Exhibit 10.26
AMENDMENT AGREEMENT
This AMENDMENT AGREEMENT, dated as of May 9, 2003 (this "Amendment"),
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 under the Trust Agreement (as defined below) ("Owner Trustee"),
747 Inc., an Oregon Corporation ("747"), Xxxxxxx X. Xxxxx, a natural person and
Xxxx, Xxxxxxxxx Inc., a Nevada corporation ("Xxxx Xxxxxxxxx"), 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 (successor to 747
and Xxxx Xxxxxxxxx) ("Holdings"), and XXXXXXX X. XXXXX.
WHEREAS, the Secured Loan Agreement, dated May 7, 1997, was entered
into 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 defined below), 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, and as amended as of May 8, 2003,
among the Wilmington Trust Company, not in its individual capacity, but as Owner
Trustee and 747, Xxxx Xxxxxxxxx and Xxxxxxx X. Xxxxx, as beneficiaries (as so
amended and restated, the "Trust Agreement").
WHEREAS, pursuant to 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, and
Aviation assumed all Holdings' obligations thereunder.
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, Aviation has elected to issue and sell senior second secured
notes (the "Notes") pursuant to an indenture (the "Indenture"), to be dated on
or about May 16, 2003, among Aviation, Holdings, the subsidiary guarantors
listed on the signature page thereof (the "Notes Subsidiary Guarantors"), and
Bank One, N.A., as trustee.
WHEREAS, pursuant to the Indenture which governs the Notes, each of the
Notes Subsidiary Guarantors, including the 1986 Trust, will jointly and
severally guarantee (the "Notes Guarantee") Aviation's obligations arising under
the Indenture and the Notes.
WHEREAS, Aviation is also entering into the Credit, Guaranty and
Security Agreement, to be dated on or about May 16, 2003 (the "Credit
Agreement"), by and among Aviation, Holdings, the various Subsidiaries (direct
and indirect) of Aviation whose names appear on the signature pages thereto (the
"Credit Agreement Subsidiary Guarantors"), the financial institutions which are
now or which thereafter become a party thereto ("Lenders") and PNC Bank, N.A.,
as agent for Lenders.
WHEREAS, pursuant to the Credit Agreement, each of the Credit Agreement
Subsidiary Guarantors, including the 1986 Trust, will unconditionally guarantee
(the "Credit Agreement Guarantee") Aviation's obligations arising under the
Credit Agreement (the "Advances").
WHEREAS, as a condition to giving its consent under the Secured Loan
Agreement to the participation of the 1986 Trust in the transactions described
above, FINOVA has requested that the Secured Loan Agreement be amended to
provide that an event of default under either the Indenture and the Notes (a
"Notes Event of Default") or the Credit Agreement and the Advances (a "Credit
Facility 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 include the following definitions:
"Notes Event of Default" an Event of Default under the
Indenture, to be dated on or about
May 16, 2003, among Evergreen
International Aviation, Inc.,
Evergreen Holdings, Inc., the
subsidiary guarantors listed on
the signature page thereof, and
Bank One, N.A., as trustee (as
such event of default is defined
therein).
"Credit Facility Event of Default" an Event of Default under the
Credit, Guaranty and Security
Agreement, to be dated on or about
May 16, 2003, by and among
Evergreen International Aviation,
Inc. ("Aviation") and the various
Subsidiaries (direct and indirect)
of Aviation whose names appear on
the signature pages thereto, the
financial institutions which are
now or which thereafter become a
party thereto ("Lenders") and PNC
Bank, N.A., as agent for Lenders
(as such event of default is
defined therein).
Section 2. Amendment of Section 13.1 of the Secured Loan Agreement. The
parties hereto agree that Section 13.1 of the Secured Loan Agreement is hereby
amended to include the following sub-sections:
"(j) A Notes Event of Default shall occur and be continuing."
"(k) A Credit Facility Event of Default shall occur and be continuing."
Section 3. 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 4. 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 5. Counterparts. This 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 6. 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 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to the Secured Loan 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 XxxXxxxxx
-----------------------------------
Name: Xxxxx 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 Xxxxxxxx, Xx.
-----------------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: Vice President
As Owner Participants:
EVERGREEN INTERNATIONAL AVIATION, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
