AMENDMENT NUMBER ONE TO INTERCREDITOR AGREEMENT
Exhibit 10.1
This
AMENDMENT
NUMBER ONE TO INTERCREDITOR AGREEMENT
(this
"Amendment")
is
entered into as of May 15, 2006 by and between Law Debenture Trust Company
of
New York, as successor to XX Xxxxxx Trust Company, National Association ("XX
Xxxxxx") and Bank One, National Association ("Bank
One"),
a
national banking association, not in its individual capacity but solely as
trustee (the "Trustee")
under
the Junior Agreement (as defined below), as collateral agent for itself and
the
holders of the Senior Second Notes (in such capacity, together with its
successors and assigns in such capacity, the "Junior
Collateral Agent"),
and
Xxxxx Fargo Foothill, Inc., a California corporation ("WFF"),
as
the arranger and administrative agent for the Senior Lenders (as defined below)
(in such capacity, together with its successors and assigns in such capacity,
the "Senior
Agent"),
with
reference
to the following:
WHEREAS,
Junior
Collateral Agent and Senior Agent are parties to that certain Intercreditor
Agreement, dated as of May 14, 2004 (as amended, restated, supplemented, or
otherwise modified from time to time, the "Intercreditor
Agreement");
WHEREAS,
Evergreen International Aviation, Inc., an Oregon corporation (the "Parent"),
certain subsidiaries and affiliates of Parent that are party thereto (each
a
"Borrower"
and
individually and collectively, jointly and severally, the "Borrowers"),
the
lenders that are identified on the signature pages thereto (the "Senior
Lenders"),
and
Senior Agent are parties to that certain Loan and Security Agreement dated
as of
May 13, 2004 (as amended, restated, supplemented or otherwise modified from
time
to time, the "Credit
Agreement");
WHEREAS,
Parent,
certain subsidiaries and affiliates of Parent that are party thereto, and
Trustee, as successor to XX Xxxxxx and Bank One, are parties to that certain
Indenture dated as of May 16, 2003 (as amended, restated, supplemented or
otherwise modified from time to time, the "Junior
Agreement");
WHEREAS,
Senior
Agent and Junior Collateral Agent desire to make certain amendments to the
Intercreditor Agreement; and
WHEREAS,
subject
to the terms and conditions set forth herein, Senior Agent and Junior Collateral
Agent are willing to make such amendments.
NOW,
THEREFORE,
in
consideration of the foregoing and the mutual covenants herein contained, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. Defined
Terms.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Intercreditor Agreement, as amended
hereby.
2. Amendment
to Intercreditor Agreement.
(a) Section
1.01
of the
Intercreditor Agreement is hereby amended by adding the following new definition
in proper alphabetical order:
"Pledged
Collateral"
is
defined in Section 3.10(a)."
(b) The
Intercreditor Agreement is hereby amended by adding the following new
Section
3.10
at the
end of Article III thereof:
"3.10 Bailee
for Perfection.
(a) The
Senior Agent and the Junior Collateral Agent each agree to hold that part of
the
Collateral that is in its possession or control (or in the possession or control
of its agents or bailees), to the extent that possession or control thereof
is
taken to perfect a Lien thereon under the UCC or other applicable law (such
Collateral being the "Pledged Collateral"), as bailee and as a non-fiduciary
agent for the Junior Collateral Agent or the Senior Agent, as applicable (such
bailment and agency being intended, among other things, to satisfy the
requirements of Sections 8-301(a)(2), 9-313(c), 9-104, 9-105, 9-106, and 9-107
of the UCC), solely for the purpose of perfecting the security interest granted
under the Junior Documents or the Senior Documents, as applicable, subject
to
the terms and conditions of this Section
3.10.
Unless
and until the Senior Debt is Paid in Full, the Junior Collateral Agent agrees
to
promptly notify the Senior Agent of any Pledged Collateral held by it or by
any
Junior Creditors, and, immediately upon the request of the Senior Agent at
any
time prior to the Senior Debt being Paid in Full, the Junior Collateral Agent
agrees to deliver to the Senior Agent any such Pledged Collateral held by it
or
by any Junior Creditors, together with any necessary endorsements (or otherwise
allow the Senior Agent to obtain control of such Pledged Collateral). The Senior
Agent hereby agrees that upon the Senior Debt being Paid in Full, upon the
written request of Junior Collateral Agent, to the extent that the applicable
control agreement is in full force and effect and has not been terminated,
Senior Agent shall continue to act as such a bailee and non-fiduciary agent
for
the Junior Collateral Agent (solely for the purpose of perfecting the security
interest granted under the Junior Documents and at the expense of Junior
Collateral Agent) with respect to the deposit account or securities account
that
is the subject of such control agreement, until the earlier to occur of (x)
30
days after the date when the Senior Debt is Paid in Full, and (y) the date
when
a control agreement is executed in favor of Junior Collateral Agent with respect
to such deposit account or securities account.
(b) The
Senior Agent shall have no obligation whatsoever to the Junior Collateral Agent
or any Junior Creditor to ensure that the Pledged Collateral is genuine or
owned
by any of the Obligors or to preserve rights or benefits of any person except
as
expressly set forth in this Section
3.10.
The
Junior Collateral Agent shall have no obligation whatsoever to the Senior Agent
or any Senior Lender to ensure that the Pledged Collateral is genuine or owned
by any of the Obligors or to preserve rights or benefits of any person except
as
expressly set forth in this Section
3.10.
The
duties or responsibilities of the Senior Agent under this Section
3.10
shall be
limited solely to holding or controlling the Pledged Collateral as bailee and
agent in accordance with this Section
3.10
and
delivering the Pledged Collateral upon a Payment in Full as provided in
paragraph (d) of this Section
3.10.
The
duties or responsibilities of the Junior Collateral Agent under this
Section
3.10
shall be
limited solely to holding or controlling the Pledged Collateral as bailee and
agent in accordance with this Section
3.10.
(c) The
Senior Agent acting pursuant to this Section
3.10
shall
not have by reason of the Senior Documents, the Junior Documents, this Agreement
or any other document a fiduciary relationship in respect of the Junior
Collateral Agent or any Junior Creditor. The Junior Collateral Agent acting
pursuant to this Section
3.10
shall
not have by reason of the Senior Documents, the Junior Documents, this Agreement
or any other document a fiduciary relationship in respect of the Senior Agent
or
any Senior Lender.
(d) Upon
the
Senior Debt being Paid in Full, the Senior Agent shall deliver the remaining
Pledged Collateral (if any) together with any necessary endorsements,
first,
to the
Junior Collateral Agent to the extent Junior Debt remains outstanding as
confirmed by the Junior Collateral Agent, and, to the extent that Junior
Collateral Agent confirms no Junior Debt is outstanding, second,
to the
Administrative Borrower to the extent no First Lien Debt or Second Lien Debt
remain outstanding (in each case, so as to allow such person to obtain
possession or control of such Pledged Collateral).
3. Choice
of Law.
The
validity of this Amendment, its construction, interpretation and enforcement,
the rights of the parties hereunder, shall be determined under, governed by,
and
construed in accordance with the laws of the State of New York.
4. Counterpart
Execution.
This
Amendment may be executed in any number of counterparts, all of which when
taken
together shall constitute one and the same instrument, and any of the parties
hereto may execute this Amendment by signing any such counterpart. Delivery
of
an executed counterpart of this Amendment by telefacsimile or electronic mail
shall be equally as effective as delivery of an original executed counterpart
of
this Amendment. Any party delivering an executed counterpart of this Amendment
by telefacsimile or electronic mail also shall deliver an original executed
counterpart of this Amendment, but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect
of
this Amendment.
5. Effect
on Loan Documents.
(a) The
Intercreditor Agreement, as amended hereby, and each of the other Senior
Documents and Junior Documents shall be and remain in full force and effect
in
accordance with their respective terms and hereby are ratified and confirmed
in
all respects. The execution, delivery, and performance of this Amendment shall
not operate, except as expressly set forth herein, as a modification or waiver
of any right, power, or remedy of Senior Agent, Junior Collateral Agent, any
other Senior Creditor, or any Junior Creditor under the Intercreditor Agreement
or any other Senior Document or Junior Document. The waivers, consents, and
modifications herein are limited to the specifics hereof, shall not apply with
respect to any facts or occurrences other than those on which the same are
based, shall not excuse future non-compliance with the Senior Documents and
Junior Documents, and shall not operate as a consent to any' further or other
matter under the Senior Documents and Junior Documents.
(b) Upon
and
after the effectiveness of this Amendment, each reference in the Intercreditor
Agreement to "this Agreement", "hereunder", "herein", "hereof" or words of
like
import referring to the Intercreditor Agreement, and each reference in the
other
Senior Documents and Junior Documents to "the Intercreditor Agreement",
"thereunder", "therein", "thereof" or words of like import referring to the
Intercreditor Agreement, shall mean and be a reference to the Intercreditor
Agreement as modified and amended hereby.
(c) To
the
extent that any terms and conditions in any of the Senior Documents and Junior
Documents shall contradict or be in conflict with any terms or conditions of
the
Intercreditor Agreement, after giving effect to this Amendment, such terms
and
conditions are hereby deemed modified or amended accordingly to reflect the
terms and conditions of the Intercreditor Agreement as modified or amended
hereby.
(d) This
Amendment is a Senior Document and Junior Document.
6. Entire
Agreement.
This
Amendment embodies the entire understanding and agreement between the parties
hereto with respect to the subject matter hereof and supersedes any and all
prior or contemporaneous agreements or understandings with respect to the
subject matter hereof, whether express or implied, oral or written.
[signature
page follows]
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be executed and delivered as of
the
date first set forth above.
|
JUNIOR
COLLATERAL AGENT
|
||
|
LAW
DEBENTURE TRUST COMPANY OF NEW YORK,
as Trustee |
||
| |
|
|
| By: | /s/ Xxxx Xxxxxx | |
|
Name: Xxxx Xxxxxx |
||
| Title: Vice President | ||
|
SENIOR
AGENT
|
||
|
XXXXX
FARGO FOOTHILL, INC.,
as Agent |
||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
[SIGNATURE
PAGE TO AMENDMENT TO INTERCREDITOR AGREEMENT]
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be executed and delivered as of
the
date first set forth above.
|
JUNIOR
COLLATERAL AGENT
|
||
|
LAW
DEBENTURE TRUST COMPANY OF NEW YORK,
as Trustee |
||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
|
SENIOR
AGENT
|
||
|
XXXXX
FARGO FOOTHILL, INC.,
as Agent |
||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxxx | |
|
Name: Xxxxxx Xxxxxxx |
||
| Title: Vice President | ||
[SIGNATURE
PAGE TO AMENDMENT TO INTERCREDITOR AGREEMENT]
