.1 Amendment or Revocation. The Owner Participant and Borrower
will notify the Lender and deliver true copies to it of any amendment or
-31-
supplement to the Trust Agreement. The Owner Participant agrees not to enter
into an amendment or supplement to the Trust Agreement that would adversely
affect the interests of the Lender shall become effective without the consent of
the Lender. The Owner Participant agrees that it will not revoke or otherwise
terminate the trust created by the Trust Agreement as long as the Security
Agreement is in effect.
19.2 Removal of the Borrower. The Borrower or any successor may
resign or be removed by the Owner Participant, a successor owner trustee may be
appointed, and a corporation may become the owner trustee under the Trust
Agreement, only with the prior written consent of the Lender, which consent
shall not be unreasonably withheld and in accordance with the provisions of
Article 7 of the Trust Agreement.
19.3 Limitation of Personal Liability of WTC. Each of the
representations, undertakings and agreements herein or in the Security Agreement
or other Loan Documents stated to be those of the Borrower are not personal
representations, undertakings and agreements of WTC but are binding only on the
Trust Estate and the Borrower as trustee thereof, and except as to
representations, undertakings or agreements herein or in the other Transaction
Documents which are expressly stated to be those of WTC, nothing herein
contained shall be construed as creating any personal liability of WTC or any
incorporator or any past, present or future subscriber to the capital stock of,
or stockholder, officer or director of, WTC, any such liability being expressly
waived by the other parties on their own behalf and on behalf of any Persons
claiming through or under them; provided, however, that nothing in this Section
19.3 shall be deemed to limit in scope or substance the personal liability of
WTC(a) to the Owner Participant as expressly set forth in the Trust Agreement,
(b) in respect of the representations, warranties and agreements of WTC
expressly made as such herein or in any other Transaction Document to which it
is a party, and (c) for the consequences of its own gross negligence, willful
misconduct, and, in receiving, handling or remitting of funds only, its simple
negligence as a trustee.
20. NO BROKER.
The Borrower and Lender each hereby represent and warrant to the
other that no broker brought about the transactions contemplated hereby and each
party hereby agrees to indemnify and hold the other party harmless from, any and
all liabilities and costs (including without limitation, costs of counsel) to
any person or entity claiming brokerage commissions or finder's fees through
such party on account of this Agreement.
-32-
21. SURVIVAL.
Each of the representations, warranties and covenants of Borrower
and each Owner Participant contained herein shall survive the closing of the
Loan.
22. INDEMNIFICATION.
In addition to Borrower's obligations and Lender's remedies
provided elsewhere in this Agreement: (a) Borrower hereby indemnifies Lender and
agrees to hold Lender harmless against any and all liabilities, damages, losses,
claims, reasonable costs or expenses whatsoever, and to reimburse Lender for any
reasonable legal or other fees or expenses (including but not limited to the
fees and expenses of expert witnesses) incurred by it in connection with any
claim or defending or prosecuting any action or proceeding relating to this
Agreement (including, but not limited to, the disbursement of the Commitment),
the Note and any Loan Document to which Borrower is a party; and (b) Borrower
hereby indemnifies Lender and agrees to hold Lender harmless against any and all
liabilities, damages, losses, claims, costs or expenses whatsoever and to
reimburse Lender for any legal or other fees or expenses incurred by it in
connection with or arising out of or resulting from any material breach of
warranty or material misrepresentation by Borrower, or the non-performance of
any covenant or obligation to be performed on the part of Borrower, under this
Agreement, the Note or any Loan Document, or arising out of or resulting from
any material misrepresentation or omission from any certificate, instrument or
paper delivered or to be delivered by Borrower to Lender pursuant to this
Agreement or any Loan Document or in connection with the transactions
contemplated herein or therein (except to the extent relating to or resulting
from Lender's gross negligence or willful misconduct).
23. WAIVER OF JURY.
Borrower, Owner Participant and Lender irrevocably waive the
right to a trial by jury in any action or proceeding brought to enforce any
provision of any of the Loan Documents.
24. ASSIGNMENT, SUCCESSORS AND ASSIGNS.
24.1 Neither Borrower nor any Owner Participant shall assign any
rights under this Agreement nor shall any of Borrower's duties hereunder or
under the Note, Security Agreement or other Loan Document to which it is a party
be assigned or delegated without the prior written consent of Lender.
24.2 Lender may assign or obtain participations with other
Lenders in regard to its rights hereunder and under the Note and any other Loan
Document and in
-33-
respect of the Loan, provided only that no such assignment or participation
shall impose any greater obligation on Borrower than set forth herein or
therein. Nothing contained in this Agreement, express or implied, is intended to
confer upon any person or entity, other than the parties hereto and their
permitted successor in interest and permitted assigns, any rights or remedies
under or by reason of this Agreement unless expressly herein stated to the
contrary. All covenants, representations, warranties and agreements of the
parties contained herein shall, subject to the provisions of the preceding
sentence, be binding upon and inure to the benefit of their respective
successors and permitted assigns.
25. CAPTIONS AND PARAGRAPH HEADINGS; CONSTRUCTION.
Captions and paragraph headings used herein are for convenience
only and are not a part of this Agreement and shall not be used in construing
it. This Agreement and all documents executed in connection herewith shall be
construed without regard to the identity of the party which prepared the same,
and no presumption shall arise as a result thereof.
26. SEVERABILITY.
In the event that any one or more of the provisions of this
Agreement, any Loan Document, or the Note shall be invalid, illegal or
unenforceable in any respect or in any jurisdiction, the validity, legality and
enforceability of the remaining provisions contained herein and therein or of
the same provisions in any other jurisdiction shall not in any way be affected
or impaired thereby.
27. TIME OF THE ESSENCE.
Time is of the essence with respect to all of the payment and
performance obligations of the Borrower hereunder. Time is of the essence with
respect to all of the performance obligations of Lender hereunder.
28. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each
of which shall constitute an original and, when taken together, all of which
shall constitute one and the same Agreement.
29. TERM OF AGREEMENT.
This Agreement and all covenants, agreements, representations and
warranties made herein shall survive the malting by the Lender of the Loan and
the execution and delivery to the Lender of the Note and shall continue in full
force and
-34-
effect until the payment in full of all of the Borrower's obligations under the
Loan Documents.
30. PERFORMANCE BY THE LENDER.
If the Borrower fails to perform any of its obligations under the
Loan Documents in a timely fashion, the Lender shall be entitled, but not
obligated, to perform such obligation at the expense of the Borrower. The Lender
shall promptly be reimbursed for all reasonable expenses incurred by it pursuant
to this Paragraph 30 with interest from the date such expenses shall have been
incurred until such expenses shall have been paid in full in an amount equal to
the Overdue Interest Rate.
-35-
IN WITNESS WHEREOF, the parties hereto have caused this Secured Loan
Agreement to be duly executed by their duly authorized officers as of the day
and year first above written.
Borrower: Lender:
WILMINGTON TRUST COMPANY, FINOVA CAPITAL CORPORATION
not in its individual
capacity, except as expressly
set forth, in Section 9.1 or
10.1 hereof but solely as
Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------ ---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Financial Services officer Title: Vice President
Owner Participants:
747 INC. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------ ---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Treasurer Title: Secretary
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-36-
APPENDIX "I" - REPAYMENT SCHEDULE
TO SECURED LOAN AGREEMENT
The Loan shall be paid in monthly installments in advance, on the 29th
day of each month of the Loan Term, each installment, subject to the following
paragraph, in the following aggregate amount of principal and interest:
(i) $275,000.00 of principal only on the Closing Date;
(ii) $375,000.00 each for the first 17 months of the Loan Term,
commencing on May 29, 1997, and ending on September 29, 1998;
(iii) $400,000.00 each for the next ten months of the Loan Term,
commencing on October 29, 1998, and ending on July 29, 1999;
(iv) $483,518.32 each for the next 68 months, commencing on August 29,
1999, and ending on March 29, 2005; and
(v) $4,301,766.00, together with all other sums due Lender under the
Loan Agreement and any other Loan Document, on April 29, 1997.
Notwithstanding the above, upon and at all times after the occurrence
of an Event of Default, whether or not such Event of Default is at any time
after its occurrence cured, the Borrower, in order to retain quiet enjoyment of
the DC-9 Aircraft, may, in its sole discretion, pay, on the dates specified
above for the payment of such installments, an amount of $225,000.00, consisting
of the payment of Rent of $75,000.00 for each DC-9 Aircraft, and, in such event,
Borrower shall, in the exercise of its rights under the Lease, cause Lessee to
pay Basic Rent for such DC-9 Aircraft in such amounts thereunder, provided,
however, that such payments shall not be deemed to cure any such Event of
Default and Lender shall retain all its rights and remedies arising as a
consequence thereof, including the right to accelerate the principal of the Loan
and foreclose on its security interest in the 747 Aircraft.
-37-
