Exhibit 10.17


 


CREDIT AGREEMENT


 


 


among


 


 


ERICKSON AIR-CRANE INCORPORATED

as Borrower


 


 


LENDERS NAMED HEREIN,

as Lenders


 


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent, Swing Line Lender

and L/C Issuer


 


 


WELLS FARGO SECURITIES, LLC

as Sole Lead Arranger and Sole Bookrunner


 


 


KEYBANK NATIONAL ASSOCIATION

as Syndication Agent


 


 


BANK OF THE WEST

as Documentation Agent


 


 


TOTAL COMMITMENT — $132,500,000


 


 


June 24, 2010


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITIONS
  AND ACCOUNTING TERMS

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.01

  	
  Defined
  Terms

  	
  1

  
	
  1.02

  	
  Other
  Interpretive Provisions

  	
  25

  
	
  1.03

  	
  Accounting
  Terms

  	
  26

  
	
  1.04

  	
  UCC
  Terms

  	
  26

  
	
  1.05

  	
  Rounding

  	
  27

  
	
  1.06

  	
  References
  to Agreements and Laws

  	
  27

  
	
  1.07

  	
  Exchange
  Rates; Currency Equivalents

  	
  27

  
	
  1.08

  	
  Additional
  Alternative Currencies

  	
  27

  
	
  1.09

  	
  Change
  of Currency

  	
  28

  
	
  1.10

  	
  Letter
  of Credit Amounts

  	
  28

  
	
  1.11

  	
  Currency

  	
  28

  
	
  1.12

  	
  Conflicts

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  THE
  COMMITMENTS AND CREDIT EXTENSIONS

  	
  28

  
	
   

  	
   

  	
   

  
	
  2.01

  	
  Committed
  Loans

  	
  28

  
	
  2.02

  	
  Borrowings,
  Conversions and Continuations of Committed Loans

  	
  30

  
	
  2.03

  	
  Procedures
  Regarding Letters of Credit

  	
  32

  
	
  2.04

  	
  Swing
  Line Loans

  	
  38

  
	
  2.05

  	
  Voluntary
  Prepayment

  	
  41

  
	
  2.06

  	
  Mandatory
  Prepayment of Loans

  	
  41

  
	
  2.07

  	
  Voluntary
  Reduction or Termination of Commitments

  	
  42

  
	
  2.08

  	
  Interest

  	
  42

  
	
  2.09

  	
  Fees

  	
  42

  
	
  2.10

  	
  Computation
  of Interest and Fees

  	
  43

  
	
  2.11

  	
  Evidence
  of Debt

  	
  43

  
	
  2.12

  	
  Payments
  Generally

  	
  44

  
	
  2.13

  	
  Sharing
  of Payments

  	
  46

  
	
  2.14

  	
  Increase
  in Revolving Commitments

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  TAXES,
  YIELD PROTECTION AND ILLEGALITY

  	
  48

  
	
   

  	
   

  	
   

  
	
  3.01

  	
  Taxes

  	
  48

  
	
  3.02

  	
  Illegality

  	
  50

  
	
  3.03

  	
  Inability
  to Determine Rates

  	
  50

  
	
  3.04

  	
  Increased
  Cost and Reduced Return; Capital Adequacy; Reserves on LIBOR Loans

  	
  51

  
	
  3.05

  	
  Funding
  Losses

  	
  52

  
	
  3.06

  	
  Survival

  	
  53

  
	
  3.07

  	
  Replacement
  of Lenders

  	
  53

  



 


i

















 


TABLE OF CONTENTS


 


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  CONDITIONS
  PRECEDENT TO CREDIT EXTENSIONS

  	
  54

  
	
   

  	
   

  	
   

  
	
  4.01

  	
  Conditions
  of Initial Credit Extension

  	
  54

  
	
  4.02

  	
  Conditions
  to All Credit Extensions and Conversions and Continuations

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  56

  
	
   

  	
   

  	
   

  
	
  5.01

  	
  Existence,
  Qualification and Power; Compliance with Laws

  	
  56

  
	
  5.02

  	
  Authorization;
  No Contravention

  	
  57

  
	
  5.03

  	
  Governmental
  Authorization; Other Consents

  	
  57

  
	
  5.04

  	
  Binding
  Effect

  	
  57

  
	
  5.05

  	
  Financial
  Statements; No Material Adverse Effect

  	
  57

  
	
  5.06

  	
  Litigation

  	
  58

  
	
  5.07

  	
  No
  Default

  	
  58

  
	
  5.08

  	
  Ownership
  of Property; Liens

  	
  58

  
	
  5.09

  	
  Environmental
  Compliance

  	
  58

  
	
  5.10

  	
  Insurance

  	
  59

  
	
  5.11

  	
  Taxes

  	
  59

  
	
  5.12

  	
  ERISA
  Compliance

  	
  59

  
	
  5.13

  	
  Subsidiaries

  	
  59

  
	
  5.14

  	
  Margin
  Regulations; Investment Company Act

  	
  60

  
	
  5.15

  	
  Intellectual
  Property; Etc.

  	
  60

  
	
  5.16

  	
  Solvency

  	
  60

  
	
  5.17

  	
  Federal
  Contracts

  	
  60

  
	
  5.18

  	
  Management
  Services Agreements

  	
  60

  
	
  5.19

  	
  Disclosure

  	
  61

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  AFFIRMATIVE
  COVENANTS

  	
  61

  
	
   

  	
   

  	
   

  
	
  6.01

  	
  Financial
  Statements

  	
  61

  
	
  6.02

  	
  Certificates;
  Other Information

  	
  62

  
	
  6.03

  	
  Notices

  	
  63

  
	
  6.04

  	
  Payment
  of Obligations

  	
  64

  
	
  6.05

  	
  Preservation
  of Existence, Etc.

  	
  64

  
	
  6.06

  	
  Maintenance
  of Properties

  	
  64

  
	
  6.07

  	
  Maintenance
  of Insurance

  	
  64

  
	
  6.08

  	
  Compliance
  with Laws

  	
  65

  
	
  6.09

  	
  Books
  and Records

  	
  65

  
	
  6.10

  	
  Inspection
  Rights

  	
  65

  
	
  6.11

  	
  Compliance
  with ERISA

  	
  65

  
	
  6.12

  	
  Subsidiaries;
  Additional Guarantors; Pledge of Equity Interests

  	
  65

  



 


ii

















 


TABLE OF CONTENTS


 


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  6.13

  	
  Intellectual
  Property

  	
  66

  
	
  6.14

  	
  Use
  of Proceeds

  	
  67

  
	
  6.15

  	
  Further
  Assurances

  	
  67

  
	
  6.16

  	
  Citizenship

  	
  67

  
	
  6.17

  	
  Interest
  Rate Protection

  	
  67

  
	
  6.18

  	
  Federal
  Contracts

  	
  68

  
	
  6.19

  	
  Notice
  of Aircraft Operation

  	
  68

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  NEGATIVE
  COVENANTS

  	
  68

  
	
   

  	
   

  	
   

  
	
  7.01

  	
  Liens

  	
  68

  
	
  7.02

  	
  Investments

  	
  70

  
	
  7.03

  	
  Indebtedness

  	
  71

  
	
  7.04

  	
  Fundamental
  Changes

  	
  73

  
	
  7.05

  	
  Dispositions

  	
  74

  
	
  7.06

  	
  Lease
  Obligations

  	
  75

  
	
  7.07

  	
  Restricted
  Payments

  	
  75

  
	
  7.08

  	
  ERISA

  	
  76

  
	
  7.09

  	
  Change
  in Nature of Business

  	
  76

  
	
  7.10

  	
  Transactions
  with Affiliates

  	
  76

  
	
  7.11

  	
  Burdensome
  Agreements

  	
  77

  
	
  7.12

  	
  Margin
  Regulations

  	
  77

  
	
  7.13

  	
  Financial
  Covenants

  	
  77

  
	
  7.14

  	
  Maximum
  Capital Expenditures

  	
  78

  
	
  7.15

  	
  Name
  Change; Jurisdiction Change

  	
  79

  
	
  7.16

  	
  Operation
  of Aircraft

  	
  79

  
	
  7.17

  	
  Deposit
  Accounts and Securities Accounts

  	
  79

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  EVENTS
  OF DEFAULT AND REMEDIES

  	
  79

  
	
   

  	
   

  	
   

  
	
  8.01

  	
  Events
  of Default

  	
  79

  
	
  8.02

  	
  Remedies
  Upon Event of Default

  	
  82

  
	
  8.03

  	
  Application
  of Funds

  	
  83

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  ADMINISTRATIVE
  AGENT

  	
  84

  
	
   

  	
   

  	
   

  
	
  9.01

  	
  Appointment
  and Authority

  	
  84

  
	
  9.02

  	
  Rights
  as a Lender

  	
  84

  
	
  9.03

  	
  Exculpatory
  Provisions

  	
  85

  
	
  9.04

  	
  Reliance
  by Administrative Agent

  	
  85

  
	
  9.05

  	
  Delegation
  of Duties

  	
  86

  
	
  9.06

  	
  Resignation
  of Administrative Agent

  	
  86

  



 


iii

















 


TABLE OF CONTENTS


 


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  9.07

  	
  Non-Reliance
  on Administrative Agent and Other Lenders

  	
  87

  
	
  9.08

  	
  No
  Duties

  	
  87

  
	
  9.09

  	
  Administrative
  Agent May File Proofs of Claim

  	
  87

  
	
  9.10

  	
  Collateral
  and Guaranty Matters

  	
  88

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  MISCELLANEOUS

  	
  89

  
	
   

  	
   

  	
   

  
	
  10.01

  	
  Amendments,
  Etc.

  	
  89

  
	
  10.02

  	
  Notices
  and Other Communications; Facsimile Copies

  	
  90

  
	
  10.03

  	
  No
  Waiver; Cumulative Remedies

  	
  91

  
	
  10.04

  	
  Attorney
  Costs, Expenses and Taxes

  	
  92

  
	
  10.05

  	
  Indemnification
  by the Borrower

  	
  92

  
	
  10.06

  	
  Payments
  Set Aside

  	
  93

  
	
  10.07

  	
  Successors
  and Assigns

  	
  93

  
	
  10.08

  	
  Confidentiality

  	
  98

  
	
  10.09

  	
  Set-off

  	
  99

  
	
  10.10

  	
  Interest
  Rate Limitation

  	
  99

  
	
  10.11

  	
  Counterparts

  	
  99

  
	
  10.12

  	
  Integration

  	
  100

  
	
  10.13

  	
  Survival
  of Representations and Warranties

  	
  100

  
	
  10.14

  	
  Severability

  	
  100

  
	
  10.15

  	
  USA
  Patriot Act Notice

  	
  100

  
	
  10.16

  	
  No
  Foreign Control

  	
  100

  
	
  10.17

  	
  Governing
  Law

  	
  101

  
	
  10.18

  	
  Waiver
  of Right to Trial by Jury

  	
  101

  
	
  10.19

  	
  Forced
  Place Insurance

  	
  102

  
	
  10.20

  	
  Time
  of the Essence

  	
  102

  
	
  10.21

  	
  Oregon
  Statutory Notice

  	
  102

  



 


iv

















 


SCHEDULES


 


1.01        Pricing
Schedule


2.01        Commitments
and Pro Rata Shares


2.03        Existing
L/Cs


5.06        Litigation


5.09        Environmental
Matters


5.10        Property
Insurance


5.13        Subsidiaries
and Other Equity Investments


5.15        Intellectual
Property


5.17        Material
Federal Contracts


7.01        Existing
Liens


7.06        Existing
Leases


10.02      Addresses for
Notices


 


EXHIBITS


 


Form of:


 


A             Committed
Loan Notes


B             Committed
Loan Notice


C             Compliance
Certificate


D             Guaranty
Agreement


E             Swing Line
Loan Note


F              Assignment
and Assumption


G             Monthly
Asset Coverage and Available Credit Certificate


 


v






 


 










 


CREDIT AGREEMENT


 


This
CREDIT AGREEMENT (“Agreement”) is made and entered into as June 24,
2010 by and among ERICKSON AIR-CRANE INCORPORATED, a Delaware corporation (the “Borrower”),
the Lenders (as defined herein), WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent, Swing Line Lender and L/C Issuer, WELLS FARGO SECURITIES,
LLC, as Sole Lead Arranger and Sole Bookrunner, KEYBANK NATIONAL ASSOCIATION,
as Syndication Agent, and BANK OF THE WEST, as Documentation Agent.


 


RECITALS


 


Borrower
has requested the credit facilities described herein from Lenders, and Lenders
and Administrative Agent have agreed to provide said credit facilities to
Borrower on the terms and conditions contained herein;


 


NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:


 


ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS


 


1.01        Defined Terms.  As used in this Agreement, the following
terms shall have the meanings set forth below:


 


“Adjusted
EBITDA” means, as of the end of a fiscal quarter, EBITDA plus the following
(determined on a consolidated basis) for the period during which EBITDA was
calculated:  (i)  management fees
paid to Stonehouse Capital Partners in 2009 and the first fiscal quarter of
2010; (ii) 2010 IPO related non-capitalized expenses up to a maximum of
$2,000,000; (iii) 2010 and 2011 legal expenses (including, without
limitation, settlement costs) incurred directly in connection with the
Evergreen Aviation litigation, the litigation with Borrower’s prior owners, the
litigation in Italy relating to the 2005 helicopter crash and the appeal of the
IRS audit relating to Borrower’s 2005 and 2006 tax years, up to an aggregate
maximum of $2,000,000 for any twelve month period; and (iv) any cash
expense resulting from the prepayment of Existing Indebtedness in connection
with the credit extended hereunder, up to an aggregate maximum of $500,000.


 


“Administrative
Agent” means Wells Fargo, in its capacity as administrative agent under the
Loan Documents, or any successor administrative agent.


 


“Administrative
Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth in Schedule 10.02,  or such other address or account as the Administrative
Agent may from time to time notify to the Borrower and the Lenders in writing.


 


1

















 


“Affiliate”
means, with respect to any Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified. 
Without limiting the generality of the foregoing, in determining whether
a Person is Controlled by a Loan Party, such Person shall be deemed to be
Controlled by a Loan Party if such Loan Party possesses, directly or
indirectly, power to vote fifty percent (50%) or more of the securities having
ordinary voting power for the election of directors, managing general partners
or the equivalent.


 


“Aggregate
Commitments” means the Aggregate Revolving Commitments plus the total of
the Term Loan Commitments


 


“Aggregate
Revolving Commitments” means the total of the Revolving Commitments.


 


“Agreement”
means this Credit Agreement.


 


“Aircraft
Appraisal Report” means, collectively, the opinion of value letter dated August 3,
2007, by HeliValue $, Inc. to Erickson Air-Crane Inc., setting forth an
OLV (as defined therein) of $268,740,000, Summary Appraisal:  fleet of 18 helicopters prepared August 3,
2007, with an effective date of June 24, 2007, and letter dated August 9,
2007, by HeliValue $, Inc. to Key Equipment Finance.


 


“Aircraft
Security Agreement” means the Aircraft Security Agreement of even date
herewith executed by Borrower in favor of Administrative Agent.


 


“Aircrane”
means an Erickson or Sikorsky S-64E or S-64F aircraft.


 


“Alternative
Currency” means each of Euro, Canadian Dollars, Australian Dollars,
Sterling and each other currency (other than U.S. Dollars) that is approved in
accordance with Section 1.08.


 


“Alternative
Currency Equivalent” means, at any time, with respect to any amount
denominated in U.S. Dollars, the equivalent amount thereof in the applicable
Alternative Currency as determined by the L/C Issuer at such time on the basis
of the Spot Rate (determined in respect of the most recent Revaluation Date)
for the purchase of such Alternative Currency with U.S. Dollars.


 


“Applicable
Margin” means, with respect to a Base Rate Loan or a LIBOR Loan, the number
of basis points identified on the Pricing Schedule.


 


“Applicable
Rate” means, at any date, (a) with respect to each Base Rate Loan, a
per annum rate equal to the sum of the Base Rate in effect on such date and the
Applicable Margin and (b) with respect to each LIBOR Loan, a per annum
rate equal to the sum of LIBOR in effect on the first day of the Interest
Period for such Loan and the Applicable Margin.


 


2

















 


“Applicable
Time” means, with respect to any payment in any Alternative Currency, the
local time in the place of settlement for such Alternative Currency as may be
determined by the L/C Issuer to be necessary for timely settlement on the
relevant date in accordance with normal banking procedures in the place of
payment.


 


“Approved
Fund” has the meaning given in Section 10.7(h).


 


“Arranger”
means Wells Fargo Securities, LLC, in its capacity as sole lead arranger and
sole bookrunner.


 


“Asset
Coverage Amount” means, as of the end of any month, the total of the
following assets of Borrower (as determined on a consolidated basis in a manner
acceptable to the Administrative Agent) in which Administrative Agent has a
perfected, first priority Lien for the benefit of the Lenders: (i) 70% of
net book value of accounts receivable from account debtors having their chief
executive office in the United States or Canada, plus (ii) 50% of
the aggregate net book value of Aircrane support parts and parts held for sale,
including Aircraft WIP up to, but not exceeding, an amount equal to 30% of the
aggregate net book value of such parts included for purposes of this
calculation (as determined in a manner consistent with Borrower’s
December 31, 2009 audited financial statements), plus
(iii) with respect to each Aircrane, 75% of the lesser of the insured
value of such Aircrane or the appraised fair market value of such
Aircrane.  As used herein, “Aircraft WIP”
means construction in process of aircraft to be sold to third parties.


 


“Assignment
and Assumption” means an Assignment and Assumption substantially in the
form of Exhibit F.


 


“Attorney
Costs” means and includes all reasonable and documented fees and
disbursements of any law firm or other external counsel, including fees and
disbursements incurred at the trial or appellate level, in an arbitration or
administrative proceeding, in bankruptcy (including any adversary proceeding,
contested matter or motion) or otherwise incurred.


 


“Attributable
Indebtedness” means, on any date, (a) in respect of any capital lease
of any Person, the capitalized amount thereof that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP, and
(b) in respect of any Synthetic Lease Obligation, the capitalized amount
of the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP
if such lease were accounted for as a capital lease.


 


“Audited
Financial Statements” means Borrower’s audited consolidated financial
statements for the fiscal year ended December 31, 2009.


 


“Available
Credit” means, at any time, the lesser of (a) the amount by which
(i) the Aggregate Revolving Commitments are greater than (ii) an
amount equal to the Outstanding Amount of the Revolving Loans and Swing Line
Loans plus the L/C Obligations and (b) the 


 


3

















 


amount
by which (i) the most recently calculated Asset Coverage Amount is greater
than (ii) the Outstanding Amount of the Loans plus the Outstanding
Amount of the L/C Obligations.


 


“Bank
Product” means any financial accommodation extended to Borrower or its
Subsidiaries by a Bank Product Provider (other than pursuant to the Agreement)
including:  (a) credit cards,
(b) credit card processing services, (c) debit cards, (d) purchase
cards, (e) ACH transactions, (f) cash management, including
controlled disbursement, accounts or services, or (g) transactions under
Hedge Contracts.


 


“Bank
Product Agreements” means those agreements entered into from time to time
by Borrower or any Subsidiary with a Bank Product Provider in connection with
obtaining any Bank Product.


 


“Bank
Product Provider” means a Lender, provided such Lender gives Administrative
Agent advance notice of the Bank Product it intends to provide prior to
entering into the agreement to provide such Bank Product.


 


“Base
Rate” means, for any day, an interest rate per annum equal to the highest
of (a) the rate of interest most recently announced by Wells Fargo at its
principal office as its prime rate, with any change in the prime rate to be
effective as of the day such change is announced by Wells Fargo and with the
understanding that the prime rate is one of Wells Fargo’s base rates used to
price some loans and may not be the lowest rate at which Wells Fargo makes any
loan, and is evidenced by the recording thereof in such internal publication or
publications as Wells Fargo may designate, (b) the rate of interest
determined by the Administrative Agent as of such day to be equal to LIBOR then
in effect on such day for delivery for a one month period plus 150 basis points
and (c) the Federal Funds Rate plus 150 basis points.  Any change in such rate shall take effect at
the opening of business on the day such change is announced.


 


“Base
Rate Loan” means a Loan that bears interest based on the Base Rate.


 


“Borrowing”
means a Committed Borrowing or a Swing Line Borrowing, as the context may
require.


 


“Business
Day” means (a) for all purposes other than as covered by clause (b) below,
any day other than a Saturday, Sunday or other day on which commercial banks
are authorized or required to be closed in Portland, Oregon and (b) with
respect to all notices, determinations, fundings and payments in connection
with any LIBOR Loan, any day that is a Business Day described in clause (a) above
and that also is a day for trading by and between banks in U.S. Dollar deposits
in the London interbank market.


 


“Cambiano
Financing” means the financing pursuant to that certain Agreement, dated July 29,
2008, between European Aircrane SRL and Banca di Credito Cooperativo di
Cambiano.


 


4

















 


“Capital
Expenditures” means, for any period, all expenditures of Borrower and its
subsidiaries during such period determined on a consolidated basis that, in
accordance with GAAP, consistently applied, are capital expenditures, provided
that (a) at Borrower’s election, Permitted Fleet Expenditures for up to
two Aircranes added to Borrower’s fleet during the period starting with the
Closing Date and ending on the Maturity Date will not be treated as “Capital
Expenditures” under the Loan Documents and (b) such expenditures made with
the proceeds of any Involuntary Disposition that Borrower is permitted to use
for such purpose will not be treated as “Capital Expenditures” under the Loan
Documents.


 


“Cash”
means money, currency or a credit balance in any demand or Deposit Account.


 


“Cash
Collateral” means Cash pledged to Administrative Agent to secure
Obligations.


 


“Cash
Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, Cash pursuant to documentation in form and
substance reasonably satisfactory to the Administrative Agent and the L/C
Issuer (which documents are hereby consented to by the Lenders).  Derivatives of such term shall have
corresponding meaning.


 


“Cash
Equivalents” means, as at any date of determination, (a) marketable
securities or evidence of debt (i) issued or directly and unconditionally
guaranteed as to interest and principal by the United States Government or
(ii) issued by any agency of the United States the obligations of which
are backed by the full faith and credit of the United States, in each case
maturing within one year after such date; (b) marketable direct
obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof,
in each case maturing within one year after such date and having, at the time
of the acquisition thereof, a rating of at least A-1 from S&P or at least
P-1 from Moody’s; (c) commercial paper maturing no more than one year from
the date of creation thereof and having, at the time of the acquisition
thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s;
(d) certificates of deposit or bankers’ acceptances maturing within one
year after such date and issued or accepted by any Lender or by any commercial
bank organized under the laws of the United States of America or any state
thereof or the District of Columbia that (i) is at least “adequately
capitalized” (as defined in the regulations of its primary Federal banking
regulator) and (ii) has Tier 1 capital (as defined in such regulations) of
not less than $100,000,000; (e) shares of any money market mutual fund
that (i) has substantially all of its assets invested continuously in any
of the types of investments referred to in clauses (a) through (d) above,
(ii) has net assets of not less than $500,000,000, and (iii) has the
highest rating obtainable from either S&P or Moody’s; and (f) in the
case of Foreign Subsidiaries, substantially similar foreign equivalents of
those Cash Equivalents described in clauses (a) through (e) above.


 


“Change
of Control” means an event or series of events by which:


 


(a)           any “person” or “group” (as such
terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended) becomes the “beneficial owner” (as 


 


5

















 


defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that a person or group shall be deemed to have “beneficial ownership” of all
Equity Interests that such person or group has the right to acquire, whether
such right is exercisable immediately or only after the passage of time (such
right, an “option right”)), directly or indirectly, of a greater percentage
than ZM Equity Partners, LLC of the equity securities of the Borrower entitled
to vote for members of Borrower’s board of directors on a fully-diluted basis
(and taking into account all such securities that such person or group has the
right to acquire pursuant to any option right) or if prior to the IPO ZM Equity
Partners, LLC owns less than the 25% of such equity securities; or


 


(b)           during any period of 24 consecutive
months, a majority of the members of the board of directors of the Borrower
cease to be composed of individuals (i) who were members of that board on
the first day of such period, (ii) whose election or nomination to the
board was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority of
the board or (iii) whose election or nomination to the board was approved
by individuals referred to in clauses (i) and (ii) above constituting
at the time of such election or nomination at least a majority of the board
(excluding, in the case of both clause (ii) and clause (iii), any
individual whose initial nomination for, or assumption of office as, a member
of the board occurs as a result of an actual or threatened solicitation of
proxies or consents for the election or removal of one or more directors by any
person or group other than a solicitation for the election of one or more
directors by or on behalf of the board of directors); provided, however


 


(c)           in no event will the IPO be a “Change
of Control.”


 


“Closing
Date” means the first date all the conditions precedent in Section 4.01
are satisfied or waived in accordance with Section 4.01.


 


“Code”
means the Internal Revenue Code of 1986, as amended.


 


“Collateral”
means all real and personal property and interests in property and proceeds
thereof now owned or hereafter acquired by any Loan Party in or upon which a
Lien now or hereafter exists in favor of the Lenders, or the Administrative
Agent on behalf of the Lenders.


 


“Collateral
Documents” means, collectively, (i) the Security and Pledge Agreement,
the Deed of Trust, the Aircraft Security Agreement, the FAA Documents and all
other security agreements, control agreements, mortgages, deeds of trust,
patent and trademark assignments, lease assignments, guarantees and other
similar agreements between the any Loan Party and the Lenders or the
Administrative Agent for the benefit of the Lenders pursuant to which a
security interest is granted or obligations guarantied now or hereafter
delivered to the Lenders or the Administrative Agent pursuant to or in
connection with the transactions contemplated hereby (including such documents
as the Administrative Agent shall deem appropriate pursuant to Section 6.12),
and all financing statements (or comparable documents now or hereafter filed in
accordance with the Uniform Commercial Code or 


 


6

















 


comparable
law) and patent, trademark and copyright filings against any Loan Party as debtor
in favor of the Lenders or the Administrative Agent as secured party for the
benefit of the Lenders, and (ii) any amendments, supplements,
modifications, renewals, replacements, consolidations, substitutions and
extensions of any of the foregoing.


 


“Commitment”
means, as to each Lender, its obligation to (a) make Committed Loans to
the Borrower pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in
Swing Line Loans, in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01,
as such amount may be reduced or adjusted from time to time in accordance with
this Agreement and Section 2.07 (collectively, the “Aggregate
Commitments”).


 


“Committed
Borrowing” means a borrowing consisting of simultaneous Committed Loans of
the same Type and having the same Interest Period made by each of the Lenders
pursuant to Section 2.01.


 


“Committed
Loan” means a Term Loan or a Revolving Loan.


 


“Committed
Loan Note” means a promissory note made by the Borrower in favor of a
Lender evidencing Committed Loans made by such Lender, substantially in one of
the forms attached as Exhibit A.


 


“Committed
Loan Notice” means a notice of (a) a Committed Borrowing, (b) a
conversion of Committed Loans from one Type to the other, or (c) a
continuation of Committed Loans as the same Type, pursuant to Section 2.02(a),
which, if in writing, shall be substantially in the form of Exhibit B.


 


“Compliance
Certificate” means a certificate substantially in the form of Exhibit C.


 


“Contractual
Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which
such Person is a party or by which it or any of its property is bound.


 


“Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled”
have meanings correlative thereto.


 


“Credit
Extension” means each of the following: 
(a) a Committed Borrowing, (b) a borrowing of a Swing Line
Loan, and (c) an L/C Credit Extension.


 


“Debtor
Relief Laws” means the Bankruptcy Code of the United States of America, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America
or other applicable state or foreign jurisdictions from time to time in effect
and affecting the rights of creditors generally.


 


7

















 


“Deed
of Trust” means the Line of Credit Commercial Deed of Trust, Assignment of
Leases and Rents, Security Agreement and Fixture Filing executed by Borrower in
favor of Chicago Title Insurance Company, as Trustee, and Administrative Agent
as Beneficiary encumbering Borrower’s property in Jackson County, Oregon.


 


“Default”
means any event or condition that, with the giving of any notice, the passage
of time, or both, would be an Event of Default.


 


“Default
Rate” means a per annum rate equal to the Applicable Rate plus 200 basis
points.


 


“Deposit
Account” means a demand, time, savings, passbook or like account with a
bank, savings and loan association, credit union or like organization, other
than an account evidenced by a negotiable certificate of deposit.


 


“Disposition”
or “Dispose” means the sale, transfer, license or other disposition
(including any sale and leaseback transaction) of any property by any Person,
including any sale, assignment, transfer or other disposal, with or without
recourse, of any notes or accounts receivable or any rights and claims associated
therewith, but excluding any Involuntary Disposition.


 


“Disregarded
Foreign Subsidiary” shall mean any Foreign Subsidiary the separate
existence of which is disregarded for United States Federal tax purposes under
Treas. Reg. Section 301.7701-3.


 


“Domestic
Subsidiary” means any Subsidiary that is organized and existing under the
laws of the United States or any state or commonwealth thereof or under the
laws of the District of Columbia.


 


“EBITDA”
means, as of the end of a fiscal quarter, Borrower’s consolidated net income
after taxes for the twelve months ending with such quarter plus
(i) the sum of the amounts for such twelve month period included in
determining such net income of (A) interest expense, (B) income tax
expense, (C) depreciation expense, (D) amortization expense,
(E) unusual non-cash charges, extraordinary non-cash losses and other
non-recurring non-cash charges, (F) any non-cash charges arising from
awards to employees relating to Equity Interests, (G) any non-cash charges
relating to financings and (H) any non-cash currency translation
adjustments that serve to reduce net income; less (ii) the sum of
the amounts for such twelve month period included in determining such net
income of (A) gains on sales of assets (excluding sales of inventory in
the ordinary course of business), (B) unusual non-cash gains,
extraordinary non-cash gains and other non-recurring non-cash gains and
(C) any non-cash currency translation adjustments that serve to increase
net income.


 


“Eligible
Assignee” has the meaning specified in Section 10.07(g).


 


8

















 


“Environmental
Laws” means all Laws relating to environmental, health, safety and land use
matters applicable to any property.


 


“Environmental
Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or
indemnities), of any Loan Party directly or indirectly resulting from or based
upon (a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release
or threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.


 


“Equity
Interests” means, with respect to any Person, shares of capital stock of
(or other ownership or profit interests in) such Person, warrants, options or
other rights for the purchase or other acquisition from such Person of shares
of capital stock of (or other ownership or profit interests in) such Person,
securities convertible into or exchangeable for shares of capital stock of (or
other ownership or profit interests in) such Person or warrants, rights or
options for the purchase or other acquisition from such Person of such shares
(or such other interests), and other ownership or profit interests in such
Person (including partnership, member or trust interests therein), whether
voting or nonvoting, and whether or not such shares, warrants, options, rights
or other interests are authorized or otherwise existing on any date of
determination.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.


 


“ERISA
Affiliate” means any corporation which is part of a controlled group that
includes the Borrower or trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or
(c) of the Code (and solely for purposes of provisions relating to
Section 412 of the Code to the extent required by such section,
Sections 414(m) and (o) of the Code).


 


“ERISA
Event” means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations that is treated as such a withdrawal under
Section 4062(e) of ERISA; (c) a complete or partial withdrawal
by the Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the
filing of a notice of intent to terminate, the treatment of a Plan amendment as
a termination under Sections 4041 or 4041A of ERISA, or the commencement
of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan;
(e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the
Borrower or any ERISA Affiliate.


 


9

















 


“Event
of Default” has the meaning specified in Section 8.01.


 


“Existing
Indebtedness” means Indebtedness incurred under (a) the Credit
Agreement dated as of September 27, 2007, among Borrower and KeyBank
National Association, as Administrative Agent, and the lending institutions
listed therein, as amended, (b) the Master Aircraft Loan and Security
Agreement between Borrower and The Prudential Insurance Company of America
dated as of September 27, 2007 and (c) the Second Lien Credit
Agreement, dated as of September 27, 2007, among Borrower, ZM Private
Equity Fund II, L.P. (successor to D.B. Zwirn Special Opportunities Fund, L.P.),
as Administrative Agent, and the lenders party thereto.


 


“Existing
L/C” means any letter of credit issued by KeyBank National Association
outstanding on the Closing Date and listed on Schedule 2.03.


 


“FAA
Documents” means the power of attorney, affidavit and letters required by
Section 7(b) of the Security and Pledge Agreement.


 


“Federal
Assignment of Claims Act” means the Federal Assignment of Claims Act of
1940, as amended (31 U.S.C. § 3727).


 


“Federal
Funds Rate” means, for any day, the weighted average of the per annum rates
on overnight Federal funds transactions with member banks of the Federal
Reserve System arranged by Federal funds brokers as published by the Federal
Reserve Bank of New York for such day (or, if such rate is not so published for
any day, the average rate quoted to Administrative Agent on such day by three
Federal funds brokers of recognized standing selected by Administrative Agent).


 


“Fee
Letter” means the fee letter dated April 30, 2010 addressed to
Borrower and signed by Wells Fargo.


 


“Fixed
Charges” means, as of the end of a fiscal quarter, the total (determined on
a consolidated basis) of Borrower’s and Subsidiaries’ (i) the then current
portion of long term debt, plus (ii) the then current principal
portion of payments in respect of capital leases, (iii) plus, for
the twelve months ending with such quarter, the sum of (A) actual cash
interest expense for each quarter after June 30, 2010 and (B) for
each quarter before July 1, 2010, an amount equal to 25% of annualized
actual cash interest expense for the period beginning July 1, 2010 and
ending on the end of such twelve month period, provided that cash interest
expense shall not include cash interest payments made with respect to income
taxes currently disputed by Borrower with respect to 2005, 2006 and 2007.


 


“Fixed
Charge Coverage Ratio” means, as of the end of a fiscal quarter, the ratio
of (i) the sum of Adjusted EBITDA less each of the following during
the twelve months ending with such quarter (A) income taxes paid in cash
(excluding payments of income taxes currently disputed by Borrower with respect
to 2005, 2006 and 2007), (B) up to $5,000,000 


 


10

















 


of
Capital Expenditures and (C) dividends and other distributions in respect
of Equity Interests paid in cash, to (ii) Fixed Charges.


 


“Foreign
Lender” has the meaning specified in Section 3.01(e).


 


“Foreign
Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.


 


“FRB”
means the Board of Governors of the Federal Reserve System of the United States
of America.


 


“Funded
Indebtedness” means, for any period, without duplication, the total
(determined on a consolidated basis) for Borrower and Subsidiaries of all:  (a) obligations
for borrowed money, whether current or long-term (including the Obligations)
and all obligations evidenced by bonds, debentures, notes, loan agreements or
other similar instruments; (b) purchase
money Indebtedness; (c) direct or
contingent obligations arising under letters of credit (including standby and
commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments; (d) obligations in
respect of the deferred purchase price of property or services (other than
trade accounts payable arising in the ordinary course of business that have not
been outstanding for more than 120 days); (e) obligations
with respect to Attributable Indebtedness; (f) guarantees with respect to
Indebtedness of the types specified in clauses (a) through (e) above
of another Person; and (g) all Indebtedness of the types referred to in
clauses (a) through (e) above of any partnership or joint
venture (other than a joint venture that is itself a corporation or limited
liability company) in which Borrower or a Subsidiary is a general partner or
joint venturer, except to the extent that Indebtedness is expressly made
non-recourse to such Person; provided, however, “Funded
Indebtedness” shall not include the Subordinated Debt.


 


“GAAP”
means generally accepted accounting principles as in effect in the United
States from time to time, consistently applied.


 


“Governmental
Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body,
court, administrative tribunal, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers
or functions of or pertaining to government.


 


“Guarantor”
means each Subsidiary that has executed and delivered a Guaranty Agreement.


 


“Guaranty
Agreement” means each of the Guaranty Agreements made by the Guarantors
from time to time a party thereto in favor of the Administrative Agent on
behalf of the Lenders, substantially in the form of Exhibit D.


 


“Guaranty
Obligation” means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guarantying or having the economic effect of
guarantying any Indebtedness or other obligation payable or performable by
another Person (the “primary obligor”) in any manner, whether directly or
indirectly, and including any obligation of such 


 


11

















 


Person,
direct or indirect, (i) to purchase or pay for (or advance or supply funds
for the purchase or payment of) such Indebtedness or other obligation,
(ii) to purchase or lease property, securities or services for the purpose
of assuring the obligee in respect of such Indebtedness or other obligation of
the payment or performance of such Indebtedness or other obligation,
(iii) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other obligation, or
(iv) entered into for the purpose of assuring in any other manner the obligees
in respect of such Indebtedness or other obligation of the payment or
performance thereof or to protect such obligees against loss in respect thereof
(in whole or in part), or (b) any Lien on any assets of such Person
securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person.  The amount of any Guaranty Obligation shall
be deemed to be an amount equal to the stated or determinable amount of the
related primary obligation, or portion thereof, in respect of which such
Guaranty Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guarantying Person in good faith.


 


“Hazardous
Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum
or petroleum distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all
other substances or wastes of any nature regulated pursuant to any
Environmental Law.


 


“Hedge
Contract” means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options, forward
foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all
transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master
agreement.


 


“Hedge
Termination Value” means, in respect of any one or more Hedge Contracts,
after taking into account the effect of any legally enforceable netting
agreement relating to such Hedge Contracts, (a) for any date on or after
the date such Hedge Contracts have been closed out and termination value(s) determined
in accordance therewith, such termination value(s), and (b) for any date
prior to the date referenced in clause (a) the amount(s) determined
as the mark-to-market value(s) for such Hedge Contracts, as determined
based upon one or more mid-market or other readily available quotations
provided by any recognized dealer in such Hedge Contracts (which may include
any Lender).


 


12






 


 










 


“Indebtedness”
means, as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance
with GAAP, to the extent recourse may be had to the assets or properties of
such Person in respect thereof:


 


(a)           all obligations of
such Person for borrowed money and all obligations of such Person evidenced by
bonds, debentures, notes, loan agreements or other similar instruments;


 


(b)           all direct or
contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties,
surety bonds and similar instruments;


 


(c)           net obligations
under any Hedge Contract in an amount equal to (i) if each Hedge Contract
has been closed out, the Hedge Termination Value thereof, or (ii) if such
Hedge Contract has not been closed out, the mark-to-market value thereof
determined on the basis of readily available quotations provided by any
recognized dealer in such Hedge Contract;


 


(d)           all obligations of
such Person to pay the deferred purchase price of property or services (other
than trade accounts payable in the ordinary course of business);


 


(e)           indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is limited in recourse;


 


(f)            all obligations in
respect of capital leases and Synthetic Lease Obligations; and


 


(g)           all Guaranty
Obligations of such Person in respect of any of the foregoing.


 


For
all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person (subject only to customary exceptions
acceptable to the Required Lenders).  The
amount of any capital lease or Synthetic Lease Obligation as of any date shall
be deemed to be the amount of Attributable Indebtedness in respect thereof as
of such date.  Notwithstanding
the foregoing, any obligation in respect of operating leases shall not
constitute Indebtedness.


 


“Indemnified
Liabilities” has the meaning set forth in Section 10.05.


 


“Indemnitees”
has the meaning set forth in Section 10.05.


 


13

















 


“Intellectual
Property” means, as to any Person, all of the following:


 


(a)           all trademarks,
service marks, designs, trade names, corporate names, company names, business
names, fictitious business names, trade styles, trade dress, logos, other
source or business identifiers owned or used by such Person in its business or
hereafter adopted or acquired, all registrations and recordings thereof, and
all registration and recording applications filed in connection therewith,
including registrations and pending applications in the United States Patent
and Trademark Office, any State of the United States or any similar offices in
any other country or any political subdivision thereof, and all extensions or
renewals thereof;


 


(b)           all letters patent
of the United States or any other country or any political subdivision thereof,
all registrations and recordings thereof, and all applications for letters
patent of the United States or the equivalent thereof in any other country
owned by such Person, including registrations, recordings and pending
applications in the United States Patent and Trademark Office or the equivalent
thereof in any similar offices in any other country, and all reissues,
continuations, divisions, continuations-in part, renewals or extensions thereof,
and the inventions disclosed or claimed therein, including the right to make,
use and/or sell the inventions disclosed or claimed therein;


 


(c)           all computer
programs, computer data bases, other computer software, trade secrets, trade
secret rights, ideas, drawings, designs, schematics, algorithms, shop manuals,
process and procedures manuals, notes, and other writings, techniques,
processes and formulas owned or used by such Person in its business; and


 


(d)           all copyright rights
of such Person in any work subject to the copyright laws of the United States,
any state thereof or any other country or any political subdivision thereof,
whether registered or unregistered and whether published or unpublished,
whether as author, assignee, transferee or otherwise, and all registrations and
applications for registration of any such copyright in the United States, any
state thereof or any other country or any political subdivision thereof,
including registrations, recordings, supplemental registrations and pending
applications for registration in the United States Copyright Office or in any
similar offices in any other country.


 


“Interest
Payment Date” means, (a) as to any LIBOR Loan, the last day of each
Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a LIBOR Loan exceeds three
months, the respective dates that fall every three months after the beginning
of such Interest Period shall also be Interest Payment Dates; and (b) as
to all other Loans, the first Business Day of each month and the Maturity Date.


 


“Interest
Period” means the period commencing on the date such LIBOR Loan is
disbursed or converted to or continued as a LIBOR Loan and ending on the date
one, two, 


 


14

















 


three
or six months thereafter, as selected by the Borrower in its Committed Loan
Notice; provided that:


 


(i)            any Interest Period
that would otherwise end on a day that is not a Business Day shall be extended
to the next succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Business Day;


 


(ii)           any Interest Period
that begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of the calendar month
at the end of such Interest Period; and


 


(iii)          no Interest Period
shall extend beyond the scheduled Maturity Date.


 


“Investment”
means, as to any Person, any direct or indirect acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of
Equity Interests of another Person, (b) a loan, advance or capital
contribution to, guaranty or assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other
Person, or (c) the purchase or other acquisition (in one transaction or a
series of transactions) of assets of another Person that constitute a business
unit.  For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested,
less the aggregate amount of all payments made in respect of such Investment
that have been paid or returned, without restriction, in cash or otherwise to
the Person making such Investment, without adjustment for subsequent increases
or decreases in the value of such Investment.


 


“Involuntary
Disposition” means any loss of, damage to or destruction of, or any
condemnation or other taking for public use of, any property of any Loan Party
or any Subsidiary.


 


“IRS”
means the United States Internal Revenue Service or any successor agency thereto.


 


“IPO”
means an initial public offering of any of Borrower’s Equity Interests.


 


“ISP”
means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law &
Practice, Inc. (or such later version thereof as may be in effect at the
time of issuance)


 


“Laws”
means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses, 


 


15

















 


authorizations
and permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.


 


“L/C
Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Pro Rata Share.


 


“L/C
Application” means an application and agreement for the issuance or
amendment of a letter of credit in the form from time to time in use by the L/C
Issuer.


 


“L/C
Borrowing” means an extension of credit resulting from a drawing under any
Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Committed Borrowing.


 


“L/C
Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the renewal or increase of
the amount thereof.


 


“L/C
Expiration Date” means the day that is 15 days prior to the Maturity Date,
(or, if such day is not a Business Day, the next preceding Business Day).


 


“L/C
Issuer” means Wells Fargo, in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder and, with
respect to the Existing L/Cs means KeyBank National Association in its capacity
as the issuer of the Existing L/Cs.


 


“L/C
Obligations” means, as at any date of determination, the aggregate undrawn
amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all outstanding L/C Borrowings.  For purposes of computing the amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.07.  For all purposes of this Agreement, if on any
date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14
of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the
amount so remaining available to be drawn.


 


“L/C
Subfacility” means Letters of Credit issued in accordance with Section 2.03.


 


“L/C
Sublimit” means an amount available under Section 2.03 for
Letters of Credit equal to the lesser of the Aggregate Commitments and
$30,000,000.  The L/C Sublimit is part
of, and not in addition to, the Aggregate Revolving Commitments.


 


“Lender”
means each of the Persons identified as a “Lender” on the signature pages hereto
and each other Person that becomes a “Lender” in accordance with this Agreement
and their respective successors and assigns and, as the context requires,
includes the Swing Line Lender.


 


16

















 


“Lending
Office” means, as to any Lender, the office or offices of such Lender
described as such on Schedule 10.02, or such other office or offices
as a Lender may from time to time notify the Borrower and the Administrative
Agent.


 


“Letter
of Credit” means a commercial or standby letter of credit issued hereunder
or an Existing L/C.  Letters of Credit
may be denominated in U.S. Dollars or in an Alternative Currency.


 


“Leverage
Ratio” means, as of the end of a fiscal quarter, the ratio of
(i) Funded Indebtedness as of such date to (ii) Adjusted
EBITDA.


 


“LIBOR”
means, for each Interest Period, the rate per annum (rounded upward if
necessary to the nearest whole 1/8 of 1%) and determined pursuant to the
following formula:


 


	
   

  	
  LIBOR
  =

  	
  Base LIBOR

  	
   

  
	
   

  	
   

  	
  100%
  - LIBOR Reserve Percentage

  	
   

  



 


 


As
used herein, (a) “Base LIBOR” means the average of the rates per annum at
which U.S. Dollar deposits are offered to Administrative Agent in the London
interbank market on the second Business Day prior to the commencement of an
Interest Period at or about 11:00 A.M. (London time), for delivery on the
first day of such Interest Period, for a term comparable to the number of days
in such Interest Period and in an amount approximately equal to the principal
amount to which such Interest Period shall apply, and (b) “LIBOR Reserve
Percentage” means, for any day, the aggregate (without duplication) of the
maximum rates (expressed as a decimal) of reserve requirements in effect on
such day (including basic, supplemental, marginal and emergency reserves under
any regulations of the Federal Reserve Board or other Governmental Authority
having jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Federal Reserve Board) maintained by a
member bank of the Federal Reserve System.


 


“LIBOR
Loan” means a Loan that bears interest at the LIBOR Rate.


 


“LIBOR
Rate” means, for any applicable Interest Period, LIBOR for such Interest
Period.


 


“LIBOR
Request” shall mean a Notice of Borrowing requesting a LIBOR Loan and
setting forth the Interest Period.


 


“Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or
other security interest or preferential arrangement of any kind or nature
whatsoever (including any conditional sale or other title retention agreement,
and any financing lease having substantially the same economic effect as any of
the foregoing, but excluding any operating leases), including the interest of a
purchaser of accounts receivable.


 


17

















 


“Loan”
means an extension of credit by a Lender to the Borrower under Article II
in the form of a Committed Loan or a Swing Line Loan.


 


“Loan
Documents” means this Agreement, each Note, each Request for Credit
Extension, each Compliance Certificate, each Collateral Document, each Guaranty
Agreement and each other document, instrument or agreement executed from time
to time by any Loan Party that is specifically designated by its terms as a “Loan
Document” for purposes of this Agreement.


 


“Loan
Party” means Borrower or any Guarantor.


 


“Material
Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the business, prospects, operations, properties,
liabilities (actual or contingent), financial and other condition and
creditworthiness of the Borrower or the Borrower and its Subsidiaries taken as
a whole, (b) a material impairment of the ability of any Loan Party to
perform its obligations under any Loan Document to which it is a party, taken
as a whole; or (c) a material adverse effect upon (i) the
enforceability against any Loan Party of any Loan Documents to which it is a
party, or (ii) the perfection or priority of any Lien granted under any of
the Collateral Documents; provided that the Collateral subject to such
Lien has a fair market value, individually or in the aggregate, in excess of
$2,000,000.


 


“Maturity
Date” means (a) June 24, 2013 or (b) such earlier date upon
which the Aggregate Commitments may be terminated in accordance with the terms
hereof.


 


“Maximum
Rate” has the meaning given in Section 10.10.


 


“Monthly
Asset Coverage and Available Credit Certificate” means a certificate
substantially in the form of Exhibit G.


 


“Moody’s”
means Moody’s Investors Service, Inc. or any successor thereto.


 


“Multiemployer
Plan” means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.


 


“New
Subsidiary” has the meaning set forth in Section 6.12(a).


 


“Non-Consenting
Lender” shall have the meaning assigned to such term in Section 3.07.


 


“Non-Guarantor
Subsidiary” means any Subsidiary that is not a Guarantor.


 


“Note”
means individually a Committed Loan Note and the Swing Line Note and “Notes”
means, collectively, the Committed Loan Notes.


 


18

















 


“Obligations”
means (i) all of the Loan Parties’ obligations under the Loan Documents,
whether direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising, including all interest that accrues after the
commencement of any case or proceeding by or against Borrower under and Debtor
Relief Law, whether or not allowed in such case or proceeding, (ii) all of
the Loan Parties’ obligations under Bank Product Agreements and (iii)  all
liabilities and obligations of the Loan Parties owing to any Lender or any
Affiliate of any Lender that was a Lender at the time it entered into a Hedge
Contract arising under any Hedge Contract permitted by Section 7.03(d),
whether absolute or contingent, due or to become due, now existing or hereafter
arising.


 


“Organization
Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable
constitutional documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the articles of formation
and operating agreement; and (c) with respect to any partnership, joint
venture, trust or other form of business entity, the partnership, joint venture
or other applicable agreement of formation and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation
with the applicable Governmental Authority in the jurisdiction of its
formation, in each case as amended from time to time.


 


“Outstanding
Amount” means (i) with respect to Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and
prepayments or repayments, as the case may be, occurring on such date; and
(ii) with respect to any L/C Obligations on any date, the amount of such
L/C Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under any Letters of Credit or any reductions in
the maximum amount available for drawing under Letters of Credit taking effect
on such date.


 


“Participant”
has the meaning specified in Section 10.07(d).


 


“PBGC”
means the Pension Benefit Guaranty Corporation.


 


“Pension
Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years.


 


“Permitted
Acquisition” means any acquisition, whether by purchase, merger or
otherwise, of all or substantially all of the assets of, or more than fifty
percent (50%)  of the voting Equity Interests
of, or a business line or a division of, any Person; provided that:


 


(i)            all Persons,
assets, business lines or divisions acquired shall be in the type of business
permitted to be engaged in by the Borrower and its Subsidiaries 


 


19

















 


pursuant
to Section 7.09 or such other lines of business as may be consented
to by Required Lenders;


 


(ii)           no Default or Event
of Default shall then exist or would exist after giving effect to such
acquisition;


 


(iii)          as of the closing
of any acquisition, such acquisition shall have been approved by the board of
directors or equivalent governing body of the Person to be acquired or from
which such assets, business line or division is to be acquired;


 


(iv)          the Borrower shall
have delivered to the Administrative Agent a certificate demonstrating to the
reasonable satisfaction of the Administrative Agent that, upon giving effect to
such acquisition and taking into account payment of all transaction expenses in
connection therewith, the Borrower, on a Pro Forma Basis, would be in
compliance with the financial covenants set forth in Section 7.13;


 


(v)           if such acquisition
is structured as a merger, the Borrower (or if such merger is with any
Subsidiary, then a Subsidiary) shall be the surviving Person after giving
effect to such merger;


 


(vi)          if the total cash consideration
(including assumed liabilities, earnout payments and any other deferred
payment) paid for all of the Persons, assets, business lines or divisions
acquired exceeds $25,000,000 in the aggregate from the Closing Date, the
Required Lenders shall have approved such acquisition; provided, that so long
as clauses (i) through (v) and clause (vii) of this definition
have been satisfied with respect to such acquisition, such approval shall not
be unreasonably withheld, delayed or conditioned (including no condition with
respect to the payment of any fees by Borrower (other than reimbursement for
Required Lenders’ reasonable Attorney Costs and other out-of-pocket expenses
related to the analysis of the proposed acquisition) or the increase of the
interest rates on any Loans or the increase of any fees contemplated under this
Agreement); provided, further, that, such approval shall not be required at any
time if the Leverage Ratio for the two immediately preceding fiscal quarters
has not been greater than 3.00:1.00 and does not exceed 3.00:1.00 in the Pro
Forma Basis required by clause (iv) above; and


 


(vii)         such acquisition is
approved by a majority of such Person’s board of directors or similar governing
body.


 


“Permitted
Fleet Expenditures” means capital expenditures in connection with the
manufacture, conversion and/or acquisition of an Aircrane to be added to
Borrower’s fleet, provided that before incurring any such expenditure Borrower
has demonstrated to the reasonable satisfaction of the Administrative Agent
(a) that such addition would not trigger a mandatory prepayment under Section 2.06
and (b) on a Pro Forma Basis, assuming that the full cost of the Aircrane
is Funded Indebtedness, that such addition would not result in breaching the
maximum Leverage Ratio covenant in Section 7.13(c).


 


20

















 


“Permitted
Liens” has the meaning specified in Section 7.01.


 


“Person”
means any individual, trustee, corporation, general partnership, limited
partnership, limited liability company, joint stock company, trust,
unincorporated organization, bank, business association, firm, joint venture,
Governmental Authority or other legal entity.


 


“Plan”
means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is
subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.


 


“Portland”
means Portland, Oregon.


 


“Pricing
Schedule” means the schedule attached hereto as Schedule 1.01.


 


“Pro
Forma Basis” means, with respect to any acquisition or Permitted Fleet
Expenditure, that for purposes of calculating the financial covenants set forth
in Section 7.13, (i) such acquisition or Permitted Fleet
Expenditure shall be deemed to have occurred as of the first day of the most
recent four fiscal quarter period preceding the date of such transaction for
which financial statements were required to be delivered pursuant to Section 6.01(a) or
(b), (ii) income statement items attributable to the Person or
property acquired shall be included to the extent relating to any period
applicable in such calculations to the extent (A) such items are not
otherwise included in such income statement items for the Borrower and its
Subsidiaries in accordance with GAAP or in accordance with any defined terms
set forth in Section 1.01 and (B) such items are supported by
financial statements or other information reasonably satisfactory to the
Administrative Agent and (iii) any Indebtedness incurred or assumed by the
Borrower or any Subsidiary (including the Person or property acquired) in
connection with such transaction and any Indebtedness of the Person or property
acquired that is not retired in connection with such transaction (A) shall
be deemed to have been incurred as of the first day of the applicable period
and (B) if such Indebtedness has a floating or formula rate, shall have an
implied rate of interest for the applicable period for purposes of this
definition determined by utilizing the rate which is or would be in effect with
respect to such Indebtedness as at the relevant date of determination.


 


“Pro
Rata Share” means, with respect to each Lender, the percentage (carried out
to the ninth decimal place) of the Aggregate Commitments set forth opposite the
name of such Lender on Schedule 2.01, as such share may be adjusted
as contemplated herein.


 


“Register”
has the meaning set forth in Section 10.07(c).


 


“Related
Parties” means, with respect to any Person, such Person’s Affiliates, and
the partners, officers, directors, employees, agents, trustees and advisors of
such Persons and Affiliates.


 


“Reportable
Event” means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.


 


21

















 


“Request
for Credit Extension” means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, and
(b) with respect to an L/C Credit Extension, a L/C Application, and (c) with
respect to a Swing Line Loan, a Swing Line Loan Notice.


 


“Required
Lenders” means, as of any date of determination, two or more Lenders whose
Voting Percentages aggregate more than 75% or the Lender if there is only one
Lender.


 


“Responsible
Officer” means the chief executive officer, chief legal officer, chief
financial officer, treasurer or assistant treasurer of a Loan Party or any
other officer designated by the applicable Loan Party to Administrative Agent
in writing.  Any document delivered hereunder
that is signed by a Responsible Officer of a Loan Party shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or
other action on the part of such Loan Party and such Responsible Officer shall
be conclusively presumed to have acted on behalf of such Loan Party.


 


“Restricted
Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interest of the
Borrower or any Subsidiary (other than dividends or other distributions by a
Subsidiary to Borrower), or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such Equity Interest or of any option, warrant or other right to acquire
any such Equity Interest; provided, that no dividend or other payment or
distribution by any Subsidiary to the Borrower (directly or indirectly) shall
constitute a Restricted Payment.


 


“Revaluation
Date” means each of the following: 
(i) each date of issuance of a Letter of Credit denominated in an
Alternative Currency, (ii) each date of an amendment of any such Letter of
Credit having the effect of increasing the amount thereof (solely with respect
to the increased amount), (iii) each date of any payment by the L/C Issuer
under any Letter of Credit denominated in an Alternative Currency, and (iv) such additional dates as
the Administrative Agent or the L/C Issuer shall determine or the Required
Lenders shall require.


 


“Revolving
Commitment” means, as to each Lender, its obligation to (a) make
Revolving Loans to the Borrower, (b) purchase participations in L/C
Obligations and (c) purchase participations in Swing Line Loans, in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender’s name on Schedule 2.01 and
identified as such Lender’s Revolving Commitment, as such amount may be reduced
or adjusted from time to time in accordance with this Agreement and Section 2.07.


 


“Revolving
Commitments Increase Effective Date” has the meaning specified in Section 2.14(c).


 


“Revolving
Loan” has the meaning specified in Section 2.01(a).


 


22














 


“S&P”
means Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc., or any successor thereto.


 


“SEC”
means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.


 


“Security
and Pledge Agreement” means the Security and Pledge Agreement of even date
herewith executed by the Borrower in favor of the Administrative Agent.


 


“Series A
Redeemable Preferred Stock” means the 34,999.5 shares of Series A
Redeemable Preferred Stock issued by the Borrower on September 27, 2007.


 


“Solvent”
means, as to any Person at a particular time, if, at such time both
(a) (i) the then fair saleable value of the property of such Person
on a going concern basis is (A) greater than the total amount of
liabilities (including contingent liabilities) of such Person as they mature in
the ordinary course and (B) not less than the amount that will be required
to pay the probable liabilities on such Person’s then existing debts as they
become absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person; (ii) such
Person’s capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (iii) such Person does not
intend to incur, or believe (nor should it reasonably believe) that it will
incur, debts beyond its ability to pay such debts as they become due; and
(b) such Person is “solvent” within the meaning given that term and
similar terms under applicable laws relating to fraudulent transfers and
conveyances.  For purposes of this
definition, the amount of any contingent liability at any time shall be
computed as the amount that, in light of all of the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability in the ordinary course.


 


“Spot
Rate” for a currency means the rate determined by the L/C Issuer to be the
spot rate for the purchase by the L/C Issuer of such currency with another
currency through its principal foreign exchange trading office at approximately
11:00 a.m. on the date two Business Days prior to the date as of which the
foreign exchange computation is made; provided  that
the L/C Issuer may obtain such spot rate from another financial institution
designated by the L/C Issuer if the L/C Issuer does not have as of the date of
determination a spot buying rate for any such currency.


 


“Subnote
Holder” means a Person having any ownership interest in any Subordinated
Debt.


 


“Subordinated
Debt” means any unsecured promissory note of Borrower subordinated to the
Obligations in a manner acceptable to the Administrative Agent in its sole
discretion, having a maturity date no earlier than five years after issuance
and providing for no cash payments of any type or nature before maturity.


 


23

















 


“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of
securities or other interests having ordinary voting power for the election of
directors or other governing body (other than securities or interests having
such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise controlled,
directly, or indirectly through one or more intermediaries, or both, by such
Person.  Unless otherwise specified, all
references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a
Subsidiary or Subsidiaries of the Borrower.


 


“Swing
Line” means the revolving credit facility made available by the Swing Line
Lender pursuant to Section 2.04.


 


“Swing
Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.


 


“Swing
Line Lender” means Wells Fargo in its capacity as provider of Swing Line
Loans, or any successor provider of Swing Line Loans hereunder.


 


“Swing
Line Loan” has the meaning specified in Section 2.04(a).


 


“Swing
Line Note” means a promissory note made by the Borrower in favor of the
Swing Line Lender evidencing Swing Line Loans made by such Lender,
substantially in the form of Exhibit E.


 


“Swing
Line Loan Notice” means a notice of a Swing Line Borrowing in such form as
the Swing Line Lender may designate from time to time.


 


“Swing
Line Sublimit” means an amount equal to the lesser of (a) $10,000,000
and (b) the Aggregate Commitments. 
The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.


 


“Synthetic
Lease Obligation” means the monetary obligation of a Person under
(a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating
obligations that do not appear on the balance sheet of such Person but which,
upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).


 


“Tangible
Net Worth” means, as of the date of determination, the total of Borrower’s
shareholders’ equity, plus (i) the outstanding principal and
accrued but unpaid interest on Subordinated Debt, plus (ii) to the
extent not included in Borrower’s shareholders’ equity, the par value,
additional paid-in capital, and accumulated but unpaid dividends with respect
to the Series A Redeemable Preferred Stock, less
(iii) consolidated intangible assets.


 


“Term
Loan” has the meaning specified in Section 2.01(c).


 


24

















 


“Term
Loan Commitment” means, as to each Lender, its obligation to make a Term
Loan in the amount set forth opposite such Lender’s name on Schedule 2.01
and identified as such Lender’s Term Loan Commitment.


 


“Transitional
Subsidiary” means any Subsidiary formed after the Closing Date solely for the
purpose of implementing an asset disposition or a structural transaction
(including an acquisition) permitted by this Agreement and which will cease to
be a Subsidiary after the consummation of such asset disposition or transaction
(which will, in no event, be more than 90 days after the date of the formation
of such Subsidiary).


 


“Type”
means with respect to a Committed Loan, its character as a Base Rate Loan or a
LIBOR Loan.


 


“United
States” and “U.S.” each means the United States of America.


 


“Unreimbursed
Amount” has the meaning set forth in Section 2.03(b)(i).


 


“U.S.
Dollar Equivalent” means, at any time, (a) with respect to any amount
denominated in U.S. Dollars, such amount, and (b) with respect to any
amount denominated in any Alternative Currency, the equivalent amount thereof
in U.S. Dollars as determined by the L/C Issuer at such time on the basis of
the Spot Rate (determined in respect of the most recent Revaluation Date) for
the purchase of U.S. Dollars with such Alternative Currency.


 


“Voting
Percentage” means, as to any Lender, (a) at any time when the
Aggregate Commitments are in effect, such Lender’s Pro Rata Share and
(b) at any time after the termination of the Aggregate Commitments, the
percentage (carried out to the ninth decimal place) which (i) the sum of
(A) the Outstanding Amount of such Lender’s Committed Loans, plus
(B) such Lender’s Pro Rata Share of the Outstanding Amount of L/C
Obligations, plus (C) such Lender’s Pro Rata Share of the
Outstanding Amount of Swing Line Loans, then comprises of (ii) the
Outstanding Amount of all Loans and L/C Obligations; provided, however,
that if any Lender has failed to fund any portion of the Committed Loans or
participations in L/C Obligations or participations in Swing Line Loans
required to be funded by it hereunder, such Lender’s Voting Percentage shall be
deemed to be zero, and the respective Pro Rata Shares and Voting Percentages of
the other Lenders shall be recomputed for purposes of this definition and the
definition of “Required Lenders” without regard to such Lender’s
Commitment or the outstanding amount of its Committed Loans, L/C Advances and
funded participations in Swing Line Loans, as the case may be.


 


“Well
Fargo” means Wells Fargo Bank, National Association.


 


1.02        Other Interpretive
Provisions.  With
reference to each Loan Document, unless otherwise specified therein:


 


The
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.


 


25

















 


(a)           (i)            The words “herein,” “hereto,” “hereof,”
and “hereunder” and words of similar import when used in any Loan
Document shall refer to such Loan Document as a whole and not to any particular
provision thereof.


 


(ii)           Article, Section, Exhibit and
Schedule references are to the Loan Document in which such references appear.


 


(iii)          The term “including” is by way
of example and not limitation.


 


(iv)          The term “documents” includes
any and all instruments, documents, agreements, certificates, notices, reports,
financial statements and other writings, however evidenced, whether in physical
or electronic form.


 


(b)           In the computation of
periods of time from a specified date to a later specified date, the word “from”
means “from and including”; the words “to” and “until”
each mean “to but excluding”; and the word “through” means “to
and including.”


 


(c)           Section headings in the
Loan Documents are included for convenience of reference only and shall not
affect the interpretation thereof.


 


1.03        Accounting Terms.


 


(a)           All accounting terms not
defined herein shall be construed in conformity with, and all financial data
(including financial ratios and other financial calculations) required to be
submitted pursuant to this Agreement shall be prepared in conformity with, GAAP
applied on a consistent basis as in effect from time to time and in a manner
consistent with GAAP used in preparing the Audited Financial Statements, except
as otherwise specifically prescribed herein.


 


(b)           If at any time any change in
GAAP would affect the computation of any financial ratio, covenant or other
requirement set forth in any Loan Document, and either the Borrower or the
Required Lenders shall so request, the Administrative Agent, the Lenders and
the Borrower shall negotiate in good faith to amend such ratio, covenant or
requirement to preserve the original intent thereof in light of such change in
GAAP; provided that, until so amended, (i) such ratio, covenant or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Borrower shall provide to the Administrative
Agent and the Lenders financial statements and other documents required under
this Agreement or as reasonably requested hereunder setting forth a
reconciliation between calculations of such ratio, covenant or requirement made
before and after giving effect to such change in GAAP.


 


1.04        UCC Terms.  Except as otherwise provided herein, terms
used herein that are defined in the Uniform Commercial Code have the meanings
given to them in the Uniform Commercial Code as the same may, from time to
time, be in effect in the State of New York.


 


26

















 


1.05        Rounding.  Any financial ratios required to be
maintained by the Borrower pursuant to this Agreement shall be calculated by
dividing the appropriate component by the other component, carrying the result
to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up
if there is no nearest number).


 


1.06        References to Agreements and
Laws.  Unless otherwise expressly
provided herein, (a) references to agreements and other contractual
instruments shall be deemed to include all subsequent permitted amendments, restatements,
extensions, supplements and other modifications thereto, and
(b) references to any Law shall include all statutory and regulatory
provisions consolidating, amending, replacing, supplementing or interpreting
such Law.


 


1.07        Exchange Rates; Currency Equivalents.  The L/C Issuer shall determine the Spot Rates
as of each Revaluation Date to be used for calculating U.S. Dollar Equivalent
amounts of L/C Credit Extensions and Outstanding Amounts of L/C Obligations
denominated in Alternative Currencies. 
Such Spot Rates shall become effective as of such Revaluation Date and
shall be the Spot Rates employed in converting any amounts between the
applicable currencies until the next Revaluation Date to occur.  Except for purposes of financial statements
delivered by Loan Parties hereunder or calculating financial covenants
hereunder or except as otherwise provided herein, the applicable amount of any
currency (other than U.S. Dollars) for purposes of the Loan Documents shall be
such U.S. Dollar Equivalent amount as so determined by the L/C Issuer.  Wherever in this Agreement in connection with
the issuance, amendment or extension of a Letter of Credit an amount, such as a
required minimum or multiple amount, is expressed in U.S. Dollars, but such
Letter of Credit is denominated in an Alternative Currency, such amount shall
be the relevant Alternative Currency Equivalent of such U.S. Dollar amount
(rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit
being rounded upward), as determined by the L/C Issuer.


 


1.08        Additional Alternative Currencies.  The Borrower may from time to time request
that Letters of Credit be issued in a currency other than those specifically
listed in the definition of “Alternative Currency;” provided that such
requested currency is a lawful currency (other than U.S. Dollars) that is
readily available and freely transferable and convertible into U.S.
Dollars.  Each such request shall be
subject to the approval of the Administrative Agent and the L/C Issuer.  Any such request shall be made to the
Administrative Agent not later than 11:00 a.m., ten Business Days prior to
the date of the desired L/C Credit Extension (or such other time or date as may
be agreed by the Administrative Agent and the L/C Issuer, in their sole
discretion), and the Administrative Agent shall promptly notify the L/C Issuer
thereof.  The L/C Issuer shall notify the
Administrative Agent, not later than 11:00 a.m., five Business Days after
receipt of such request whether it consents, in its sole discretion, to the
issuance of Letters of Credit in such requested currency.  Any failure by the L/C Issuer to respond to
such request within the time period specified in the preceding sentence shall
be deemed to be a refusal by the L/C Issuer to permit Letters of Credit to be
issued in such requested currency.  If
the Administrative Agent 


 


27

















 


and the L/C Issuer consent to the issuance of
Letters of Credit in such requested currency, the Administrative Agent shall so
notify the Borrower and such currency shall thereupon be deemed for all
purposes to be an Alternative Currency hereunder. If the Administrative Agent
shall fail to obtain L/C Issuer’s consent to any request for an additional
currency under this Section 1.08, the Administrative Agent shall
promptly so notify the Borrower.


 


1.09        Change of Currency.  Each provision of this Agreement shall be
subject to such reasonable changes of construction as the Administrative Agent
may from time to time specify to be appropriate to reflect (i) the
adoption of the Euro by any member state of the European Union and any relevant
market conventions or practices relating to the Euro Or (ii) a change in
currency of any other country and any relevant market conventions or practices
relating to the change in currency.


 


1.10        Letter of Credit Amounts.  Unless otherwise specified, all references
herein to the amount of a Letter of Credit at any time shall be deemed to mean
the U.S. Dollar Equivalent of the maximum face amount of such Letter of Credit
after giving effect to all increases thereof contemplated by such Letter of
Credit or the L/C Application therefor, whether or not such maximum face amount
is in effect at such time.


 


1.11        Currency.  Except as otherwise expressly provided
herein, all credit advanced under the Loan Documents and all payments required
to be made under the Loan Documents shall be made in U.S. Dollars.


 


1.12        Conflicts.  In the event of any conflict between this
Agreement and any other Loan Document, this Agreement shall control.


 


ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01        Committed Loans.


 


(a)           Revolving Loans.  Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each a “Revolving Loan”) to
the Borrower from time to time on any Business Day from the Closing Date to the
Maturity Date, in an aggregate amount not to exceed at any time outstanding the
amount of such Lender’s Revolving Commitment; provided, however,
that at no time shall any Lender be obligated to make a Revolving Loan in
excess of such Lender’s Pro Rata Share of the Available Credit.  Borrower may from time to time borrow,
partially or wholly repay outstanding borrowings, and reborrow, subject to the
terms and conditions contained herein.  Borrower shall repay the outstanding principal
balance of the Revolving Loans, together with all accrued and unpaid interest
thereon, on the Maturity Date.


 


(b)           L/C Subfacility.


 


(i)            Subject to the terms and
conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon
the agreements of the other Lenders set forth in this 


 


28

















 


Section 2.01(b), (1) from
time to time on any Business Day during the period from the Closing Date until
the L/C Expiration Date to issue Letters of Credit denominated in U.S. Dollars
or in one or more Alternative Currencies for Borrower’s account, and to amend
or renew Letters of Credit previously issued by it, in accordance with Section 2.03
below, and (2) to honor drafts under the Letters of Credit and
(B) the Lenders severally agree to participate in Letters of Credit issued
for Borrower’s account; provided that the L/C Issuer shall not be obligated to
make any L/C Credit Extension with respect to any Letter of Credit, and no
Lender shall be obligated to participate in any Letter of Credit, if as of the
date of such L/C Credit Extension, (x) the Outstanding Amount of all L/C
Obligations and all Loans would exceed the Aggregate Revolving Commitments,
(y) the aggregate Outstanding Amount of the Revolving Loans of any Lender,
plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C
Obligations, would exceed such Lender’s Revolving Commitment or (z) the
Outstanding Amount of the L/C Obligations would exceed either the L/C Sublimit
or the Available Credit.  The L/C Issuer
may, in its sole discretion, agree to issue a Letter of Credit that has
automatic extension provisions; provided that any such Letter of Credit
must permit L/C Issuer to prevent any such extension at least once in each
twelve-month period by giving prior notice to the beneficiary thereof not later
than a day in each such twelve-month period to be agreed upon at the time such
Letter of Credit is issued and also by giving such notice within 60 days of the
L/C Expiration Date.  Within the
foregoing limits, and subject to the terms and conditions hereof, the Borrower’s
ability to obtain Letters of Credit under the L/C Subfacility shall be fully
revolving, and accordingly, until the L/C Expiration Date, the Borrower may
obtain Letters of Credit under the L/C Sublimit to replace Letters of Credit
that have expired or that have been drawn upon and reimbursed;


 


(ii)           The L/C Issuer shall be
under no obligation to issue any Letter of Credit if:


 


A.            any order, judgment or decree of any Governmental
Authority or arbitrator enjoins or restrains the L/C Issuer from issuing such
Letter of Credit;


 


B.            any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over the L/C Issuer (1) prohibits, or requests
that the L/C Issuer refrain from, issuing letters of credit generally or such
Letter of Credit in particular, (2) imposes upon the L/C Issuer with
respect to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated hereunder)
not in effect on the Closing Date, or (3) imposes upon the L/C Issuer any
unreimbursed loss, cost or expense which was not applicable on the Closing Date
and which the L/C Issuer in good faith deems material to it, unless, in the
case of clauses (2) or (3), the Borrower agrees to compensate the L/C
Issuer for and hold the L/C Issuer harmless from any loss, cost or expense
incurred by it as a result of such 


 


29

















 


Law or request or directive
from such Governmental Authority pursuant to the terms of such documents as
Borrower and Administrative Agent may agree; or


 


C.            the expiry date of such requested Letter of Credit would
occur after the L/C Expiration Date, unless all the Lenders have approved such
expiry date;


 


(iii)          The L/C Issuer shall be
under no obligation to amend any Letter of Credit if (A) the L/C Issuer
would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such Letter
of Credit does not accept the proposed amendment to such Letter of Credit; and


 


(iv)          The L/C Issuer shall be
under no obligation to issue or amend any Letter of Credit if the L/C Issuer
has received written notice from any Lender, the Administrative Agent or any
Loan Party, on or before the Business Day before the requested date of issuance
or amendment of such Letter of Credit, that any applicable condition contained
in Article IV is not then satisfied.


 


(c)           Term Loans.  Subject to the terms and conditions set forth
herein, each Lender severally agrees to make a loan (each a “Term Loan”) to the
Borrower on the Closing Date in the amount of such Lender’s Term Loan
Commitment.  Borrower may not reborrow
any portion of the Term Loans that has been repaid.  Borrower shall repay the Term Loans
(i) in principal installments of $1,625,000 each on the first Business Day
of each March, June, September and December beginning
September 1, 2010 and (ii) the outstanding principal balance,
together with all accrued and unpaid interest thereon, on the Maturity Date.


 


2.02        Borrowings, Conversions and
Continuations of Committed Loans.


 


(a)           Each Committed Borrowing,
each conversion of Committed Loans from one Type to the other, and each
continuation of a LIBOR Loan shall be made upon the Borrower’s irrevocable
notice to the Administrative Agent, which may be given by telephone.  Each such notice must be received by the
Administrative Agent not later than 11:00 a.m., Portland time, three
Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of LIBOR Loans or of any conversion of LIBOR Loans to Base Rate
Loans.  Each such telephonic notice must
be confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower.  Each Committed
Borrowing of, conversion to or continuation of LIBOR Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $100,000 in excess
thereof.  Each Committed Borrowing of or
conversion to Base Rate Loans shall be in a principal amount of $100,000 or a
whole multiple of $50,000 in excess thereof. 
Each Committed Loan Notice (whether telephonic or written) shall specify
(i) whether the Borrower is requesting a Committed Borrowing, a conversion
of Committed Loans from one Type to the other, or a continuation of Committed
Loans as the same Type, (ii) the requested date of the Borrowing,
conversion or continuation, as the case may be 


 


30

















 


(which shall be a Business Day), (iii) the
principal amount of Committed Loans to be borrowed, converted or continued, (iv) the
Type of Committed Loans to be borrowed or to which existing Committed Loans are
to be converted, and (v) if applicable, the duration of the Interest
Period with respect thereto.  If the
Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice
or if the Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Committed Loans shall be made or continued
as, or converted to, Base Rate Loans. 
Any automatic conversion to Base Rate Loans and any continuation of
LIBOR Loans provided for in the preceding sentence shall be effective as of the
last day of the Interest Period then in effect with respect to the applicable
LIBOR Loans.  If the Borrower requests a
Borrowing of, conversion to, or continuation of LIBOR Loans in any such
Committed Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.


 


(b)           Following receipt of a
Committed Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Pro Rata Share of the applicable Committed Loans,
and if no timely notice of a conversion or continuation is provided by the
Borrower, the Administrative Agent shall notify each Lender of the details of
any automatic conversion to Base Rate Loans. 
In the case of a Committed Borrowing, each Lender shall make the amount
of its Committed Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent’s Office not later than noon,
Portland time on the Business Day specified in the applicable Committed Loan
Notice.  Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such
Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the Borrower
in like funds as received by the Administrative Agent either (i) by
crediting the account of the Borrower on the books of Wells Fargo with the
amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to the Administrative Agent by the
Borrower; provided, however, that if, on the date of the
Committed Borrowing there are L/C Borrowings outstanding, then the proceeds of
such Borrowing shall be applied, first, to the payment in full of any such L/C
Borrowings, and second, to the Borrower as provided above.


 


(c)           Except as otherwise provided
herein, a LIBOR Loan may be continued or converted only on the last day of the
Interest Period for such LIBOR Loan. 
During the existence of a Default or Event of Default, no Committed
Loans may be requested as, converted to or continued as LIBOR Loans without the
consent of the Required Lenders.


 


(d)           The Administrative Agent
shall promptly notify the Borrower and the Lenders of the interest rate
applicable to any LIBOR Loan upon determination of such interest rate.  The determination of the LIBOR Rate by the
Administrative Agent shall be conclusive in the absence of manifest error.  The Administrative Agent shall notify the
Borrower and the Lenders of any change in Wells Fargo’s prime rate used in
determining the Base Rate promptly following the public announcement of such
change.


 


(e)           After giving effect to all
Committed Borrowings, all conversions of Committed Loans (other than Swing Line
Loans) from one Type to the other, and all 


 


31

















 


continuations of Committed Loans as the same Type,
there shall not be more than five (5) Interest Periods in effect with
respect to Committed Loans.


 


2.03        Procedures Regarding Letters of Credit.


 


(a)           Issuance and Amendment.


 


(i)            Each Letter of Credit shall
be issued or amended, as the case may be, upon the request of the Borrower
delivered to the L/C Issuer (with a copy to the Administrative Agent) in the
form of a L/C Application, appropriately completed and signed by a Responsible
Officer of the Borrower.  An L/C
Application must be received by the L/C Issuer and the Administrative Agent not
later than 11:00 a.m., Portland time, at least 2 Business Days (or such
later date and time as the L/C Issuer may agree in a particular instance in its
sole discretion) prior to the proposed issuance date or date of amendment.  In the case of a request for an initial
issuance of a Letter of Credit, such L/C Application shall specify in form and
detail reasonably satisfactory to the L/C Issuer:  (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount
thereof; (C) the expiry date thereof; (D) the name and address of the
beneficiary thereof; (E) the documents to be presented by such
beneficiary, if applicable, in the case of each drawing thereunder;
(F) the full text of any certificate to be presented by such beneficiary
in case of any drawing thereunder; and (G) such other matters as the L/C
Issuer may reasonably require.  In the
case of a request for an amendment of any outstanding Letter of Credit, such
L/C Application shall specify in form and detail reasonably satisfactory to the
L/C Issuer: (A) the Letter of Credit to be amended; (B) the proposed
date of amendment thereof (which shall be a Business Day); and (C) the
nature of the proposed amendment.


 


(ii)           Promptly after receipt of
any L/C Application, the L/C Issuer will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received a copy
of such L/C Application from the Borrower and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof.  Upon receipt by the L/C Issuer of
confirmation from the Administrative Agent (which confirmation shall be binding
on L/C Issuer) that the requested issuance or amendment is permitted in
accordance with the terms hereof, then, subject to the terms and conditions
hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit
for the account of the Borrower or enter into the applicable amendment, as the
case may be, in each case in accordance with the L/C Issuer’s usual and
customary business practices.  Immediately
upon the issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer
a risk participation in such Letter of Credit in an amount equal to the product
of such Lender’s Pro Rata Share times the amount of such Letter of Credit.


 


32

















 


(iii)          Promptly after its delivery
of any Letter of Credit or any amendment to a Letter of Credit to an advising
bank with respect thereto or to the beneficiary thereof, the L/C Issuer will
also deliver to the Borrower and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment.


 


(b)           Drawings and Reimbursements;
Funding of Participations.


 


(i)            Upon receipt from the
beneficiary of any Letter of Credit of any notice of a drawing under such
Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof.  In the
case of a Letter of Credit denominated in an Alternative Currency, the Borrower
shall reimburse the L/C Issuer in such Alternative Currency, unless (A) the
L/C Issuer (at its option) shall have specified in such notice that it will
require reimbursement in U.S. Dollars, or (B) in the absence of any such
requirement for reimbursement in U.S. Dollars, the Borrower shall have notified
the L/C Issuer promptly following receipt of the notice of drawing that the
Borrower will reimburse the L/C Issuer in U.S. Dollars.  In the case of any such reimbursement in U.S.
Dollars of a drawing under a Letter of Credit denominated in an Alternative
Currency, the L/C Issuer shall notify the Borrower of the U.S. Dollar
Equivalent of the amount of the drawing promptly following the determination
thereof.  Not later than 11:00 a.m.,
Portland time, on the date of any payment by the L/C Issuer under a Letter of
Credit to be reimbursed in U.S. Dollars, or the Applicable Time on the date of
any payment by the L/C Issuer under a Letter of Credit to be reimbursed in an
Alternative Currency (expressed in U.S. Dollars in the amount of the U.S.
Dollar Equivalent thereof in the case of a Letter of Credit denominated in an
Alternative Currency) (each such date, an “Honor Date”), the Borrower
shall reimburse the L/C Issuer through the Administrative Agent in an amount
equal to the amount of such drawing.  If
the Borrower fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor Date, the
amount of the unreimbursed drawing (the “Unreimbursed Amount”), and such
Lender’s Pro Rata Share thereof.  In such
event, the Borrower shall be deemed to have requested a Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02,
but subject to the amount of the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02 (other
than the delivery of a Committed Loan Notice). 
Any notice given by the L/C Issuer or the Administrative Agent pursuant
to this Section 2.03(b)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding effect of
such notice.


 


(ii)           Each Lender (including the
Lender acting as L/C Issuer) shall upon any notice pursuant to Section 2.03(b)(i) make
funds available to the Administrative Agent for the account of the L/C Issuer
at the Administrative Agent’s Office in an amount equal to its Pro Rata Share
of the Unreimbursed Amount not later 


 


33

















 


than noon, Portland time, on
the Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section 2.03(b)(iii), each
Lender that so makes funds available shall be deemed to have made a Base Rate Revolving
Loan to the Borrower in such amount.  The
Administrative Agent shall remit the funds so received to the L/C Issuer.


 


(iii)          With respect to any
Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of
Base Rate Loans because the conditions set forth in Section 4.02
cannot be satisfied, the Borrower shall be deemed to have incurred from the L/C
Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand (together
with interest) and shall bear interest at the Default Rate.  In such event, each Lender’s payment to the
Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(b)(ii) shall
be deemed payment in respect of its participation in such L/C Borrowing and
shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.


 


(iv)          Until each Lender funds its
Revolving Loan or L/C Advance pursuant to this Section 2.03(b) to
reimburse the L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender’s Pro Rata Share of such amount shall be
solely for the account of the L/C Issuer.


 


(v)           Each Lender’s obligation to
make Revolving Loans or L/C Advances to reimburse the L/C Issuer for amounts
drawn under Letters of Credit, as contemplated by this Section 2.03(b),
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against the L/C Issuer, the Borrower
or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default or Event of Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing.  Any such reimbursement shall not relieve or
otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for
the amount of any payment made by the L/C Issuer under any Letter of Credit,
together with interest as provided herein.


 


(vi)          If any Lender fails to make
available to the Administrative Agent for the account of the L/C Issuer any
amount required to be paid by such Lender pursuant to the foregoing provisions
of this Section 2.03(b) by the time specified in Section 2.03(b)(ii),
the L/C Issuer shall be entitled to recover from such Lender (acting through
the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to the L/C Issuer at a rate per annum equal to the
Federal Funds Rate from time to time in effect. 
A certificate of the L/C Issuer submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (vi) shall
be conclusive absent manifest error.


 


34














 


(c)           Repayment of Participations.


 


(i)            At any time after the L/C
Issuer has made a payment under any Letter of Credit and has received from any
Lender such Lender’s Loan or L/C Advance in respect of such payment in
accordance with Section 2.03(b), if the Administrative Agent
receives for the account of the L/C Issuer any payment related to such Letter
of Credit (whether directly from the Borrower or otherwise, including proceeds
of Cash Collateral applied thereto by the Administrative Agent), or any payment
of interest thereon, the Administrative Agent will distribute to such Lender
its Pro Rata Share thereof in the same funds as those received by the
Administrative Agent.


 


(ii)           If any payment received by
the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i)
is required to be returned, each Lender shall pay to the Administrative Agent
for the account of the L/C Issuer its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect.


 


(d)           Obligations Absolute.  The obligation of the Borrower to reimburse
the L/C Issuer for each drawing under a Letter of Credit, and to repay each L/C
Borrowing and each drawing under a Letter of Credit that is refinanced by a
Borrowing of Revolving Loans, shall be absolute, unconditional and irrevocable,
and shall be paid strictly in accordance with the terms of this Agreement under
all circumstances, including the following:


 


(i)            any lack of validity or
enforceability of such Letter of Credit, this Agreement, or any other agreement
or instrument relating thereto;


 


(ii)           the existence of any claim,
counterclaim, set-off, defense or other right that the Borrower may have at any
time against any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be acting), the
L/C Issuer or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;


 


(iii)          any draft, demand,
certificate or other document presented under such Letter of Credit proving to
be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under such Letter of Credit;


 


(iv)          any payment by the L/C
Issuer under such Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the L/C Issuer under such 


 


35

















 


Letter of Credit to any
Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee
for the benefit of creditors, liquidator, receiver or other representative of
or successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any Debtor Relief
Law; or


 


(v)           any other circumstance or
happening whatsoever, whether or not similar to any of the foregoing, including
any other circumstance that might otherwise constitute a defense available to,
or a discharge of, the Borrower;


 


provided that nothing
shall absolve the L/C Issuer of liability for its own gross negligence or
willful misconduct.


 


The
Borrower shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower’s instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer.  The Borrower shall be conclusively deemed to
have waived any such claim against the L/C Issuer and its correspondents unless
such notice is given as aforesaid.


 


(e)           Role of L/C Issuer.  Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft and
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document.  None of the L/C Issuer, any Related Party of
the L/C Issuer or Administrative Agent nor any of the respective
correspondents, participants or assignees of the L/C Issuer shall be liable to
any Lender for (i) any action taken or omitted in connection herewith at
the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit or L/C Application. 
The Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit; provided,
however, that this assumption is not intended to, and shall not,
preclude the Borrower’s pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement.  None of the L/C issuer, any Related Party of
the L/C Issuer or Administrative Agent, nor any of the respective
correspondents, participants or assignees of the L/C Issuer, shall be liable or
responsible for any of the matters described in clauses (i) through (v) of
Section 2.03(e); provided, however, that anything in
such clauses to the contrary notwithstanding, the Borrower may have a claim
against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to
the extent, but only to the extent, of any direct, as opposed to consequential
or exemplary, damages suffered by the Borrower that the Borrower proves were
caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C
Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit.  In furtherance and not in limitation of the
foregoing, the L/C Issuer may 


 


36

















 


accept documents that appear on their face to be in
order, without responsibility for further investigation, and the L/C Issuer
shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason.


 


(f)            Cash Collateral.  Upon the request of the Administrative Agent,
(i) if the L/C Issuer has honored any full or partial drawing request
under any Letter of Credit and such drawing has resulted in an L/C Borrowing,
or (ii) if, as of the L/C Expiration Date, any Letter of Credit may for
any reason remain outstanding and partially or wholly undrawn, the Borrower
shall immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount determined as of the
date of such L/C Borrowing or the L/C Expiration Date, as the case may
be).  The Administrative Agent may, at
any time and from time to time after the initial deposit of Cash Collateral,
request that additional Cash Collateral be provided in order to protect against
the results of exchange rate fluctuations. 
The Borrower hereby grants the Administrative Agent, for the benefit of
the L/C Issuer and the Lenders, a Lien on all such Cash.  Cash Collateral shall be maintained in
blocked, non-interest bearing Deposit Accounts at Wells Fargo, and shall be
subject to such Lien documentation as the Administrative Agent shall reasonably
request.


 


(g)           Applicability of ISP and UCP.  Unless otherwise expressly agreed by the L/C
Issuer and the Borrower when a Letter of Credit is issued, (i) the rules
of the ISP shall apply to each standby Letter of Credit, and (ii) the
rules of the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce at the time of issuance
shall apply to each commercial Letter of Credit.


 


(h)           Letter of Credit Fees.  The Borrower shall pay to the Administrative
Agent (i) with respect to each Letter of Credit, a 12.5 basis point
fronting fee on the face amount thereof at the time of issuance plus
commissions, issuance fees, transfer fees and other customary fees and charges
in connection with the administration of each letter of credit and
(ii) for the account of each Lender in accordance with its Pro Rata Share,
a fee (the “L/C Fee”) for Letters of Credit equal to the rate per annum
(“L/C Fee Rate”) set forth on the Pricing Schedule as the letter of
credit fee times the actual daily maximum amount under the Letters of
Credit times a fraction, the numerator of which is the number of days in
the applicable quarter (or portion thereof), and the denominator of which is
360.  The L/C Fee shall be due and
payable in arrears on the first Business Day of each March, June, September and
December and on the L/C Expiration Date. 
If there is any change in the L/C Fee Rate during a quarter, the L/C Fee
shall be determined separately for each period during such quarter that each
applicable L/C Fee Rate was in effect.


 


(i)            Documentary and Processing
Charges Payable to L/C Issuer.  The Borrower shall pay directly to the L/C
Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges of the L/C Issuer
relating to letters of credit as from time to time in effect.  Such fees and charges are due and payable on
demand and are nonrefundable.


 


37

















 


(j)            Conflict with L/C
Application.  In the
event of any conflict between the terms hereof and the terms of any L/C
Application, the terms hereof shall control.


 


2.04        Swing Line Loans.


 


(a)           The Swing Line.  Subject to the terms and conditions set forth
herein, the Swing Line Lender may, in its discretion, make loans (each a “Swing
Line Loan”) to the Borrower from time to time on any Business Day during
the period from the Closing Date to the Maturity Date in an aggregate amount
not to exceed at any time outstanding the amount of the Swing Line Sublimit,
notwithstanding the fact that such Swing Line Loans, when aggregated with the
Outstanding Amount of Committed Loans of the Swing Line Lender in its capacity
as a Lender of Committed Loans, may exceed the amount of such Lender’s
Commitment; provided, however, that after giving effect to any
Swing Line Loan, (i) the aggregate Outstanding Amount of all Revolving Loans
and L/C Obligations shall not exceed the Aggregate Revolving Commitments, and
(ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender
(other than the Swing Line Lender), plus such Lender’s Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of
the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s
Commitment.  Within the foregoing limits,
and subject to the other terms and conditions hereof, the Borrower may borrow
under this Section 2.04, prepay under Section 2.05, and
reborrow under this Section 2.04. 
Each Swing Line Loan shall be a Base Rate Loan.  Immediately upon the making of a Swing Line
Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such
Swing Line Loan in an amount equal to the product of such Lender’s Pro Rata
Share times the amount of such Swing Line Loan. 
Borrower shall reduce the outstanding principal balance of the Swing
Line Loans to not more than $1,000,000 on the 15th day and last day of each
month.  Borrower shall repay the
outstanding principal balance of the Swing Line Loans, together with all
accrued and unpaid interest thereon, on the Maturity Date.


 


(b)           Borrowing Procedures.  Each Swing Line Borrowing shall be made upon
the Borrower’s irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone.  Each such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 11:00 a.m.,
Portland time, on the requested borrowing date, and shall specify (i) the
amount to be borrowed, which shall be a minimum of $250,000 (or such other
minimum amount agreed to between the Borrower and the Swing Line Lender), and
(ii) the requested borrowing date, which shall be a Business Day.  Each such telephonic notice must be confirmed
promptly by delivery to the Swing Line Lender and the Administrative Agent of a
written Swing Line Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower (or by such other communication means,
timing, and in such minimum amounts agreed to between the Borrower and the
Swing Line Lender, subject to the on-going approval of the Swing Line Lender
and the Administrative Agent).  Unless
the Swing Line Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Lender) prior to noon,
Portland time, on the date of the proposed Swing Line Borrowing 


 


38

















 


(A) directing the Swing Line Lender not to make
such Swing Line Loan as a result of the limitations set forth in the proviso to
the first sentence of Section 2.04(a), or (B) that one or more
of the applicable conditions specified in Article IV is not then satisfied,
then, subject to the terms and conditions hereof, the Swing Line Lender will,
not later than 1:00 p.m., Portland time, on the borrowing date specified in
such Swing Line Loan Notice, make the amount of its Swing Line Loan available
to the Borrower at its office by crediting the account of the Borrower on the
books of the Swing Line Lender in immediately available funds.  Notwithstanding the foregoing, Swing Line
Lender and Borrower may from time to time agree in writing to additional or
different notice periods or times, minimum borrowing amounts and/or
disbursement times for Swing Line Loans (which may include an automated funding
mechanism), provided the Administrative Agent has been notified in advance of
such agreement.


 


(c)           Refinancing of Swing Line
Loans.


 


(i)            The Swing Line Lender at any
time in its sole discretion may request, on behalf of the Borrower (which
hereby irrevocably requests the Swing Line Lender to so request on its behalf),
that each Lender make a Base Rate Revolving Loan in an amount equal to such
Lender’s Pro Rata Share of the amount of Swing Line Loans then
outstanding.  Such request shall be made
in accordance with the requirements of Section 2.02, without regard
to the minimum and multiples specified therein for the principal amount of Base
Rate Loans, but subject to the unutilized portion of the Aggregate Revolving
Commitments and the conditions set forth in Section 4.02.  The Swing Line Lender shall furnish the
Borrower with a copy of the applicable Committed Loan Notice promptly after
delivering such notice to the Administrative Agent.  Each Lender shall make an amount equal to its
Pro Rata Share of the amount specified in such Committed Loan Notice available
to the Administrative Agent in immediately available funds for the account of
the Swing Line Lender at the Administrative Agent’s Office not later than 1:00
p.m., Portland time, on the day specified in such Committed Loan Notice,
whereupon, subject to Section 2.04(c)(ii), each Lender that so
makes funds available shall be deemed to have made a Base Rate Loan to the
Borrower in such amount.  The
Administrative Agent shall remit the funds so received to the Swing Line
Lender.


 


(ii)           If for any reason a
Revolving Loan cannot be requested in accordance with Section 2.04(c)(i)
or any Swing Line Loan cannot be refinanced by such a Revolving Loan, the
Committed Loan Notice submitted by the Swing Line Lender shall be deemed to be
a request by the Swing Line Lender that each of the Lenders fund its risk
participation in the relevant Swing Line Loan and each Lender’s payment to the
Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i)
shall be deemed payment in respect of such participation.


 


(iii)          If any Lender fails to make
available to the Administrative Agent for the account of the Swing Line Lender
any amount required to be paid by 


 


39

















 


such Lender pursuant to the
foregoing provisions of this Section 2.04(c) by the time specified
in Section 2.04(c)(i), the Swing Line Lender shall be entitled to
recover from such Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to the
Swing Line Lender at a rate per annum equal to the Federal Funds Rate from time
to time in effect.  A certificate of the
Swing Line Lender submitted to any Lender (through the Administrative Agent)
with respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.


 


(iv)          Each Lender’s obligation to
make Revolving Loans or to purchase and fund risk participations in Swing Line
Loans pursuant to this Section 2.04(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including
(A) any set-off, counterclaim, recoupment, defense or other right which
such Lender may have against the Swing Line Lender, the Borrower or any other
Person for any reason whatsoever, (B) the occurrence or continuance of a
Default or Event of Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided, however,
that each Lender’s obligation to make Committed Loans pursuant to this Section 2.04(c)
is subject to the conditions set forth in Section 4.02.  Any such purchase of participations shall not
relieve or otherwise impair the obligation of the Borrower to repay Swing Line
Loans, together with interest as provided herein.


 


(d)           Repayment of Participations.


 


(i)            At any time after any Lender
has purchased and funded a participation in a Swing Line Loan, if the Swing
Line Lender receives any payment on account of such Swing Line Loan, the Swing
Line Lender will distribute to such Lender its Pro Rata Share of such payment
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s participation was outstanding and
funded) in the same funds as those received by the Swing Line Lender.


 


(ii)           If any payment received by
the Swing Line Lender in respect of principal or interest on any Swing Line
Loan is required to be returned by the Swing Line Lender, each Lender shall pay
to the Swing Line Lender its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned, at a rate per annum equal to the Federal Funds
Rate.  The Administrative Agent will make
such demand upon the request of the Swing Line Lender.


 


(e)           Interest for Account of
Swing Line Lender.  The Swing
Line Lender shall be responsible for invoicing the Borrower for interest on the
Swing Line Loans.  Until each Lender
funds its Base Rate Revolving Loan or participation pursuant to this 


 


40

















 


Section 2.04 to refinance such Lender’s
Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata
Share shall be solely for the account of the Swing Line Lender.


 


(f)            Payments Directly to Swing
Line Lender.  The
Borrower shall make all payments of principal and interest in respect of the
Swing Line Loans directly to the Swing Line Lender.


 


2.05        Voluntary Prepayment.


 


(a)           Upon notice to the
Administrative Agent, the Borrower, at any time or from time to time, may
voluntarily prepay Revolving Loans in whole or in part without premium or
penalty (except as provided in Section 3.05); provided that
(i) such notice must be received by the Administrative Agent not later
than 11:00 a.m., Portland time, (A) three Business Days prior to any date
of prepayment of LIBOR Loans, and (B) on the date of prepayment of Base
Rate Loans; and (ii) any prepayment of LIBOR Loans shall be whole
multiples of $1,000,000 or a whole multiple of $100,000 in excess thereof;
(iii) any prepayment of Base Rate Loans shall be in a principal amount of
$100,000 or a whole multiple of $50,000 in excess thereof or, in each case, if
less, the entire principal amount thereof then outstanding.  Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Committed Loans to be
prepaid.  The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of such
Lender’s Pro Rata Share of such prepayment. 
If such notice is given by the Borrower, the Borrower shall make such
prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein. 
Any prepayment of a LIBOR Loan shall be accompanied by all accrued
interest thereon, together with any additional amounts required pursuant to Section 3.05.  Each such prepayment shall be applied to the
Revolving Loans of the Lenders being prepaid in accordance with their
respective Pro Rata Shares.


 


(b)           The Borrower may, upon
notice to the Swing Line Lender (with a copy to the Administrative Agent), at
any time or from time to time, voluntarily prepay Swing Line Loans in whole or
in part without premium or penalty; provided that such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
11:00 a.m., Portland time, on the date of the prepayment.  Each such notice shall specify the date and
amount of such prepayment.  If such
notice is given by the Borrower, the Borrower shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the
date specified therein.


 


2.06        Mandatory Prepayment of
Loans.  If at any time when the
Outstanding Amount of the Revolving Loans and L/C Obligations is zero and the
outstanding balance of the Loans exceeds the most recently calculated Asset
Coverage Amount, Borrower, on one Business Day notice from Administrative
Agent, shall prepay that portion of the outstanding Term Loans equal to the
amount of such excess and such prepayment shall be applied to the remaining
principal amortization payments in inverse order of maturity.  If at any time the immediately preceding
sentence does not apply and the Available Credit is negative, then, (i) if the
Available Credit is negative because of the operation of clause (a) of the
definition of 


 


41

















 


Available Credit, the Borrower, without demand or
notice, Borrower shall immediately repay that portion of the Revolving Loans
and/or Cash Collateralize the L/C Obligations in an aggregate amount sufficient
to cause the Available Credit to be zero, and (ii) if the Available Credit is
negative because of the operation of clause (b) of the definition of Available Credit,
Borrower, on one Business Day notice from Administrative Agent, shall repay
that portion of the Revolving Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount sufficient to cause the Available Credit to
be zero.  Within the parameters of the
applications set forth above, prepayments shall be applied first to Base Rate
Loans and then to LIBOR Loans in direct order of Interest Period maturities,
and all such prepayments shall be subject to Section 3.05, but otherwise
without premium or penalty, and shall be accompanied by interest on the
principal amount prepaid through the date of prepayment.


 


2.07        Voluntary Reduction or
Termination of Commitments.  Upon notice to the Administrative Agent, the
Borrower may terminate the Aggregate Commitments or permanently reduce the
Aggregate Revolving Commitments to an amount not less than the then Outstanding
Amount of all Revolving Loans and L/C Obligations; provided that
(i) any such notice shall be received by the Administrative Agent not later
than 11:00 a.m., Portland time, three Business Days prior to the date of
termination or reduction, and (ii) any such partial reduction shall be in
an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess
thereof.  The Administrative Agent shall
promptly notify the Lenders of any such notice of reduction or termination of
the Aggregate Commitments.  Once reduced
in accordance with this Section 2.07, the Aggregate Commitments may
not be increased.  Any reduction of the
Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Pro Rata Share.  All
facility fees accrued until the effective date of any termination of the
Aggregate Commitments shall be paid on the effective date of such termination.


 


2.08        Interest.


 


(a)           The outstanding principal
balance of each Loan shall bear interest at the Applicable Rate.  The foregoing notwithstanding, the rate of
interest applicable at all times during the continuation of an Event of Default
shall be a fluctuating rate per annum equal to the Applicable Rate plus 200
basis points.  All fees, expenses and
other amounts not paid when due shall bear interest (from the date due until
paid) at the highest rate set forth in the preceding sentence.


 


(b)           Interest on each Loan shall
be due and payable in arrears on each Interest Payment Date applicable thereto
and at such other times as may be specified herein.  Interest hereunder shall be due and payable
in accordance with the terms hereof before and after judgment, and before and
after the commencement of any proceeding under any Debtor Relief Law.


 


2.09        Fees.  In addition to certain fees described in subsections (h)
and (i) of Section 2.03:


 


42

















 


(a)           Unused Commitment Fee.  Quarterly, in arrears, on the first Business
Day of each March, June, September and December and on the Maturity Date,
Borrower shall pay to Administrative Agent, for the ratable benefit of Lenders,
an unused commitment fee (“Unused Commitment Fee”) equal to (i) the amount
by which the Aggregate Commitments are greater than the total of the average
daily Outstanding Amount of the Loans (other than the Swing Line Loans) and the
Outstanding Amount of L/C Obligations multiplied by (ii) a rate per
annum equal to the commitment fee rate set forth on the Pricing Schedule.  The Unused Commitment Fee shall accrue at all
times from the Closing Date until the Maturity Date.


 


(b)           Arrangement and Agency Fees.  Borrower shall pay Arranger and
Administrative Agent, for their own respective accounts, the arrangement and
agency fees in the amounts and at the times specified in the Fee Letter.


 


2.10        Computation of Interest and
Fees.  Interest on Base Rate Loans
shall be calculated on the basis of a year of 365 or 366 days, as the case may
be, and the actual number of days elapsed. 
Computation of all other types of interest and all fees shall be
calculated on the basis of a year of 360 days and the actual number of days
elapsed, which results in a higher yield to the payee thereof than a method
based on a year of 365 or 366 days. 
Interest shall accrue on each Loan for the day on which the Loan is
made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is
repaid on the same day on which it is made shall bear interest for one day.


 


2.11        Evidence of Debt.


 


(a)           The Credit Extensions made
by each Lender, the rights to principal and interest on such Credit Extensions,
and the ownership of an interest in any Credit Extension shall be evidenced by
one or more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary course of business.  The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Credit Extensions made by the Lenders to the Borrower and
the interest and payments thereon.  Any
failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrower hereunder to pay any amount
owing with respect to the Loans or L/C Obligations.  In the event of any conflict between the
accounts and records maintained by any Lender and the accounts and records of
the Administrative Agent in respect of such matters, the accounts and records
of the Administrative Agent shall control in the absence of manifest
error.  Upon the request of any Lender
made through the Administrative Agent, such Lender’s Loans may be evidenced by
a Committed Loan Note or a Swing Line Note, as applicable, in addition to such
accounts or records.  Each Lender may
attach schedules to its Note(s) and endorse thereon the date, Type (if
applicable), amount and maturity of the applicable Loans and payments with
respect thereto.


 


(b)           In addition to the accounts
and records referred to in subsection (a) above, each Lender and
the Administrative Agent shall maintain in accordance with its usual 


 


43

















 


practice accounts or records evidencing the
purchases and sales by such Lender of participations in Letters of Credit or
Swing Line Loans.  In the event of any
conflict between the accounts and records maintained by the Administrative
Agent and the accounts and records of any Lender in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of manifest error.


 


(c)           On each date when the
payment of any principal, interest or fees are due hereunder, the Borrower
agrees to maintain on deposit in an ordinary checking account maintained by
Borrower with Administrative Agent (as such account shall be designated by the
Borrower in a written notice to the Administrative Agent from time to time, the
“Borrower Account”) an amount sufficient to pay such principal, interest
or fees in full.  The Borrower hereby
authorizes the Administrative Agent (i) to deduct automatically all
principal, interest or fees when due hereunder from the Borrower Account, and
(ii) if and to the extent any payment under any Loan Document is not made
when due, to deduct any such amount from any or all of the accounts of the
Borrower maintained with Administrative Agent. 
The Administrative Agent agrees to provide timely notice to the Borrower
of any deduction made pursuant to this subsection (c).


 


2.12        Payments Generally.


 


(a)           All payments to be made by
the Borrower shall be made without condition or deduction for any counterclaim,
defense, recoupment or setoff.  Except as
otherwise expressly provided herein, all payments by the Borrower hereunder
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agent’s Office in
immediately available funds not later than noon, Portland time, on the date
specified herein.  If, for any reason,
the Borrower is prohibited by any Law from making any required payment
hereunder in an Alternative Currency, it shall make such payment in U.S.
Dollars in the U.S. Dollar Equivalent of the Alternative Currency payment
amount.  The Administrative Agent will
promptly distribute to each Lender its Pro Rata Share (or other applicable
share as provided herein) of such payment in like funds as received by wire
transfer to such Lender’s Lending Office. 
All payments received by the Administrative Agent (i) after noon,
Portland time, in the case of payments in U.S. Dollars, or (ii) after the
Applicable Time specified by the Administrative Agent in the case of payments
in an Alternative Currency, shall be deemed received on the next succeeding
Business Day and any applicable interest or fee shall continue to accrue.


 


(b)           Subject to the definition of
“Interest Period,” if any payment to be made by the Borrower shall come
due on a day other than a Business Day, payment shall be made on the next
following Business Day.


 


(c)           If at any time insufficient
funds are received by and available to the Administrative Agent to pay fully
all amounts of principal, L/C Borrowings, interest and fees then due hereunder
such funds shall be applied in the following order:  (i) first, toward costs and
expenses (including Attorney Costs and amounts payable under Article III)
incurred by the Administrative Agent and each Lender, (ii) second,
toward repayment of interest and fees 


 


44

















 


then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees then due
to such parties, and (iii) third, toward repayment of principal and
L/C Borrowings then due hereunder, ratably among the parties entitled thereto
in accordance with the amounts of principal and L/C Borrowings then due to such
parties.


 


(d)           Unless the Borrower or any
Lender has notified the Administrative Agent prior to the date any payment is
required to be made by it to the Administrative Agent hereunder, that the
Borrower or such Lender, as the case may be, will not make such payment, the
Administrative Agent may assume that the Borrower or such Lender, as the case
may be, has timely made such payment and may (but shall not be so required to),
in reliance thereon, make available a corresponding amount to the Person
entitled thereto.  If and to the extent
that such payment was not in fact made to the Administrative Agent in immediately
available funds, then:


 


(i)            if the Borrower failed to
make such payment, each Lender shall forthwith on demand repay to the
Administrative Agent the portion of such assumed payment that was made
available to such Lender in immediately available funds, together with interest
thereon in respect of each day from and including the date such amount was made
available by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available funds, at the
applicable Federal Funds Rate from time to time in effect; and


 


(ii)           if any Lender failed to make
such payment, such Lender shall forthwith on demand pay to the Administrative
Agent the amount thereof in immediately available funds, together with interest
thereon for the period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is recovered by
the Administrative Agent  at a rate per
annum equal to the applicable Federal Funds Rate from time to time in effect.
If such Lender pays such amount to the Administrative Agent, then such amount
shall constitute such Lender’s Committed Loan included in the applicable
Borrowing.  Nothing herein shall be
deemed to relieve any Lender from its obligation to fulfill its Commitment or
to prejudice any rights which the Administrative Agent or the Borrower may have
against any Lender as a result of any default by such Lender hereunder.


 


A
notice of the Administrative Agent to any Lender with respect to any amount
owing under this subsection (d) shall be conclusive, absent
manifest error.


 


(e)           If any Lender makes
available to the Administrative Agent funds for any Loan to be made by such
Lender as provided in the foregoing provisions of this Article II, and
the conditions to the applicable Credit Extension set forth in Article IV
are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.


 


(f)            The obligations of the Lenders
hereunder to make Committed Loans and to fund participations in Letters of
Credit and Swing Line Loans are several and not joint.  


 


45

















 


The failure of any Lender to make any Committed Loan
or to fund any such participation on any date required hereunder shall not
relieve any other Lender of its corresponding obligation to do so on such date,
and no Lender shall be responsible for the failure of any other Lender to so
make its Committed Loan or purchase its participation.


 


(g)           Nothing herein shall be
deemed to obligate any Lender to obtain the funds for any Loan in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan in any particular place
or manner.


 


2.13        Sharing of Payments.  If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Committed Loans
made by it, or the participations in L/C Obligations or in Swing Line Loans
held by it (but not including any amounts applied by the Swing Line Lender to
outstanding Swing Line Loans), any payment in cash or otherwise (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) in excess of its ratable share (or other share contemplated
hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders
such participations in the Committed Loans made by them and/or such subparticipations
in the participations in L/C Obligations or Swing Line Loans held by them, as
the case may be, as shall be necessary to cause such purchasing Lender to share
the excess payment in respect of such Committed Loans or such participations,
as the case may be, pro rata with each of them; provided, however,
that if all or any portion of such excess payment is thereafter recovered from
the purchasing Lender, such purchase shall to that extent be rescinded and each
other Lender shall repay to the purchasing Lender the purchase price paid
therefor, together with an amount equal to such paying Lender’s ratable share
(according to the proportion of (i) the amount of such paying Lender’s
required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered.  The Borrower agrees that any Lender so
purchasing a participation from another Lender may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) but subject to Section 10.09 with respect to such
participation, as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. 
The Administrative Agent will keep records (which shall be conclusive
and binding in the absence of manifest error) of participations purchased under
this Section 2.13 and will in each case notify the Lenders
following any such purchases or repayments. 
Each Lender that purchases a participation pursuant to this Section 2.13
shall from and after such purchase have the right to give all notices,
requests, demands, directions and other communications under this Agreement
with respect to the portion of the Obligations purchased to the same extent as
though the purchasing Lender were the original owner of the Obligations
purchased.


 


2.14        Increase in Revolving
Commitments.


 


(a)           Request for Increase;
Election to Increase.  Provided no
Default or Event of Default exists, upon notice to the Administrative Agent
(which shall promptly notify all of the Lenders), the Borrower may from time to
time request an increase in the Revolving 


 


46

















 


Commitments by an aggregate amount not exceeding
$50,000,000; provided that (i) each request for an increase shall
be in a minimum amount of $10,000,000 and (ii) the Borrower may make no
more than three such requests.  At the
time of sending such notice, the Borrower (in consultation with the
Administrative Agent) shall specify the time period within which each Lender is
requested to respond (which shall in no event be less than ten Business Days
from the date of delivery of such notice to the Lenders).  Each Lender shall notify the Administrative
Agent within such time period whether or not it agrees to increase its
Revolving Commitment and, if so, whether by an amount equal to, greater than,
or less than its Pro Rata Share of such requested increase.  Any Lender not responding within such time
period shall be deemed to have declined to increase its Revolving Credit
Commitment.


 


(b)           Notification by
Administrative Agent; Additional Lenders.  The Administrative Agent shall notify the
Borrower and each Lender of the Lenders’ responses to each request made under
Section 2.14(a).  To achieve the
full amount of a requested increase, and subject to the approval of the
Administrative Agent, the L/C Issuer and the Swing Line Lender (which approvals
shall not be unreasonably withheld), the Borrower may also invite additional
Eligible Assignees to become Lenders pursuant to a joinder agreement in form
and substance satisfactory to the Administrative Agent.


 


(c)           Effective Date and
Allocations.  If the
Revolving Commitments are increased in accordance with this Section, the Administrative
Agent and the Borrower shall determine the effective date (the “Revolving
Commitments Increase Effective Date”) and the final allocation of such
increase.  The Administrative Agent shall
promptly notify the Borrower and the Lenders of the final allocation of such
increase and the Revolving Commitments Increase Effective Date.


 


(d)           Conditions to Effectiveness
of Increase.  As a
condition precedent to such increase, the Borrower shall deliver to the
Administrative Agent a certificate of the Borrower dated as of the Revolving
Commitments Increase Effective Date signed by a Responsible Officer of the
Borrower (i) certifying and attaching the resolutions adopted by each Loan
Party approving or consenting to such increase, and (ii) in the case of the Borrower,
certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in the Loan Documents are true and
correct in all material respects on and as of the Revolving Commitments
Increase Effective Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct in all material respects as of such earlier date, and except that
for purposes of this Section 2.14, the representations and warranties
contained in subsections (a) and (b) of Section 5.05 shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01, and (B) no Default or Event of Default
exists.  The Borrower shall prepay any
Revolving Loans outstanding on the Revolving Commitments Increase Effective
Date (and pay any additional amounts required pursuant to Section 3.05)
to the extent necessary to keep the outstanding Revolving Loans ratable with
the revised Revolving Commitments.  The
Applicable Margin for any such increase in the Revolving Commitments will be
determined by the Borrower and the Lenders (including any new Lenders) at the
time such increase is made; provided that if such agreed 


 


47

















 


upon Applicable Margin exceeds the then existing
Applicable Margin, the Applicable Margin for all Loans shall be automatically
increased to equal such agreed upon Applicable Margin.


 


ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01        Taxes.


 


(a)           Except as provided in Section 3.01(f)
and subsections (d) and (e) of Section 10.07,
any and all payments by any Loan Party to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto (“Taxes”), excluding,
in the case of the Administrative Agent and each Lender, (i) Taxes imposed
on or measured by its overall net or gross income, and franchise Taxes imposed
on it (in lieu of net income Taxes) by the jurisdiction (or any political
subdivision thereof) under the Laws of which the Administrative Agent or such
Lender, as the case may be, is organized or maintains a lending office, or
(ii) any branch profits tax imposed by the United States or any similar
tax imposed by any other jurisdiction (all such non-excluded Taxes being hereinafter
referred to as “Indemnified Taxes”). 
If any Loan Party is required by any Laws to deduct any Indemnified
Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, (i) the sum payable shall be increased
as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.01),
each of the Administrative Agent and such Lender receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay or shall
cause a Subsidiary to pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable Laws, and
(iv) within 30 days after the date of such payment, the Borrower shall
furnish or shall cause a Guarantor to furnish to the Administrative Agent
(which shall forward the same to such Lender) the original or a certified copy
of a receipt evidencing payment thereof.


 


(b)           Except as provided in Section 3.01(f)
and subsections (d) and (e) of Section 10.07, in
addition, the Borrower agrees to pay or to cause a Guarantor to pay any and all
present or future stamp, court, documentary or similar  taxes and any other excise or property Taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of any Loan Document (hereinafter referred to as “Other Taxes”).


 


(c)           Except as provided in Section 3.01(e)
and subsections (d) and (e) of Section 10.07,
the Borrower’s agreement to indemnify the Administrative Agent and each Lender
for the full amount of Indemnified Taxes and Other Taxes (including any Indemnified
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section 3.01) paid by the Administrative Agent and such
Lender, is without regard to whether or not such Indemnified Taxes or Other
Taxes were correctly or legally imposed or asserted 


 


48

















 


by the relevant Governmental Authority.  Payment under this subsection (d)
shall be made within 30days after the date the Lender or the Administrative
Agent makes a demand therefor.


 


(d)           Each Lender that is not a “United
States person” within the meaning of Section 7701(a)(30) of the Code (a “Foreign
Lender”), on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender that is a party hereto on the date of
execution of this Agreement and on or prior to the date on which it becomes a
Lender in the case of each other Lender (including a Lender that is an assignee
or transferee of an interest under this Agreement), and from time to time thereafter
if (x) a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect or
(y) requested in writing by the Borrower or the Administrative Agent,
shall provide the Borrower and the Administrative Agent with two accurate and
complete original signed copies of IRS Form W-8BEN or W-8ECI, as appropriate,
or any successor form prescribed by the IRS, either evidencing a complete
exemption from United States withholding tax on payments pursuant to any Loan
Document or certifying that all amounts receivable pursuant to any Loan
Document are effectively connected with the conduct of a trade or business in
the United States.  In addition, each
Lender that is a “United States person” within the meaning of Section 7701(a)(30)
of the Code on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender that is a party hereto on the date of
execution of this Agreement and on or prior to the date on which it becomes a
Lender in the case of each other Lender (including a Lender that is an assignee
or transferee of an interest under this Agreement), and from time to time
thereafter if (x) a lapse in time or change in circumstances renders the
previous certification obsolete or inaccurate in any material respect or
(y) requested in writing by the Borrower or the Administrative Agent,
shall provide the Administrative Agent with two accurate and complete signed
copies of IRS Form W-9 or any successor form prescribed by the IRS, certifying
that such Lender is a “United States person.” 
If such Lender fails to deliver such form, then the Administrative Agent
may withhold from any interest payment to such Lender an amount equivalent to
the applicable back-up withholding tax imposed by the Code, without reduction.


 


(e)           For any period with respect
to which, for any reason, a Lender has failed to provide the Administrative
Agent with the applicable form pursuant to Section 3.01(d), unless
such failure is the result of a change in Law occurring after the date upon
which such lender becomes a Lender, such Lender shall not be entitled to
indemnification under Section 3.01(a), 3.01(b) or 3.01(c)
with respect to any Taxes that would not have been imposed had such Lender been
able to provide, and provided, such form.


 


(f)            If the Borrower is required
to pay additional amounts to or for the account of any Lender pursuant to this Section 3.01,
then such Lender will agree to use reasonable efforts to change the
jurisdiction of its Applicable Lending Office so as to eliminate or reduce such
additional payment which may thereafter accrue if such change, in the sole
judgment of such Lender, is not otherwise materially disadvantageous to such
Lender; provided, that in determining whether changing the jurisdiction
of an Applicable 


 


49

















 


Lending Office would be disadvantageous to
such Lender, such Lender shall disregard any economic disadvantage that the
Borrower agrees to indemnify and hold such Lender harmless from.


 


(g)           If any Lender receives or
realizes any refund or Tax, any reduction of, or credit against, its Tax
liabilities or otherwise recovered any amount in connection with any deduction
or withholding, or payment of additional amounts, by the Borrower pursuant to Section 3.01,
such Lender shall reimburse the Borrower an amount equal to the net benefit,
after Tax, that was obtained by the Lender as a consequence of such refund,
reduction, credit or recovery.


 


3.02        Illegality.  If any Lender determines that any Law has
made it unlawful, or that any Governmental Authority has asserted that it is
unlawful, for any Lender or its applicable Lending Office to make, maintain or
fund LIBOR Loans, or to determine or charge interest rates based upon the LIBOR
Rate, or any Governmental Authority has imposed material restrictions on the
authority of such Lender to purchase or sell, or to take deposits in the London
interbank market, in each case after the date hereof, then, on notice thereof
by such Lender to the Borrower through the Administrative Agent, any obligation
of such Lender to make or continue LIBOR Loans or to convert Base Rate Loans to
LIBOR Loans shall be suspended until such Lender notifies the Administrative
Agent and the Borrower that the circumstances giving rise to such determination
no longer exist.  Promptly upon making
any such determination, such Lender shall provide notice thereof to the
Borrower (with a copy to the Administrative Agent), and upon receipt of such
notice, the Borrower shall, within three Business Days of receipt of written
notice from such Lender, prepay or convert all such LIBOR Loans of such Lender
to Base Rate Loans, with respect to LIBOR Loans either on the last day of the
Interest Period therefor, if such Lender may lawfully continue to maintain such
LIBOR Loans to such day, or immediately, if such Lender may not lawfully
continue to maintain such LIBOR Loans. 
Upon any such prepayment or conversion, the Borrower shall also pay
interest on the amount so prepaid or converted. 
Each Lender agrees to designate a different Lending Office if such
designation will avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to such
Lender.


 


3.03        Inability to Determine Rates.  If the Administrative Agent determines in
connection with any request for a LIBOR Loan or a conversion to or continuation
of a LIBOR Loan that (i) deposits are not being offered to banks in the
London interbank market for the applicable amount and Interest Period of such
LIBOR Loan, (ii) adequate and reasonable means do not exist for
determining the LIBOR Rate for such LIBOR Loan, or (iii) the LIBOR Rate
for such LIBOR Loan does not adequately and fairly reflect the cost to the
Lenders of funding such Loan, the Administrative Agent will promptly notify the
Borrower and all Lenders.  Thereafter,
the obligation of the Lenders to make or maintain LIBOR Loans shall be
suspended until the Administrative Agent notifies Borrower and all Lenders that
it has revoked such notice.  Upon receipt
of such notice, the Borrower may revoke any pending request for a Borrowing,
conversion or continuation of LIBOR Loans or, 


 


50

















 


failing that, will be deemed to have
converted such request into a request for Base Rate Loans in the amount
specified therein.


 


3.04        Increased Cost and Reduced Return;
Capital Adequacy; Reserves on LIBOR Loans.


 


(a)           If any Lender determines
that as a result of the introduction of or any change in or in the
interpretation of any Law, or such Lender’s compliance therewith, in each case
after the date hereof, there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining LIBOR Loans or (as the
case may be) issuing or participating in Letters of Credit, or a reduction in
the amount received or receivable by such Lender in connection with any of the
foregoing (excluding for purposes of this subsection (a) any such
increased costs or reduction in amount resulting from (i) Taxes or Other
Taxes (as to which Section 3.01 shall govern), (ii) changes in
the basis of taxation of overall net income or overall gross income by the
United States or any foreign jurisdiction or any political subdivision of
either thereof under the Laws of which such Lender is organized or has its
Lending Office, or (iii) reserve requirements contemplated by Section 3.04(c),
and the result of any of the foregoing shall be to increase the cost to the
affected Lender(s) of, or to reduce the amount of any such received or
receivable by such Lender in respect of, making, continuing, maintaining or
financing (or its obligation to make, continue, maintain or finance) any Loan
as, or of converting (or of its obligation to convert) any Base Rate Loan into,
a LIBOR Loan by an amount deemed by such Person to be material, then the
Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such increased cost or reduction.


 


(b)           If any Lender determines
that the introduction of any Law regarding capital adequacy or any change
therein or in the interpretation thereof, or compliance by such Lender (or its
Lending Office) therewith, in each case after the date hereof, has the effect
of reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender’s obligations hereunder
(taking into consideration its policies with respect to capital adequacy to a
level below that which the affected Lender or such controlling Person would
have achieved but for the occurrence of any such circumstance, and such Lender
or controlling Person considers such level to be material, then the Borrower
shall pay to such Lender such additional amounts as will compensate such Lender
for such reduction.


 


(c)           The Borrower shall pay to
each Lender, as long as such Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including eurocurrency funds
or deposits (currently referred to as “Eurocurrency Liabilities” in Regulation
D of the Federal Reserve Board), additional interest on the unpaid principal
amount of each LIBOR Loan equal to the actual costs of such reserves allocated
to such Loan by such Lender (as determined by such Lender in good faith), which
shall be due and payable on each date on which interest is payable on such
Loan, provided the Borrower shall have received at least 15 days’ prior
notice (with a copy to the Administrative Agent) of such additional interest
from such Lender.


 


51

















 


(d)           Amounts required to be paid
by the Borrower pursuant to subsections (a), (b), and (c)
above shall be determined by the applicable Lender, and notified to the
Borrower (with a copy to the Administrative Agent) in the form of a certificate
of such Lender stating that the calculations set forth therein are in
accordance with the terms of this Agreement and setting forth in reasonable
detail the basis for such calculations for losses suffered from and after the
date that is 180 days before the day such Lender notifies the Borrower thereof,
such certificate being conclusive and binding for all purposes absent manifest
error.  The amount set forth in such
certificate shall be payable by the Borrower on the 30th day following delivery
of such certificate to the Borrower.


 


(e)           If, with respect to any
Lender entitled to compensation under this Section 3.04, a
condition arises or an event occurs which could result in the payment of any
amount under subsections (a) through (c) above, such Lender,
promptly upon becoming aware of the same, shall notify the Borrower thereof and
shall take such steps as may be reasonably necessary for it to mitigate the
effects of such condition or event, provided, that such Lender shall be
under no obligation to take any step that the Lender determines, in its sole
discretion, would be disadvantageous to Lender.


 


3.05        Funding Losses.  The Borrower shall, subject to and in
accordance with subsection (d) below, promptly compensate such
Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:


 


(a)           any continuation,
conversion, payment or prepayment of any LIBOR Loan on a day other than the
last day of the Interest Period for such Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise);


 


(b)           any failure by the Borrower
(for a reason other than the failure of such Lender to make a Loan) to prepay,
borrow, continue or convert any Loan other than a Base Rate Loan on the date or
in the amount notified by the Borrower; or


 


(c)           any failure by Borrower to
make payment of any drawing under any Letter of Credit denominated in an
Alternative Currency on its scheduled due date or any payment thereof in a
different currency;


 


including
any foreign exchange losses and any loss of anticipated profits and any loss or
expense arising from the liquidation or reemployment of funds obtained by it to
maintain such Loan or from fees payable to terminate the deposits from which
such funds were obtained, as determined by Administrative Agent in its sole
discretion.  The Borrower shall also pay
any customary administrative fees charged by such Lender in connection with the
foregoing.


 


For
purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each
LIBOR Loan made by it at the LIBOR Rate for such Loan by a matching deposit or
other borrowing in the London


 


52














 


interbank
market for a comparable amount and for a comparable period, whether or not such
LIBOR Loan was in fact so funded.


 


(d)           The amount of the loss or
expense shall be determined by the Lender and notified to the Borrower (with a
copy to the Administrative Agent) in the form of a certificate of such Lender
stating that the calculations set forth therein are in accordance with the
terms of this Agreement and setting forth in reasonable detail the basis for
such calculations, such certificate being conclusive and binding for all
purposes absent manifest error.  The
amount set forth in such certificate shall be payable by the Borrower on the
30th day following delivery of such certificate to the Borrower.  In determining such amount, the
Administrative Agent or such Lender may use any reasonable averaging and
attribution methods.


 


3.06        Survival.  All of the Borrower’s obligations under this Article
III shall survive termination of the Aggregate Commitments and repayment of
all other Obligations.


 


3.07        Replacement of Lenders.  If (i) either a Lender defaults in its
obligations to fund a Loan pursuant to this Credit Agreement, or a Lender (a “Non-Consenting
Lender”) refuses to consent to an amendment, modification or waiver of this
Credit Agreement that, pursuant to Section 10.1, requires consent
of 100% of the Lenders or 100% of the Lenders with Obligations directly
affected, or a Lender that imposes charges, costs and expenses unacceptable to
Borrower under Section 3.04 (any such Lender, a “Subject Lender”),
(ii) no Default or Event of Default shall have occurred and be continuing,
(iii) the Borrower has obtained a commitment from another Lender or an
Eligible Assignee to purchase at par the Subject Lender’s Loans and assume the
Subject Lender’s Commitments and all other obligations of the Subject Lender
hereunder, and (iv) such Subject Lender is not an  L/C Issuer with respect to any Letters of
Credit outstanding, unless all such Letters of Credit are terminated or arrangements
acceptable to such Issuing Lender (such as a “back-to-back” letter of credit)
are made, then the Borrower may require the Subject Lender to assign any or all
of its Loans and Commitments to such other Lender, Lenders, Eligible Assignee
or Eligible Assignees pursuant to the provisions of Section 10.07(b)
which such Lender, Lenders, Eligible Assignee or Eligible Assignees is
acceptable to Administrative Agent; provided, that, prior to or
concurrently with such replacement, (a) the Subject Lender shall have
received payment in full of all principal, interest, fees and other amounts
owing to such Subject Lender through such date of replacement in respect of the
applicable portion of the Subject Lender’s Commitments to be assigned and a
release from its obligations (relating to the assigned portion) under the Loan
Documents, (b) the processing fee, if any, required to be paid under Section 10.07(b)
shall have been paid to the Administrative Agent, (c) all of the
requirements for such assignment contained in Section 10.7,
including the consent of the Administrative Agent and the receipt by the
Administrative Agent of an executed Assignment and Assumption and other
supporting documents, have been fulfilled, and (d) if such Subject Lender
is a Non-Consenting Lender, each assignee shall consent, at the time of such
assignment, to each matter in respect of which such Subject Lender was a
Non-Consenting Lender and the Borrower also requires each other Subject Lender
that is a Non-Consenting Lender to assign its Loans and Commitments.


 


53

















 


ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


4.01        Conditions of Initial Credit
Extension.  The
obligation of each Lender to make its initial Credit Extension hereunder is
subject to satisfaction of the following conditions precedent:


 


(a)           Receipt of the following by
the Administrative Agent, each duly executed and in form and substance
satisfactory to the Administrative Agent:


 


(i)            executed counterparts of
this Agreement, sufficient in number for distribution to the Administrative
Agent, each Lender and the Borrower;


 


(ii)           the Security and Pledge
Agreement, the Aircraft Security Agreement, the FAA Documents and the Deed of
Trust;


 


(iii)          Committed Loan Notes
executed by the Borrower in favor of each Lender requesting such a Note, each
in a principal amount equal to such Lender’s Commitment;


 


(iv)          Swing Line Note executed by
Borrower in favor of the Swing Line Lender (if it requests such a Note) in the
principal sum of the Swing Line Sublimit;


 


(v)           such certificates of
resolutions or other action, incumbency certificates and/or other certificates
of Responsible Officers of each Loan Party as the Administrative Agent may
reasonably require to establish the identities of and verify the authority and
capacity of each Responsible Officer thereof authorized to act as a Responsible
Officer in connection with the Loan Documents to which such Loan Party is a
party;


 


(vi)          such evidence as the
Administrative Agent may reasonably require to verify that each Loan Party is
duly organized or formed, validly existing, in good standing and qualified to
engage in business in each jurisdiction in which it is required to be qualified
to engage in business, except where failure to qualify could not reasonably be
expected to have a Material Adverse Effect, including certified copies of each
Loan Party’s Organization Documents, certificates of good standing and/or
qualification to engage in business and tax clearance certificates;


 


(vii)         a certificate signed by a
Responsible Officer of the Borrower (i) certifying (A) that the
conditions specified in Sections 4.02(a) and (b) have been
satisfied, and (B) that there has been no event or circumstance since the
date of the Audited Financial Statements which has or could be reasonably
expected to have a Material Adverse Effect, (ii) demonstrating that
immediately after the Credit Extensions contemplated to be made on the Closing
Date, there will be Available Credit and (iii) demonstrating that, on a
pro forma basis determined using actual 


 


54

















 


results through April 30,
2010 and reasonable assumptions for financial results for May and June, 2010,
the Borrower will be in compliance with the financial covenants set forth in Section 7.13
as of its quarter ending June 30, 2010;


 


(viii)        a Guaranty Agreement from
each Domestic Subsidiary and each Disregarded Foreign Subsidiary;


 


(ix)          a subordination agreement
from each Subnote Holder with respect to such Subnote Holder’s interest in the
Subordinated Debt;


 


(x)           documentation of the credit
facility with Banca di Credito Cooperativo di Cambiano;


 


(xi)          evidence that Lenders have a
first priority perfected security interest in all Collateral (subject only to
Liens expressly permitted to be prior pursuant to Section 7.01);


 


(xii)         evidence that Borrower has
assigned to Administrative Agent its right to payment under each contract
listed on Schedule 5.17 pursuant to the Federal Assignment of Claims Act;


 


(xiii)        each holder of Series A
Redeemable Preferred Stock has delivered a consent and acknowledgement
agreement with respect the provisions of Section 7.07 and agreement not to
seek redemption of Series A Redeemable Preferred Stock in any form except
conversion to Borrower’s common stock;


 


(xiv)        payoff letters with respect
to the Existing Indebtedness;


 


(xv)         control agreement with
respect to each of Borrower’s Deposit Accounts not maintained at Wells Fargo;


 


(xvi)        an opinion of counsel to
each Loan Party; and


 


(xvii)       such other documents as
Administrative Agent may require.


 


(b)           Standard lenders’ payable
endorsements with respect to the insurance policies or other instruments or
documents evidencing insurance coverage on the properties of the Borrower in
accordance with Section 6.07 and the Collateral Documents.


 


(c)           Any fees required to be paid
in accordance with the Fee Letter on or before the Closing Date shall have been
paid.


 


(d)           Unless waived by the
Administrative Agent, the Borrower shall have paid all Attorney Costs of the
Administrative Agent to the extent invoiced prior to or on the Closing Date,
plus such additional amounts of Attorney Costs as shall constitute
Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be
incurred by it 


 


55

















 


through the closing proceedings (provided
that following the Closing Date there shall be a final settling of accounts
between the Borrower and the Administrative Agent with respect to such
estimated Attorney Costs).


 


4.02        Conditions to All Credit
Extensions and Conversions and Continuations.  The obligation of each Lender to make any
Credit Extension or honor any Request for Credit Extension is subject to the
following conditions precedent:


 


(a)           The representations and
warranties of the Borrower contained in the Loan Documents, or which are
contained in any document furnished at any time under or in connection herewith
or therewith, shall (i) with respect to representations and warranties
that contain a materiality qualification, be true and correct, (ii) with
respect to representations and warranties that do not contain a materiality
qualification, be true and correct in all material respects, on and as of the
date of such Credit Extension, conversion or continuation, except to the extent
that such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct as of such earlier date, and
except that for purposes of this Section 4.02, the representations
and warranties contained in subsections (a) and (b) of Section 5.05
shall be deemed to refer to the most recent statements furnished pursuant to clauses (a)
and (b), respectively, of Section 6.01.


 


(b)           No Default or Event of
Default shall exist, or would result from such proposed Credit Extension,
conversion or continuation.


 


(c)           The Administrative Agent
and, if applicable, the L/C Issuer or the Swing Line Lender shall have received
a Request for Credit Extension in accordance with the requirements hereof.  Each Request for Credit Extension submitted
by the Borrower shall be deemed to be a representation and warranty that the
conditions specified in Sections 4.02(a) and (b) have been
satisfied on and as of the date of the applicable Credit Extension.


 


(d)           In the case of an L/C Credit
Extension to be denominated in an Alternative Currency, there shall not have
occurred any change in national or international financial, political or
economic conditions or currency exchange rates or exchange controls which in
the reasonable opinion of the Administrative Agent or the L/C Issuer would make
it impracticable for such Credit Extension to be denominated in the relevant
Alternative Currency.


 


ARTICLE V

REPRESENTATIONS AND WARRANTIES


 


The
Borrower represents and warrants to the Administrative Agent and the Lenders
that:


 


5.01        Existence, Qualification and
Power; Compliance with Laws.  The Borrower (a) is a corporation duly
organized or formed, validly existing and in good standing under the Laws of
the jurisdiction of its incorporation, (b) has all requisite power and 


 


56

















 


authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) own its assets and carry on
its business and (ii) execute, deliver, and perform its obligations under
the Loan Documents to which it is a party, (c) is duly qualified and is
licensed and in good standing under the Laws of each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business
requires such qualification or license, and (d) is in compliance with all
Laws, except in each case referred to in clause (b)(i), (c)
or (d), to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.


 


5.02        Authorization; No
Contravention.  The
execution, delivery and performance by the Borrower of each Loan Document to
which the Borrower is party has been duly authorized by all necessary corporate
or other organizational action and does not and will not (a) contravene
the terms of any of the Borrower’s Organization Documents, (b) conflict
with or result in any breach or contravention of, or the creation of any Lien
under, (i) any Contractual Obligation to which the Borrower is a party for
which Borrower may have a liability in excess of $5,000,000 or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which the Borrower or its property is subject or (c) violate any
material Law.


 


5.03        Governmental Authorization;
Other Consents.  No
approval, consent, exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority or any other Person is necessary or
required in connection with the execution, delivery or performance by, or
enforcement against, any Loan Party of any Loan Document, except to the extent
the same has been obtained or made.


 


5.04        Binding Effect.  Each Loan Document to which the Borrower is a
party, when delivered hereunder, will have been, duly executed and delivered by
the Borrower.  Each Loan Document to
which the Borrower is a party when so delivered will constitute, a legal, valid
and binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms.


 


5.05        Financial Statements; No
Material Adverse Effect.


 


(a)           The Audited Financial Statements
(i) were prepared in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein,
(ii) fairly present the financial condition of the Borrower and its
Subsidiaries as of the date thereof and their results of operations for the
period covered thereby in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein, and
(iii) show all material Indebtedness and other liabilities, direct or
contingent, of the Borrower and its consolidated Subsidiaries as of the date
thereof.


 


(b)           The unaudited quarterly
consolidated and consolidating balance sheet of the Borrower and its
Subsidiaries for the fiscal quarter ended March 31, 2010, and the related
consolidated and consolidating statement of income and the statement of cash
flows 


 


57

















 


for such fiscal quarter (i) were prepared in
accordance with GAAP (excluding footnotes) consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein, and
subject to ordinary, good faith year end audit adjustments, (ii) fairly
present the financial condition of the Borrower and its Subsidiaries as of the
date thereof and their results of operations for the period covered thereby and
(iii) show all material Indebtedness and other liabilities, direct or
contingent, of the Borrower and its Subsidiaries as of the date thereof,
including liabilities for Taxes, material commitments and material
Indebtedness.


 


(c)           From the date of the Audited
Financial Statements to and including the Closing Date, there has been no
Disposition or any Involuntary Disposition of any material part of the business
or property of the Borrower and the Subsidiaries, taken as a whole, and no
purchase or other acquisition by any of them of any business or property
(including any Equity Interests of any other Person) material in relation to
the consolidated financial condition of the Borrower and the Subsidiaries,
taken as a whole, in each case, which is not reflected in the foregoing
financial statements or in the notes thereto and has not otherwise been
disclosed in writing to the Lender on or prior to the Closing Date.


 


(d)           Since the date of the Audited
Financial Statements, there has been no event or circumstance that has had or
could reasonably be expected to have a Material Adverse Effect.


 


5.06        Litigation.  Except as specifically disclosed in Schedule 5.06,
there are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of the Borrower, threatened in writing, at law, in equity, in
arbitration or before any Governmental Authority, by or against the Borrower or
any Subsidiary or against any of their properties or revenues, and none of the
items disclosed in Schedule 5.06 could reasonably be expected to
have a Material Adverse Effect.


 


5.07        No Default.  Neither the Borrower nor any Subsidiary is in
default under or with respect to any Contractual Obligation that could be
reasonably expected to have a Material Adverse Effect.  No Default or Event of Default is continuing
or would result from the consummation of the transactions contemplated by any
Loan Document.


 


5.08        Ownership of Property; Liens.  Each of the Borrower and its Subsidiaries has
good record and marketable title in fee simple to, or valid leasehold interests
in, all real property necessary in the ordinary conduct of its business, except
for such defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.  As of the Closing Date, the property of the
Borrower and its Subsidiaries is subject to no Liens, other than Liens
permitted by Section 7.01.


 


5.09        Environmental Compliance.  Except as specifically disclosed in Schedule 5.09,
the Borrower is not in violation of any Environmental Law or the subject of any
claims alleging potential liability or responsibility for violation of any
Environmental 


 


58

















 


Law other than as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


5.10        Insurance.  The properties of the Borrower and its
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of the Borrower, in such amounts, with such
deductibles and covering such risks as are shown in the insurance coverage
certificates attached as Schedule 5.10 hereto, and there has been
no change in such coverage.


 


5.11        Taxes.  The Borrower and its Subsidiaries have filed
all Federal, state and other material tax returns and reports required to be
filed, and have paid all Federal, state and other material taxes, assessments,
fees and other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable, except (a) those that are
being contested in good faith by appropriate proceedings diligently conducted
and for which adequate reserves have been provided in accordance with GAAP and
(b) those that individually or in the aggregate do not exceed $500,000 at
any time.  There is no proposed tax
assessment asserted in writing against the Borrower or any Subsidiary that
could, if made, reasonably be expected to have a Material Adverse Effect.


 


5.12        ERISA Compliance.


 


(a)           Each Plan is in compliance
in all material respects with the applicable provisions of ERISA, the Code and
other Federal or state Laws, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect.  The prototype plan upon which each Plan that
is intended to qualify under Section 401(a) of the Code is based has
received a favorable determination letter from the IRS and each Plan has been
adopted without any material substantive changes to such prototype plan and, to
the best knowledge of the Borrower, nothing has occurred which would prevent,
or cause the loss of, such qualification.


 


(b)           There are no pending or, to
the best knowledge of the Borrower, threatened in writing claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan
that could reasonably be expected to have a Material Adverse Effect.  To the best knowledge of the Borrower, there
has been no “prohibited transaction” (as defined in Section 406 of ERISA)
or breach by any Plan fiduciary of any responsibilities, obligations or duties
under Title IV of ERISA with respect to any Plan that has resulted or could
reasonably be expected to result in a Material Adverse Effect.


 


5.13        Subsidiaries.  The Borrower has no Subsidiaries other than
those specifically disclosed in Part (a) of Schedule 5.13, and has
no equity investments in any other Person other than those specifically
disclosed in Part (b) of Schedule 5.13.  As of the Closing Date, the only Disregarded
Foreign Subsidiaries are Dutch Air-Crane B.V. and Erickson Air-Crane (Malaysia)
Sdn. Bhd.


 


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5.14        Margin Regulations;
Investment Company Act.


 


(a)           The Borrower is not engaged
and will not engage, principally or as one of its important activities, in the
business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of
purchasing or carrying margin stock.


 


(b)           None of the Borrower or any
Subsidiary is required to be registered as an “investment company” under the
Investment Company Act of 1940.


 


5.15        Intellectual Property; Etc.  The Borrower and its Subsidiaries own, or
possess the right to use, all Intellectual Property that is necessary for the
operation of their respective businesses (such Intellectual Property, “Material
IP”), without conflict with the rights of any other Person.  Set forth on Schedule 5.15 is a list
of all Material IP registered or pending registration with the United States
Copyright Office or the United States Patent and Trademark Office and owned by
each Loan Party.  Except for those
items of Intellectual Property disclosed in Schedule 5.15 and where
it could not reasonably be expected to have a Material Adverse Effect, all
registrations with and applications to Governmental Authorities in respect of
Material IP are valid and in full force and effect and are not subject to the
payment of any taxes or maintenance fees or the taking of any interest therein
held by any of the Loan Parties to maintain their validity or
effectiveness.  Except for any default
which could not reasonably be expected to have a Material Adverse Effect, none
of the Loan Parties is in default (or with the giving of notice or lapse of
time or both, would be in default) under any license to use Material IP; no
claim has been asserted and is pending by any Person challenging or questioning
the use of any Material IP or the validity or effectiveness of any Material IP,
nor does the Borrower or any Subsidiary know of any claim; and, to the
knowledge of the Borrower and its Subsidiaries, the use of Material IP by the
Borrower or any Subsidiary does not infringe on the rights of any Person.


 


5.16        Solvency.  On the Closing Date, the Loan Parties are
Solvent on an individual and on a consolidated basis and shall be Solvent on an
individual and on a consolidated basis during the term of this Agreement.  Each Loan Party has received consideration
that is the reasonably equivalent value of the obligations and liabilities that
it has incurred to Lenders.


 


5.17        Federal Contracts.  Schedule 5.17, as amended from time to
time in accordance with Section 6.18, contains a list of all of
Borrower’s material contracts with any agency or other Governmental Authority
of the United States of America and at no time will Borrower’s calculation of
the Asset Coverage Amount include receivables from any agency or other
Governmental Authority of the United States of America unless such receivable
arises with respect to a contract listed on Schedule 5.17.


 


5.18        Management Services
Agreements.  Neither
Borrower nor any Subsidiary is a party to any management services agreement or
similar agreement, except the Management Services Agreement dated as of
September 27, 2007 between EAC Acquisition Corp. (a corporation since
merged into Borrower) and ZM Equity Partners. L.P. (the “Existing 


 


60

















 


Services Agreement”).  Neither
Borrower nor any Subsidiary owes any fees or other compensation with respect to
any such agreement, but Borrower does have expense reimbursement obligations
under the Existing Services Agreement.


 


5.19        Disclosure.  To the best of Borrower’s knowledge, no
statement, information, report, certification, representation, or warranty when
made by any Loan Party or any Responsible Officer of any Loan Party in any Loan
Document or when furnished to the Administrative Agent or any Lender by or on
behalf of any Loan Party in connection with any Loan Document (including in any
and all disclosure materials furnished by or on behalf of any Loan Party)
contains any untrue statement of a material fact or omits any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading in any
material respect.


 


ARTICLE VI

AFFIRMATIVE COVENANTS


 


So
long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, the Borrower shall, and shall (except in the case of the
covenants set forth in Sections 6.01, 6.02, 6.03, 6.11,
6.16, and 6.17) cause each Subsidiary to:


 


6.01        Financial Statements.  Deliver to the Administrative Agent and each
Lender, in form and detail reasonably satisfactory to the Administrative Agent:


 


(a)           as soon as available, but in
any event within 120 days after the end of each fiscal year of the Borrower,
audited consolidated (and unaudited consolidating schedules) balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year, and the
related statements of income or operations, shareholders’ equity and cash flows
for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, and accompanied by a report and opinion
of an independent certified public accountant of nationally recognized standing
reasonably acceptable to the Administrative Agent, which report and opinion
shall be prepared in accordance with GAAP and shall not be subject to any
qualifications or exceptions as to the scope of the audit nor to any
qualifications and exceptions not reasonably acceptable to the Administrative
Agent, together with a copy of any management letter from such accountant to
the Borrower; and


 


(b)           as soon as available, but in
any event within 45 days after the end of each fiscal quarter of the Borrower,
unaudited quarterly consolidated and consolidating balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal quarter, and the
related consolidated and consolidating statement of income and the statement of
cash flows for such fiscal quarter and for the portion of the Borrower’s fiscal
year then ended, setting forth in each case in comparative form the figures for
the corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, and certified by the
Director of 


 


61

















 


Finance or the Chief
Financial Officer of the Borrower as fairly presenting the financial condition,
results of operations and cash flows of the Borrower and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes.


 


6.02        Certificates; Other
Information.  Deliver to
the Administrative Agent and each Lender, in form and substance reasonably
satisfactory to Administrative Agent:


 


(a)           concurrently with the
delivery of each financial statement referred to in Section 6.01, a
duly completed Compliance Certificate (in the form of Exhibit C
hereto) signed by Borrower’s Director of Finance or Chief Financial Officer;


 


(b)           as soon as available, but in
any event within 30 days after and as of the end of each month, a Monthly Asset
Coverage and Available Credit Certificate (in the form of Exhibit G
hereto) signed by Borrower’s Director of Finance or Chief Financial Officer
setting forth the calculation of the Asset Coverage Amount as of the end of
such month together with a copy of the accounts receivable aging report and
balance sheet on which such calculation is based;


 


(c)           as soon as available, but in
any event within five Business Days after the end of each month, a list of the
location as of the end of such month of each aircraft and a list of each domestic
location of a material amount of aircraft spare parts owned by the Borrower or
any Subsidiary;


 


(d)           promptly after the same are
publicly available, copies of each annual report, proxy or financial statement
or other report or communication sent to the equityholders of Borrower, and
copies of all annual, regular, periodic and special reports and registration
statements that the Borrower files or is required to file with the SEC under
Section 13 or 15(d) of the Securities Exchange Act of 1934, or any comparable
agency under comparable Laws and not otherwise required to be delivered to the
Administrative Agent pursuant hereto;


 


(e)           promptly, and in any event
within five Business Days after Borrower’s receipt thereof, copies of each
notice or other correspondence received from (i) the SEC (or comparable
agency in any applicable non-U.S. jurisdiction) concerning any investigation or
possible investigation or other inquiry by such agency regarding financial or
other operational results of Borrower or any Subsidiary and (ii) the
Federal Aviation Administration or other comparable Governmental Authority
(wherever located) with respect to the Borrower’s or any Subsidiary’s aircraft,
DPO Authorizations (as defined in the Security and Pledge Agreement), aviation
services or any other matter the could reasonably be expected to have a
Material Adverse Effect;


 


(f)            promptly, such additional
information regarding the business, financial or corporate affairs of the
Borrower or any Subsidiary, or compliance with the terms 


 


62

















 


of the Loan Documents, as
the Administrative Agent, at the request of any Lender, may from time to time
reasonably request;


 


(g)           within 60 days after the
beginning of each fiscal year end, Borrower’s annual financial forecast for
such year, including pro forma balance sheet, income statement and statement of
cash flows (it being understood that forecasts and projections are subject to
many contingencies and risk factors and actual results may vary materially from
the forecasts and the projections); and


 


(h)           within 120 days after the
Closing Date an appraisal (which need not include a field inspection) updating
the Aircraft Appraisal Report.


 


6.03        Notices.  Promptly notify the Administrative Agent:


 


(a)           of the occurrence of any
Default or Event of Default;


 


(b)           of any dispute, litigation,
investigation, or proceeding (or any material development in the same) or
suspension under a Contractual Obligation between the Borrower or any
Subsidiary and any Governmental Authority, in each case which could reasonably
be expected to have a Material Adverse Effect;


 


(c)           of any litigation,
investigation or proceeding affecting any Loan Party in which the amount
involved exceeds $2,000,000, or in which injunctive relief or similar relief is
sought, which relief, if granted, could reasonably be expected to have a
Material Adverse Effect;


 


(d)           of any event or circumstance
that adversely affects the then current registration of or insurance coverage
on any aircraft owned by the Borrower or any subsidiary or the Lien or lien
rights of the Administrative Agent with respect to any such aircraft;


 


(e)           of the occurrence of any
ERISA Event;


 


(f)            upon Borrower’s subsequent
knowledge that any disclosure by any Loan Party fails to comply with Section 5.19;
and


 


(g)           of any material change in
accounting policies or financial reporting practices by the Borrower or any
Subsidiary.


 


Each
notice pursuant to this Section 6.03 shall be accompanied by a
statement of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and describing the action the Borrower has taken
and proposes to take with respect thereto. 
Each notice pursuant to subsection (a) above shall describe
with particularity any and all provisions of the Loan Documents that have been
breached.


 


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6.04        Payment of Obligations.  Pay and discharge as the same shall become
due and payable (or within any applicable grace period), all its material
obligations and liabilities, including (a) all tax liabilities,
assessments and governmental charges or levies upon it or its properties or
assets, unless the same (i) are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Borrower or such Subsidiary or
(ii) do not exceed, individually or in the aggregate, $2,000,000 at any
time, (b) all lawful claims which, if unpaid, would by Law become a Lien
upon its property and (c) all material Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any
instrument or agreement evidencing such Indebtedness.


 


6.05        Preservation of Existence,
Etc.  (a) Preserve, renew and
maintain in full force and effect its legal existence and good standing under
the Laws of the jurisdiction of its organization except in a transaction
permitted by Section 7.04 or 7.05; (b) take all
reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) preserve or renew all of its registered
Intellectual Property, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.


 


6.06        Maintenance of Properties.  (a) Maintain, preserve and protect all
of its material properties and equipment necessary in the operation of its business
in good working order and condition, ordinary wear and tear excepted;
(b) make all necessary repairs thereto and renewals and replacements
thereof, except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect; (c) use the standard of care typical in
the industry in the operation and maintenance of its facilities; and
(d) maintain and operate its aircraft and aircraft engines in accordance
with the requirements of the Aircraft Security Agreement and applicable Law.


 


6.07        Maintenance of Insurance.  In addition to insurance requirements set
forth in the Collateral Documents, maintain with financially sound and
reputable insurance companies not Affiliates of the Borrower and having an A.M.
Best’s Insurance Guide Rating of at least A-, insurance with respect to its
properties and business against loss or damage of the kinds customarily insured
against by Persons engaged in the same or similar business, of such types and
in such amounts as are customarily carried under similar circumstances by such
other Persons; including workers’ compensation insurance, public liability
insurance and property and casualty insurance. 
All casualty insurance maintained by the Loan Parties in respect of the
Collateral shall name the Administrative Agent as loss payee and shall provide
that the amount of the coverage shall not be reduced without 30 days prior
written notice to the Administrative Agent, and all liability insurance shall
name the Administrative Agent as additional insured for the benefit of the
Lenders, as their interests may appear. 
Upon written request of the Administrative Agent, the Borrower shall
furnish the Administrative Agent information in reasonable detail setting forth
the nature and extent of all insurance maintained by the Borrower and its
Subsidiaries in accordance with this Section 6.07 or any Collateral
Documents.


 


64

















 


6.08        Compliance with Laws.  Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, write, injunction or decree is
being contested in good faith by appropriate proceedings diligently conducted
or (b) the failure to comply therewith could not reasonably be expected to
have a Material Adverse Effect.


 


6.09        Books and Records.  (a) Maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Borrower or such Subsidiary, as the
case may be; and (b) maintain such books of record and account in material
conformity with all applicable requirements of any Governmental Authority
having regulatory jurisdiction over the Borrower or such Subsidiary, as the
case may be.


 


6.10        Inspection Rights.  Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect
any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its directors, officers, and independent
public accountants all at the expense of the Administrative Agent and such
Lender at reasonable times during normal business hours up to two times per
year, upon reasonable notice to Borrower; provided, however, that
when an Event of Default exists the Administrative Agent or any Lender (or any
of their respective representatives or independent contractors) may do any of
the foregoing, without limitation, at the reasonable expense of the Borrower.


 


6.11        Compliance with ERISA.  Do, and cause each of its ERISA Affiliates to
do, each of the following: 
(a) maintain each Plan in compliance in all material respects with
the applicable provisions of ERISA, the Code and other Federal or state Laws;
(b) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Code, except, with
respect to each covenant listed above, in such instances in which the failure
to do so could not reasonably be expected to have a Material Adverse Effect.


 


6.12        Subsidiaries; Additional Guarantors;
Pledge of Equity Interests.


 


(a)           New Subsidiaries.  Promptly notify the Administrative Agent
after any Person becomes a Subsidiary (each, a “New Subsidiary”), and in
such notice set forth (i) the date such Person became a New Subsidiary and
(ii) all of the data required to be set forth in Schedule 5.13
with respect to all Subsidiaries and such notice shall be deemed to supplement Schedule 5.13.


 


(b)           Additional Guaranty Agreements.  Promptly cause each New Subsidiary (other
than a Transitional Subsidiary) that is a Domestic Subsidiary or a Disregarded
Foreign Subsidiary to execute and deliver a Guaranty Agreement to


 


65

















 


Administrative Agent, and if such New Subsidiary fails promptly to execute and deliver a
Guaranty Agreement to Administrative Agent, Borrower shall cease providing any
support, financial or otherwise, to such New Subsidiary.


 


(c)           Pledge of Equity Interests.  Promptly (and in any event within 30 days)
after any Person becomes a New Subsidiary, the Borrower shall or shall cause
each Guarantor that owns all or any portion of the Equity Interests of such New
Subsidiary (except, with the consent of Administrative Agent in its reasonable
discretion, a Transitional Subsidiary) to (i) grant a Lien in favor of the
Administrative Agent for the ratable benefit of the Lenders, L/C Issuer and
Administrative Agent on (1) the Borrower’s and Guarantor’s direct or
indirect interest in the Equity Interests of each such New Subsidiary that is a
Domestic Subsidiary, (2) the Borrower’s and Guarantor’s direct or indirect
interest in the Equity Interests of each such New Subsidiary that is a
Disregarded Foreign Subsidiary whose Equity Interests is not owned in any part
by a Foreign Subsidiary (other than a Disregarded Foreign Subsidiary),
(3) subject to the last sentence of this subsection (c), the Borrower’s
and Guarantor’s direct or indirect interest in the Equity Interests of each
such New Subsidiary that is a first tier (after ignoring all Disregarded
Foreign Subsidiaries which may be a direct or indirect stockholder) Foreign
Subsidiary, and (4) the Borrower’s and Guarantor’s direct or indirect
interest in the remaining Equity Interests of any New Subsidiary that was a
Foreign Subsidiary other than a Disregarded Foreign Subsidiary at the time it
became a New Subsidiary but that later became a Disregarded Foreign Subsidiary
(in which event the 30 day period described above shall begin to run upon the
date such Person became a Domestic Subsidiary) to secure the Obligations by
executing and delivering to the Administrative Agent a supplement to such
Collateral Documents and other document as the Administrative Agent shall deem
appropriate for such purpose, (ii) deliver to the Administrative Agent all
certificates, instruments or other writings representing or evidencing the
Equity Interests described in clause (i) together with duly executed
instruments of transfer or assignment reasonably satisfactory to the
Administrative Agent, (iii) take such action at each such Person’s own
expense as may be reasonably necessary or otherwise requested by the
Administrative Agent to ensure that the Lien described in clause (i) is a
perfected first priority Lien, and (iv) deliver to the Administrative
Agent upon request in writing favorable opinions of counsel to each such Person
(which shall cover, among other things, the legality, validity, binding effect
and enforceability of the documentation referred to in clauses (i) and
(iii)), all in form, content and scope reasonably satisfactory to the
Administrative Agent. The foregoing notwithstanding, the Administrative Agent’s
Lien in Equity Interests of a Foreign Subsidiary that is not a Disregarded
Foreign Subsidiary shall not cover more than 65% of the voting Equity Interests
of such Foreign Subsidiary.


 


6.13        Intellectual Property.  Take all necessary actions, including in any
proceeding before the United States Patent and Trademark Office, the Canadian
Intellectual Property Office — Trademarks or the United States Copyright Office
to maintain each item of Intellectual Property of the Borrower and its
Subsidiaries material to the business of the Borrower and its Subsidiaries
taken as a whole, including payment of maintenance fees, filing of applications
for renewal, affidavits of use, affidavits of incontestability and opposition,
interference and cancellation proceedings.


 


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6.14        Use of Proceeds.  Use the proceeds of Credit Extensions
(a) to refinance the Existing Indebtedness (other than the $8,500,000
portion thereof that is Subordinated Debt), (b) for transaction costs
(including appraisal fees) related to the negotiation, execution and delivery
of the Loan Documents, and (c) for working capital and other general
corporate purposes, in each case not in contravention of any Law or of any Loan
Document.


 


6.15        Further Assurances.


 


(a)           Ensure that all written
information, exhibits and reports when furnished to the Administrative Agent or
the Lenders do not and will not contain any untrue statement of a material fact
and do not and will not, when furnished, omit to state any material fact or any
fact necessary to make the statements contained therein not misleading in light
of the circumstances in which made, and will promptly disclose to the
Administrative Agent and the Lenders and correct any defect or error that may
be discovered therein or in any Loan Document or in the execution,
acknowledgement or recordation thereof.


 


(b)           Promptly upon request by the
Administrative Agent or the Required Lenders, do, execute, acknowledge,
authorize, deliver, record, re-record, file, re-file, register and re-register,
any and all such further acts, deeds, conveyances, security agreements,
mortgages, assignments, estoppel certificates, financing statements and
continuations thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other instruments the Administrative
Agent or such Lenders, as the case may be, may reasonably require from time to
time in order (i) to subject to the Liens created by any of the Collateral
Documents any of the properties, rights or interests covered by any of the
Collateral Documents, (ii) to perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents and the Liens
intended to be created thereby, and (iii) to assure, convey, grant,
assign, transfer, preserve, protect and confirm to the Administrative Agent and
to the Lenders the rights granted or now or hereafter intended to be granted to
the Lenders under any Loan Document.


 


6.16        Citizenship.  Borrower is as of the date hereof, and at all
times while any Loan Document is in effect shall be, or shall cause aircraft
operated under United States registration to be registered in the name of, a “citizen
of the United States” within the meaning of the U.S. Transportation Code, as
amended from time to time and recodified at Section 40102(a)(15) of Title
49 et  seq.  Borrower shall
not permit any act to be done, or omission to occur, which might injuriously
affect the ability of the Borrower to retain its qualification as a citizen of
the United States (provided, however, that in no event shall such
failure be deemed an Event of Default hereunder if such failure occurs as the
result of acts or omissions of Administrative Agent, Lender of L/C Issuer or
Persons acting under their direction or control).


 


6.17        Interest Rate Protection.  Not later than December 31, 2010,
Borrower shall have entered into and shall thereafter maintain in effect Hedge
Contracts (with one or more financial institutions as counterparties) with
respect to the Term Loans, providing protection against fluctuations in
interest rates, in the aggregate notional principal amount equal to not 


 


67

















 


less than one-third of the principal amount of the Term Loans
outstanding on the latest date any such Hedge Contract is entered into, each
such Hedge Contract (including the counterparties thereto) to be satisfactory
to Administrative Agent and to have an initial term at execution of not less
than the period from the entry into each such Swap Contract until the Maturity
Date.


 


6.18        Federal Contracts.  Promptly after entering into a material
contract with any agency or other Governmental Authority of the United States
of America, Borrower shall (i) deliver to Administrative Agent a revised
Schedule 5.17 adding such contract and (ii) upon Administrative Agent’s
request, provide Administrative Agent with the documents reasonably necessary
to assign Borrower’s right to payment under such contract to Administrative
Agent in accordance with the Federal Assignment of Claims Act.  Borrower shall take all commercially
reasonable actions requested by Administrative Agent to assist Administrative
Agent in obtaining acknowledgement from the United States of America of any
assignment by Borrower to Administrative Agent of Borrower’s rights to payment
under the Federal Assignment of Claims Act and until such acknowledgement is
received, the Administrative Agent, in its discretion, may require that
receivables arising under any such contract not be included in the calculation
of the Asset Coverage Amount.


 


6.19        Notice of Aircraft Operation.  Notify Administrative Agent at least two
Business Days in advance of the Borrower’s operation of any aircraft in a
jurisdiction other than the United States, Canada, Australia, Malaysia or
Greece and together with such notice provide either (a) a current
calculation of the Asset Coverage Amount excluding such aircraft or (b) an
opinion of counsel (in form and substance and from counsel satisfactory to
Administrative Agent) that Administrative Agent has and will continue to have a
first priority Lien for the benefit of the Lenders in such aircraft while such
aircraft is operated in such jurisdiction and evidence that the required
insurance with respect to such aircraft remains in full force and effect.


 


ARTICLE VII

NEGATIVE COVENANTS


 


So
long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, the Borrower shall not, nor shall it permit any Subsidiary
to, directly or indirectly:


 


7.01        Liens.  Except for Liens securing Existing
Indebtedness, all of which are to be released contemporaneously with the
initial Credit Extension, create, incur, assume or suffer to exist, any Lien on
any of its property, assets or revenues, whether now owned or hereafter
acquired, other than the following (collectively, “Permitted Liens”):


 


(a)           Liens pursuant to any Loan
Document;


 


68

















 


(b)           existing Liens listed on Schedule 7.01
and any renewals or extensions thereof, provided that the property
covered thereby is not changed;


 


(c) Liens for Taxes
or other governmental charges (other than Liens imposed under ERISA) not yet
due or which are being contested in good faith and by appropriate proceedings
diligently conducted, if adequate reserves with respect thereto are maintained
on the books of the applicable Person in accordance with GAAP;


(d)           Liens arising from operation
of law, statutory liens, or carriers’, warehousemen’s, mechanics’, materialmen’s,
repairmen’s or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 30 days or which are being
contested in good faith and by appropriate proceedings diligently conducted if
adequate reserves in accordance with GAAP with respect thereto are maintained
on the books of the applicable Person;


 


(e)           pledges or deposits in the
ordinary course of business in connection with workers’ compensation,
unemployment insurance and other social security legislation, other than Liens
imposed under ERISA;


 


(f)            deposits to secure the
performance of bids, trade contracts and leases (other than Indebtedness),
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;


 


(g)           title exceptions accepted by
Administrative Agent in the Deed of Trust, easements, rights-of-way,
restrictions and other similar encumbrances affecting real property which, in
the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the applicable Person;


 


(h)           Liens securing judgments for
the payment of money (or appeal or other surety bonds relating to such
judgments) not constituting an Event of Default under Section 8.01(h);


 


(i)            Liens securing Indebtedness
permitted under Section 7.03(e); provided that (i) such
Liens do not at any time encumber any property other than the property financed
by such Indebtedness and (ii) such Liens attach to such property
concurrently with or within 90 days after the acquisition thereof;


 


(j)            Liens exclusively on assets
of Foreign Subsidiaries securing Indebtedness permitted under Section 7.03(q);


 


(k)           normal and customary rights
of setoff upon deposits of cash in favor of banks or other depository
institutions;


 


(l)            with respect to a Permitted
Acquisition, Liens existing on property at the time of its acquisition or
existing on the property of the Person at the time such Person’s 


 


69

















 


Equity Interests are acquired; provided that
(i) such Liens were not created in contemplation of such acquisition,
(ii) such Liens do not extend to or cover any other assets or property
(other than proceeds or products thereof), (iii) such Liens cover only
specific property and none is a “blanket” Lien on any category or type of
property and (iv) the total obligations secured by such Liens does not
exceed 10% of the book value of the assets acquired or the assets of the Person
whose Equity Interests are acquired;


 


(m)          Liens in favor of customs
and revenue authorities arising as a matter of law to secure payment of customs
duties in connection with the importation of goods;


 


(n)           purported Liens evidenced by
the filing of precautionary UCC financing statements relating solely to
operating leases of personal property or consignment of goods entered into in
the ordinary course of business;


 


(o)           Liens solely on any cash earnest
money deposits made by Borrower or any Subsidiary in connection with any letter
of intent or purchase agreement permitted hereunder;


 


(p)           licenses of patents,
trademarks and other intellectual property rights granted by Borrower or any
Subsidiary in the ordinary course of business and not interfering in any
material respect with the ordinary conduct of the business of Borrower or such
Subsidiary; and


 


(q)           any Lien constituting a
replacement, extension, or renewal of any Lien of the type described in clauses (a) through
(p) above.


 


7.02        Investments.  Make any Investments, except:


 


(a)           Investments (other than
those permitted by subsections (b) through (n)) that
are existing on the date hereof and are listed on Schedule 5.13;


 


(b)           Investments held by the
Borrower or such Subsidiary in the form of Cash, Cash Equivalents or other
short-term marketable securities in accordance with the Borrower’s investment
policy as from time to time in effect;


 


(c)           advances to officers,
directors and employees of the Borrower and Subsidiaries in an aggregate amount
not to exceed $500,000 at any time outstanding, for travel, entertainment,
relocation and analogous ordinary business purposes;


 


(d)           Investments of the Borrower
in any Guarantor and Investments of any Guarantor in any Loan Party;


 


(e)           Investments consisting of
advances to Non-Guarantor Subsidiaries evidenced by or in the nature of
promissory notes, open accounts or capital contributions excluding trade
accounts for services arising in the ordinary course of business, provided
that (i) the aggregate amount of such Investments does not exceed 


 


70

















 


$5,000,000; provided that, at the option of
the Administrative Agent, each promissory note made by any Non-Guarantor Subsidiary
to whom advances of $500,000 or more have been made shall have been pledged and
delivered to the Administrative Agent for the ratable benefit of the Lenders
and Administrative Agent pursuant to such documents as the Administrative Agent
shall deem appropriate for such purpose in its reasonable discretion;


 


(f)            Investments consisting of
extensions of credit in the nature of accounts receivable or notes receivable
arising from the sale or lease of goods or services in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors to the extent reasonably
necessary in order to prevent or limit loss;


 


(g)           Guaranty Obligations
permitted by Section 7.03;


 


(h)           Investments permitted by Section 7.04
and Section 7.05;


 


(i)            Permitted Acquisitions;


 


(j)            Capital Expenditures
permitted under Section 7.14;


 


(k)           Hedge Contracts to the
extent permitted hereunder;


 


(l)            Investments (other than
Permitted Acquisitions) by a Loan Party or any Subsidiary thereof in (i) a
Subsidiary that is a Loan Party immediately prior to or contemporaneously with
the time of such Investment and (ii) a joint venture or a Subsidiary that
is not a Loan Party; provided that the aggregate amount of Investments by a
Loan Party pursuant to this clause (ii) shall not exceed, at any one
time outstanding, an amount equal to $5,000,000 less the amount of outstanding
Investments permitted under Section 7.02(e);


 


(m)          deposits, prepayments and
other credits to suppliers made in the ordinary course of business consistent
with the past practices of the Borrower and its Subsidiaries; and


 


(n)           Investments received in lieu
of cash in connection with asset dispositions to the extent permitted under Section 7.05.


 


7.03        Indebtedness.  Except for Existing Indebtedness, all of
which is to be repaid contemporaneously with the initial Credit Extension,
create, incur, assume or suffer to exist any Indebtedness, other than the
following:


 


(a)           Indebtedness under the Loan
Documents;


 


(b)           Indebtedness outstanding on
the date hereof and listed on Schedule 7.03 and any refinancings,
refundings, renewals or extensions thereof; provided that 


 


71

















 


the amount of such Indebtedness is not increased at the
time of such refinancing, refunding, renewal or extension except by an amount
equal to a reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such refinancing and by an
amount equal to any existing commitments unutilized thereunder;


 


(c)           Guaranty Obligations of any
Loan Party in respect of Indebtedness otherwise permitted hereunder;


 


(d)           obligations (contingent or
otherwise) of the Borrower or any Subsidiary existing or arising under any
Hedge Contract or currency risk management financial instrument, provided
that (i) such obligations are (or were) entered into by such Person in the
ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets, property, or
cash flows held or reasonably anticipated by such Person, or changes in the
value of securities issued by such Person and not for purposes of speculation
or taking a “market view;” and (ii) such Hedge Contract or currency risk
management financial instrument does not contain any provision exonerating the
non-defaulting party from its obligation to make payments on outstanding
transactions to the defaulting party;


 


(e)           purchase money Indebtedness
(including obligations in respect of capital leases and Synthetic Lease
Obligations) hereafter incurred to finance the purchase of fixed or capital
assets (but in no event in respect of Permitted Fleet Expenditures or otherwise
related to the acquisition of aircraft); provided that (i) the aggregate
outstanding principal amount of all such Indebtedness shall not exceed
$7,500,000 at any time outstanding and (ii) such Indebtedness when
incurred shall not exceed the purchase price of the asset(s) financed;


 


(f)            Guaranty Obligations of the
Borrower in respect of Indebtedness otherwise permitted hereunder of any
Non-Guarantor Subsidiary in an aggregate principal amount not to exceed
$5,000,000 at any time outstanding;


 


(g)           Indebtedness subordinated in
writing to the Obligations on terms acceptable to Required Lenders;


 


(h)           loans or advances among the
Loan Parties, (i) loans or advances made by a Subsidiary (or a Person that
would become a Subsidiary after giving effect to such loan or advance) to a
Loan Party, (ii) loans or advances made by any Loan Party to a Subsidiary
that is not a Loan Party so long as such loan or advance is permitted by Section 7.02;


 


(i)            Indebtedness secured by
Liens permitted by Section 7.01(l) and Indebtedness of a Person
existing at the time such Person becomes a Subsidiary as a result of a
Permitted Acquisition, provided that in each instance (A) such
Indebtedness was included in the Pro Forma Basis required by clause (iv) of
the definition of “Permitted Acquisition;” and (B) such Indebtedness was
not created in contemplation of such acquisition;


 


72

















 


(j)            earn outs, indemnities and
purchase price adjustments pursuant to Permitted Acquisitions;


 


(k)           Indebtedness pursuant to any
guaranties, performance, bid, tender, appeal surety, statutory or similar
obligations incurred in the ordinary course of business;


 


(l) Indebtedness in
respect of overdraft protections and otherwise in connection with deposit
accounts, in each case in the ordinary course of business;


(m)          guaranties in the ordinary
course of business of the obligations of suppliers, landlords, customers and
licensees of the Borrower and its Subsidiaries;


 


(n)           endorsements for collection,
deposit or negotiation and warranties of products or services, in each case incurred
in the ordinary course of business;


 


(o)           Indebtedness in respect of
employee benefit plans and programs, whether to current or retired employees,
including accrued expenses, pension liabilities, deferred compensation, bonus
plans, option plans, medical, dental and other health plans and other similar
plans providing benefits to employees entered into in the ordinary course of
business (but not including Indebtedness under employment agreements);


 


(p)           Indebtedness arising from
judgments, orders or other awards to the extent not constituting an Event of
Default;


 


(q)           Indebtedness under the
Cambiano Financing (including any refinancing thereof) and any additional
Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to
exceed the equivalent of $5,000,000 at any time outstanding; and


 


(r)            in addition to the foregoing, Indebtedness
in an aggregate principal amount not to exceed $5,000,000 at any time
outstanding.


 


7.04        Fundamental Changes.  Merge, dissolve, liquidate, consolidate with or
into another Person, or Dispose of (whether in one transaction or in a series
of transactions) all or substantially all of its assets to or in favor of any
Person, except that, so long as no Default or Event of Default exists or would
result therefrom:


 


(a)           any Subsidiary may merge
with (i) the Borrower, provided that the Borrower shall be the
continuing or surviving Person, or (ii) any one or more other
Subsidiaries, provided that when any Guarantor or wholly-owned
Subsidiary is merging with another Subsidiary (that is not a Guarantor) , the
surviving Person shall be or become a Guarantor or wholly-owned Subsidiary as a
result of such merger;


 


(b)           any Non-Guarantor Subsidiary
may dissolve or liquidate; provided that the board of directors or
senior management of the Borrower has determined in good faith that the
dissolution or liquidation will not be detrimental to the business of the
Borrower and its Subsidiaries taken as a whole;


 


73

















 


(c)           the dissolution, liquidation
or winding up of any Transitional Subsidiary; provided that any assets of such
Transitional Subsidiary shall be transferred to a Loan Party or Subsidiary
thereof in connection therewith;


 


(d)           Investments permitted under Section 7.02;


 


(e)           Dispositions permitted under
Section 7.05;


 


(f)            the Borrower or any
Subsidiary may merge with any Person as part of a Permitted Acquisition; and


 


(g)           any Subsidiary may Dispose
of all or substantially all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or to another Subsidiary; provided that if
the transferor in such a transaction is a Guarantor, then the transferee must
be a Loan Party.


 


7.05        Dispositions.  Make any Disposition or enter into any
agreement to make any Disposition, except:


 


(a)           Dispositions of obsolete,
worn out property or other property no longer used or useful in the business of
the Loan Parties, whether now owned or hereafter acquired, in the ordinary
course of business;


 


(b)           Dispositions of inventory
and other property (other than equipment or real property) in the ordinary
course of business, including the sale or lease of manufactured and
remanufactured Aircranes;


 


(c)           Dispositions of equipment or
real property to the extent that (i) such property is exchanged for credit
against the purchase price of replacement property or other permitted Capital
Expenditures, (ii) the proceeds of such Disposition are reasonably
promptly applied to the purchase price of such replacement property or such
Capital Expenditures or(iii) the board of directors or senior management
of the Borrower or such Subsidiary has determined in good faith that the
failure to replace such property will not be detrimental to the business of the
Borrower or such Subsidiary;


 


(d)           Dispositions of property by
any Subsidiary to the Borrower or to a wholly-owned Subsidiary; provided
that if the transferor of such property is a Guarantor, the transferee thereof
must be a Loan Party;


 


(e)           Dispositions permitted by Section 7.04;


 


(f)            licenses of Intellectual
Property (both exclusive and non-exclusive) in the ordinary course of business
and substantially consistent with past practice;


 


(g)           Investments permitted under Section 7.02;


 


74

















 


(h)           the sale, transfer or
disposition of accounts in connection with the collection or compromise thereof
in the ordinary course of business;


 


(i)            Equity Interests issued by
the Borrower;


 


(j)            Equity Interests issued by
any Subsidiary in connection with a Permitted Acquisition;


 


(k)           any sale-leaseback
arrangements permitted hereby;


 


(l)            rights of way, easements,
and licenses necessary for the conduct of Borrower’s or any of its Subsidiaries’
businesses; and


 


(m)          in addition to the
foregoing, Dispositions by the Borrower and its Subsidiaries not otherwise
permitted under this Section 7.05; provided that (i) at
the time of such Disposition, no Default or Event of Default exists or would
result from such Disposition and (ii) the aggregate book value of all
property Disposed of in reliance on this Section 7.05(m) in any
fiscal year shall not exceed $2,000,000; provided, however, that
any Disposition pursuant to clauses (a) through (n) shall
be for fair consideration.


 


7.06        Lease Obligations.  Create or suffer to exist any obligations for
the payment of rent for any property, except:


 


(a)           leases in existence on the
date hereof and listed on Schedule 7.06, and any renewal, extension
or refinancing thereof;


 


(b)           leases in connection with
any sale-leaseback arrangement permitted hereby;


 


(c)           capital leases and Synthetic
Lease Obligations to the extent permitted by Section 7.03; and


 


(d)           operating leases (other than
those constituting Synthetic Lease Obligations) entered into or assumed by the
Borrower or any Subsidiary after the date hereof in the ordinary course of
business (for purposes hereof, all leases of real estate of the Borrower or any
Subsidiary shall be deemed operating leases), but in any case the amount of all
minimum future non-cancelable operating lease payments shall not exceed $8,000,000.


 


7.07        Restricted Payments.  Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that:


 


(a)           each Non-Guarantor
Subsidiary may make Restricted Payments, provided, that in the case of a
Restricted Payment by a non-wholly-owned Subsidiary, 


 


75

















 


each Restricted Payment is
made on a pro rata basis based on their relative ownership interests;


 


(b)           each Guarantor may make
Restricted Payments to Loan Parties;


 


(c)           the Borrower and each
Subsidiary may declare and make dividend payments or other distributions
payable solely in the common stock of such Person;


(d)           the Borrower and each
Subsidiary may purchase, redeem or otherwise acquire shares of its Equity
Interests or warrants or options to acquire any such shares with the proceeds
received from the substantially concurrent issue of new shares of its common
stock or other common Equity Interests; and


 


(e)           the Borrower and any
Subsidiary may accumulate and compound (but not declare or pay) a preferential
dividend requirement, liquidation or similar preference on any Equity Interest
as compared to other Equity Interests, including, without limitation, the
rights with respect to the Series A Redeemable Preferred Stock.


 


7.08        ERISA.  At any time engage in a transaction for the
principal purpose of evading or avoiding any liability under Title IV of ERISA
as provided in Section 4069 or 4212(c) of ERISA, or permit any Plan
to (a) engage in any non-exempt “prohibited transaction” (as defined in
Section 4975(c) of the Code); (b) fail to comply with ERISA or
any other applicable federal or state Laws; or (c) incur any material “accumulated
funding deficiency” (as defined in Section 302 of ERISA for plan years
commencing prior to 2008, or the equivalent term under Section 302 of
ERISA for plan years commencing after 2007), which, with respect to each event
listed above, could reasonably be expected to have a Material Adverse Effect.


 


7.09        Change in Nature of Business.  Cease to conduct any line of business that
constitutes a material portion of the business of the Borrower and the
Subsidiaries on the date hereof or engage in any material line of business
other than (i) aircraft based aviation services for incident/emergency
response, firefighting, construction, timber harvesting, hydroseeding, training
activities and other services substantially similar to those provided by the
Borrower and the Subsidiaries on the date hereof, (ii) the manufacture,
conversion, overhaul, design, engineering, renting, sale and accessorizing of
aircraft and other activities substantially similar to those conducted by
Borrower and the Subsidiaries on the date hereof and (iii) any business
substantially related or incidental to any of the foregoing.


 


7.10        Transactions with Affiliates.  Enter into any transaction of any kind with
any Affiliate of the Borrower, whether or not in the ordinary course of
business, other than on fair and reasonable terms substantially as favorable to
the Borrower or such Subsidiary as would be obtainable by the Borrower or such
Subsidiary at the time in a comparable arm’s length transaction with a Person
other than an Affiliate, provided that (a) the foregoing
restriction shall not apply to transactions between or among the Loan Parties;
(b) the Borrower may 


 


76

















 


make Investments consisting of advances and capital
contributions to Non-Guarantor Subsidiaries permitted under Section 7.02
at rates of interest that the Borrower deems reasonable under the
circumstances; (c) reasonable and customary fees may be paid to members of
the board of directors (or similar governing body) of Borrower or any
Subsidiary; (d) compensation, benefits or indemnification arrangements for
officers and other employees of the Borrower or any Subsidiary may be entered
into in the ordinary course of business; (e) Restricted Payments permitted
hereunder may be made; (f) transactions among Subsidiaries that are not
Loan Parties may be entered into; (i) the transactions contemplated hereby
may be effected and (g) the Subordinated Debt may be prepaid, if such
prepayment is permitted under the subordination agreement with respect thereto
signed by Administrative Agent and if such prepayment is made with proceeds
received from the substantially concurrent issue of new shares of Borrower’s
common stock or other common Equity Interests.


 


7.11        Burdensome Agreements.  Enter into, or permit to exist, any
Contractual Obligation that (a) encumbers or restricts on the ability of
any such Person to (i) make Restricted Payments to any Loan Party, (ii) pay
any Indebtedness or other obligation owed to any Loan Party, (iii) make
loans or advances to any Loan Party, (iv) transfer any of its property to
any Loan Party, (v) pledge its property pursuant to the Loan Documents or
any renewals, refinancings, exchanges, refundings or extension thereof or (vi) act
as a Loan Party pursuant to the Loan Documents or any renewals, refinancings,
exchanges, refundings or extension thereof, except (in respect of any of the
matters referred to in clauses (i)-(v) above) for (1) the Loan
Documents, (2) any document or instrument governing Indebtedness incurred
pursuant to Section 7.03(e), provided that any such
restriction contained therein relates only to the asset or assets constructed
or acquired in connection therewith, (3) any Permitted Lien or any
document or instrument governing any Permitted Lien, provided that any
such restriction contained therein relates only to the asset or assets subject
to such Permitted Lien or (4) customary restrictions and conditions
contained in any agreement relating to the sale of any property permitted under
Section 7.05 pending the consummation of such sale, or (b) requires
the grant of any security for any obligation if such property is given as
security for the Obligations.


 


7.12        Margin Regulations.  Use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase or carry margin stock (within the meaning of Regulation
U of the FRB) or to extend credit to others for the purpose of purchasing
or carrying margin stock or to refund indebtedness originally incurred for such
purpose, in each case in violation of, or for a purpose which violates, or
would be inconsistent with, Regulation T, U or X of the
FRB.


 


7.13        Financial Covenants.


 


(a)           Minimum Tangible Net Worth.  As of the end of each fiscal quarter set
forth below, Tangible Net Worth shall not be less than the target amount set
forth below for such quarter, plus 90% of net proceeds from Borrower’s
issuance of Equity Interests after 


 


77

















 


April 30, 2010 (other than proceeds used
substantially contemporaneously with receipt to retire or redeem Subordinated
Debt and/or Series A Redeemable Preferred Stock):


 


	
  Quarter Ending

  	
   

  	
  Target
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  44,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  September 30, 2010 through March 31,
  2011

  	
   

  	
  $

  	
  58,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  June 30, 2011

  	
   

  	
  $

  	
  60,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  September 30, 2011 through June 30, 2012

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  September 30, 2012 and thereafter

  	
   

  	
  $

  	
  100,000,000

  	
   

  



 


(b)           Minimum Fixed Charge
Coverage Ratio.  As of the
end of each fiscal quarter, the Fixed Charge Coverage Ratio shall not be less
than 1.75:1.00.


 


(c)           Maximum Leverage Ratio.  As of the end of each fiscal quarter set
forth below, the Leverage Ratio shall not be greater than the ratio set forth
below for such quarter:


 


	
  Quarter Ending

  	
   

  	
  Maximum
  Leverage Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  June 30, 2010

  	
   

  	
  4.25:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  September 30, 2010

  	
   

  	
  4.00:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  December 31, 2010 through September 30,
  2011

  	
   

  	
  3.75:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  December 31, 2011 and thereafter

  	
   

  	
  3.50:1.00

  	
   

  



 


7.14        Maximum Capital Expenditures.


 


(a) Capital
Expenditures shall not exceed the applicable Annual Capex Limit during any
calendar year set forth below, provided that if the actual Capital
Expenditures in any year are less than the Annual Capex Limit for such year
then the amount of the difference may be carried over to the immediately
following year and shall not be included in the limitation on Capital
Expenditures in such carry-over year for purposes of this covenant.  “Annual Capex Limit” means, for each calendar
year, the amount set forth below for such year:


 


78






 










 


	
  Year

  	
   

  	
  Annual
  Capex Limit

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2010

  	
   

  	
  $

  	
   10,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2011

  	
   

  	
  $

  	
   18,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2012

  	
   

  	
  $

  	
   14,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2013

  	
   

  	
  $

  	
   22,000,000

  	
   

  



 


7.15        Name Change; Jurisdiction
Change.  Change its name or change its
jurisdiction of organization, unless (a) Borrower gives Administrative
Agent 30 days prior notice of the intended name change or change of
jurisdiction of organization and (b) such Loan Party executes and delivers
to Administrative Agent such agreements, documents and instruments as
Administrative Agent deems reasonably necessary or desirable to protect
Administrative Agent’s interests in the Collateral.


 


7.16        Operation of Aircraft.  Operate or maintain any aircraft in a manner
that adversely affects the insurance coverage of such aircraft or the Lien or lien
rights of the Administrative Agent in such aircraft, or include any aircraft
operated in a jurisdiction other than the United States, Canada, Australia,
Malaysia or Greece in the Asset Coverage Amount without first delivering to
Administrative Agent (i) an opinion of counsel (in form and substance and
from counsel satisfactory to Administrative Agent) that Administrative Agent
has and will continue to have a first priority Lien for the benefit of the
Lenders in such aircraft while such aircraft is operated in such jurisdiction
and (ii) evidence that the required insurance with respect to such
aircraft remains in full force and effect.


 


7.17        Deposit Accounts and
Securities Accounts.  Open or
maintain a Deposit Account or a securities account that is not subject to a
control agreement acceptable to the Administrative Agent.


 


ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES


 


8.01        Events of Default.  Any of the following shall constitute an “Event
of Default” hereunder:


 


(a)           Non-Payment.  Any Loan Party fails to pay (i) when due
any amount of principal of any Loan, or any L/C Obligation, or (ii) within
three days after the same becomes due, any interest on any Loan or on any L/C
Obligation, or any fee due hereunder, or (iii) within five days after the
same becomes due, any other amount payable under any Loan Document; or


 


(b)           Specific Covenants.  The Borrower fails to perform or observe any
term, covenant or agreement contained in any of (i) Section 6.03,
6.05, 6.06, 6.07, 6.10, 6.14 or 6.18
or Article VII; or (ii) Section 6.01 or 6.02
and such failure 


 


79

















 


continues for five Business
Days after the earlier of (A) the Borrower’s receipt of written notice
thereof from the Administrative Agent or (B) any Loan Party obtains
knowledge thereof; or


 


(c)           Other Defaults.  Any Loan Party fails to perform or observe
any other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for thirty days after the earlier of (i) the Borrower’s
receipt of written notice thereof from the Administrative Agent or (ii) any
Loan Party obtains knowledge thereof; or


 


(d)           Representations and
Warranties.  Any
representation, warranty, certification or statement of fact made or deemed
made by or on behalf of any Loan Party in any Loan Document or in any document
delivered in connection herewith or therewith shall be untrue in any material
respect when made or deemed made; or


 


(e)           Cross-Default.  (i) Any Loan Party (A) fails to
make any payment when due and within applicable grace periods, if any, (whether
by scheduled maturity, required prepayment, acceleration, demand, or otherwise)
in respect of any Indebtedness or Guaranty Obligation (other than Indebtedness
hereunder and Indebtedness under Hedge Contracts) having an aggregate principal
amount (including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement) of
more than $5,000,000, or (B) fails to observe or perform any other
agreement or condition relating to such 
Indebtedness or Guaranty Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event occurs
the effect of which default or other event is to cause or permit the holder or
holders of such Indebtedness or the beneficiary or beneficiaries of such
Guaranty Obligation (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an
offer to repurchase, prepay, defease or redeem such Indebtedness to be made,
prior to its stated maturity, or such Guaranty Obligation to become payable or
cash collateral in respect thereof to be demanded; or (ii) there occurs
under any Hedge Contract an Early Termination Date (as defined in such Hedge
Contract) resulting from (A) any event of default under such Hedge
Contract as to which the Borrower or any Subsidiary is the defaulting party or
(B) any Termination Event (as so defined) under such Hedge Contract as to
which the Borrower or any Subsidiary is an Affected Party (as so defined) and,
in either event, the Swap Termination Value (as so defined) owed by the
Borrower or such Subsidiary as a result thereof is greater than $2,000,000.


 


(f)            Insolvency Proceedings, Etc.  Any Loan Party institutes or consents to the
institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar 


 


80

















 


officer for it or for all or
any material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator, provisional liquidator, administrator,
administrative receiver, compulsory manager, controller or similar officer is
appointed without the application or consent of such Person and the appointment
continues undischarged or unstayed for 60 calendar days; or any proceeding
under any Debtor Relief Law relating to any such Person or to all or any
material part of its property is instituted without the consent of such Person
and continues undismissed or unstayed for 60 calendar days, or an order for
relief is entered in any such proceeding; or


 


(g)           Inability to Pay Debts; Attachment.  (i) Any Loan Party becomes unable or
admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or
similar process is issued or levied against all or any material part of the
property of any such Person and is not released, vacated or fully bonded within
60 days after its issue or levy; or


 


(h)           Judgments.  There is entered against any Loan Party
(i) one or more final judgments or orders for the payment of money in an
aggregate amount (as to all such judgments and orders) exceeding $2,000,000 (to
the extent not covered by independent third-party insurance as to which the
insurer has been notified of the claim and does not dispute coverage) , or (ii) any
one or more non-monetary final judgments that have, or would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any
creditor upon such judgment or order, or (B) there is a period of ten
consecutive days during which a stay of enforcement of such judgment, by reason
of a pending appeal or otherwise, is not in effect; or


 


(i)            ERISA.  (i) An ERISA Event occurs with respect
to a Pension Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of the Borrower under Title IV of ERISA to
the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of $500,000, or (ii) the Borrower or any ERISA Affiliate fails to
pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in
excess of $1,000,000; or


 


(j)            Change of Control.  There occurs any Change of Control with
respect to any Loan Party; or


 


(k)           Guarantor Default;
Invalidity of Guaranty.  Any
Guarantor shall fail to perform or observe any term, covenant or agreement
contained in any Guaranty Agreement on its part to be performed or observed, or
any default shall occur under any Guaranty Agreement, and any such failure or
default shall continue after the applicable grace period, if any, specified in
such Guaranty Agreement as of the date of such failure, or any defined “Event
of Default” as defined in any Guaranty Agreement 


 


81

















 


shall have occurred and is
continuing; or any Guaranty Agreement shall for any reason be revoked or
invalidated, or otherwise cease to be in full force and effect (except as
expressly permitted hereunder), or any Guarantor or any other Person shall
contest in any manner the validity or enforceability thereof or deny that it
has any further liability or obligation thereunder; or


 


(l)            Failure of Security.  Any Collateral Document ceases to be in full
force and effect, or is declared by a court of competent jurisdiction to be
null and void, invalid or unenforceable in any respect; or the Administrative
Agent shall not have or shall cease to have a valid and perfected first
priority Lien (other than Liens expressly permitted to be prior to such Lien
pursuant to Section 7.01) in the Collateral purported to be covered
thereby for any reason other than the failure of the Administrative Agent to
take any action within its exclusive control; or


 


(m)          Invalidity of Loan Documents.  Any provision of any Loan Document ceases to
be in full force and effect, or is declared by a court of competent
jurisdiction to be null and void, invalid or unenforceable in any respect; or
any Loan Party denies that it has any or further liability or obligation under
any Loan Document, or purports to revoke, terminate or rescind any Loan
Document; or


 


(n)           Material Adverse Effect.  A Material Adverse Effect occurs, other than
an event included within clauses (a) through (m) above.


 


8.02        Remedies Upon Event of
Default.


 


(a)           General Remedies.  If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders take any or all of the following actions,


 


(i)            Terminate the Commitments;


 


(ii)           declare the principal, all
accrued and unpaid interest and all fees and other amounts owing or payable
under the Loan Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower;


 


(iii)          require that the Borrower
Cash Collateralize the L/C Obligations (in an amount equal to the Outstanding
Amount thereof, as such amount may vary from time to time); and


 


(iv)          exercise on behalf of itself
and the Lenders all rights and remedies available under the Loan Documents or
applicable Law;


 


provided, however,
that upon the occurrence of an actual or deemed entry of an order for relief
with respect to the Borrower under the Bankruptcy Code of the United States,
the Commitments  shall automatically
terminate, the unpaid principal amount of all outstanding 


 


82

















 


Loans
and all interest and other amounts as aforesaid shall automatically become due
and payable, and the obligation of the Borrower to Cash Collateralize the L/C
Obligations as aforesaid shall automatically become effective, in each case
without further act of the Administrative Agent or any Lender.


 


(b)           Cash Collateral.  Regardless of whether Borrower’s obligations
to repay the Loans and/or the Letters of Credit have been accelerated pursuant
to subsection (a) above, so long as any Event of Default is
continuing, Administrative Agent may exercise any remedies provided in the
Collateral Documents.  Amounts paid or
received under any Loan Document after the occurrence of an Event of Default in
respect of (i) issued and outstanding Letters of Credit which exceed
amounts paid by Administrative Agent under such Letters of Credit or
(ii) payments or transfers under any Hedge Contract permitted by Section 7.03(d) not
then due, shall be held (and applied) as Cash Collateral to secure the payment
and performance of all indebtedness, liabilities and obligations of Borrower
and its Subsidiaries owing to Agent, any Lender or any Affiliate of any Lender
under the Loan Documents and such Hedge Contracts.


 


8.03        Application of Funds.  After the exercise of remedies provided for
in Section 8.02 (or after the Loans have automatically become
immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso to Section 8.02),
any amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:


 


First, to payment of
that portion of the Obligations constituting fees, indemnities, expenses and
other amounts (including Attorney Costs and amounts payable under Article III)
payable to the Administrative Agent in its capacity as such;


 


Second, to payment of
that portion of the Obligations constituting fees, indemnities and other
amounts (other than principal and interest) payable to the Lenders (including
Attorney Costs and amounts payable under Article III), ratably
among them in proportion to the amounts described in this clause Second
payable to them;


 


Third, to payment of
that portion of the Obligations constituting (i) accrued and unpaid
interest on the Loans and L/C Borrowings, and (ii) with respect to any
Hedge Contract between any Lender or any Affiliate of any Lender, to the extent
such Hedge Contract is permitted by Section 7.03(d), any fees,
premiums and scheduled periodic payments due under such Hedge Contract and any
interest accrued thereon, ratably among the Lenders and their Affiliates in
proportion to the respective amounts described in this clause Third
payable to them;


 


Fourth, to payment of
that portion of the Obligations constituting unpaid principal of the Loans and L/C
Borrowings;


 


83

















 


Fifth, to the
Administrative Agent for the account of the L/C Issuer, to Cash Collateralize
that portion of L/C Obligations comprised of the aggregate undrawn amount of
Letters of Credit; and


 


Sixth, to payment of
(i) amounts owed to Bank Product Providers in respect of Bank Product
Agreements, and (ii) with respect to any Hedge Contract or currency risk
management instrument between any Lender or any Affiliate of any Lender, to the
extent such Hedge Contract or currency risk management instrument is permitted
by Section 7.03(d), any breakage, termination or other payments due
under such Hedge Contract or currency risk management instrument and any
interest accrued thereon, ratably among the Bank Product Providers, and the
Lenders and their Affiliates in proportion to the respective amounts described
in this clause Sixth held by them; and


 


Last, the balance,
if any, after all of the foregoing  have
been indefeasibly paid in full, to the Borrower or as otherwise required by
Law.


 


Subject
to Section 2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fifth
above shall be applied to satisfy drawings under such Letters of Credit as they
occur.  If any amount remains on deposit
as Cash Collateral after all Letters of Credit have either been fully drawn or
expired, such remaining amount shall be applied to the other Obligations, if
any, in the order set forth above.


 


ARTICLE IX

ADMINISTRATIVE AGENT


 


9.01        Appointment and Authority.  Each of the Lenders and the L/C Issuer hereby
irrevocably appoints Wells Fargo to act on its behalf as the Administrative
Agent under the Loan Documents and authorizes the Administrative Agent to take
such actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto.  Except for the Borrower’s right to be
consulted in Section 9.06, the provisions of this Article are solely
for the benefit of the Administrative Agent, the Lenders and the L/C Issuer,
and no Loan Party shall have rights as a third party beneficiary of any of such
provisions.


 


9.02        Rights as a Lender.  The Person serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the
Person serving as the Administrative Agent hereunder in its individual
capacity.  Such Person and its Affiliates
may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with
any Loan Party or any Subsidiary or other Affiliate thereof as if such Person
were not the Administrative Agent hereunder and without any duty to account therefor
to the Lenders.


 


84

















 


9.03        Exculpatory Provisions.  The Administrative Agent shall not have any
duties or obligations except those expressly set forth in the Loan
Documents.  Without limiting the
generality of the foregoing, the Administrative Agent:


 


(a)           shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default or Event of
Default is continuing;


 


(b)           shall not have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise as directed in writing by
the Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for in the Loan Documents), provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law; and


 


(c)           shall not, except as
expressly set forth in the Loan Documents, have any duty to disclose, and shall
not be liable for the failure to disclose, any information relating to any Loan
Party or any of its Affiliates that is communicated to or obtained by the
Person serving as the Administrative Agent or any of its Affiliates in any
capacity.


 


The
Administrative Agent shall not be liable for any action taken or not taken by
it (i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 9.02 and 10.01) or (ii) in
the absence of its own gross negligence or willful misconduct.  The Administrative Agent shall be deemed not
to have knowledge of any Default or Event of Default unless and until notice
describing such Default or Event of Default is given to the Administrative
Agent by the Borrower, a Lender or the L/C Issuer.


 


The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or
in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth herein
or therein or the occurrence of any Default or Event of Default, (iv) the
validity, enforceability, effectiveness or genuineness of any Loan Document or
any other agreement, instrument or document or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than
to confirm receipt of items expressly required to be delivered to the
Administrative Agent.


 


9.04        Reliance by Administrative
Agent.  The Administrative Agent shall
be entitled to rely upon, and shall not incur any liability for relying upon,
any notice, request, certificate, consent, statement, instrument, document or
other writing (including any 


 


85

















 


electronic message, Internet or intranet
website posting or other distribution) believed by it to be genuine and to have
been signed, sent or otherwise authenticated by the proper Person.  The Administrative Agent also may rely upon
any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying
thereon.  In determining compliance with
any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or
the L/C Issuer, the Administrative Agent may presume that such condition is
satisfactory to such Lender or the L/C Issuer unless the Administrative Agent
shall have received notice to the contrary from such Lender or the L/C Issuer
prior to the making of such Loan or the issuance of such Letter of Credit.  The Administrative Agent may consult with
legal counsel (who may be counsel for the Loan Parties), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.


 


9.05        Delegation of Duties.  The Administrative Agent may perform any and
all of its duties and exercise its rights and powers under any Loan Document by
or through any one or more sub-agents appointed by the Administrative
Agent.  The Administrative Agent and any
such sub-agent may perform any and all of its duties and exercise its rights
and powers by or through their respective Related Parties.  The exculpatory provisions of this Article shall
apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.


 


9.06        Resignation of
Administrative Agent.


 


(a)           The Administrative Agent may
at any time give notice of its resignation to the Lenders, the L/C Issuer and
the Borrower.  Upon receipt of any such notice
of resignation, the Required Lenders shall have the right, in consultation with
the Borrower (so long as no Event of Default then exists), to appoint a
successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States.  If no such successor has accepted such
appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may on behalf
of the Lenders and the L/C Issuer, appoint a successor Administrative Agent
meeting the qualifications set forth above; provided that if the
Administrative Agent notifies the Borrower and the Lenders that no qualifying
Person has accepted such appointment, then such resignation shall nonetheless
become effective in accordance with such notice and (a) the retiring
Administrative Agent shall be discharged from its duties and obligations under
the Loan Documents (except that in the case of any collateral security held by
the Administrative Agent on behalf of the Lenders or the L/C Issuer under any
of the Loan Documents, the retiring Administrative Agent shall continue to hold
such collateral security until such time as a successor Administrative Agent is
appointed) and (b) all payments, communications and determinations
provided to be made by, to or through the Administrative Agent shall instead be
made by or to each Lender and the L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as 


 


86

















 


provided for above in this Section.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative
Agent shall be discharged from all of its duties and obligations under the Loan
Documents (if not already discharged therefrom as provided above in this
Section).  The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor.  After the retiring
Administrative Agent’s resignation under the Loan Documents, the provisions of
this Article and Section 10.04 shall continue in effect for
the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.


 


(b)           Any resignation by Wells
Fargo as Administrative Agent pursuant to this Section shall also
constitute its (or, if applicable, its Affiliate’s) resignation as L/C Issuer
and Swing Line Lender.  Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, (i) such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring L/C Issuer and Swing Line Lender, (ii) the
retiring L/C Issuer and Swing Line Lender shall be discharged from all of their
respective duties and obligations under the Loan Documents, and (iii) the
successor L/C Issuer shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make
other arrangements satisfactory to the retiring L/C Issuer to effectively
assume the obligations of the retiring L/C Issuer with respect to such Letters
of Credit.


 


9.07        Non-Reliance on
Administrative Agent and Other Lenders.  Each Lender and the L/C Issuer acknowledges
that it has, independently and without reliance upon the Administrative Agent
or any other Lender or any of their Related Parties and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. 
Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon any Loan
Document or any related agreement or any document furnished hereunder or
thereunder.


 


9.08        No Duties.  Anything herein to the contrary
notwithstanding, neither KeyBank National Association, in its capacity as
Syndication Agent, Bank of the West, in its capacity as Documentation Agent,
nor the Arranger shall have any powers, duties or responsibilities under the
Loan Documents.


 


9.09        Administrative Agent May File
Proofs of Claim.  In case of
the pendency of any proceeding under any Debtor Relief Law or any other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then
be due and payable as herein expressed or by declaration or 


 


87

















 


otherwise and irrespective of whether the
Administrative Agent shall have made any demand on Borrower) shall be entitled
and empowered, by intervention in such proceeding or otherwise:


 


(a)           to file and prove a claim
for the whole amount of the principal and interest owing and unpaid in respect
of the Loans, L/C Obligations and all other Obligations arising under the Loan
Documents that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders, the L/C
Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C
Issuer and the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders, the L/C Issuer and the Administrative Agent
under Sections 2.03(h) and (i), 2.08 and 10.04)
allowed in such judicial proceeding; and


 


(b)           to collect and receive any
monies or other property payable or deliverable on any such claims and to
distribute the same;


 


and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender and the L/C Issuer to make such payments to the Administrative Agent
and, if the Administrative Agent shall consent to the making of such payments
directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent
any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other
amounts due the Administrative Agent under Sections 2.08 and 10.04.


 


Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender or the L/C
Issuer any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or the L/C Issuer to
authorize the Administrative Agent to vote in respect of the claim of any
Lender or the L/C Issuer in any such proceeding.


 


9.10        Collateral and Guaranty
Matters.  Each of the Lenders and the
L/C Issuer irrevocably authorize the Administrative Agent, at its option and in
its discretion,


 


(a)           to release any Lien on any
property granted to or held by the Administrative Agent under any Loan Document
(i) upon termination of the Commitments and payment in full of all
Obligations (other than contingent indemnification obligations) and the
expiration or termination of all Letters of Credit, (ii) that is sold or
to be sold as part of or in connection with any sale permitted under the Loan
Document, (iii) consisting of an instrument evidencing Indebtedness or
other debt instrument, if the indebtedness evidenced thereby has been paid in full,
or (iv) subject to Section 10.01, if approved, authorized or
ratified in writing by the Required Lenders;


 


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(b)           to subordinate any Lien on
any property granted to or held by the Administrative Agent under any Loan
Document to the holder of any Lien on such property that is permitted by Section 7.01(i);
and


 


(c)           to release any Guarantor
from its obligations under any Guaranty Agreement if such Person ceases to be a
Subsidiary as a result of a transaction permitted hereunder.


 


Upon
request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent’s authority to release or
subordinate its interest in particular types or items of property, or to
release any Guarantor from its obligations under any Guaranty Agreement
pursuant to this Section 9.10. 
In each case as specified in this Section 9.10, the
Administrative Agent will, at the Borrower’s expense, execute and deliver to
the applicable Loan Party such documents as such Loan Party may reasonably
request to evidence the release of such item of Collateral from the Lien
granted by the Loan Documents or to subordinate its interest in such item, or
to release such Guarantor from its obligations under its Guaranty Agreement, in
each case in accordance with the terms of the Loan Documents and this Section 9.10.


 


ARTICLE X

MISCELLANEOUS


 


10.01      Amendments, Etc.  No amendment or waiver of any provision of
any Loan Document, and no consent to any departure by any Loan Party therefrom,
shall be effective unless in writing signed by the Required Lenders and the
applicable Loan Party and acknowledged by the Administrative Agent, and each
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that no
such amendment, waiver or consent shall:


 


(a)           waive any condition set
forth in Sections 4.01(a) through (c) without the
written consent of each Lender;


 


(b)           extend or increase the
Commitment of any Lender (or reinstate any terminated Commitment) without the
written consent of such Lender;


 


(c)           postpone any date fixed by
any Loan Document for any payment or mandatory prepayment of principal,
interest, fees or other amounts due to the Lenders (or any of them) under any
Loan Document without the written consent of each Lender directly affected
thereby;


 


(d)           reduce the principal of, or
the rate of interest specified herein on, any Loan or L/C Borrowing, or any
fees or other amounts payable under any Loan Document, or change the manner of
computation of any financial ratio (including any change in any applicable
defined term) used in determining the Applicable Margin that would result in a
reduction of any interest rate on any Loan or any fee payable 


 


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hereunder without the
written consent of each Lender directly affected thereby; provided, however,
that only the consent of the Required Lenders shall be necessary to amend the
definition of “Default Rate” or to waive any obligation of the Borrower
to pay interest at the Default Rate;


 


(e)           change Section 2.13
or Section 8.03 in a manner that would alter the pro rata sharing
of payments required thereby without the written consent of each Lender;


 


(f)            change any provision of this
Section 10.01 or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to
amend, waive or otherwise modify any rights hereunder or make any determination
or grant any consent hereunder, without the written consent of each Lender;


 


(g)           except as otherwise provided
in Section 9.10, release any Guarantor from any Guaranty Agreement
without the written consent of each Lender; or


 


(h)           except as otherwise provided
in Section 9.10, release or otherwise all or any material part of
the Collateral without the written consent of each Lender, except as otherwise
may be provided in any Collateral Document or except where the consent of the
Required Lenders only is specifically provided for;


 


and,
provided  further, that (i) no amendment, waiver or consent
shall, unless in writing and signed by the L/C Issuer in addition to the
Lenders required above, affect the rights or duties of the L/C Issuer under
this Agreement or any L/C Application relating to any Letter of Credit issued
or to be issued by it; (ii) no amendment, waiver or consent shall, unless
in writing and signed by the Swing Line Lender and Administrative Agent in
addition to the Lenders required above, affect the rights or duties of the
Swing Line Lender and Administrative Agent under any Loan Document; and
(iii) the fees provided for in the Fee Letter may be amended, or rights or
privileges thereunder waived, only in a writing executed by Borrower and Wells
Fargo.  Notwithstanding anything to the
contrary herein, any Lender that has failed to fund any portion of any Credit
Extension required to be funded by it hereunder or that has a Voting Percentage
deemed to be zero shall not have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Lender may not
be increased or extended without the consent of such Lender.


 


10.02      Notices and Other Communications;
Facsimile Copies.


 


(a)           General.  Unless otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission) and mailed, faxed or delivered, to the
address, facsimile number or electronic mail address specified for notices on Schedule 10.02;
or, in the case of the Borrower, the Administrative Agent, the L/C Issuer or
the Swing Line Lender, to such other address as shall 


 


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be designated by such party in a notice to the other
parties, and in the case of any other party, to such other address as shall be
designated by such party in a notice to the Borrower, the Administrative Agent,
the L/C Issuer and the Swing Line Lender. 
All such notices and other communications shall be deemed to be given or
made upon the earlier to occur of (i) actual receipt by the intended
recipient and (ii) (A) if delivered by hand or by courier, when
signed for by the intended recipient; (B) if delivered by mail, four
Business Days after deposit in the mails, postage prepaid; (C) if
delivered by facsimile, when sent and receipt has been confirmed by telephone;
and (D) if delivered by electronic mail when delivered; provided, however,
that notices and other communications to the Administrative Agent, the L/C
Issuer and the Swing Line Lender pursuant to Article II shall not
be effective until actually received by such Person.  Any notice or other communication permitted
to be given, made or confirmed by telephone hereunder shall be given, made or
confirmed by means of a telephone call to the intended recipient at the number
specified on Schedule 10.02, it being understood and agreed that a
voicemail message shall in no event be effective as a notice, communication or
confirmation hereunder.


 


(b)           Effectiveness of Facsimile
Documents and Signatures.  Loan
Documents may be delivered by fax or by electronic transmission of a PDF
file.  The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders.  The Administrative Agent may also require
that any such documents and signatures be confirmed by a manually-signed
original thereof; provided, however, that the failure to comply
with such request shall not limit the effectiveness of any document or
signature.


 


(c)           Reliance by Administrative
Agent and Lenders.  The
Administrative Agent and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Committed Loan Notices and Swing Line Notices)
purportedly given by or on behalf of the Borrower even if (i) such notices
were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or
(ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof.  The Borrower shall
indemnify each Lender, Administrative Agent and their respective Related
Parties from all losses, costs, expenses and liabilities resulting from the
good faith reliance by such Person on each notice purportedly given by or on
behalf of the Borrower.  All telephonic
notices to and other communications with the Administrative Agent  may be recorded by the Administrative Agent
and each of the parties hereto hereby consents to such recording.


 


10.03      No Waiver; Cumulative Remedies.  No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges
herein are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law or elsewhere in the Loan Documents.


 


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10.04      Attorney Costs, Expenses and Taxes.  Except as otherwise provided in Section 6.10,
the Borrower shall (a)  pay or reimburse the Administrative Agent for all
reasonable and documented costs and expenses incurred in connection with the
development, preparation, negotiation and execution of any Loan Documents and
any amendment, waiver, consent or other modification of the provisions thereof
(whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions contemplated
thereby, including all reasonable and documented Attorney Costs and
(b) pay or reimburse the Administrative Agent or each Lender for all costs
and expenses incurred in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under the Loan Documents
(including all such costs and expenses incurred during any “workout” or
restructuring in respect of the Obligations and during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all Attorney
Costs.  The foregoing costs and expenses
shall include all search, filing, recording, title insurance and appraisal
charges and fees and taxes related thereto, and other reasonable and documented
out-of-pocket expenses incurred by the Administrative Agent and the reasonable
and documented cost of independent public accountants and other outside experts
retained by the Administrative Agent or any Lender.  The agreements in this Section 10.04
shall survive the termination of the Commitments and repayment of all other
Obligations.


 


10.05      Indemnification by the Borrower.  The Borrower shall indemnify and hold
harmless the Administrative Agent, L/C Issuer and each Lender and their
respective directors, officers, employees, counsel, agents and attorneys-in-fact
(collectively the “Indemnitees”) from and against any and all liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses and disbursements (including Attorney Costs limited to
expenses of one lead counsel firm and one local counsel firm in each
jurisdiction where Administrative Agent determine that local counsel is
necessary) of any kind or nature whatsoever which may at any time be imposed
on, incurred by or asserted against any such Indemnitee in any way relating to
or arising out of or in connection with (a) the execution, delivery,
enforcement, performance or administration of any Loan Document or any other
agreement, letter or instrument delivered in connection with the transactions
contemplated thereby or the consummation of such transactions; (b) any
Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by the L/C Issuer to honor a demand for
payment under a Letter of Credit if the documents presented in connection with
such demand do not strictly comply with the terms of such Letter of Credit);
(c) any actual or alleged presence or release of Hazardous Materials on or
from any property currently or formerly owned or operated by any Loan Party, or
any Environmental Liability related in any way to any Loan Party; (d) any
actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory
(including any investigation of, preparation for, or defense of any pending or
threatened claim, investigation, litigation or proceeding) and regardless of
whether any Indemnitee is a party thereto; (e) any Aircrane, aircraft,
airframe, aircraft engine or aircraft part (collectively, “Aircraft Equipment”),
including, without limitation, with respect thereto, (i) the manufacture,
design, purchase, 


 


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acceptance, nonacceptance or rejection, ownership,
registration, reregistration, deregistration, financing, delivery, nondelivery,
lease, sublease, assignment, possession, use or non-use, operation,
maintenance, testing, repair, overhaul, condition, alteration, modification,
addition, improvement, storage, airworthiness, replacement, repair, sale,
substitution, return, abandonment, redelivery or other disposition of any
Aircraft Equipment, (ii) any claim or penalty arising out of violations of
applicable Laws by Borrower, or by any lessee or sublessee, (iii) tort
liability, whether or not arising out of the negligence of any Indemnitee
(whether active, passive or imputed), (iv) death or property damage of any
Person, (v) environmental control, noise or pollution and (vi) any
Liens in respect of any Aircraft Equipment; or (f) any breach of or
failure to perform or observe, or any other noncompliance with, any covenant or
agreement or other obligation to be performed by Borrower under any Loan
Document or the falsity of any representation or warranty of Borrower in any
Loan Document or the occurrence of any Default or Event of Default (all the
foregoing, collectively, the “Indemnified Liabilities”); provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such liabilities, obligations, losses, damages, penalties, claims,
demands, actions, judgments, suits, costs, expenses or disbursements (including
Attorney Costs) resulted from the gross negligence or willful misconduct of
such Indemnitee.  The agreements in this Section 10.05
shall survive the resignation of the Administrative Agent, the replacement of
any Lender, the termination of the Commitments and the repayment, satisfaction
or discharge of all the other Obligations. 
All amounts due under this Section 10.05 shall be payable
within ten Business Days after demand therefor.


 


10.06      Payments Set Aside.  To the extent that any payment by or on
behalf of the Borrower is made to the Administrative Agent or any Lender, or
the Administrative Agent or any Lender exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent
or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such set-off had
not occurred, and (b) each Lender severally agrees to pay to the
Administrative Agent upon demand its applicable share of any amount so recovered
from or paid by the Administrative Agent, plus interest thereon from the
date of such demand to the date such payment is made at a rate per annum equal
to the Federal Funds Rate from time to time in effect.


 


10.07      Successors and Assigns.


 


(a)           Successors and Assigns
Generally.  The
provisions of this Agreement and the other Loan Documents shall be binding upon
and inure to the benefit of the parties hereto and thereto and their respective
successors and assigns permitted hereby, except that Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder or thereunder
without the prior written consent of the Administrative Agent and each Lender
and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder 


 


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except (i) to an assignee in accordance with
the provisions of subsection (b) of this Section, (ii) by way of
participation in accordance with the provisions of subsection (d) of this Section or
(iii) by way of pledge or assignment of a security interest subject to the
restrictions of subsection (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and
void).  Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and,
to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.


 


(b)           Assignments by Lenders.  Any Lender may at any time assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (including all or a portion of its
Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and Swing Line Loans) at the time owing to
it); provided that any such assignment shall be subject to the following
conditions:


 


(i)            Minimum Amounts.


 


(A)          in
the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the related Loans at the time owing to it or in the
case of an assignment to a Lender, an Affiliate of a Lender or an Approved
Fund, no minimum amount need be assigned; and


 


(B)          in
any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to
each such assignment, determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $5,000,000 unless each of the Administrative Agent
and, so long as no Event of Default has occurred and is continuing, the
Borrower otherwise consents (each such consent not to be unreasonably withheld
or delayed); provided, however, that concurrent assignments to
members of an Assignee Group and concurrent assignments from members of an
Assignee Group to a single assignee (or to an assignee and members of its
Assignee Group) will be treated as a single assignment for purposes of
determining whether such minimum amount has been met.


 


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(ii)           Proportionate Amounts.  Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s Loans and
Commitments, and rights and obligations with respect thereto, assigned except
that this clause (ii) shall not apply to any Swing Line Lender’s rights
and obligations in respect of any Swing Line Loans;


 


(iii)          Required Consents.  No consent shall be required for any
assignment except to the extent required by subsection (b)(i)(B) of this Section and,
in addition:


 


(A)          the
consent of the Borrower (such consent not to be unreasonably withheld or
delayed) shall be required unless (1) an Event of Default is continuing at
the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;


 


(B)          the
consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required for assignments in respect of any
Revolving Commitment if such assignment is to a Person that is not a Lender
with a Revolving Commitment, an Affiliate of such Lender or an Approved Fund
with respect to such Lender;


 


(C)          the
consent of the L/C Issuer (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of Credit
(whether or not then outstanding); and


 


(D)          the
consent of the Swing Line Lender (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment in respect of Revolving Loans
and Revolving Commitments.


 


(iv)          Assignment and Assumption.  The parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee in the amount of $3,500; provided, however,
that the Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any assignment.  The assignee, if it is not a Lender, shall
deliver to the Administrative Agent such information regarding itself as the
Administrative Agent may reasonably request.


 


(v)           No Assignment to Borrower.  No such assignment shall be made to the Borrower or
any of the Borrower’s Affiliates or Subsidiaries.


 


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(vi)          No Assignment to Natural Persons.  No such assignment shall be made to a natural
person.


 


Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the assignee thereunder shall be a
party to this Agreement  and, to the
extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 3.01, 3.04, 3.05 and 10.05
with respect to facts and circumstances occurring prior to the effective date
of such assignment).  Upon request,
Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender.  Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance
with subsection (d) of this Section. 
If an assignment of all or a portion of a Lender’s rights and
obligations under this Agreement would result (under the terms of Section 3.01)
in any payment by the Borrower of additional sums, notwithstanding Section 3.01
or any other provision set forth in this Agreement, the Borrower shall not be
obligated to pay such additional sums.


 


(c)           Register.  The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, shall maintain at the Administrative
Agent’s Office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and L/C Obligations owing
to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, absent manifest error, and the Borrower, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by the Borrower and any Lender at any reasonable time and from time
to time upon reasonable prior notice.


 


(d)           Participations.  Any Lender may at any time, without the
consent of, or notice to, Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the Borrower or
any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in L/C Obligations and/or Swing Line
Loans) owing to it); provided that (i) such Lender’s obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrower, the Administrative Agent, the other
Lenders and the L/C Issuer shall continue to deal solely and directly with such
Lender in connection with such 


 


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Lender’s rights and obligations under this
Agreement.  Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, waiver or other
modification that would (i) postpone any date upon which any payment of
money is scheduled to be paid to such Participant, (ii) reduce the
principal, interest, fees or other amounts payable to such Participant,
(iii) release any Guarantor from any 
Guaranty Agreement, or (iv) release all or substantially all of the
Collateral.  Subject to subsection (e) of
this Section, Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05  to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this
Section.  To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 10.09  as though it were a Lender, provided such
Participant agrees to be subject to Section 2.13 as though it were
a Lender.


 


(e)           Limitations on Participant
Rights.  A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04  than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower’s prior
written consent.  A Participant that
would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 3.01(e) as
though it were a Lender.


 


(f)            Certain Pledges.  Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such
Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto


 


(g)           Certain Defined Terms.  As used herein, the following terms have the
following meanings:


 


“Eligible
Assignee” means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural
person) that is a financial institution approved by (i) the Administrative
Agent, in the case of any assignment of a Committed Loan, (ii) L/C Issuer,
(iii) the Swing Line Lender and (iv) unless (A) such Person is
taking delivery of an assignment in connection with physical settlement of a
credit derivative transaction or (B) an Event of Default is continuing,
the Borrower (each such approval referred to in clauses (i) through (iv) not
to be unreasonably withheld or delayed); provided that notwithstanding
the foregoing, “Eligible Assignee” shall not include the Borrower or any
of the Borrower’s Affiliates or Subsidiaries.


 


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“Fund”
means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business.


 


“Approved
Fund” means any Fund that is administered or managed by (a) a Lender,
(b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.


 


(h)           Resignation as L/C Issuer or
Swing Line Lender After Assignment.  Notwithstanding anything to the contrary
contained herein, if at any time Wells Fargo assigns all of its Commitments and
Loans pursuant to subsection (b) above, Wells Fargo may, upon
30 days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or
upon notice to the Borrower terminate the Swing Line.  In the event of any such resignation as L/C
Issuer or the termination of the Swing Line, the Borrower shall be entitled to
appoint from among the Lenders a successor L/C Issuer or Swing Line Lender
hereunder; provided, however, that no failure by the Borrower to
appoint any such successor shall affect the resignation of Wells Fargo as L/C
Issuer or the termination of the Swing Line as the case may be.  Wells Fargo shall retain all the rights and
obligations of the L/C Issuer hereunder with respect to all Letters of Credit
outstanding as of the effective date of its resignation as L/C Issuer and all
L/C Obligations with respect thereto (including the right to require the
Lenders to make Base Rate Loans or fund participations in Unreimbursed Amounts
pursuant to Section 2.03(c)). 
If Wells Fargo terminates the Swing Line, it shall retain all the rights
of the Swing Line Lender provided for hereunder with respect to Swing Line
Loans made by it and outstanding as of the effective date of such termination,
including the right to require the Lenders to make Base Rate Loans or fund
participations in outstanding Swing Line Loans pursuant to Section 2.04(c).


 


10.08      Confidentiality.  Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its
Affiliates’ directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential); (b) to
the extent requested by any regulatory authority; (c) to the extent
required by applicable Laws or by any subpoena or similar legal process; (d) to
any other party to this Agreement; (e) in connection with the exercise of
any remedies hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder; (f) subject to an
agreement containing provisions substantially the same as those of this Section 10.08,
to (1) any Eligible Assignee of or Participant in, or any prospective
Eligible Assignee of or Participant in, any of its rights or obligations under
this Agreement or (2) any direct or indirect contractual counterparty or
prospective counterparty (or such contractual counterparty’s or prospective
counterparty’s professional advisor) to any credit derivative transaction
relating to obligations of the Borrower; (g) with the consent of the
Borrower; (h) to the extent such Information (1) becomes publicly
available other than as a result of a breach of this Section 10.08
or (2) becomes available to the Administrative Agent or any Lender on a
nonconfidential basis 


 


98

















 


from a source other than the Borrower; or
(i) to the National Association of Insurance Commissioners or any other
similar organization or any nationally recognized rating agency that requires
access to information about a Lender’s or its Affiliates’ investment portfolio
in connection with ratings issued with respect to such Lender or its
Affiliates.  In addition, the
Administrative Agent and the Lenders may disclose the existence of this
Agreement and information about this Agreement to market data collectors, similar
service providers to the lending industry, and service providers to the
Administrative Agent and the Lenders in connection with the administration and
management of the Loan Documents, the Commitments, and the Credit Extensions.  For the purposes of this Section 10.08,
“Information” means all information received from the Borrower relating
to the Borrower or its business, other than any such information that is
available to the Administrative Agent or any Lender on a nonconfidential basis
prior to disclosure by the Borrower.


 


10.09      Set-off.  In addition to any rights and remedies of the
Lenders provided by law, upon the occurrence and during the continuance of any
Event of Default, each Lender is authorized at any time and from time to time,
without prior notice to any Loan Party, any such notice being waived by the
Borrower (on its own behalf and on behalf of each Loan Party) to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender to or for the credit or the
account of the respective Loan Parties against any and all Obligations becoming
due and payable hereunder (whether at the stated maturity thereof, by
acceleration, or otherwise), now or hereafter existing, irrespective of whether
or not the Administrative Agent or such Lender shall have made demand under any
Loan Document.  Each Lender agrees
promptly to notify the Borrower and the Administrative Agent, after any such
set-off and application made by such Lender; provided, however,
that the failure to give such notice shall not affect the validity of such
set-off and application


 


10.10      Interest Rate Limitation.  Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under
the Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the “Maximum Rate”).  If the Administrative Agent or any Lender
shall receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. 
In determining whether the interest contracted for, charged, or received
by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any
payment that is not principal as an expense, fee, or premium rather than interest,
(b) exclude voluntary prepayments and the effects thereof, and
(c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations.


 


10.11      Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.  Delivery of an executed counterpart of a
signature page of this 


 


99

















 


Agreement by fax or other electronic imaging means
shall be effective as delivery of a manually executed counterpart of this
Agreement.


 


10.12      Integration.  The Loan Documents comprise the complete,
final and integrated agreement of the parties on the subject matter hereof and
thereof and supersede all prior agreements, written or oral, on such subject
matter.  This Agreement and the other
Loan Documents may not be contradicted by evidence of prior, contemporaneous,
or subsequent oral agreements of the parties, and there are no unwritten oral
agreements among the parties.  In the
event of any conflict between the provisions of this Agreement and those of any
other Loan Document, the provisions of this Agreement shall control; provided
that the inclusion of supplemental rights or remedies in favor of the
Administrative Agent or the Lenders in any other Loan Document shall not be
deemed a conflict with this Agreement. 
Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.


 


10.13      Survival of Representations and
Warranties.  All
representations and warranties made in the Loan Documents or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof.  Such representations and warranties have been
or will be relied upon by the Administrative Agent and each Lender, regardless
of any investigation made by the Administrative Agent or any Lender or on their
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or Event of Default at the time of any
Credit Extension, and shall continue in full force and effect as long as any
Loan or any other Obligation shall remain unpaid or unsatisfied or any Letter
of Credit shall remain outstanding.


 


10.14      Severability.  Any provision of the Loan Documents to which
the Borrower is a party that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
thereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.


 


10.15      USA Patriot Act Notice.  Administrative Agent and each Lender hereby
notifies Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot
Act”), it is required to obtain, verify and record information that
identifies Borrower, which information includes the name and address of Borrower
and other information that will allow Administrative Agent and each Lender to
identify Borrower in accordance with the Patriot Act.


 


10.16      No Foreign Control.  ADMINISTRATIVE AGENT, L/C ISSUER AND LENDERS
EXPRESSLY ACKNOWLEDGE AND AGREE THAT ADMINISTRATIVE AGENT, LENDERS AND L/C
ISSUER SHALL HAVE NO RIGHTS UNDER ANY LOAN DOCUMENT THAT WOULD, ALONE OR IN
CONJUNCTION WITH OTHER SUCH RIGHTS, CONSTITUTE “OWNERSHIP” OR “CONTROL” OF
BORROWER BY A 


 


100

















 


PERSON THAT IS NOT “A CITIZEN OF THE UNITED STATES”
WITHIN THE MEANING OF THE U.S. TRANSPORTATION CODE, AS AMENDED FROM TIME TO
TIME, AS RECODIFIED AT 49 U.S.C. § 40101 ET  SEQ., PROVIDED THAT
THE FOREGOING SHALL NOT LIMIT THE RIGHTS OF ADMINISTRATIVE AGENT, L/C ISSUER
AND LENDERS TO THE FULL RIGHTS AND REMEDIES OF LENDERS AND SECURED PARTIES
UNDER APPLICABLE LAW.


 


If
any provision of any Loan Document shall cause it to be classified as providing
for “control” of Borrower by a Person that is not a citizen of the United
States within the meaning of the U.S. Transportation Code, as amended from time
to time, recodified at 49 U.S.C. § 40101, et  seq., such
provision, right or remedy shall be suspended and not enforced to the extent,
but only to the extent, and only so long as, required to avoid such
classification.  In the event a written
modification to any Loan Document is required to avoid “ownership” or “control”
of Borrower by a Person that is not such a citizen of the United States, by the
U.S. Department of Transportation, the parties hereto shall in good faith seek
to mutually agree upon such written amendment hereto or thereto, at Borrower’s
expense.


 


10.17      Governing Law.


 


(a)           THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF (OTHER THAN
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).


 


(b)           ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF OREGON SITTING IN PORTLAND, MULTNOMAH
COUNTY, OREGON OR OF THE UNITED STATES FOR THE DISTRICT OF OREGON, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, THE ADMINISTRATIVE
AGENT, THE L/C ISSUER AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.  THE BORROWER, THE ADMINISTRATIVE AGENT, THE
L/C ISSUER AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN
RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.  THE BORROWER, THE ADMINISTRATIVE AGENT, THE
L/C ISSUER AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW
OF SUCH STATE.


 


10.18      Waiver of Right to Trial by Jury.  EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, 


 


101

















 


DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY
LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN
DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.


 


10.19      Forced Place Insurance.


 


WARNING


 


Unless Borrower provides Administrative Agent with evidence of the
insurance coverage as required by this Agreement, Administrative Agent may purchase
insurance at Borrower’s expense to protect Administrative Agent’s
interest.  This insurance may, but need
not, also protect Borrower’s interest. 
If the collateral becomes damaged, the coverage Administrative Agent
purchases may not pay any claim Borrower makes or any claim made against
Borrower.  Borrower may later cancel this
coverage by providing evidence that Borrower has obtained property coverage
elsewhere.


 


Borrower is responsible for the cost of any insurance purchased by
Administrative Agent.  The cost of this
insurance may be added to Borrower’s contract or loan balance.  If the cost is added to Borrower’s contract
or loan balance, the interest rate on the underlying contract or loan will
apply to this added amount.  The
effective date of coverage may be the date Borrower’s prior coverage lapsed or
the date Borrower failed to provide proof of coverage.


 


The coverage Administrative Agent purchases may be considerably more
expensive than insurance Borrower can obtain on its own and may not satisfy any
need for property damage coverage or any mandatory liability insurance
requirements imposed by applicable law.


 


10.20      Time of the Essence.  Time is of the essence of the Loan Documents.


 


10.21      Oregon Statutory Notice.  UNDER OREGON LAW, MOST AGREEMENTS, PROMISES
AND COMMITMENTS MADE BY LENDER CONCERNING LOANS AND OTHER CREDIT EXTENSIONS
WHICH ARE NOT FOR


 


102

















 


PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED
SOLELY BY BORROWER’S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE
SIGNED BY LENDER TO BE ENFORCEABLE.


 


 


[Signature page follows]


 


103

















 


IN
WITNESS WHEREOF, this Credit Agreement has been duly executed as of
the date first written above.


 


 


	
  BORROWER:

  	
   

  	
  ERICKSON
  AIR-CRANE INCORPORATED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Charles
  Ryan

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ADMINISTRATIVE AGENT, SWING

  LINE LENDER and LENDER:

  	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  James Bednark

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  LENDER:

  	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Ronald
  Middleton

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  LENDER:

  	
   

  	
  BANK
  OF THE WEST

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Sean
  Edwards

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


Signature
Page to Credit Agreement


 

















 


	
  LENDER:

  	
   

  	
  BANK
  OF AMERICA, N.A.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  illegible

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  LENDER:

  	
   

  	
  UNION
  BANK, N.A.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  illegible

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature Page to
Credit Agreement


 














 


SCHEDULE 2.01


 


COMMITMENTS AND PRO RATA SHARES


 


A.            Revolving
Commitments


 


	
  Lender

  	
   

  	
  Commitment

  	
   

  	
  Pro Rata Shares

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wells Fargo Bank, National Association

  	
   

  	
  $

  	
  40,754,716.98

  	
   

  	
  60.377358490566

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  KeyBank National Association

  	
   

  	
  $

  	
  8,915,094.34

  	
   

  	
  13.207547169811

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank of the West

  	
   

  	
  $

  	
  8,915,094.34

  	
   

  	
  13.207547169811

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  5,094,339.62

  	
   

  	
  7.547169811321

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Union Bank, N.A.

  	
   

  	
  $

  	
  3,820,754.72

  	
   

  	
  5.660377358491

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
  67,500,000

  	
   

  	
  100.000000000000

  	
  %

  



 


B.            Letter of
Credit Facility


 


	
  Lender

  	
   

  	
  Commitment

  	
   

  	
  Pro Rata Shares

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wells Fargo Bank, National Association

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
  100

  	
  %

  



 


C.            Term Loan


 


	
  Lender

  	
   

  	
  Commitment

  	
   

  	
  Pro Rata Shares

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wells Fargo Bank, National Association

  	
   

  	
  $

  	
  39,245,283.02

  	
   

  	
  60.377358490566

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  KeyBank National Association

  	
   

  	
  $

  	
  8,584,905.66

  	
   

  	
  13.207547169811

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank of the West

  	
   

  	
  $

  	
  8,584,905.66

  	
   

  	
  13.207547169811

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  4,905,660.38

  	
   

  	
  7.547169811321

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Union Bank, N.A.

  	
   

  	
  $

  	
  3,679,245.28

  	
   

  	
  5.660377358491

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
  65,000,000

  	
   

  	
  100.000000000000

  	
  %

  



 


1

















 


SCHEDULE 2.03


 


EXISTING L/Cs


 


	
  Description

  	
   

  	
  LC#

  	
   

  	
  USD Amount

  	
   

  	
  Euro Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Korea 2009Spares Performance Bond

  	
   

  	
  S3204894

  	
   

  	
  $

  	
  88,826.97

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Korea 2009 Spares Performance Bond

  	
   

  	
  S320632

  	
   

  	
  $

  	
  24,448.72

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Korea 2010 Spares Performance Bond

  	
   

  	
  S320996

  	
   

  	
  $

  	
  17,847.00

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greece — Advance Payment Bond

  	
   

  	
  S321038

  	
   

  	
   

  	
   

  	
  €

  	
  4,800,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greece — Performance Bond

  	
   

  	
  S321028

  	
   

  	
   

  	
   

  	
  €

  	
  960,000

  	
   

  



 


1

















 


SCHEDULE 5.06


 


LITIGATION


 


We
are currently a party to the following significant legal proceedings:


 


IRS Claim.    The
Internal Revenue Service (IRS) issued a Notice of Proposed Adjustment on
June 3, 2009 proposing to reallocate foreign tax credits amounting to
$9.8 million taken in 2005 and 2006 to earlier tax years. We are
protesting the proposed adjustment and on January 15, 2010, requested that
the matter be submitted to IRS Appeals. The case is currently in the IRS
appeals process, and a conference to review the matter is expected in late
2010. We have established a reserve for the full amount of our potential
liability.


 


Evergreen Claim.    Evergreen
Helicopters, Inc. (Evergreen) filed a complaint against us in the U.S.
District Court for the District of Oregon on June 29, 2009 alleging claims
under the Sherman Antitrust Act and the Clayton Act and for breach of contract.
The complaint alleges that the plaintiff is the owner of one “S-64E Skycrane” [sic] helicopter acquired in 1973 and two
CH-54A Skycrane helicopters acquired respectively in 2004 and 2006, and that
the plaintiff is a third-party beneficiary under a 1992 contract between us and
Sikorsky Aircraft Corporation that obligated us to support Skycranes. The
plaintiff alleges that we breached our obligations to third-party beneficiaries
by restricting the supply of parts and not supplying parts for its S-64E in a
timely manner, particularly in the four-year period prior to the filing of the
complaint, and by restricting the supply of parts and not supplying parts for
CH-54As. The plaintiff also alleges that we have monopoly power in the alleged
heavy-lift helicopter service and parts markets, or that we are attempting to
obtain such monopoly power, and that Evergreen’s business has been injured by
our actions. The complaint seeks damages in an unspecified sum, treble damages
under the antitrust laws, and costs, disbursements, and attorneys’ fees. The
case is currently in the discovery phase. In a lawsuit brought against us in
2007, which was subsequently settled, the court determined in a non-final order
that we had an affirmative obligation under the 1992 Sikorsky contract to
support CH-54 operators. We intend to continue to vigorously defend ourselves
against these claims, but we cannot predict whether we will be successful if
the case proceeds to trial.


 


Rome Accident.    In
July 2005, one of our U.S. employees was killed when an Aircrane being
delivered to our Italian customer crashed. The commander of the flight, who
also is one of our employees, is subject to criminal prosecution under Italian
law. The preliminary investigation closed in March 2008, and the commander
was indicted. The matter is pending in the
Tribunale Civile e Penale di Civitaveccia Ufficio GIP/GUP. The family
members of the deceased filed in the criminal court as damaged civil parties
for damages in an aggregate amount of €1.2 million ($1.6 million). We
accepted the plaintiffs’ most recent settlement offer of €0.4 million
($533,000) on April 13, 2010 and that acceptance was acknowledged by the
plaintiffs on April 19, 2010. We are in the process of negotiating the
related release and settlement agreement. Of the €0.4 million ($533,000)
settlement amount, our insurer has agreed to pay €0.2 million ($266,500).
We have reserved for the remaining €0.2 million ($266,500) at
December 31, 2009.


 


Tomato Crop Claim.    In
November 2008, Società Agricola C.S.A. Srl filed a claim in the Corte d’Apello
in Lecce, Italy alleging €2,888,250 in damages to a tomato crop and farm
facilities when an Aircrane engaged in firefighting in Italy drew water from a
farmer’s reservoir. The action is in an early stage and our insurers are
defending under reservation of rights. We are not able to determine


 


1

















 


the
likelihood of any outcome in this matter, nor are we able to estimate the
amount or range of loss or the impact on our financial condition in the event
of an unfavorable outcome.


 


U.S. Forest Service Claim.    In
early June 2008, we were awarded four contracts with the United States
Forest Service (USFS). In late June 2008, the USFS issued a stop work
order on three of the four contracts. In October, 2008 we filed a request for
equitable adjustment on the stop work order with the USFS Contracting Officer.
After being denied on our request for equitable adjustment, in July 2009,
we filed a claim with the Civilian Board of Contract Appeals for approximately
$3.0 million, which represented our estimate of additional costs incurred
by us under these contracts, which we were not able to mitigate, as a result of
the stop work order. We believe that these additional costs are compensable
under USFS rules. An independent expert has determined the amount of these
additional costs at $2.8 million. We and the USFS have each filed motions
for summary judgment with the Civilian Board of Contract Appeals. We are
awaiting a decision on the motions for summary judgment. We recorded
approximately $3.0 million as a receivable in 2008, and reduced this
amount to approximately $2.8 million in 2009 to reflect the revised
estimate of additional costs.


 


Escrow Claim.    Our
company was acquired in a merger transaction on September 27, 2007, in
which the buyers acquired 100% of our outstanding common stock. In connection
with that transaction, the seller established a $9 million escrow to
guarantee certain of seller’s obligations, including seller’s indemnity
obligations under the purchase agreement. The seller is obligated under the
purchase agreement to indemnify us for 50% of any claims by the IRS in
connection with foreign tax credits, with such foreign tax credit
indemnification obligation capped at $6 million (see —IRS Claim). On
August 12, 2008, we issued a demand notice against the escrow. On
February 3, 2009, we filed a complaint against the seller in the Supreme
Court of the State of New York alleging breach of contract, breach of warranty,
and negligent misrepresentation. On April 7, 2009, the seller filed a
motion to dismiss, which was subsequently granted by the court on
December 22, 2009. On February 12, we filed a notice of appeal, which
we amended on May 6, 2010.


 


2

















 


SCHEDULE 5.09


 


ENVIRONMENTAL MATTERS


 


Borrower
is continuing to participate in remediating environmental damage resulting from
the identification of hazardous substances at its Central Point, Oregon
facility. Under the Asset Purchase Agreement with Erickson Group, Ltd. (“Erickson
Group”), a previous owner of Borrower, Erickson Group will bear the financial
responsibility for the payment of the first $1.5 million of the cleanup
costs. Erickson Group and the Borrower shall each bear one-half of the
financial responsibility for the payment of the next $1.0 million of
cleanup costs, and any aggregate costs in excess of $2.5 million will be
the sole responsibility of Erickson Group. Erickson Group is responsible for
directing and controlling the remediation efforts. Since 2000, the Borrower has
paid $0.4 million to Erickson Group for a portion of its exposure on the
$0.5 million layer of financial responsibility and has recorded a
liability for the remaining $0.1 million exposure on its remaining share.
In August 2006, Erickson Group received an insurance settlement of
$0.3 million related to the environmental damage and will suspend further
requests of co-funding until such amount is depleted from its environmental
fund.


 


Erickson
Air-Crane has no active involvement in the Central Point remediation process
other than to allow access to Anchor Environmental, Borrower hired by Erickson
Group, to conduct monitoring activities.  Anchor Environmental continues
to collect samples from all of the test wells on and off site.  One new
test well was drilled near the helipad in the last year.  The Borrower has
received indications in the past that the levels of contamination are
continuing to drop.  No other activity is occurring with regard to the
remediation process.  The remediation itself consists of a passive
underground “wall” made of iron filings through which the contaminated water
runs.  The wall filters out the contamination via a reaction with the
components of the wall.


 


Borrower is not involved in any other environmental remediation
projects at this time.


 


1

















 


SCHEDULE 5.10


 


PROPERTY INSURANCE


 


[SEE ATTACHED INSURANCE CERTIFICATES]


 


1

















 


SCHEDULE 5.13


 


SUBSIDIARIES AND OTHER EQUITY INVESTMENTS


 


(a)           Subsidiaries


 


	
  1)

  	
  Name

  	
   

  	
  Dutch Air-Crane B.V.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Jurisdiction
  of Incorporation

  	
   

  	
  Netherlands

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number
  of Authorized Shares for each Class of Capital Stock

  	
   

  	
  2,000
  shares (par value of 100 Gilders each)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number
  of Issued and Outstanding Shares of each Class of Capital Stock

  	
   

  	
  400
  shares

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Names
  of the Holder and Number of Shares Held

  	
   

  	
  Erickson
  Air-Crane Incorporated (sole shareholder) — 400 shares

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number
  of Shares Held in Treasury

  	
   

  	
  None

  
	
   

  	
   

  	
   

  	
   

  
	
  2) 

  	
  Name

  	
   

  	
  Erickson Air-Crane
  (Malaysia) Sdn. Bhd.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Jurisdiction
  of Incorporation

  	
   

  	
  Malaysia

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number
  of Authorized Shares for each Class of Capital Stock

  	
   

  	
  250,000
  shares

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number
  of Issued and Outstanding Shares of each Class of Capital Stock

  	
   

  	
  250,000
  shares

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Names
  of the Holder and Number of Shares Held

  	
   

  	
  Erickson
  Air-Crane Incorporated — 245,000 shares

  Eniyantti T. Eddie — 5,000 shares

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number
  of Shares Held in Treasury

  	
   

  	
  None

  
	
   

  	
   

  	
   

  	
   

  
	
  3)

  	
  Name

  	
   

  	
  CAC Development
  Canada, Inc. (Canada)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Jurisdiction
  of Incorporation

  	
   

  	
  Canada
  (Canada Business Corporations Act)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number
  of Authorized Shares for each Class of Capital Stock

  	
   

  	
  Unlimited

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number
  of Issued and Outstanding Shares of each Class of Capital Stock

  	
   

  	
  100
  Common Shares

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Names
  of the Holder and Number of Shares Held

  	
   

  	
  Erickson
  Air-Crane Incorporated (sole shareholder) — 100 Common Shares

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number
  of Shares Held in Treasury

  	
   

  	
  None

  



 


1

















 


	
  4)

  	
  Name

  	
   

  	
  Canadian
  Air-Crane Ltd.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Jurisdiction
  of Incorporation

  	
   

  	
  Canada
  (Canada Business Corporations Act)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number
  of Authorized Shares for each Class of Capital Stock

  	
   

  	
  100
  Class A Voting Common Shares

   

  5,000
  Class B Non-voting Common Shares

   

  5,000,000
  Non-voting Redeemable Preference Shares

   

  *All
  with no par value

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number
  of Issued and Outstanding Shares of each Class of Capital Stock

  	
   

  	
  25
  Class A Voting Common Shares

   

  2,548
  Class B Non-voting Common Shares

   

  212,500
  Non-voting Redeemable Preference Shares

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Names
  of the Holder and Number of Shares Held

  	
   

  	
  RFT
  Industries Ltd. — 19 Class A Voting Common Shares

   

  CAC
  Development Canada, Inc. — 6 Class A Voting Common Shares, 2,548
  Class B Non-voting Common Shares and 212,500 Non-voting Redeemable
  Preference Shares

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number
  of Shares Held in Treasury

  	
   

  	
  None

  
	
   

  	
   

  	
   

  	
   

  
	
  5)

  	
  Name

  	
   

  	
  European
  Air-Crane SpA

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Jurisdiction
  of Incorporation

  	
   

  	
  Italy

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number
  of Authorized Shares for each Class of Capital Stock

  	
   

  	
  1,000,000
  Common Shares (nominal value of Euro 1.00)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number
  of Issued and Outstanding Shares of each Class of Capital Stock

  	
   

  	
  1,000,000
  Common Shares

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Names
  of the Holder and Number of Shares Held

  	
   

  	
  Erickson
  Air-Crane Incorporated — 490,000 Common Shares

   

  F.C.N.
  S.a.R. — 20,000 Common Shares

   

  Inaer
  Helicopter Italia S.p.A. — 490,000 Common Shares

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number
  of Shares Held in Treasury

  	
   

  	
  None

  



 


2














 


(b)           Equity Interests


 


	
  1)

  	
  Name

  	
   

  	
  Layang-Layang Services Sdn. Bdh.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Jurisdiction of Incorporation

  	
   

  	
  Malaysia

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number of Authorized Shares for each
  Class of Capital Stock

  	
   

  	
  500,000 shares

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number of Issued and Outstanding Shares of each
  Class of Capital Stock

  	
   

  	
  200,000 shares

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Names of the Holder and Number of Shares Held

  	
   

  	
  Erickson Air-Crane
  (Malaysia) Sdn. Bhd. — 98,000 shares (49%)

   

  Datuk Michael Hardin —
  80,000 shares (40%)

   

  Yong Kiam Miaw — 22,000 shares (11%)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number of Shares Held in Treasury

  	
   

  	
  None

  
	
   

  	
   

  	
   

  	
   

  
	
  2)

  	
  Name

  	
   

  	
  Society Italiana di
  Manutenzioni Aeronautiche SpA (SIMA)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Jurisdiction of Incorporation

  	
   

  	
  Italy

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number of Authorized Shares for each
  Class of Capital Stock

  	
   

  	
  300,000 Common Shares (nominal value of Eruo 1.00)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number of Issued and Outstanding Shares of each
  Class of Capital Stock

  	
   

  	
  300,000 Common Shares

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Names of the Holder and Number of Shares Held

  	
   

  	
  European Air-Crane S.p.A — 180,000 Common Shares (60%)

   

  Gestioni Industriali e
  Servizi Aziendali SpA — 120,000 Common Shares (40%)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number of Shares Held in Treasury

  	
   

  	
  None

  



 


(A)          Amounts reflect the
purchase of SIMA’s equity interests from Elilario in February 2007.


 


3

















 


SCHEDULE 5.15


INTELLECTUAL PROPERTY


Domain Names


 


1.              Erickson Air-Crane
Incorporated owns the Following domain names:


 


(a)                                      EACCP.COM


(b)                                      EACCP.NET


(c)                                       EACCP.US


(d)                                      ERICKSONAIRCRANE.COM


(e)                                       EACAERO.COM


(f)                                        EACAERO.NET


(g)                                       ERICKSONAERO.COM


(h)                                      ERICKSONAERO.NET


2.              Canadian Air-Crane Ltd. owns
the following domain name, which was registered pursuant to an agreement with
Network Solutions, LLC: AIR-CRANE.COM.


 


3.              European Air-Crane SpA owns
the following domain name: EUROPEAN-AIRCRANE.COM.


 


4.              Erickson Air-Crane
(Malaysia) Sdn. Bhd. owns EACMALAYSIA.COM.


 


Type Certificate


 


Number H6EA issued by the U.S. Department of
Transportation - Federal Aviation Administration to Erickson Air-Crane
Incorporated certifying that the helicopter models S-64E and S-64F meet the
air-worthiness requirements dated 8/21/69. Remains in effect until surrendered,
suspended, revoked or a termination date is otherwise established by the
administrator of the FAA


 

















 


Production Certificate


 


Issued by the US. Department of Transportation -
Federal Aviation Administration to Erickson Air-Crane Incorporated authorizing
the production of reasonable duplicates of Aircraft which are manufactured in
conformity with authenticated data for which Type Certificates specified in the
pertinent and currently effective Production Limitation Record were issued.
Certificate number 716NM. Issued 12/8/99 and amended 4/16/07 (indefinite
validity).


 


Ticker Symbol


 


The Borrower has reserved the following Nasdaq
Ticker Symbol: EAC


 


PATENTS


 


U.S.


 


	
  Title/KH File

  	
   

  	
  Patent No. 

  Issue Date

  	
   

  	
  Expires

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AIRCRAFT FLUID DROP SYSTEM

   

  (ERI 301)

  	
   

  	
  5,320,185 June 14, 1994

  	
   

  	
  June 15, 2012

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AIRCRAFT FLUID DROP SYSTEM

   

  (ERI 301A)

  	
   

  	
  5,451,016 September 19, 1995

  	
   

  	
  June 14,2011

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLUID LOADING SYSTEM

   

  (ERI 306)

  	
   

  	
  6,644,595 November 11, 2003

  	
   

  	
  March 9, 2021

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLUID LOADING SYSTEM

   

  (ERI 306B)

  	
   

  	
  6,874,734 April 5, 2005

  	
   

  	
  March 9, 2021

  



 

















 


FOREIGN


 


	
  Title/Country/KH File

  	
   

  	
  Patent No. 

  Issue Date

  	
   

  	
  Expires

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLUID LOADING SYSTEM (Canada)

   

  (ERI 306A1)

  	
   

  	
  2402907

   

  November 10, 2009

  	
   

  	
  March 9, 2021

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLUID LOADING SYSTEM (Europe)

   

  (validated in FR (France), GR (Greece), IT (Italy), ES (Spain),
  TR (Turkey), PT (Portugal), MC (Monaco))

   

  (ERI 306A2)

  	
   

  	
  EP 1419310

   

  July 18, 2007

  	
   

  	
  March 9, 2021

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLUID LOADING SYSTEM (China)

   

  (ERI 306A4)

  	
   

  	
  ZL 01808735.3

   

  July 16, 2008

  	
   

  	
  March 9, 2021

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLUID LOADING SYSTEM (Republic of Korea)

   

  (ERI 306A5)

  	
   

  	
  8890879

   

  March 10, 2009

  	
   

  	
  March 9, 2021

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLUID LOADING SYSTEM (Australia)

   

  (ERI 306A6)

  	
   

  	
  2001281468

   

  December 6, 2007

  	
   

  	
  March 9, 2021

  



 














 


PATENT
APPLICATIONS


 


FOREIGN


 


	
  Title/KH
  File

  	
   

  	
  Serial No. Filing Date

  	
   

  	
  Status/Comments

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLUID
  LOADING SYSTEM (Japan)

   

  (ERI
  306A3)

  	
   

  	
  2001-567913

   

  September 10,
  2002

  	
   

  	
  Awaiting
  further action

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLUID
  LOADING SYSTEM (Republic of Korea)

   

  (ERI
  306A5DIV)

  	
   

  	
  7029246/2008

   

  November 28,
  2009

  	
   

  	
  Abandoned;
  claims covered in ERI 306A5

  



 


PATENT
REEXAMINATION PROCEEDINGS


 


U.S.


 


	
  Title/KH
  File

  	
   

  	
  Patent No.

  	
   

  	
  Status/Comments

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLUID
  LOADING SYSTEM

   

  (ERI
  306RX/ERI306RX1)

  	
   

  	
  6,644,595

   

  (Reexamination
  Proceedings Requested by Erickson and Requested by Third Party)

  	
   

  	
  Awaiting
  further action

  



 

















 


TRADEMARK
REGISTRATIONS


 


U.S.


 


	
  Mark
  KH File

  	
   

  	
  Registration No.

  Registration Date

  	
   

  	
  Goods and/or Services

  	
   

  	
  Status

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AIR
  CRANE

   

  ERI
  401

  	
   

  	
  2,262,212

   

  July 20,
  1999

  	
   

  	
  aerial
  timber logging services and aerial heavy-lift construction services, in
  International Class 37; and aerial firefighting services, in
  International Class 42

  	
   

  	
  Renewal
  due July 20, 2019

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AIR
  CRANE

   

  ERI
  403

  	
   

  	
  2,578,985

   

  June 11,2002

  	
   

  	
  aerial
  lift vehicles

  	
   

  	
  Renewal
  due June 11,2012

  



 

















 


TRADEMARK
APPLICATIONS


 


U.S.


 


	
  Mark
  KH File

  	
   

  	
  Serial No. Filing Date

  	
   

  	
  Goods and/or Services

  	
   

  	
  Status

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AIRS

   

  ERI
  406A

  	
   

  	
  85/059,986

   

  June 10,
  2010

  	
   

  	
  Emergency
  incident response

   

  services,
  namely, rescue services in International Class 39

  	
   

  	
  Awaiting
  action

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AIR
  INCIDENT RESPONSE SYSTEMS ERI 407A

  	
   

  	
  85/059,995

   

  June 10,
  2010

  	
   

  	
  Emergency
  incident response

   

  services,
  namely, rescue services in International Class 39

  	
   

  	
  Awaiting
  action

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MISCELLANEOUS DESIGN

   

   

  (helicopter logo)

   

  ERI 408

  	
   

  	
  77/476,001

   

  May 15,
  2008

  	
   

  	
  Emergency
  medical response

   

  services
  in International Class 44

  	
   

  	
  Notice
  of Appeal filed; Appeal brief due August 2, 2010

  



 


1

















 


	
  Mark
  KH File

  	
   

  	
  Serial No. Filing Date

  	
   

  	
  Goods and/or Services

  	
   

  	
  Status

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MISCELLANEOUS DESIGN

   

   

   

  (helicopter logo)

   

  ERI 408DIV

   

  (divisional
  application separating services from

   

  ERI408)

  	
   

  	
  77/978,281

   

  May 15,
  2008

  	
   

  	
  Timber
  logging in International

   

  Class 40
  and Firefighting in

   

  International
  Class 45

  	
   

  	
  Awaiting
  further action

  



 


2














 


SCHEDULE 5.17


 


MATERIAL FEDERAL CONTRACTS


 


1.              National Call When Needed Heavy (Type I) & Medium
(Type II) Helicopter Services Agreement between the U.S. Forest Service
and Erickson Air-Crane Incorporated, dated April 4, 2008, as amended.


 


2.              National Exclusive Use Large Fire Support Helicopter Services
Agreement between the U.S. Forest Service and Erickson Air-Crane Incorporated,
dated March 6, 2009, as amended.


 


3.              National Exclusive Use Large Fire Support Helicopter Services
Agreement between the U.S. Forest and Erickson Air-Crane Incorporated, date
June 6, 2008, as amended.


 


1

















 


SCHEDULE 7.01


 


EXISTING LIENS


 


UCC
Liens:  Delaware Secretary of State


 


	
  Filing
  #

  	
   

  	
  Form

  	
   

  	
  Date

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
  82270351

  	
   

  	
  UCC-1

  	
   

  	
  07/02/2008

  	
   

  	
  US
  Express Leasing, Inc.

  	
   

  	
  Leased
  Equipment

  
	
  82509923

  	
   

  	
  UCC-1

  	
   

  	
  07/22/2008

  	
   

  	
  US
  Express Leasing, Inc.

  	
   

  	
  Leased
  Equipment

  
	
  82854881

  	
   

  	
  UCC-1

  	
   

  	
  08/21/2008

  	
   

  	
  US
  Express Leasing, Inc.

  	
   

  	
  Leased
  Equipment

  
	
  82854923

  	
   

  	
  UCC-1

  	
   

  	
  08/21/2008

  	
   

  	
  US
  Express Leasing, Inc.

  	
   

  	
  Leased
  Equipment

  
	
  82983136

  	
   

  	
  UCC-1

  	
   

  	
  09/03/2008

  	
   

  	
  US
  Express Leasing, Inc.

  	
   

  	
  Leased
  Equipment

  
	
  83699251

  	
   

  	
  UCC-1

  	
   

  	
  11/04/2008

  	
   

  	
  US
  Express Leasing, Inc.

  	
   

  	
  Leased
  Equipment

  



 


1

















 


SCHEDULE 7.06


 


EXISTING LEASES


 


1.              Lease Agreement
between Borrower and SRI Eight Macadam LLC for approximately
7,300 sq. ft. of headquarters office space in Portland, Oregon, dated
March 31, 2009.


 


2.              Non-Commercial
Aviation Hangar Ground Lease Type B between Borrower and Jackson County Airport
Authority, dated May 24, 2007.


 


3.              Lease Agreement
for 6909 and 6999 Sixth Street, between Borrower and A&B Properties, Inc.,
dated July 15, 2002.


 


4.              Lease Agreement
for a 12x56 mobile office trailer between Borrower and Design Space Modular Buildings
(formerly Commercial Mobile Structures), dated June 9, 2000.


 


5.              The following
foreign lease agreements:


 


a.              Lease Indenture
between Jacqueline Cheong and Canadian Air-Crane LTD, dated August 29,
1994.


 


b.              Hanger Bay
Rental Agreement between Erickson Air-Crane (Malaysia) Sdn. Bhd. and Malaysia
Airports Sdn. Bhd., dated July 9, 2009.


 


c.               Tenancy
Agreement for hanger at Miri Airport between Erickson Air-Crane (Malaysia) Sdn.
Bhd. and Malaysia Airports Sdn. Bhd., dated August 15, 2006.


 


d.              Airport Land
Rental Agreement between European Air-Crane S.p.a. and Aeroporto di Lucca,
dated April 8, 2009.


 


e.               European
Air-Crane S.p.a. Office Lease Agreement, dated March 21, 2005.


 


f.                Office Lease
Agreement between European Air-Crane S.p.a. and Finim S.p.a. for warehouse
space in Lucca, Italy, dated December 21, 2007.


 


g.               Office Space
Agreement between European Air-Crane S.p.a. and Aeroporto Lucca Tassignano
S.p.a., dated September 1, 2005.


 


1

















 


SCHEDULE 10.02


 


ADDRESSES FOR NOTICES


 


	
  ERICKSON AIR-CRANE INCORPORATED

  
	
  5550 SW Macadam, Suite 200

  
	
  Portland, OR 97239

  
	
  Attn:

  	
  Chuck
  Ryan, Chief Financial Officer

  
	
   

  	
  Telephone:

  	
  503-505-5815

  
	
   

  	
  Facsimile:

  	
  503-473-8540

  
	
   

  	
  Email:

  	
  cryan@ericksonaircrane.com

  



 


WELLS
FARGO BANK, NATIONAL ASSOCIATION


 


	
  Administration
  Agent’s Office

  	
   

  	
   

  
	
  (Notices
  as Administrative Agent):

  	
   

  	
  With
  a copy to:

  
	
   

  	
   

  	
   

  
	
  Wells
  Fargo Bank, National Association

  	
   

  	
  Wells
  Fargo Bank, National Association

  
	
  1525
  West W. T. Harris Blvd — 1B1

  	
   

  	
  1300
  SW Fifth Avenue, T-19

  
	
  Charlotte,
  NC 28262

  	
   

  	
  Portland,
  OR 97201

  
	
  Mail
  Code:  MAC-D1109-019

  	
   

  	
  Mail
  Code:  MAC P6101-133

  
	
  Attn:

  	
  Elisha
  Sabido

  	
   

  	
  Attn:

  	
  James
  R. Bednark

  
	
   

  	
  Telephone:

  	
  704-590-4937

  	
   

  	
   

  	
  Telephone:

  	
  503-886-2280

  
	
   

  	
  Facsimile:

  	
  704-715-0017

  	
   

  	
   

  	
  Facsimile:

  	
  503-886-3210

  
	
   

  	
  Email:

  	
  ASRETeamB@Wachovia.com

  	
   

  	
   

  	
  Email:

  	
  james.r.bednark@wellsfargo.com

  
	
   

  	
   

  	
   

  
	
  Lender;
  Swing Line Lender; L/C Issuer

  	
   

  	
   

  
	
  (Requests
  for Extensions of Credit):

  	
   

  	
  With
  a copy to:

  
	
   

  	
   

  	
   

  
	
  Wells
  Fargo Bank, National Association

  	
   

  	
  Wells
  Fargo Bank, National Association

  
	
  1525
  West W. T. Harris Blvd — 1B1

  	
   

  	
  1300
  SW Fifth Avenue, T-19

  
	
  Charlotte,
  NC 28262

  	
   

  	
  Portland,
  OR 97201

  
	
  Mail
  Code: MAC-D1109-019

  	
   

  	
  Mail
  Code: MAC P6101-133

  
	
  Attn:

  	
  Elisha
  Sabido

  	
   

  	
  Attn:

  	
  James
  R. Bednark

  
	
   

  	
  Telephone:

  	
  704-590-4937

  	
   

  	
   

  	
  Telephone:

  	
  503-886-2280

  
	
   

  	
  Facsimile:

  	
  704-715-0017

  	
   

  	
   

  	
  Facsimile:

  	
  503-886-3210

  
	
   

  	
  Email:

  	
  ASRETeamB@Wachovia.com

  	
   

  	
   

  	
  Email:

  	
  james.r.bednark@wellsfargo.com

  



 


1

















 


EXHIBIT A


 


FORM OF COMMITTED LOAN NOTES


 


1

















 


Revolving Loans Promissory Note


 


 


	
  $

  	
   

  	
  June 24, 2010

  



 


FOR
VALUE RECEIVED, the undersigned, Erickson Air-Crane Incorporated, a Delaware
corporation (“Borrower”), hereby promises to pay to the order of
                                                    
(“Lender”) on the Maturity Date, or at such earlier time as is provided in that
certain Credit Agreement among Borrower, Wells Fargo Bank, National Association
(as Administrative Agent, Swing Line Lender and L/C Issuer) and the Lenders
named therein dated as of June 24, 2010 (as amended, modified or
supplemented from time to time, the “Credit Agreement”), the principal sum of
                              
Dollars ($                          ),
or such lesser amount as shall equal the aggregate outstanding principal
balance of all Revolving Loans made by Lender to Borrower pursuant to the
Credit Agreement.


 


This
promissory note is one of the promissory notes referred to in, and subject to
the terms of, the Credit Agreement. 
Capitalized terms used herein shall have the respective meanings
assigned to them in the Credit Agreement.


 


Borrower
further promises to pay interest on the outstanding principal balance hereof at
the interest rates, and payable on the dates, set forth in the Credit
Agreement.  All payments of principal and
interest hereunder shall be made to Administrative Agent in lawful money of the
United States and in same day or immediately available funds.


 


Lender
is authorized but not required to record the date and amount of each advance
made hereunder, the date and amount of each payment of principal and interest
hereunder, and the resulting unpaid principal balance hereof, in Lender’s
internal records, and any such recordation shall be prima facie evidence of the
accuracy of the information so recorded; provided however, that Lender’s
failure to so record such amounts shall not limit or otherwise affect Borrower’s
obligations hereunder and under the Credit Agreement to repay the principal
hereof and interest hereon.


 


Borrower
shall pay all costs of collection, including reasonable attorneys’ fees
(whether incurred at the trial or appellate level, in an arbitration
proceeding, in bankruptcy (including, without limitation, any adversary
proceeding, contested matter or motion) or otherwise).  No delay or failure on the part of Lender in
exercising any of its rights hereunder shall be deemed a waiver of such rights
or any other right of Lender, nor shall any delay, omission or waiver on any
one occasion be deemed a bar to or waiver of such rights or any other right on
any future occasion.  Borrower and every
surety, indorser and guarantor of this Note waive presentment, demand, protest,
notice of intention to accelerate, notice of acceleration, notice of nonpayment
and all other notices of every kind, and agree that their liability under this
Note shall not be affected by any renewal, postponement or extension in


 


2

















 


the
time of payment hereof, by any indulgence granted by any holder hereof with
respect hereto, or by any release or change in any security for the payment of
this Note, and they hereby consent to any and all renewals, extensions,
indulgences, releases or changes, regardless of the number of such renewals,
extensions, indulgences, releases or changes.


 


The
Credit Agreement provides, among other things, for acceleration (which in
certain cases shall be automatic) of the maturity hereof upon the occurrence of
certain stated events, in each case without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by
Borrower.


 


Borrower’s
obligations evidenced by this promissory note are secured by the Collateral
described in the Loan Documents.  The
Loan Documents describe the rights of Administrative Agent, Lender and any
other holder hereof with respect to the Collateral.


 


In
the event of any conflict between the terms of this promissory note and the
terms of the Credit Agreement, the terms of the Credit Agreement shall control.


 


THIS
PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).


 


UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS
MADE BY LENDER CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR
PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY BORROWER’S
RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY LENDER TO
BE ENFORCEABLE.


 


	
   

  	
  ERICKSON
  AIR-CRANE INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


3














 


Term Loan Promissory Note


 


	
  $

  	
   

  	
  June 24, 2010

  



 


FOR
VALUE RECEIVED, the undersigned, Erickson Air-Crane Incorporated, a Delaware
corporation (“Borrower”), hereby promises to pay to the order of
                                                    
(“Lender”) the principal sum of
                              
Dollars ($                          )
in principal installments of
$                              
each on the first Business Day of each March, June, September and December beginning
September 1, 2010 and the outstanding principal balance, together with all
accrued and unpaid interest and related fees, on the Maturity Date.


 


This
promissory note is one of the promissory notes referred to in, and subject to
the terms of, that certain Credit Agreement among Borrower, Wells Fargo Bank,
National Association (as Administrative Agent, Swing Line Lender and L/C
Issuer) and the Lenders named therein dated as of June 24, 2010 (as
amended, modified or supplemented from time to time, the “Credit Agreement”).  Capitalized terms used herein shall have the
respective meanings assigned to them in the Credit Agreement.


 


Borrower
further promises to pay interest on the outstanding principal balance hereof at
the interest rates, and payable on the dates, set forth in the Credit
Agreement.  All payments of principal and
interest hereunder shall be made to Administrative Agent in lawful money of the
United States and in same day or immediately available funds.


 


Lender
is authorized but not required to record the date and amount of each advance
made hereunder, the date and amount of each payment of principal and interest
hereunder, and the resulting unpaid principal balance hereof, in Lender’s
internal records, and any such recordation shall be prima facie evidence of the
accuracy of the information so recorded; provided however, that Lender’s
failure to so record such amounts shall not limit or otherwise affect
Borrower’s obligations hereunder and under the Credit Agreement to repay the
principal hereof and interest hereon.


 


Borrower
shall pay all costs of collection, including reasonable attorneys’ fees
(whether incurred at the trial or appellate level, in an arbitration
proceeding, in bankruptcy (including, without limitation, any adversary
proceeding, contested matter or motion) or otherwise).  No delay or failure on the part of Lender in
exercising any of its rights hereunder shall be deemed a waiver of such rights
or any other right of Lender, nor shall any delay, omission or waiver on any
one occasion be deemed a bar to or waiver of such rights or any other right on
any future occasion.  Borrower and every
surety, indorser and guarantor of this Note waive presentment, demand, protest,
notice of intention to accelerate, notice of acceleration, notice of nonpayment
and all other notices of every kind, and agree that their liability under this
Note shall not be affected by any renewal, postponement or extension in the 


 


4

















 


the
time of payment hereof, by any indulgence granted by any holder hereof with
respect hereto, or by any release or change in any security for the payment of
this Note, and they hereby consent to any and all renewals, extensions,
indulgences, releases or changes, regardless of the number of such renewals,
extensions, indulgences, releases or changes.


 


The
Credit Agreement provides, among other things, for acceleration (which in
certain cases shall be automatic) of the maturity hereof upon the occurrence of
certain stated events, in each case without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by
Borrower.


 


Borrower’s
obligations evidenced by this promissory note are secured by the Collateral
described in the Loan Documents.  The
Loan Documents describe the rights of Administrative Agent, Lender and any
other holder hereof with respect to the Collateral.


 


In
the event of any conflict between the terms of this promissory note and the
terms of the Credit Agreement, the terms of the Credit Agreement shall control.


 


THIS
PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).


 


UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY
LENDER CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL,
FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY BORROWER’S RESIDENCE MUST BE
IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY LENDER TO BE ENFORCEABLE.


 


	
   

  	
  ERICKSON
  AIR-CRANE INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


5

















 


EXHIBIT B


 


FORM OF COMMITTED LOAN NOTICE


 


Date: 
                            ,         


 


To:          Wells Fargo Bank, National
Association, as Administrative Agent


 


Ladies
and Gentlemen:


 


Reference
is made to that certain Credit Agreement, dated as of June 24, 2010 (as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the “Agreement”; the terms defined therein being used
herein as therein defined), among Erickson Air-Crane Incorporated, a Delaware
corporation (the “Borrower”), the Lenders from time to time party
thereto, and Wells Fargo Bank, National Association, as Administrative Agent,
Swing Line Lender and L/C Issuer.


 


The
undersigned hereby requests (select one):


 


o A Borrowing of
Revolving Loans


 


o A conversion
or continuation of Loans


 


1.             On
                                                  
(a Business Day).


 


2.             In the amount of
                                    .


 


3.             Comprised of
                                    .

[Type of Committed Loan requested]


 


4.             For LIBOR Rate Loans:  with an Interest Period of
                    
months.


 


The
Borrower hereby certifies that the following statements are and will be true
and correct on the date of the Borrowings requested above, both before and
after giving effect to the Borrowings requested above:


 


(a)           the representations and
warranties made by the Borrower in the Agreement, or which are contained in any
certificate, document or financial or other statement furnished at any time
under or in connection therewith, are and will be true and correct on and as of
the date of the Borrowings requested above, except to the extent that such
representations and warranties specifically refer to any earlier date and
except that this request shall be deemed instead to refer to the last day of
the most recent year or quarter, as the case may be, for which financial
statements have then been delivered in respect of the representation and
warranty made in Section 5.05(a) or 5.05(b) of the
Agreement; and


 


1

















 


(b)           no Default or Event of
Default shall exist, or would result from the Borrowings requested hereby.


 


	
   

  	
  ERICKSON
  AIR-CRANE INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


2

















 


EXHIBIT C


 


FORM OF COMPLIANCE CERTIFICATE


 


Financial Statement Date
                                 ,       


 


To:          Wells Fargo Bank, National
Association, as Administrative Agent


 


Ladies
and Gentlemen:


 


Reference
is made to that certain Credit Agreement, dated as of June 24, 2010 (as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the “Agreement”; the terms defined therein being used
herein as therein defined), among Erickson Air-Crane Incorporated, a Delaware
corporation (the “Borrower”), the Lenders from time to time party
thereto, and Wells Fargo Bank, National Association, as Administrative Agent,
Swing Line Lender and L/C Issuer.


 


The
undersigned Responsible Officer hereby certifies as of the date hereof that
he/she is the
                                
of the Borrower, and that, as such, he/she is authorized to execute and deliver
this Certificate to the Administrative Agent on the behalf of the Borrower, and
that:


 


[Use following for fiscal year-end financial statements]


 


1.             Accompanying this
Certificate are the year-end audited financial statements required by Section 6.01(a) of
the Agreement for the fiscal year of the Borrower ended as of the above date,
together with the report and opinion of an independent certified public
accountant required by such section.


 


[Use following for fiscal quarter-end financial statements]


 


1.             Accompanying this
Certificate are the unaudited financial statements required by Section 6.01(b) of
the Agreement for the fiscal quarter of the Borrower ended as of the above
date.  Such financial statements fairly
present the financial condition, results of operations and cash flows of the
Borrower and its Subsidiaries in accordance with GAAP as at such date and for
such period, subject only to normal year-end audit adjustments and the absence
of footnotes.


 


2.             The undersigned has reviewed
and is familiar with the terms of the Agreement and has made, or has caused to
be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Borrower during the accounting period
covered by the attached financial statements.


 


3.             A review of the activities
of the Borrower during such fiscal period has been made under the supervision
of the undersigned with a view to determining whether during


 


1

















 


such
fiscal period the Borrower performed and observed all its Obligations under the
Loan Documents, and


 


[select one.]


 


[to
the best knowledge of the undersigned after due inquiry, no Default or Event of
Default exists as of the date hereof.]


 


—or


 


[the
following covenants or conditions have not been performed or observed and the
following is a list of each such Default or Event of Default, its nature and
status and the action that the Borrower proposes to take with respect thereto:]


 


4.             The representations and warranties
of the Borrower contained in the Loan Documents are true and correct on and as
of the date hereof, except to the extent that such representations and
warranties specifically refer to an earlier date except that this Certificate
shall be deemed instead to refer to the last day of the most recent year or
quarter, as the case may be, for which financial statements have then been
delivered in respect of the representation and warranty made in Section 5.05(a) or
5.05(b) of the Agreement.


 


5.             The calculation attached
hereto demonstrating Borrower’s compliance with the covenant set forth in Sections 7.13
and 7.14 of the Agreement are true and accurate on and as of the date of
this Certificate.


 


IN WITNESS WHEREOF, the undersigned has
executed this Certificate as of the date below.


 


	
   

  	
  ERICKSON
  AIR-CRANE INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Dated: 
                                            ,       


 


2

















 


Financial Covenant Calculations:


 


I.             Section 7.13(a) — Minimum Tangible Net
Worth


 


A.            Actual
Tangible Net Worth  (a + b + c +d – e)


 


a.             Borrower’s shareholders’
equity


 


b.             the outstanding principal
and accrued but unpaid interest on Subordinated Debt


 


c.             to the extent not included
in Borrower’s shareholders’ equity, the par value, additional paid-in capital,
and accumulated but unpaid dividends with respect to the Series A
Redeemable Preferred Stock


 


d.             90% of net proceeds from
Borrower’s issuance of Equity Interests after April 30, 2010 (other than
proceeds used substantially contemporaneously with receipt to retire or redeem
Subordinated Debt and/or Series A Redeemable Preferred Stock)


 


e.             consolidated intangible
assets


 


B.            Compliance with Covenant.  Actual Tangible Net Worth as of the end of
the fiscal quarter was
$                        ,
which o satisfies o does not
satisfy the requirement that such amount be not less than the Target Amount set forth in the table
below as of the end of such fiscal quarter:


 


	
   

  	
  Quarter Ending

  	
   

  	
  Target Amount

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  June 30,
  2010

  	
   

  	
  $

  	
  44,500,000

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  September 30,
  2010

  through March 31, 2011

  	
   

  	
  $

  	
  58,000,000

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  June 30,
  2011

  	
   

  	
  $

  	
  60,000,000

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  September 30,
  2011

  through June 30, 2012

  	
   

  	
  $

  	
  75,000,000

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  September 30,
  2012

  and thereafter

  	
   

  	
  $

  	
  100,000,000

  	
   

  	
   

  



 


II.            Section 7.13(b) — Minimum Fixed Charge
Coverage Ratio


 


A.            Adjusted
EBITDA as of the end of a fiscal quarter  (a + b)


 


a.             EBITDA as of the end
of a fiscal quarter  (i + ii - iii)


 


3

















 


i.              Borrower’s consolidated net
income after taxes for the twelve months ending with such quarter


 


ii.             the sum of the
amounts for such twelve month period included in determining such net income of
(A) interest expense, (B) income tax expense, (C) depreciation
expense, (D) amortization expense, (E) unusual non-cash charges,
extraordinary non-cash losses and other non-recurring non-cash charges,
(F) any non-cash charges arising from awards to employees relating to
Equity Interests, (G) any non-cash charges relating to financings and
(H) any non-cash currency translation adjustments that serve to reduce net
income


 


iii.            the sum of the
amounts for such twelve month period included in determining such net income of
(A) gains on sales of assets (excluding sales of inventory in the ordinary
course of business), (B) unusual non-cash gains, extraordinary non-cash
gains and other non-recurring non-cash gains and (C) any non-cash currency
translation adjustments that serve to increase net income


 


b.             Adjustments each of the
following to extent paid during 12 month period for which EBITDA was calculated
(i + ii + iii + iv))


 


i.              management fees
paid to Stonehouse Capital Partners in 2009 and the first fiscal quarter of
2010


 


ii.             2010 IPO
related non-capitalized expenses up to a maximum of $2,000,000


 


iii.            2010 and 2011
legal expenses (including, without limitation, settlement costs) incurred
directly in connection with the Evergreen Aviation litigation, the litigation
with Borrower’s prior owners, the litigation in Italy relating to the 2005
helicopter crash and the appeal of the IRS audit relating to Borrower’s 2005
and 2006 tax years, up to an aggregate maximum of $2,000,000 for any twelve
month period


 


iv.            any cash
expense resulting from the prepayment of Existing Indebtedness in connection
with the credit extended hereunder, up to an aggregate maximum of $500,000


 


B.            Other
Deductions  each of the
following to extent paid during 12 month period for which EBITDA was calculated (a + b + c)


 


a.             income
taxes paid in cash


 


b.             up to $5,000,000 of Capital
Expenditures


 


c.             dividends and other
distributions in respect of Equity Interests paid in cash


 


C.            Fixed
Charges  as of the end of a fiscal
quarter (a + b + c)


 


a.             then current portion of long
term debt


 


b.             then current portion of
payments in respect of capital leases


 


4

















 


c.             cash interest expense for
the twelve months ending with such fiscal quarter


 


D.            Fixed
Charge Coverage Ratio   (A - B) ÷ C


 


E.            Compliance with Covenant.  Fixed Charge Coverage Ratio as of the end of
the fiscal quarter was
      :      ,
which o satisfies o does not
satisfy the requirement that such ratio not be less than 1.75:1.00


 


III.          Section 7.13(c) —
Maximum Leverage Ratio


 


A.            Funded
Indebtedness  as of the end
of a fiscal quarter  (a + b + c + d + e +
f +g)


 


a.             obligations for borrowed
money, whether current or long-term (including the Obligations) and all
obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments


 


b.             purchase money Indebtedness


 


c.             direct or contingent
obligations arising under letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and similar instruments


 


d.             obligations in respect of
the deferred purchase price of property or services (other than trade accounts
payable arising in the ordinary course of business that have not been
outstanding for more than 120 days)


 


e.             obligations with respect to
Attributable Indebtedness


 


f.             guarantees with respect to
Indebtedness of the types specified in clauses (a) through (e) above
of another Person


 


g.             all Indebtedness of the
types referred to in clauses (a) through (e) above of any
partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which Borrower or a Subsidiary is
a general partner or joint venturer, except to the extent that Indebtedness is
expressly made non-recourse to such Person


 


provided, however,
“Funded Indebtedness” shall not include the Subordinated Debt


 


B.            Adjusted
EBITDA (II A above)


 


C.            Leverage
Ratio  A
÷ B


 


D.            Compliance with Covenant.  Leverage Ratio as of the end of the fiscal
quarter was
      :      ,
which osatisfies o does not
satisfy the requirement that such ratio not be greater than the Target Ratio set forth in the table below
as of the end of such fiscal quarter:


 


5














 


	
  Quarter Ending

  	
   

  	
  Target
  Ratio

  
	
   

  	
   

  	
   

  
	
  June 30,
  2010

  	
   

  	
  4.25:1.00

  
	
   

  	
   

  	
   

  
	
  September 30,
  2010

  	
   

  	
  4.00:1.00

  
	
   

  	
   

  	
   

  
	
  December 31,
  2010

  through September 30, 2011

  	
   

  	
  3.75:1.00

  
	
   

  	
   

  	
   

  
	
  December 31,
  2011 and thereafter

  	
   

  	
  3.50:1.00

  



 


IV.          Section 7.14
— Maximum Capital Expenditures


 


A.            Capital
Expenditures fiscal year to date as of the end of a fiscal
quarter


 


B.            Carry Over Immediately Prior Year
amount, if any, by which Capital Expenditures for immediately prior fiscal year
were less than Annual Capex Limit


 


C.            Tested Amount (A – B)


 


D.            Compliance with Covenant.  Tested Amount was
$                  ,
which osatisfies o does not
satisfy the requirement that such amount not be greater than the Annual Capex Limit set forth in the table
below for such fiscal year:


 


	
  Year

  	
   

  	
  Annual Capex Limit

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2010

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2011

  	
   

  	
  $

  	
  18,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2012

  	
   

  	
  $

  	
  14,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2013

  	
   

  	
  $

  	
  22,000,000

  	
   

  



 


6

















 


EXHIBIT D


 


FORM OF GUARANTY AGREEMENT


 


CONTINUING GUARANTY


 


THIS
CONTINUING GUARANTY (“Guaranty”) is entered into as of
                ,
by                                                                          
(“Guarantor”), in favor of Administrative Agent and the Lenders.


 


RECITALS


 


A.            Erickson Air-Crane Incorporated, a Delaware corporation (“Borrower”),
has entered into that certain Credit Agreement dated as of June 24, 2010
with the Administrative Agent and the Lenders (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”).


 


B.            Borrower, directly or indirectly, owns all or
substantially all of Guarantor’s Equity Interests.


 


C.            Guarantor, as a subsidiary of Borrower, may desire to
receive the benefit of working capital advances, sales support and other
services customarily provided to a subsidiary by its parent corporation (such
advances and services hereinafter referred to as “Parent Support Funding and
Services”).  Pursuant to the terms of
the Credit Agreement, Borrower is prohibited from providing Parent Support and
Funding Services to Guarantor until Guarantor first executes and delivers this
Guaranty to Administrative Agent.


 


NOW,
THEREFORE, Guarantor hereby agrees as follows:


 


1.             Definitions; Interpretation.  All capitalized terms used in this Guaranty
and not otherwise defined herein have the meanings specified in the Credit
Agreement.  The rules of
construction and interpretation specified in Sections 1.03 through 1.06 of the
Credit Agreement also apply to this Guaranty and are incorporated herein by
this reference.


 


2.             Guaranty.  Guarantor hereby unconditionally and
irrevocably guarantees the full and prompt payment when due, whether at stated
maturity, by acceleration or otherwise, of all Obligations, whether now
existing or hereafter arising.  Notwithstanding
any provision to the contrary contained herein or in any of the other Loan
Documents, Guarantor’s obligations under this Guaranty shall not exceed an
aggregate amount equal to the largest amount that would not render such
obligations subject to avoidance under any applicable Debtor Relief Law.


 


3.             Obligations Unconditional.  This Guaranty is an absolute guaranty of
payment and not a guaranty of collection. 
Guarantor’s obligations are absolute and


 


1

















 


unconditional, irrespective
of the value, genuineness, validity, regularity or enforceability of any of the
Loan Documents or other documents relating to the Obligations, or any
substitution, release, impairment or exchange of any other guarantee of or
security for any of the Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 3 that the Guarantor’s
obligations shall be absolute and unconditional under all circumstances.  Without limiting the generality of the
foregoing, it is agreed that, to the fullest extent permitted by Law, the
occurrence of any one or more of the following shall not alter or impair
Guarantor’s liability hereunder, which shall remain absolute and unconditional
as described above:


 


(a)           at any time or from time to time, without notice to
Guarantor, the time for any performance of or compliance with any of the
Obligations shall be extended, or such performance or compliance shall be
waived;


 


(b)           any act mentioned in any provision of any Loan Document or
other document relating to the Obligations shall be done or omitted;


 


(c)           the maturity of any of the Obligations shall be
accelerated, or any of the Obligations shall be modified, supplemented or
amended in any respect, or any right under any of the Loan Documents or other
documents relating to the Obligations shall be waived or any other guarantee of
any of the Obligations or any security therefor shall be released, impaired or
exchanged in whole or in part or otherwise dealt with;


 


(d)           any Lien granted to, or in favor of, the Administrative
Agent, Lenders or any other holder of the Obligations as security for any of
the Obligations shall fail to attach or be perfected; or


 


(e)           any of the Obligations shall be determined to be void or
voidable (including, without limitation, for the benefit of any creditor of
Guarantor) or shall be subordinated to the claims of any Person (including,
without limitation, any creditor of Guarantor).


 


4.             Exhaustion of Other Remedies Not Required.  The obligations of Guarantor hereunder are
those of a primary obligor, and not merely as surety, and are independent of
the Obligations.  Guarantor waives
diligence by Administrative Agent or any Lender and action on delinquency in
respect of the Obligations or any part thereof, including any provisions of Law
requiring Administrative Agent or any Lender to exhaust any right or remedy or
to take any action against Borrower, any other guarantor or any other Person or
property before enforcing this Guaranty against Guarantor.


 


5.             Solvency.  Guarantor represents and warrants that it is
Solvent on the date hereof.  As used in
this Guaranty, “Solvent” means, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including
contingent liabilities, of such Person, (b) the


 


2

















 


present fair salable value
of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become
absolute and matured, (c) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person’s ability
to pay such debts and liabilities as they mature, (d) such Person is not
engaged in business or a transaction, and is not about to engage in business or
a transaction, for which such Person’s property would constitute an
unreasonably small capital, and (e) such Person is able to pay its debts
and liabilities, contingent obligations and other commitments as they mature in
the ordinary course of business.  The amount
of contingent liabilities at any time shall be computed as the amount that, in
the light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.


 


6.             No Setoff or Deductions.  All payments by Guarantor hereunder shall be
paid in full, without setoff or counterclaim or any deduction or withholding
whatsoever, including for all present and future taxes


 


7.             Representations and Warranties.  Guarantor makes the following representations
and warranties to the Administrative Agent and the Lenders:


 


(a)           It is an entity duly
formed and validly existing in good standing (to the extent such concept is
applicable) under the laws of the jurisdiction of its formation, is duly
qualified to do business and is in good standing as a foreign entity in each
jurisdiction where the nature of its business requires such qualification, and
has full power and authority and holds all Permits and other approvals to enter
into and perform the Obligations and to own and hold under lease its property
and to conduct its business substantially as currently conducted by it, except
where the failure to have so qualified or have such power and authority or to
hold such Permits and other approvals could not reasonably be expected to have
a Material Adverse Effect.


 


(b)           Its execution,
delivery and performance of this Guaranty are within its powers, have been duly
authorized by all necessary entity action, and do not (a) contravene its
Organization Documents; (b) contravene any contractual restriction or Law
binding on or affecting it, except where such contravention could not
reasonably be expected to have a Material Adverse Effect; or (c) result
in, or require the creation or imposition of, any Lien on its property, except
Liens for the benefit of the Administrative Agent and the Lenders.


 


(c)           No consent,
authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority or other Person is required for the due execution,
delivery or performance by it of this Guaranty;


 


(d)           This Guaranty
constitutes the legal, valid and binding obligations of Guarantor enforceable
in accordance with its terms.


 


(e)           By virtue of
Guarantor’s relationship with Borrower, the execution, delivery and performance
of this Guaranty is reasonably expected to be for


 


3

















 


Guarantor’s
direct and indirect benefit and Guarantor has received adequate consideration
for this Guaranty.


 


(f)            There is no pending
or, to the knowledge of Guarantor, threatened litigation, action, proceeding,
or labor controversy affecting Guarantor, or any of its properties, businesses,
assets or revenues, which could reasonably be expected to have a Material
Adverse Effect.


 


8.             Waiver of Notices.  Guarantor waives notice of the acceptance of
this Guaranty and of the extension or continuation of the Obligations or any
part thereof.  Guarantor further waives
presentment, protest, notice, dishonor or default, demand for payment and any
other notices to which Guarantor might otherwise be entitled.


 


9.             Subrogation.  Guarantor shall not exercise any right of
subrogation, contribution or similar rights with respect to any payments it
makes under this Guaranty until all of the Obligations and any amounts payable
under this Guaranty are indefeasibly paid and performed in full (other than
contingent indemnification obligations) and the Commitments have been
terminated.  If any amount is paid to Guarantor
in violation of the foregoing limitation, then such amount shall be held in
trust for the benefit of Administrative Agent and the Lenders and shall
forthwith be paid to Administrative Agent for application against the
Obligations, whether matured or unmatured.


 


10.          Reinstatement. 
Notwithstanding anything in this Guaranty to the contrary, this Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment of any portion of the Obligations is revoked, terminated,
rescinded or reduced or must otherwise be restored or returned upon the
insolvency, bankruptcy or reorganization of Borrower, any guarantor (including
Guarantor) or any other Person, or otherwise, as if such payment had not been
made and whether or not Administrative Agent or any Lender is in possession of
or has released this Guaranty and regardless of any prior revocation,
rescission, termination or reduction.


 


11.          Subordination.  Guarantor hereby subordinates the payment of
all obligations and indebtedness of Borrower owing to Guarantor, whether now
existing or hereafter arising, including any obligation of Borrower to
Guarantor as subrogee of any Lender or resulting from Guarantor’s performance
under this Guaranty, to the indefeasible payment in full of the Obligations
(other than contingent indemnification obligations).  If Administrative Agent so requests at any
time after the occurrence and during the continuation of an Event of Default,
any such obligation or indebtedness of Borrower to Guarantor shall be enforced
and performance received by Guarantor as trustee for the Lenders and the
proceeds thereof shall be paid over to Administrative Agent on account of the
Obligations, but without reducing or affecting in any manner the liability of
Guarantor under this Guaranty.


 


12.          Information.  Guarantor shall promptly furnish to
Administrative Agent all financial or other information regarding Guarantor or
its property as Administrative Agent may reasonably request in writing.


 


4

















 


13.          Stay of Acceleration.  If acceleration of the time for payment of
any of the Obligations is stayed, upon the insolvency, bankruptcy or
reorganization of Borrower or any other Person, or otherwise, all such amounts
shall nonetheless be payable by Guarantor immediately upon demand by
Administrative Agent.


 


14.          Expenses.  Guarantor shall pay immediately upon demand
the full amount of all payments, advances, charges, costs and expenses,
including reasonable attorneys’ fees (whether incurred at the trial or
appellate level, in an arbitration or administrative proceeding, in bankruptcy
(including any adversary proceeding, contested matter or motion) or otherwise),
incurred by Administrative Agent and/or any Lender in connection with
(a) the enforcement, preservation or protection (or attempted enforcement,
preservation or protection) of Administrative Agent’s and/or any Lender’s
rights under this Guaranty and/or the collection of any amounts that become due
hereunder and (b) the prosecution or defense of any action in any way
related to this Guaranty, including any action for declaratory relief, and
including any of the foregoing incurred in connection with any bankruptcy
proceeding relating to Borrower or Guarantor. 
The obligations of Guarantor under the preceding sentence shall survive
termination of this Guaranty.


 


15.          Counterparts.  This Guaranty may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


 


16.          Integration.  This Guaranty, together with the other Loan
Documents to which Guarantor is a party, comprises the complete and integrated
agreement of the parties on the subject matter hereof and thereof and
supersedes all prior agreements, written or oral, on such subject matter.  Guarantor acknowledges that this Guaranty and
the other Loan Documents may contain covenants and other terms and provisions
variously stated regarding the same or similar matters, and agrees that all
such covenants, terms and provisions are cumulative and all shall be performed
and satisfied in accordance with their respective terms.  There are no unwritten oral agreements
between Guarantor, on the one hand, and Administrative Agent or any Lender, on
the other.


 


17.          Amendments.  No provision of this Guaranty may be waived,
amended, supplemented or modified, except by a written instrument executed by
party against whom enforcement is sought. 
Without limiting the generality of the foregoing, the making of a Loan
or issuance of any other credit under the Credit Agreement shall not be
construed as a waiver of any Default.


 


18.          Notices.  All notices and other communications provided
for hereunder shall be in writing (including by facsimile transmission).  All such written notices shall be mailed,
faxed or delivered, to the following applicable address or facsimile number:


 


	
  Administrative
  Agent

  	
   

  	
   

  
	
  or
  any Lender:

  	
   

  	
  to
  Administrative Agent at the address set forth

  
	
   

  	
   

  	
  in
  Schedule 1 to the Credit Agreement

  



 


5

















 


	
  Guarantor:

  	
   

  	
  [NAME
  OF GUARANTOR]

  
	
   

  	
   

  	
  [ADDRESS]

  
	
   

  	
   

  	
  [ADDRESS]

  
	
   

  	
   

  	
  [CITY,
  STATE ZIP CODE]

  
	
   

  	
   

  	
  Attention:
  Chief Financial Officer

  
	
   

  	
   

  	
  Fax:
  (     )       -           

  
	
   

  	
   

  	
  Email:
                    @                   

  



 


or,
with respect to Guarantor, to such other address or fax number as Guarantor may
designate for itself by notice to the Administrative Agent.  Each such notice or other communication
demand shall be deemed given or made pursuant to the terms of the Credit Agreement.


 


19.          No Waiver; Enforceability.  No failure by Administrative Agent or any
Lender to exercise, and no delay in exercising, any right, remedy or power
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy or power hereunder preclude any other or further
exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative
and not exclusive of any remedies provided by law or in equity.  The unenforceability or invalidity of any
provision of this Guaranty shall not affect the enforceability or validity of
any other provision herein.


 


20.          Assignment.  This Guaranty shall (a) bind Guarantor
and its successors and assigns, provided that Guarantor may not assign
its rights or obligations under this Guaranty without the prior written consent
of Administrative Agent (and any attempted assignment without such consent
shall be void) and (b) inure to the benefit of Administrative Agent and
each Lender and their respective successors and assigns.  Administrative Agent and each Lender may,
without notice to Guarantor and without affecting Guarantor’s obligations
hereunder, assign or sell participations in the Obligations and this Guaranty
in the manner provided in the Credit Agreement. 
Administrative Agent and each Lender may disclose to any prospective
purchaser and any purchaser of all or part of the Obligations any and all
information in Administrative Agent’s or such Lender’s possession concerning
Guarantor, this Guaranty and any security for this Guaranty.


 


21.          Condition of Borrower.  Guarantor acknowledges and agrees that it has
the sole responsibility for, and has adequate means of, obtaining from Borrower
such information concerning Borrower’s financial condition, business and
operations as Guarantor requires, and that Administrative Agent and Lenders
have no duty, and Guarantor is not relying on Administrative Agent or Lenders
at any time, to disclose to Guarantor any information relating to Borrower’s
business, operations or financial condition.


 


22.          Governing Law.  This Guaranty shall be governed by and
construed in accordance with the laws of the State of Oregon, without regard to
the conflict of laws provisions thereof, and any applicable laws of the United
States.


 


6

















 


23.          Submission to Jurisdiction.  GUARANTOR (AND BY EXECUTION OF THE
ACKNOWLEDGEMENT HERETO, ADMINISTRATIVE AGENT) HEREBY:  (A) SUBMITS TO THE EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF OREGON AND THE FEDERAL COURTS OF THE
UNITED STATES FOR THE DISTRICT OF OREGON FOR THE PURPOSE OF ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OF THE LOAN
DOCUMENTS; (B) AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH COURTS; (C) IRREVOCABLY
WAIVES (TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW) ANY OBJECTION WHICH IT
NOW OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY OF THE FOREGOING COURTS, AND ANY OBJECTION ON THE
GROUND THAT ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM; AND (D) AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PERMITTED BY LAW;
PROVIDED, HOWEVER, THAT NOTHING IN THIS GUARANTY SHALL BE DEEMED TO PRECLUDE
ADMINISTRATIVE AGENT OR ANY LENDER FROM BRINGING SUIT OR TAKING OTHER LEGAL
ACTION IN ANY OTHER JURISDICTION TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR
OF ADMINISTRATIVE AGENT OR LENDER.


 


24.          Waiver of Jury Trial.  GUARANTOR (AND BY EXECUTION OF THE
ACKNOWLEDGEMENT HERETO, ADMINISTRATIVE AGENT), TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN
ANY ACTION, PROCEEDING, COUNTERCLAIM OR OTHER LITIGATION IN ANY WAY ARISING OUT
OF OR RELATING TO THIS GUARANTY, ANY LOAN DOCUMENT OR ANY OF THE TRANSACTIONS
OR EVENTS REFERENCED HEREIN OR THEREIN OR CONTEMPLATED HEREBY OR THEREBY,
WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE.  THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY AND/OR ANY
LOAN DOCUMENT.  A COPY OF THIS SECTION MAY BE
FILED WITH ANY COURT AS WRITTEN EVIDENCE OF THE WAIVER OF THE RIGHT TO TRIAL BY
JURY AND THE CONSENT TO TRIAL BY COURT.


 


25.          USA PATRIOT Act Notice.  Administrative Agent hereby notifies
Guarantor that pursuant to the requirements of the USA PATRIOT Act (Title III
of Pub. L. 107-56 (signed into law October 26, 2001)) (the Patriot Act),
it is required to obtain, verify and record information that identifies
Guarantor, which information includes Guarantor’s name and address and other
information that will allow Administrative Agent to identify Guarantor in
accordance with the Patriot Act. 
Guarantor shall, promptly following a request by Administrative Agent,
provide all documentation and other information that Administrative


 


7














 


Agent requests in order to
comply with its ongoing obligations under applicable know your customer and
anti-money laundering rules and regulations, including the Patriot Act.


 


IN
WITNESS WHEREOF, Guarantor has executed this Guaranty by its duly authorized
officer as of the date first above written.


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


ACKNOWLEDGEMENT BY ADMINISTRATIVE AGENT


 


Administrative
Agent hereby acknowledges receipt of the foregoing Guaranty and agrees to the
provisions of Sections 23 and 24 thereof.


 


	
   

  	
  WELLS FARGO, NATIONAL
  ASSOCIATION, as Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


8

















 


EXHIBIT E


 


FORM OF SWING LINE NOTE


 


Swing Line Loans Promissory Note


 


	
  $10,000,000

  	
  June 24, 2010

  



 


FOR
VALUE RECEIVED, the undersigned, Erickson Air-Crane Incorporated, a Delaware
corporation (“Borrower”), hereby promises to pay to the order of Wells Fargo
Bank, National Association (“Lender”) on the Maturity Date, or at such earlier
time as is provided in that certain Credit Agreement among Borrower, Wells
Fargo Bank, National Association (as Administrative Agent, Swing Line Lender
and L/C Issuer) and the Lenders named therein dated as of June 24, 2010
(as amended, modified or supplemented from time to time, the “Credit Agreement”),
the principal sum of Ten Million Dollars ($10,000,000), or such lesser amount
as shall equal the aggregate outstanding principal balance of all Revolving
Loans made by Lender to Borrower pursuant to the Credit Agreement.


 


This
promissory note is one of the promissory notes referred to in, and subject to
the terms of, the Credit Agreement. 
Capitalized terms used herein shall have the respective meanings
assigned to them in the Credit Agreement.


 


Borrower
further promises to pay interest on the outstanding principal balance hereof at
the interest rates, and payable on the dates, set forth in the Credit
Agreement.  All payments of principal and
interest hereunder shall be made to Administrative Agent in lawful money of the
United States and in same day or immediately available funds.


 


Lender
is authorized but not required to record the date and amount of each advance
made hereunder, the date and amount of each payment of principal and interest
hereunder, and the resulting unpaid principal balance hereof, in Lender’s
internal records, and any such recordation shall be prima facie evidence of the
accuracy of the information so recorded; provided however, that Lender’s
failure to so record such amounts shall not limit or otherwise affect Borrower’s
obligations hereunder and under the Credit Agreement to repay the principal
hereof and interest hereon.


 


Borrower
shall pay all costs of collection, including reasonable attorneys’ fees
(whether incurred at the trial or appellate level, in an arbitration
proceeding, in bankruptcy (including, without limitation, any adversary
proceeding, contested matter or motion) or otherwise).  No delay or failure on the part of Lender in
exercising any of its rights hereunder shall be deemed a waiver of such rights
or any other right of Lender, nor shall any delay, 


 


1

















 


omission
or waiver on any one occasion be deemed a bar to or waiver of such rights or
any other right on any future occasion. 
Borrower and every surety, indorser and guarantor of this Note waive
presentment, demand, protest, notice of intention to accelerate, notice of
acceleration, notice of nonpayment and all other notices of every kind, and
agree that their liability under this Note shall not be affected by any
renewal, postponement or extension in the time of payment hereof, by any
indulgence granted by any holder hereof with respect hereto, or by any release
or change in any security for the payment of this Note, and they hereby consent
to any and all renewals, extensions, indulgences, releases or changes,
regardless of the number of such renewals, extensions, indulgences, releases or
changes.


 


The
Credit Agreement provides, among other things, for acceleration (which in
certain cases shall be automatic) of the maturity hereof upon the occurrence of
certain stated events, in each case without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by
Borrower.


 


Borrower’s
obligations evidenced by this promissory note are secured by the Collateral
described in the Loan Documents.  The
Loan Documents describe the rights of Administrative Agent, Lender and any
other holder hereof with respect to the Collateral.


 


In
the event of any conflict between the terms of this promissory note and the
terms of the Credit Agreement, the terms of the Credit Agreement shall control.


 


THIS
PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).


 


UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS
MADE BY LENDER CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR
PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY BORROWER’S
RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY LENDER TO
BE ENFORCEABLE.


 


 


	
   

  	
  ERICKSON
  AIR-CRANE INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


2

















 


EXHIBIT F


 


ASSIGNMENT AND ASSUMPTION


 


Assignment and Assumption Agreement


 


THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT (“Agreement”) is entered into as of
                        ,
between
                                      
                                            
(“Assignor”) and
                                                
(“Assignee”).


 


WHEREAS,
Assignor is a Lender under that certain Credit Agreement among Erickson
Air-Crane Incorporated, a Delaware corporation (“Borrower”), Wells Fargo Bank,
National Association (as Administrative Agent) and the lenders named therein
dated as of
                              ,
2010, (as amended, modified or supplemented from time to time, the “Credit
Agreement”).  Capitalized terms used but
not defined in this Agreement shall have the meanings set forth in the Credit
Agreement.


 


WHEREAS,
it is the intention of Assignor and Assignee that (a) Assignor assign to
Assignee [all] [a portion] of Assignor’s rights and obligations under the
Credit Agreement, (b) Assignee assume all such assignment obligations of
Assignor, and (c) Assignor be released from such assigned obligations.


 


NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
parties hereto agree as follows:


 


1.             Assignment.  Effective on the
Assignment Effective Date (as defined in Section 3 hereof), Assignor,
without recourse and without representation or warranty (except as expressly
provided in Section 6 hereof), hereby assigns to Assignee the Assigned
Rights and Obligations (as defined below).


 


[The
“Assigned Rights and Obligations” means all of Assignor’s rights and
obligations under the Credit Agreement on the Assignment Effective Date.]


 


[The
“Assigned Rights and Obligations” means: 
[a
$                    
portion] [                  %]
of Assignor’s share of the Loans and Total Commitments on the Assignment
Effective Date; and all of Assignor’s other rights and obligations under the
Credit Agreement that are attributable to such share.]


 


2.             Assumption.  Effective on the
Assignment Effective Date, Assignee hereby accepts the foregoing assignment of,
and hereby assumes from Assignor all of, the Assigned Rights and Obligations.


 


3.             Effectiveness.  This Agreement shall
become effective on such date as shall be selected by Assignor (the “Assignment
Effective Date”), which date shall be on or as soon as 


 


1

















 


practicable
after the execution and delivery of counterparts of this Agreement by Assignor,
Assignee, Administrative Agent and Borrower. 
Assignor shall promptly notify Assignee, Administrative Agent and
Borrower in writing of the Assignment Effective Date.


 


4.             Payments on Assignment Effective
Date.  In consideration of the
assignment by Assignor to, and the assumption by Assignee of, the Assigned
Rights and Obligations, on the Assignment Effective Date:  (a) Assignee shall pay to Assignor the
principal amount of all Loans made by Assignor pursuant to the Credit Agreement
that are attributable to the Assigned Rights and Obligations and outstanding on
the Assignment Effective Date; (b) each of Assignor and Assignee shall pay
to the other such amounts (if any) as are specified in any written agreement or
exchange of letters between them; and (c) Assignee shall pay to
Administrative Agent an assignment processing and recordation fee of
$                  .


 


5.             Allocation and Payment of Interest
and Fees.


 


(a)           Administrative Agent shall pay to
Assignee all interest, commitment fees and other amounts not constituting
principal that are paid by or on behalf of Borrower pursuant to the Loan
Documents and are attributable to the Assigned Rights and Obligations (“Borrower
Amounts”) which accrue on and after the Assignment Effective Date.  If Assignor receives or collects any such
Borrower Amounts, Assignor shall promptly pay them to Assignee.


 


(b)           Administrative Agent shall pay to
Assignor all Borrower Amounts that accrue before the Assignment Effective
Date.  If Assignee receives or collects
any such Borrower Amounts, Assignee shall promptly pay them to Assignor.


 


6.             Representations and Warranties.


 


(a)           Each of Assignor and Assignee
represents and warrants to the other party as follows:


 


(i)         it
has full power and authority, and has taken all action necessary, to execute
and deliver this Agreement and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Agreement;


 


(ii)          the
making and performance of this Agreement and all documents required to be
executed and delivered by it pursuant hereto do not and will not violate any
law or regulation applicable to it;


 


(iii)          this Agreement has
been duly executed and delivered by, and constitutes a legal, valid and binding
obligation of, it, enforceable in accordance with its terms; and


 


(iv)          all
approvals, authorizations or other actions by, or filings with, any
governmental authority necessary for the validity or enforceability of its
obligations under this Agreement have been made or obtained.


 


2

















 


(b)           Assignor represents and warrants to
Assignee that Assignor owns the Assigned Rights and Obligations, free and clear
of all liens or other encumbrances.


 


(c)           Assignee represents and warrants to
Assignor as follows:


 


(i)         Assignee
has made and shall continue to make its own independent investigation of the
financial condition, affairs and creditworthiness of Borrower in connection
with Assignee’s assumption of the Assigned Rights and Obligations; and


 


(ii)          Assignee
has received a copy of the Loan Documents and such other documents, financial
statements and information as Assignee deems appropriate to make its own credit
analysis and decision to enter into this Agreement.


 


7.             No Assignor Responsibility.  Assignor makes no representation or warranty
and assumes no responsibility to Assignee for:


 


(a)           the execution by any party other than
Assignor, or the effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of the Loan Documents;


 


(b)           any representations, warranties,
recitals or statements made in the Loan Documents or in any financial statement
or other statement, instrument, report, certificate or any other document made
or furnished or made available by or on behalf of Borrower to Assignor or
Assignee in connection with the Loan Documents and the transactions
contemplated thereby;


 


(c)           the performance or observance of any
of the terms, conditions, provisions, covenants or agreements contained in any
of the Loan Documents or the existence or possible existence of any default or
event of default under the Loan Documents; or


 


(d)           the accuracy or completeness of any
information provided to Assignee, whether by Assignor or by or on behalf of
Borrower.


 


Assignor
shall have no initial or continuing duty or responsibility to make any
investigation of the financial condition, affairs or creditworthiness of
Borrower in connection with the assignment of the Assigned Rights and
Obligations hereunder, or to provide Assignee with any credit or other
information with respect thereto, whether coming into Assignor’s possession
before the date hereof or at any time or times thereafter.


 


8.             Assignee Bound By Credit
Agreement.  Effective on the
Assignment Effective Date, Assignee:  (a) shall
be deemed to be a party to and “Lender” under the Credit Agreement; (b) agrees
to be bound by the Credit Agreement to the same extent as it would have been if
it had been an original Lender party thereto; and (c) agrees to perform in
accordance with their respective terms all obligations which are required under
the Loan Documents to be performed by it as a Lender.  Assignee appoints and authorizes
Administrative Agent to take such actions as Administrative Agent on Assignee’s
behalf and


 


3

















 


to
exercise such powers under the Loan Documents as are delegated to
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto.


 


9.             Assignor Released From Credit
Agreement.  Effective on the
Assignment Effective Date, Assignor shall be released from the Assigned Rights
and Obligations; provided, however, that Assignor shall retain all of its
rights to indemnification under the Loan Documents for any events, acts or
omissions occurring before the Assignment Effective Date.


 


[10.       Foreign Withholding.


 


(a)           Assignee represents and warrants to
Administrative Agent, Borrower and Assignor that, under applicable law and
treaties, Assignee is entitled to receive all payments under the Loan Documents
and this Agreement payable to it, without deduction or withholding of any taxes
imposed by the United States or any political subdivision thereof.


 


(b)           On or before the Assignment Effective
Date, Assignee shall deliver to each of Borrower and Administrative Agent two
executed copies of valid and properly completed:  (i) United States Internal Revenue
Service Form 1001 or 4224 certifying that Assignee is entitled to receive
payments under the Credit Agreement and the Loan Documents payable to it,
without deduction or withholding of any United States federal income taxes; or (ii) Internal
Revenue Service Form W-8 or W-9 establishing an exemption from United
States backup withholding tax.  If any
such form is found to be incomplete or incorrect, or must be replaced (on the
same or a successor form) in order to maintain its effectiveness, Assignee
shall execute and deliver to each of Borrower and Administrative Agent two
executed copies of a valid, complete and correct replacement form.]


 


[11.]      General.


 


(a)           This Agreement constitutes the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior and current understandings and agreements, whether written
or oral (other than with respect to any fees payable as provided in Section 4
hereof).


 


(b)           No term or provision of this
Agreement may be amended, waived or terminated orally, but only by an
instrument signed by the parties hereto.


 


(c)           This Agreement may be executed in one
or more counterparts.  Each set of
executed counterparts shall be an original. 
Executed counterparts may be delivered by facsimile transmission.


 


(d)           Assignor may at any time and from
time to time grant to others pursuant to the Loan Documents assignments of or
participations in all or part of Assignor’s share of the Loans and Total
Commitments, but not with respect to the Assigned Rights and Obligations.


 


4

















 


(e)           This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.  Neither Assignor nor
Assignee may assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of the other.  The preceding sentence shall not limit the
right of Assignee to grant to others assignments of or participations in all or
part of the Assigned Rights and Obligations to the extent permitted by the
terms of the Loan Documents.


 


(f)            All payments to Assignor or Assignee
hereunder shall, unless otherwise specified by the party entitled thereto, be
made in U.S. Dollars, in immediately available funds, and to the address or
account specified on the signature pages of this Agreement.  The address of Assignee for notice purposes
under the Credit Agreement shall be as specified on the signature pages of
this Agreement.


 


(g)           If any provision of this Agreement is
held invalid, illegal or unenforceable, the remaining provisions hereof will
not be affected or impaired in any way.


 


(h)           Each party shall bear its own
expenses in connection with the preparation and execution of this Agreement.


 


(i)            THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF (OTHER THAN SECTIONS 5-1401
AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).


 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.


 


	
   

  	
  ASSIGNOR:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


5

















 


	
   

  	
  Assignor’s
  Notice Instructions:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attn:

  	
   

  
	
   

  	
  Ref:

  	
   

  
	
   

  	
  Telephone:
  (      )

  
	
   

  	
  Facsimile:
  (      )

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Assignor’s
  Payment Instructions:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ABA
  No.

  	
   

  
	
   

  	
  Account
  No.

  	
   

  
	
   

  	
  Attn:

  	
   

  
	
   

  	
  Ref:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Assignee’s
  Notice Instructions:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attn:

  	
   

  
	
   

  	
  Ref:

  	
   

  
	
   

  	
  Telephone:
  (      )

  
	
   

  	
  Facsimile:
  (      )

  
						



 


6

















 


	
   

  	
  Assignee’s
  Payment Instructions:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ABA
  No.

  	
   

  
	
   

  	
  Account
  No.

  	
   

  
	
   

  	
  Attn:

  	
   

  
	
   

  	
  Ref:

  	
   

  



 


 


	
   

  	
  ACKNOWLEDGED
  AND AGREED:

   

  ADMINISTRATIVE
  AGENT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


	
   

  	
  ERICKSON
  AIR-CRANE INCORPORATED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


7

















 


EXHIBIT G


 


FORM OF MONTHLY ASSET COVERAGE AND AVAILABLE CREDIT CERTIFICATE


 


Month
End Date:                                          ,
201      [insert date of most recent month end]


 


To:          Wells Fargo Bank, National
Association, as Administrative Agent


 


Ladies
and Gentlemen:


 


Reference
is made to that certain Credit Agreement, dated as of June 24, 2010 (as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the “Agreement”; the terms defined therein being used
herein as therein defined), among Erickson Air-Crane Incorporated, a Delaware
corporation (the “Borrower”), the Lenders from time to time party
thereto, and Wells Fargo Bank, National Association, as Administrative Agent,
Swing Line Lender and L/C Issuer.


 


The
undersigned Responsible Officer hereby certifies that:


 


(a)           as of the date hereof that he/she is
the
                                
of the Borrower, and that, as such, he/she is authorized to execute and deliver
this Certificate to the Administrative Agent on the behalf of the Borrower,


 


(b)           as of the month end date set forth
above the Asset Coverage Amount, computed in accordance with the Agreement, as
set forth in detail on the attached exhibit, was
$                                ,


 


(c)           each Aircraft included in the
calculation of such Asset Coverage Amount was located as of the end of the month,
and is currently located, in the United States, Canada, Australia, Malaysia or
Greece or, in compliance with Sections 6.19 and 7.16 of the Credit
Agreement, in
                                ,


 


(d)           as of the close of business on
                                
[insert Business Day immediately preceding the date
of this certificate] the Available Credit was
$                                
determined as follows:


 


1

















 


 


	
  1.

  	
  Aggregate
  Revolving Commitments

  	
   

  	
   

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Outstanding
  Amount of:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (a)  Revolving Loans

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
  (b)  Swing Loans

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
  (c)  L/C Obligations

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
  (d)  TOTAL

  	
   

  	
   

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Line
  1 less Line 2(d)

  	
   

  	
   

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Asset
  Coverage Amount (from above)

  	
   

  	
   

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Outstanding
  Amount of:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (a)  All Loans

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
  (b)  L/C Obligations

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
  (c)  TOTAL

  	
   

  	
   

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  Line
  4 less Line 5(c)

  	
   

  	
   

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  Available
  Credit (lesser of Line 3 or Line 6)

  	
   

  	
   

  	
   

  	
  $

  



 


(e)           each calculation referenced above and
set forth on the attached computation is true and accurate on and as of the
relevant, specified date thereof.


 


IN WITNESS WHEREOF, the undersigned has
executed this Certificate as of the date below.


 


	
   

  	
  ERICKSON
  AIR-CRANE INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Dated: 
                                            ,
201


 


2














 


SCHEDULE 1.01


 


PRICING
SCHEDULE


 


	
  Pricing

  Level

  	
   

  	
  Leverage Ratio

  	
   

  	
  Applicable

  Margin for

  LIBOR Loans

  	
   

  	
  Applicable

  Margin for

  Base Rate

  Loans

  	
   

  	
  Letter of

  Credit Fee

  	
   

  	
  Commitment

  Fee

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1

  	
   

  	
  Less than 2.00:1.00

  	
   

  	
  200 bps

  	
   

  	
  75 bps

  	
   

  	
  200 bps

  	
   

  	
  25 bps

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2

  	
   

  	
  Less than 2.50:1.00 but greater than or equal to 2.00:1.00

  	
   

  	
  225 bps

  	
   

  	
  100 bps

  	
   

  	
  225 bps

  	
   

  	
  37.5 bps

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3

  	
   

  	
  Less than 3.00:1.00 but greater than or equal to 2.50:1.00

  	
   

  	
  250 bps

  	
   

  	
  125 bps

  	
   

  	
  250 bps

  	
   

  	
  37.5 bps

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4

  	
   

  	
  Less than 3.50:1.00 but greater than or equal to 3.00:1.00

  	
   

  	
  275 bps

  	
   

  	
  150 bps

  	
   

  	
  275 bps

  	
   

  	
  50 bps

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5

  	
   

  	
  Greater than or equal to 3.50:1.00

  	
   

  	
  300 bps

  	
   

  	
  175 bps

  	
   

  	
  300 bps

  	
   

  	
  50 bps

  



 


The applicable Leverage Ratio shall be the one set
forth in the most recent Compliance Certificate delivered pursuant to Section 6.02(a).
Any increase or decrease resulting from a change in the Leverage Ratio shall
become effective as of the first Business Day immediately following the date a
Compliance Certificate is required to be delivered pursuant to Section 6.02(a);
provided, however, that if a Compliance Certificate is not
delivered when due in accordance with such Section, then, unless waived by the
Required Lenders, Pricing Tier 5 shall apply as of the first Business Day after
the date on which such Compliance Certificate was required to have been
delivered and shall remain in effect until the first Business Day after the
date on which such Compliance Certificate is delivered in accordance with Section 6.02(a),
whereupon the applicable adjustment shall be made based upon the calculation of
the Leverage Ratio contained in such Compliance Certificate. The foregoing
notwithstanding, the pricing in effect from the Closing Date through the
applicable Business Day immediately following delivery of a Compliance
Certificate indicating a Leverage Ratio below 4.00:1.00 shall be Pricing Tier 5
adjusted as follows: (a) the Applicable Margin for LIBOR Loans and for
Base Rate Loans and the Letter of Credit Fee shall each be increased by 25 bps
and (b) the Commitment Fee shall remain unchanged.


 


1

















 


SCHEDULE 2.01


 


COMMITMENTS
AND PRO RATA SHARES


 


A.            Revolving Commitments


 


	
  Lender

  	
   

  	
  Commitment

  	
   

  	
  Pro Rata Shares

  	
   

  
	
  Wells Fargo Bank, National
  Association

  	
   

  	
  $

  	
  40,754,716.98

  	
   

  	
  60.377358490566

  	
  %

  
	
  KeyBank National
  Association

  	
   

  	
  $

  	
  8,915,094.34

  	
   

  	
  13.207547169811

  	
  %

  
	
  Bank of the West

  	
   

  	
  $

  	
  8,915,094.34

  	
   

  	
  13.207547169811

  	
  %

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  5,094,339.62

  	
   

  	
  7.547169811321

  	
  %

  
	
  Union Bank, N.A.

  	
   

  	
  $

  	
  3,820,754.72

  	
   

  	
  5.660377358491

  	
  %

  
	
  Total

  	
   

  	
  $

  	
  67,500,000

  	
   

  	
  100.000000000000

  	
  %

  



 


B.            Letter of Credit Facility


 


	
  Lender

  	
   

  	
  Commitment

  	
   

  	
  Pro Rata Shares

  	
   

  
	
  Wells Fargo Bank, National
  Association

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
  100

  	
  %

  
							



 


C.            Term Loan


 


	
  Lender

  	
   

  	
  Commitment

  	
   

  	
  Pro Rata Shares

  	
   

  
	
  Wells Fargo Bank, National
  Association

  	
   

  	
  $

  	
  39,245,283.02

  	
   

  	
  60.377358490566

  	
  %

  
	
  KeyBank National
  Association

  	
   

  	
  $

  	
  8,584,905.66

  	
   

  	
  13.207547169811

  	
  %

  
	
  Bank of the West

  	
   

  	
  $

  	
  8,584,905.66

  	
   

  	
  13.207547169811

  	
  %

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  4,905,660.38

  	
   

  	
  7.547169811321

  	
  %

  
	
  Union Bank, N.A.

  	
   

  	
  $

  	
  3,679,245.28

  	
   

  	
  5.660377358491

  	
  %

  
	
  Total

  	
   

  	
  $

  	
  65,000,000

  	
   

  	
  100.000000000000

  	
  %

  



 


1

















 


SCHEDULE 2.03


 


EXISTING
L/Cs


 


	
  Description

  	
   

  	
  LC #

  	
   

  	
  USD Amount

  	
   

  	
  Euro Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Korea 2009Spares
  Performance Bond

  	
   

  	
  S3204894

  	
   

  	
  $

  	
  88,826.97

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Korea 2009 Spares
  Performance Bond

  	
   

  	
  S320632

  	
   

  	
  $

  	
  24,448.72

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Korea 2010 Spares
  Performance Bond

  	
   

  	
  S320996

  	
   

  	
  $

  	
  17,847.00

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greece – Advance Payment
  Bond

  	
   

  	
  S321038

  	
   

  	
   

  	
   

  	
  €

  	
  4,800,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greece – Performance Bond

  	
   

  	
  S321028

  	
   

  	
   

  	
   

  	
  €

  	
  960,000

  	
   

  



 


1

















 


SCHEDULE 5.06


 


LITIGATION


 


We are currently a party to the following
significant legal proceedings:


 


IRS Claim. The Internal
Revenue Service (IRS) issued a Notice of Proposed Adjustment on June 3,
2009 proposing to reallocate foreign tax credits amounting to $9.8 million
taken in 2005 and 2006 to earlier tax years. We are protesting the proposed
adjustment and on January 15, 2010, requested that the matter be submitted
to IRS Appeals. The case is currently in the IRS appeals process, and a
conference to review the matter is expected in late 2010. We have established a
reserve for the full amount of our potential liability.


 


Evergreen Claim. Evergreen
Helicopters, Inc. (Evergreen) filed a complaint against us in the U.S.
District Court for the District of Oregon on June 29, 2009 alleging claims
under the Sherman Antitrust Act and the Clayton Act and for breach of contract.
The complaint alleges that the plaintiff is the owner of one “S-64E Skycrane” [sic] helicopter acquired in 1973 and two
CH-54A Skycrane helicopters acquired respectively in 2004 and 2006, and that
the plaintiff is a third-party beneficiary under a 1992 contract between us and
Sikorsky Aircraft Corporation that obligated us to support Skycranes. The
plaintiff alleges that we breached our obligations to third-party beneficiaries
by restricting the supply of parts and not supplying parts for its S-64E in a
timely manner, particularly in the four-year period prior to the filing of the
complaint, and by restricting the supply of parts and not supplying parts for
CH-54As. The plaintiff also alleges that we have monopoly power in the alleged
heavy-lift helicopter service and parts markets, or that we are attempting to
obtain such monopoly power, and that Evergreen’s business has been injured by
our actions. The complaint seeks damages in an unspecified sum, treble damages
under the antitrust laws, and costs, disbursements, and attorneys’ fees. The
case is currently in the discovery phase. In a lawsuit brought against us in
2007, which was subsequently settled, the court determined in a non-final order
that we had an affirmative obligation under the 1992 Sikorsky contract to support
CH-54 operators. We intend to continue to vigorously defend ourselves against
these claims, but we cannot predict whether we will be successful if the case
proceeds to trial.


 


Rome Accident. In
July 2005, one of our U.S. employees was killed when an Aircrane being
delivered to our Italian customer crashed. The commander of the flight, who
also is one of our employees, is subject to criminal prosecution under Italian
law. The preliminary investigation closed in March 2008, and the commander
was indicted. The matter is pending in the
Tribunale Civile e Penale di Civitaveccia Ufficio GIP/GUP. The family
members of the deceased filed in the criminal court as damaged civil parties
for damages in an aggregate amount of €1.2 million ($1.6 million). We accepted
the plaintiffs’ most recent settlement offer of €0.4 million ($533,000) on
April 13, 2010 and that acceptance was acknowledged by the plaintiffs on
April 19, 2010. We are in the process of negotiating the related release
and settlement agreement. Of the €0.4 million ($533,000) settlement amount, our
insurer has agreed to pay €0.2 million ($266,500). We have reserved for the
remaining €0.2 million ($266,500) at December 31, 2009.


 


Tomato Crop Claim. In
November 2008, Società Agricola C.S.A. Srl filed a claim in the Corte
d’Apello in Lecce, Italy alleging €2,888,250 in damages to a tomato crop
and farm facilities when an Aircrane engaged in firefighting in Italy drew
water from a farmer’s reservoir. The action is in an early stage and our
insurers are defending under reservation of rights. We are not able to
determine


 


1

















 


the likelihood of any outcome in this matter, nor
are we able to estimate the amount or range of loss or the impact on our
financial condition in the event of an unfavorable outcome.


 


U.S. Forest Service Claim. In early
June 2008, we were awarded four contracts with the United States Forest
Service (USFS). In late June 2008, the USFS issued a stop work order on
three of the four contracts. In October, 2008 we filed a request for equitable
adjustment on the stop work order with the USFS Contracting Officer. After
being denied on our request for equitable adjustment, in July 2009, we
filed a claim with the Civilian Board of Contract Appeals for approximately
$3.0 million, which represented our estimate of additional costs incurred by us
under these contracts, which we were not able to mitigate, as a result of the
stop work order. We believe that these additional costs are compensable under
USFS rules. An independent expert has determined the amount of these additional
costs at $2.8 million. We and the USFS have each filed motions for summary
judgment with the Civilian Board of Contract Appeals. We are awaiting a
decision on the motions for summary judgment. We recorded approximately $3.0
million as a receivable in 2008, and reduced this amount to approximately $2.8
million in 2009 to reflect the revised estimate of additional costs.


 


Escrow Claim. Our company
was acquired in a merger transaction on September 27, 2007, in which the
buyers acquired 100% of our outstanding common stock. In connection with that
transaction, the seller established a $9 million escrow to guarantee certain of
seller’s obligations, including seller’s indemnity obligations under the
purchase agreement. The seller is obligated under the purchase agreement to
indemnify us for 50% of any claims by the IRS in connection with foreign tax
credits, with such foreign tax credit indemnification obligation capped at $6
million (see —IRS Claim). On August 12, 2008, we issued a demand notice
against the escrow. On February 3, 2009, we filed a complaint against the
seller in the Supreme Court of the State of New York alleging breach of
contract, breach of warranty, and negligent misrepresentation. On April 7,
2009, the seller filed a motion to dismiss, which was subsequently granted by
the court on December 22, 2009. On February 12, we filed a notice of
appeal, which we amended on May 6, 2010.


 


2

















 


SCHEDULE 5.09


 


ENVIRONMENTAL
MATTERS


 


Borrower is continuing to participate in remediating
environmental damage resulting from the identification of hazardous substances
at its Central Point, Oregon facility. Under the Asset Purchase Agreement with
Erickson Group, Ltd. (“Erickson Group”), a previous owner of Borrower,
Erickson Group will bear the financial responsibility for the payment of the
first $1.5 million of the cleanup costs. Erickson Group and the Borrower shall
each bear one-half of the financial responsibility for the payment of the next
$1.0 million of cleanup costs, and any aggregate costs in excess of $2.5
million will be the sole responsibility of Erickson Group. Erickson Group is
responsible for directing and controlling the remediation efforts. Since 2000,
the Borrower has paid $0.4 million to Erickson Group for a portion of its
exposure on the $0.5 million layer of financial responsibility and has recorded
a liability for the remaining $0.1 million exposure on its remaining share. In
August 2006, Erickson Group received an insurance settlement of $0.3
million related to the environmental damage and will suspend further requests
of co-funding until such amount is depleted from its environmental fund.


 


Erickson Air-Crane has no active involvement in the
Central Point remediation process other than to allow access to Anchor
Environmental, Borrower hired by Erickson Group, to conduct monitoring
activities. Anchor Environmental continues to collect samples from all of the
test wells on and off site. One new test well was drilled near the helipad in
the last year. The Borrower has received indications in the past that the
levels of contamination are continuing to drop. No other activity is occurring
with regard to the remediation process. The remediation itself consists of a
passive underground “wall” made of iron filings through which the contaminated
water runs. The wall filters out the contamination via a reaction with the
components of the wall.


 


Borrower is not involved in any other environmental
remediation projects at this time.


 


1

















 


SCHEDULE 5.10


 


PROPERTY
INSURANCE


 


[SEE ATTACHED INSURANCE
CERTIFICATES]


 


1














 


	
  

  	
   

  	
  EVIDENCE OF COMMERCIAL PROPERTY
  INSURANCE

  	
  DATE (MM/DD/YY

  06/24/10

  



 


THIS EVIDENCE OF COMMERCIAL PROPERTY
INSURANCE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON
THE ADDITIONAL INTEREST NAMED BELOW. THIS EVIDENCE OF COMMERCIAL PROPERTY
INSURANCE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW.


 


	
  PRODUCER NAME,

  	
  PHONE

  	
  COMPANY NAME AND ADDRESS

  	
  NAIC NO:

  
	
  CONTACT PERSON
  AND ADDRESS

  	
  (A/C, No. Ext):

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  WILLIS OF NEW YORK, INC.

  	
   

  	
  PRIMARY: LLOYDS UNDERWRITERS

  	
   

  
	
  ONE WORLD
  FINANCIAL CENTER

  	
   

  	
  EXCESS: LLOYDS UNDERWRITERS

  	
   

  
	
  200 LIBERTY
  STREET

  	
   

  	
   

  	
   

  
	
  NEW YORK, NY
  10281-1003

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  FAX

  	
  E-MAIL

  	
   

  	
   

  
	
  (A/C. No):
  212-519-5432

  	
  ADDRESS: robert_bartsch@willis.com

  	
  IF MULTIPLE COMPANIES,
  COMPLETE SEPARATE FORM FOR EACH

  
	
   

  	
   

  	
  POLICY TYPE

  	
   

  
	
  CODE:

  	
  SUB-CODE:

  	
   

  	
   

  
	
  AGENCY

  	
   

  	
   

  	
   

  
	
  CUSTOMER ID #:

  	
   

  	
   

  	
   

  
	
  NAMED INSURED AND
  ADDRESS 

  	
   

  	
  LOAN NUMBER

  	
  POLICY
  NUMBER                 ,

  
	
  ERICKSON
  AIR-CRANE INC.

  	
   

  	
  XX

  	
  B080111164M10 PRIMARY

  
	
   

  	
   

  	
   

  	
  B080111060M10 EXCESS

  
	
  3100 WILLIOW
  SPRINGS ROAD

  	
   

  	
  EFFECTIVE DATE

  	
  EXPIRATION DATE

  	
   

  
	
  PO BOX 3247

  	
   

  	
  APRIL 1, 2010

  	
  APRIL 1, 2011

  	
  CONTINUED UNTIL

  
	
  CENTRAL POINT, OR
  97502

  	
   

  	
   

  	
  o TERMINATED IF CHECKED

  
	
  ADDITIONAL NAMED
  INSURED(S)

  	
   

  	
  THIS REPLACES PRIOR EVIDENCE DATED:

  	
   

  



 


PROPERTY INFORMATION (Use REMARKS on page 2, if more space is required)   o  BUILDING OR o  BUSINESS PERSONAL PROPERTY


 


LOCATION/DESCRIPTION


 


THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED
NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,
TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
EVIDENCE OF PROPERTY INSURANCE MAY BE ISSUED OR MAY PERTAIN, THE
INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE
TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN
REDUCED BY PAID CLAIMS.


 


COVERAGE
INFORMATION                 PERILS
INSURED  o  BASIC  o  BROAD  x  SPECIAL  o  AS PER POLICY NUMBER


 


	
  COMMERCIAL
  PROPERTY COVERAGE AMOUNT OF INSURANCE: $ 

  	
  DED:

  



 


	
   

  	
  YES

  	
  NO

  	
  N/A

  	
   

  
	
  o BUSINESS
  INCOME     o RENTAL VALUE

  	
  o

  	
  o

  	
  x

  	
  IF YES, LIMIT: 

  	
   

  	
  Actual Loss
  Sustained; # of months

  
	
  BLANKET COVERAGE

  	
  o

  	
  o

  	
  x

  	
  If YES, indicate
  value(s) reported on property identified above: $

  
	
  TERRORISM COVERAGE

  	
  o

  	
  o

  	
  o

  	
  Attached Disclosure
  Notice / DEC

  
	
  IS THERE A TERRORISM-SPECIFIC EXCLUSION?

  	
  o

  	
  x

  	
  o

  	
   

  
	
  IS DOMESTIC TERRORISM EXCLUDED?

  	
  o

  	
  x

  	
  o

  	
   

  
	
  LIMITED FUNGUS
  COVERAGE

  	
  o

  	
  o

  	
  o

  	
  IF YES, LIMIT: 

  	
  DED:

  
	
  FUNGUS EXCLUSION
  (If “YES”, specify organization’s form used)

  	
  o

  	
  o

  	
  x

  	
   

  	
   

  
	
  REPLACEMENT COST

  	
  o

  	
  x

  	
  o

  	
   

  	
   

  
	
  AGREED VALUE

  	
  o

  	
  o

  	
  x

  	
   

  	
   

  
	
  COINSURANCE

  	
  o

  	
  o

  	
  x

  	
  IF YES, 
               %

  	
   

  
	
  EQUIPMENT
  BREAKDOWN (If Applicable)

  	
  o

  	
  o

  	
  x

  	
  IF YES, LIMIT: 

  	
  DED:

  
	
  ORDINANCE OR LAW

  	
  - Coverage for
  loss to undamaged Portion of bldg

  	
  o

  	
  o

  	
  x

  	
   

  	
   

  
	
   

  	
  - Demolition
  Costs

  	
  o

  	
  o

  	
  x

  	
  IF YES, LIMIT: 

  	
  DED:

  
	
   

  	
  - Incr. Cost of
  Construction

  	
  o

  	
  o

  	
  x

  	
  IF YES, LIMIT: 

  	
  DED:

  
	
  EARTH MOVEMENT (If
  Applicable)

  	
  x

  	
  o

  	
  o

  	
  IF YES, LIMIT:
     See Attached

  	
  DED:

  
	
  FLOOD (If
  Applicable)

  	
  x

  	
  o

  	
  o

  	
  IF YES, LIMIT:

  	
  DED:

  
	
  WIND / HAIL (If
  Subject to Different Provisions)

  	
  x

  	
  o

  	
  o

  	
  IF YES, LIMIT: 

  	
  DED:

  
	
  PERMISSION TO
  WAIVE SUBROGATION IN FAVOR OF MORTGAGE HOLDER PRIOR TO LOSS

  	
  x

  	
  o

  	
  o

  	
   

  	
   

  



 


CANCELLATION


 


	
  SHOULD ANY OF
  THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,
  THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE
  ADDITIONAL INTEREST NAMED BELOW, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE
  NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR
  REPRESENTATIVES.

  
	
  ADDITIONAL
  INTEREST

  
	
  o MORTGAGEE

  	
  o CONTRACT OF SALE

  	
  LENDER SERVICING
  AGENT NAME  AND ADDRESSS

  
	
  x  LENDERS LOSS PAYABLE

  	
   

  	
   

  
	
  NAME AND ADDRESS

  	
   

  
	
   

  	
   

  
	
  WELLS FARGO PER ATTACHED INFORMATION

  	
   

  
	
   

  	
  /s/ Patricia
  Sabin

  
	
   

  	
  AUTHORIZED
  REPRESENTATIVE

  



 


EVIDENCE OF COMMERCIAL PROPERTY INSURANCE REMARKS – including Special
Conditions (Use only if more space is required)


 




	
  ACORD 28 (2006/07)

  	
   

  	
  ©ACORD CORPORATION
  2003-2006. All rights reserved.

  






 


The ACORD name and logo are
registered marks of ACORD


 


1

















 


COVERAGE IS ALL
RISK OF PHYSICAL LOSS OR DAMAGE FROM ANY EXTERNAL CAUSE


 


	
  LIMITS OF
  LIABILITY:

  	
  $ 50,000,000 any
  one warehouse and/or hanger and/or place of storage except helicopters;

  
	
   

  	
  $ 20,000,000 any
  one warehouse and/or hanger and/or place of storage;

  
	
   

  	
  $ 20,000,000 any
  one conveyance.

  
	
   

  	
   

  
	
  EXCESS POLICY:

  	
  $75,000,000
  excess $25,000,000 any one location

  
	
   

  	
   

  
	
  DEDUCTIBLES:

  	
  $10,000 in
  respect of SIMA Spa interests only at Lucca-Tassignamo Airport, Italy
  but $5,000 for transit;

  
	
   

  	
  $100,000 storage
  losses;

  
	
   

  	
  .50% of insured
  value, with minimum of $5,000 for transit;

  
	
   

  	
  $2,500 in respect
  of employee’s tools;

  
	
   

  	
  $100,000 for
  helicopters except $25,000 for helicopter transit losses.

  
				



 


Attachment and
Termination: This insurance commences from the attachment of the Assured’s
interest in the subject matter insured and continues until that interest
ceases.


 


LOSS PAYEE:


Wells Fargo Bank,
National Association,


as
Administrative Agent under Credit Agreement, dated as of June 24, 2010, 


with
Erickson Air-Crane Incorporated


1525 West W. T.
Harris Blvd — 1B1


Charlotte, NC 28262


Mail Code: MAC-D1109-019


Attn:         Elisha
Sabido


Telephone:            704-590-4937


Facsimile:              704-715-0017


Email:                     ASRETeamB@Wachovia.com


 


2














 


SCHEDULE 5.13


 


SUBSIDIARIES AND OTHER EQUITY INVESTMENTS


 


(a)                   Subsidiaries


 


	
  1)             Name

  	
   

  	
  Dutch Air-Crane B.V.

  
	
   

  	
   

  	
   

  
	
  Jurisdiction of
  Incorporation

  	
   

  	
  Netherlands

  
	
   

  	
   

  	
   

  
	
  Number of Authorized
  Shares for each Class of Capital Stock

  	
   

  	
  2,000 shares (par value of 100 Gilders each)

  
	
   

  	
   

  	
   

  
	
  Number of Issued and
  Outstanding Shares of each Class of Capital Stock

  	
   

  	
  400 shares

  
	
   

  	
   

  	
   

  
	
  Names of the Holder and
  Number of Shares Held

  	
   

  	
  Erickson Air-Crane Incorporated (sole shareholder) — 400 shares

  
	
   

  	
   

  	
   

  
	
  Number of Shares Held in
  Treasury

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  2)             Name

  	
   

  	
  Erickson Air-Crane (Malaysia) Sdn. Bhd.

  
	
   

  	
   

  	
   

  
	
  Jurisdiction of
  Incorporation

  	
   

  	
  Malaysia

  
	
   

  	
   

  	
   

  
	
  Number of Authorized
  Shares for each Class of Capital Stock

  	
   

  	
  250,000 shares

  
	
   

  	
   

  	
   

  
	
  Number of Issued and
  Outstanding Shares of each Class of Capital Stock

  	
   

  	
  250,000 shares

  
	
   

  	
   

  	
   

  
	
  Names of the Holder and
  Number of Shares Held

  	
   

  	
  Erickson Air-Crane Incorporated — 245,000 shares

  

  Eniyantti T. Eddie — 5,000 shares

  
	
   

  	
   

  	
   

  
	
  Number of Shares Held in
  Treasury

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  3)             Name

  	
   

  	
  CAC Development Canada, Inc. (Canada)

  
	
   

  	
   

  	
   

  
	
  Jurisdiction of
  Incorporation

  	
   

  	
  Canada (Canada Business Corporations Act)

  
	
   

  	
   

  	
   

  
	
  Number of Authorized
  Shares for each Class of Capital Stock

  	
   

  	
  Unlimited

  
	
   

  	
   

  	
   

  
	
  Number of Issued and
  Outstanding Shares of each Class of Capital Stock

  	
   

  	
  100 Common Shares

  
	
   

  	
   

  	
   

  
	
  Names of the Holder and
  Number of Shares Held

  	
   

  	
  Erickson Air-Crane Incorporated (sole shareholder) — 100 Common
  Shares

  
	
   

  	
   

  	
   

  
	
  Number of Shares Held in
  Treasury

  	
   

  	
  None

  



 


1

















 


	
  4)             Name

  	
   

  	
  Canadian Air-Crane Ltd.

  
	
   

  	
   

  	
   

  
	
  Jurisdiction of
  Incorporation

  	
   

  	
  Canada (Canada Business Corporations Act)

  
	
   

  	
   

  	
   

  
	
  Number of Authorized
  Shares for each Class of Capital Stock

  	
   

  	
  100 Class A Voting Common Shares

  

  5,000 Class B Non-voting Common Shares

  

  5,000,000 Non-voting Redeemable Preference Shares 

  

  *All with no par value

  
	
   

  	
   

  	
   

  
	
  Number of Issued and
  Outstanding Shares of each Class of Capital Stock

  	
   

  	
  25 Class A Voting Common Shares 

  

  2,548 Class B Non-voting Common Shares 

  

  212,500 Non-voting Redeemable Preference Shares

  
	
   

  	
   

  	
   

  
	
  Names of the Holder and Number
  of Shares Held

  	
   

  	
  RFT Industries Ltd. — 19 Class A Voting Common Shares

  

  CAC Development Canada, Inc. — 6 Class A Voting Common Shares,
  2,548 Class B Non-voting Common Shares and 212,500 Non-voting Redeemable
  Preference Shares

  
	
   

  	
   

  	
   

  
	
  Number of Shares Held in
  Treasury

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  5)             Name

  	
   

  	
  European Air-Crane SpA

  
	
   

  	
   

  	
   

  
	
  Jurisdiction of
  Incorporation

  	
   

  	
  Italy

  
	
   

  	
   

  	
   

  
	
  Number of Authorized
  Shares for each Class of Capital Stock

  	
   

  	
  1,000,000 Common Shares (nominal value of Euro 1.00)

  
	
   

  	
   

  	
   

  
	
  Number of Issued and
  Outstanding Shares of each Class of Capital Stock

  	
   

  	
  1,000,000 Common Shares

  
	
   

  	
   

  	
   

  
	
  Names of the Holder and
  Number of Shares Held

  	
   

  	
  Erickson Air-Crane Incorporated — 490,000 Common Shares

  

  F.C.N. S.a.R. — 20,000 Common Shares 

  

  Inaer Helicopter Italia S.p.A. — 490,000 Common Shares

  
	
   

  	
   

  	
   

  
	
  Number of Shares Held in
  Treasury

  	
   

  	
  None

  



 


2

















 


(b)           Equity
Interests


 


	
  1)             Name

  	
   

  	
  Layang-Layang Services Sdn. Bdh.

  
	
   

  	
   

  	
   

  
	
  Jurisdiction of
  Incorporation

  	
   

  	
  Malaysia

  
	
   

  	
   

  	
   

  
	
  Number of Authorized
  Shares for each Class of Capital Stock

  	
   

  	
  500,000 shares

  
	
   

  	
   

  	
   

  
	
  Number of Issued and
  Outstanding Shares of each Class of Capital Stock

  	
   

  	
  200,000 shares

  
	
   

  	
   

  	
   

  
	
  Names of the Holder and
  Number of Shares Held

  	
   

  	
  Erickson Air-Crane (Malaysia) Sdn. Bhd. — 98,000 shares (49%)

  

  Datuk Michael Hardin — 80,000 shares (40%)

  

  Yong Kiam Miaw — 22,000 shares (11%)

  
	
   

  	
   

  	
   

  
	
  Number of Shares Held in
  Treasury

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  2)             Name

  	
   

  	
  Society Italiana di
  Manutenzioni

  Aeronautiche SpA (SIMA)

  
	
   

  	
   

  	
   

  
	
  Jurisdiction of
  Incorporation

  	
   

  	
  Italy

  
	
   

  	
   

  	
   

  
	
  Number of Authorized
  Shares for each Class of Capital Stock

  	
   

  	
  300,000 Common Shares (nominal value of Eruo 1.00)

  
	
   

  	
   

  	
   

  
	
  Number of Issued and
  Outstanding Shares of each Class of Capital Stock

  	
   

  	
  300,000 Common Shares

  
	
   

  	
   

  	
   

  
	
  Names of the Holder and
  Number of Shares Held

  	
   

  	
  European Air-Crane S.p.A — 180,000 Common Shares (60%)

  

  Gestioni Industriali e Servizi Aziendali SpA — 120,000 Common Shares (40%)

  
	
   

  	
   

  	
   

  
	
  Number of Shares Held in
  Treasury

  	
   

  	
  None

  



 


(A)          Amounts
reflect the purchase of SIMA’s equity interests from Elilario in
February 2007.


 


3

















 


SCHEDULE 5.15


 


INTELLECTUAL PROPERTY


 


Domain Names


 


1.   Erickson Air-Crane Incorporated owns the Following domain names:


 


(a)        EACCP.COM


 


(b)        EACCP.NET


 


(c)        EACCP.US


 


(d)        ERICKSONAIRCRANE.COM


 


(e)        EACAERO.COM


 


(f)         EACAERO.NET


 


(g)        ERICKSONAERO.COM


 


(h)        ERICKSONAERO.NET


 


2.   Canadian Air-Crane Ltd. owns the following domain name, which was
registered pursuant to an agreement with Network Solutions, LLC: AIR-CRANE.COM.


 


3.   European Air-Crane SpA owns the following domain name:
EUROPEAN-AIRCRANE.COM.


 


4.   Erickson Air-Crane (Malaysia) Sdn. Bhd. owns EACMALAYSIA.COM.


 


Type Certificate


 


Number H6EA issued by the U.S. Department of Transportation - Federal
Aviation Administration to Erickson Air-Crane Incorporated certifying that the
helicopter models S-64E and S-64F meet the air-worthiness requirements dated
8/21/69. Remains in effect until surrendered, suspended, revoked or a
termination date is otherwise established by the administrator of the FAA


 

















 


Production Certificate


 


Issued by the US. Department of Transportation - Federal Aviation
Administration to Erickson Air-Crane Incorporated authorizing the production of
reasonable duplicates of Aircraft which are manufactured in conformity with
authenticated data for which Type Certificates specified in the pertinent and
currently effective Production Limitation Record were issued. Certificate
number 716NM. Issued 12/8/99 and amended 4/16/07 (indefinite validity).


 


Ticker Symbol


 


The Borrower has reserved the following Nasdaq Ticker Symbol: EAC


 


PATENTS


 


U.S.


 


	
  Title/KH File

  	
   

  	
  Patent No.

  Issue Date

  	
   

  	
  Expires

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AIRCRAFT FLUID DROP SYSTEM 

  

  (ERI 301)

  	
   

  	
  5,320,185 June 14, 1994

  	
   

  	
  June 15, 2012

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AIRCRAFT FLUID DROP SYSTEM

  

  (ERI 301A)

  	
   

  	
  5,451,016 September 19, 1995

  	
   

  	
  June 14,2011

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLUID LOADING SYSTEM

  

  (ERI 306)

  	
   

  	
  6,644,595 November 11, 2003

  	
   

  	
  March 9, 2021

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLUID LOADING SYSTEM

  

  (ERI 306B)

  	
   

  	
  6,874,734 April 5, 2005

  	
   

  	
  March 9, 2021

  



 

















 


FOREIGN


 


	
  Title/Country/KH File

  	
   

  	
  Patent No.

  Issue Date

  	
   

  	
  Expires

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLUID LOADING SYSTEM (Canada)

   

  (ERI 306A1)

  	
   

  	
  2402907

   

  November 10, 2009

  	
   

  	
  March 9, 2021

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLUID LOADING SYSTEM (Europe)

   

  (validated in FR (France), GR (Greece), IT (Italy), ES (Spain),
  TR (Turkey), PT (Portugal), MC (Monaco))

   

  (ERI 306A2)

  	
   

  	
  EP 1419310

   

  July 18, 2007

  	
   

  	
  March 9, 2021

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLUID LOADING SYSTEM (China)

   

  (ERI 306A4)

  	
   

  	
  ZL 01808735.3

   

  July 16, 2008

  	
   

  	
  March 9, 2021

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLUID LOADING SYSTEM (Republic of Korea)

   

  (ERI 306A5)

  	
   

  	
  8890879

   

  March 10, 2009

  	
   

  	
  March 9, 2021

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLUID LOADING SYSTEM (Australia)

   

  (ERI 306A6)

  	
   

  	
  2001281468

   

  December 6, 2007

  	
   

  	
  March 9, 2021

  



 

















 


PATENT APPLICATIONS


 


FOREIGN


 


	
  Title/KH File

  	
   

  	
  Serial No. Filing Date

  	
   

  	
  Status/Comments

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLUID LOADING SYSTEM (Japan) 

  

  (ERI 306A3)

  	
   

  	
  2001-567913 

  

  September 10, 2002

  	
   

  	
  Awaiting further action

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLUID LOADING SYSTEM (Republic of Korea) 

  

  (ERI 306A5DIV)

  	
   

  	
  7029246/2008 

  

  November 28, 2009

  	
   

  	
  Abandoned; claims covered in ERI 306A5

  



 


PATENT REEXAMINATION PROCEEDINGS


 


U.S.


 


	
  Title/KH File

  	
   

  	
  Patent No.

  	
   

  	
  Status/Comments

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLUID LOADING SYSTEM 

  

  (ERI 306RX/ERI306RX1)

  	
   

  	
  6,644,595

  

  (Reexamination Proceedings Requested by Erickson and Requested by Third
  Party)

  	
   

  	
  Awaiting further action

  



 














 


TRADEMARK REGISTRATIONS 


 


U.S.


 


	
  Mark KH File

  	
   

  	
  Registration No.

  Registration Date

  	
   

  	
  Goods and/or Services

  	
   

  	
  Status

  
	
  AIR CRANE

  

  ERI 401

  	
   

  	
  2,262,212

  

  July 20, 1999

  	
   

  	
  aerial timber logging services and aerial heavy-lift construction
  services, in International Class 37; and aerial firefighting services,
  in International Class 42

  	
   

  	
  Renewal due July 20, 2019

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AIR CRANE

  

  ERI 403

  	
   

  	
  2,578,985

  

  June 11,2002

  	
   

  	
  aerial lift vehicles

  	
   

  	
  Renewal due June 11,2012

  



 

















 


TRADEMARK APPLICATIONS


 


U.S.


 


	
  Mark KH File

  	
   

  	
  Serial No. Filing Date

  	
   

  	
  Goods and/or Services

  	
   

  	
  Status

  
	
  AIRS

  

  ERI 406A

  	
   

  	
  85/059,986

  

  June 10, 2010

  	
   

  	
  Emergency incident response

  

  services, namely, rescue services in International Class 39

  	
   

  	
  Awaiting action

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AIR INCIDENT RESPONSE SYSTEMS

  ERI 407A

  	
   

  	
  85/059,995

  

  June 10, 2010

  	
   

  	
  Emergency incident response

  

  services, namely, rescue services in International Class 39

  	
   

  	
  Awaiting action

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MISCELLANEOUS DESIGN

  

  

  (helicopter logo)

  

  ERI 408

  	
   

  	
  77/476,001

  

  May 15, 2008

  	
   

  	
  Emergency medical response

  

  services in International Class 44

  	
   

  	
  Notice of Appeal filed; Appeal brief due August 2, 2010

  



 


1

















 


	
  Mark KH File

  	
   

  	
  Serial No. Filing Date

  	
   

  	
  Goods and/or Services

  	
   

  	
  Status

  
	
  MISCELLANEOUS DESIGN

  

  

  

  

  (helicopter logo)

  

  ERI 408DIV

  

  (divisional application separating services from

  

  ERI408)

  	
   

  	
  77/978,281

  

  May 15, 2008

  	
   

  	
  Timber logging in International

  

  Class 40 and Firefighting in

  

  International Class 45

  	
   

  	
  Awaiting further action

  



 


2

















 


SCHEDULE 5.17


 


MATERIAL
FEDERAL CONTRACTS


 


1.               National Call When Needed
Heavy (Type I) & Medium (Type II) Helicopter Services Agreement
between the U.S. Forest Service and Erickson Air-Crane Incorporated, dated
April 4, 2008, as amended.


 


2.               National Exclusive Use Large
Fire Support Helicopter Services Agreement between the U.S. Forest Service and
Erickson Air-Crane Incorporated, dated March 6, 2009, as amended.


 


3.               National Exclusive Use Large
Fire Support Helicopter Services Agreement between the U.S. Forest and Erickson
Air-Crane Incorporated, date June 6, 2008, as amended.


 


1

















 


SCHEDULE 7.01


 


EXISTING
LIENS


 


UCC Liens: Delaware
Secretary of State


 


	
  Filing #

  	
   

  	
  Form

  	
   

  	
  Date

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
  82270351

  	
   

  	
  UCC-1

  	
   

  	
  07/02/2008

  	
   

  	
  US Express Leasing, Inc.

  	
   

  	
  Leased Equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  82509923

  	
   

  	
  UCC-1

  	
   

  	
  07/22/2008

  	
   

  	
  US Express Leasing, Inc.

  	
   

  	
  Leased Equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  82854881

  	
   

  	
  UCC-1

  	
   

  	
  08/21/2008

  	
   

  	
  US Express Leasing, Inc.

  	
   

  	
  Leased Equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  82854923

  	
   

  	
  UCC-1

  	
   

  	
  08/21/2008

  	
   

  	
  US Express Leasing, Inc.

  	
   

  	
  Leased Equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  82983136

  	
   

  	
  UCC-1

  	
   

  	
  09/03/2008

  	
   

  	
  US Express Leasing, Inc.

  	
   

  	
  Leased Equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  83699251

  	
   

  	
  UCC-1

  	
   

  	
  11/04/2008

  	
   

  	
  US Express Leasing, Inc.

  	
   

  	
  Leased Equipment

  



 


1

















 


SCHEDULE 7.06


 


EXISTING
LEASES


 


1.               Lease Agreement between
Borrower and SRI Eight Macadam LLC for approximately 7,300 sq. ft. of
headquarters office space in Portland, Oregon, dated March 31, 2009.


 


2.               Non-Commercial Aviation
Hangar Ground Lease Type B between Borrower and Jackson County Airport
Authority, dated May 24, 2007.


 


3.               Lease Agreement for 6909 and
6999 Sixth Street, between Borrower and A&B Properties, Inc., dated
July 15, 2002.


 


4.               Lease Agreement for a 12x56
mobile office trailer between Borrower and Design Space Modular Buildings
(formerly Commercial Mobile Structures), dated June 9, 2000.


 


5.               The following foreign lease
agreements:


 


a.               Lease Indenture between
Jacqueline Cheong and Canadian Air-Crane LTD, dated August 29, 1994.


 


b.              Hanger Bay Rental Agreement
between Erickson Air-Crane (Malaysia) Sdn. Bhd. and Malaysia Airports Sdn.
Bhd., dated July 9, 2009.


 


c.               Tenancy Agreement for hanger
at Miri Airport between Erickson Air-Crane (Malaysia) Sdn. Bhd. and Malaysia
Airports Sdn. Bhd., dated August 15, 2006.


 


d.              Airport Land Rental
Agreement between European Air-Crane S.p.a. and Aeroporto di Lucca, dated April 8,
2009.


 


e.               European Air-Crane S.p.a.
Office Lease Agreement, dated March 21, 2005.


 


f.                 Office Lease Agreement
between European Air-Crane S.p.a. and Finim S.p.a. for warehouse space in
Lucca, Italy, dated December 21, 2007.


 


g.              Office Space Agreement
between European Air-Crane S.p.a. and Aeroporto Lucca Tassignano S.p.a., dated
September 1, 2005.


 


1






 










 


SCHEDULE 10.02


 


ADDRESSES
FOR NOTICES


 


ERICKSON AIR-CRANE INCORPORATED


5550 SW Macadam, Suite 200


Portland, OR 97239


	
  Attn:

  	
  Chuck Ryan, Chief Financial Officer

  
	
   

  	
  Telephone:

  	
  503-505-5815

  
	
   

  	
  Facsimile:

  	
  503-473-8540

  
	
   

  	
  Email:

  	
  cryan@ericksonaircrane.com

  
	
   

  	
   

  	
   

  
	
  WELLS FARGO BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  	
   

  
	
  Administration Agent’s Office

  	
   

  
	
  (Notices as Administrative Agent):

  	
  With a copy to:

  
	
   

  	
   

  	
   

  	
   

  
	
  Wells Fargo Bank, National
  Association

  	
  Wells Fargo Bank, National Association

  
	
  1525 West W. T. Harris
  Blvd – 1B1

  	
  1300 SW Fifth Avenue, T-19

  
	
  Charlotte, NC 28262

  	
  Portland, OR 97201

  
	
  Mail Code: MAC-D1109-019

  	
  Mail Code: MAC P6101-133

  
	
  Attn:

  	
  Elisha Sabido

  	
   

  	
  Attn:

  	
  James R. Bednark

  
	
   

  	
  Telephone:

  	
  704-590-4937

  	
   

  	
  Telephone:

  	
  503-886-2280

  
	
   

  	
  Facsimile:

  	
  704-715-0017

  	
   

  	
  Facsimile:

  	
  503-886-3210

  
	
   

  	
  Email:

  	
  ASRETeamB@Wachovia.com

  	
  Email:

  	
  james.r.bednark@wellsfargo.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lender; Swing Line Lender; L/C Issuer

  	
   

  
	
  (Requests for Extensions of Credit):

  	
  With a copy to:

  
	
   

  	
   

  
	
  Wells Fargo Bank, National
  Association

  	
  Wells Fargo Bank, National Association

  
	
  1525 West W. T. Harris
  Blvd – 1B1

  	
  1300 SW Fifth Avenue, T-19

  
	
  Charlotte, NC 28262

  	
  Portland, OR 97201

  
	
  Mail Code: MAC-D1109-019

  	
  Mail Code: MAC P6101-133

  
	
  Attn:

  	
  Elisha Sabido

  	
   

  	
  Attn:

  	
  James R. Bednark

  
	
   

  	
  Telephone:

  	
  704-590-4937

  	
   

  	
  Telephone:

  	
  503-886-2280

  
	
   

  	
  Facsimile:

  	
  704-715-0017

  	
   

  	
  Facsimile:

  	
  503-886-3210

  
	
   

  	
  Email:

  	
  ASRETeamB@Wachovia.com

  	
  Email:

  	
  james.r.bednark@wellsfargo.com

  



 


1

















 


EXHIBIT A


 


FORM OF COMMITTED
LOAN NOTES


 


1

















 


Revolving
Loans Promissory Note


 


	
  $

  	
  June 24, 2010

  



 


FOR VALUE RECEIVED, the
undersigned, Erickson Air-Crane Incorporated, a Delaware corporation
(“Borrower”), hereby promises to pay to the order of
                                          (“Lender”)
on the Maturity Date, or at such earlier time as is provided in that certain
Credit Agreement among Borrower, Wells Fargo Bank, National Association (as
Administrative Agent, Swing Line Lender and L/C Issuer) and the Lenders named
therein dated as of June 24, 2010 (as amended, modified or supplemented
from time to time, the “Credit Agreement”), the principal sum of                              
Dollars ($                               ),
or such lesser amount as shall equal the aggregate outstanding principal balance
of all Revolving Loans made by Lender to Borrower pursuant to the Credit
Agreement.


 


This promissory note is one of the promissory notes
referred to in, and subject to the terms of, the Credit Agreement. Capitalized
terms used herein shall have the respective meanings assigned to them in the
Credit Agreement.


 


Borrower further promises to pay interest on the
outstanding principal balance hereof at the interest rates, and payable on the
dates, set forth in the Credit Agreement. All payments of principal and
interest hereunder shall be made to Administrative Agent in lawful money of the
United States and in same day or immediately available funds.


 


Lender is authorized but not required to record the
date and amount of each advance made hereunder, the date and amount of each
payment of principal and interest hereunder, and the resulting unpaid principal
balance hereof, in Lender’s internal records, and any such recordation shall be
prima facie evidence of the accuracy of the information so recorded; provided
however, that Lender’s failure to so record such amounts shall not limit or
otherwise affect Borrower’s obligations hereunder and under the Credit
Agreement to repay the principal hereof and interest hereon.


 


Borrower shall pay all costs of collection,
including reasonable attorneys’ fees (whether incurred at the trial or
appellate level, in an arbitration proceeding, in bankruptcy (including,
without limitation, any adversary proceeding, contested matter or motion) or
otherwise). No delay or failure on the part of Lender in exercising any of its
rights hereunder shall be deemed a waiver of such rights or any other right of
Lender, nor shall any delay, omission or waiver on any one occasion be deemed a
bar to or waiver of such rights or any other right on any future occasion.
Borrower and every surety, indorser and guarantor of this Note waive
presentment, demand, protest, notice of intention to accelerate, notice of
acceleration, notice of nonpayment and all other notices of every kind, and
agree that their liability under this Note shall not be affected by any
renewal, postponement or extension in


 


2

















 


the time of payment hereof, by any indulgence granted by any holder
hereof with respect hereto, or by any release or change in any security for the
payment of this Note, and they hereby consent to any and all renewals,
extensions, indulgences, releases or changes, regardless of the number of such
renewals, extensions, indulgences, releases or changes.


 


The Credit Agreement provides, among other things,
for acceleration (which in certain cases shall be automatic) of the maturity
hereof upon the occurrence of certain stated events, in each case without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by Borrower.


 


Borrower’s obligations evidenced by this promissory
note are secured by the Collateral described in the Loan Documents. The Loan
Documents describe the rights of Administrative Agent, Lender and any other
holder hereof with respect to the Collateral.


 


In the event of any conflict between the terms of
this promissory note and the terms of the Credit Agreement, the terms of the
Credit Agreement shall control.


 


THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAWS PROVISIONS THEREOF (OTHER THAN SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).


 


UNDER OREGON LAW, MOST
AGREEMENTS, PROMISES AND COMMITMENTS MADE BY LENDER CONCERNING LOANS AND OTHER
CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR
SECURED SOLELY BY BORROWER’S RESIDENCE MUST BE IN WRITING, EXPRESS
CONSIDERATION AND BE SIGNED BY LENDER TO BE ENFORCEABLE.


 


	
   

  	
  ERICKSON AIR-CRANE INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


3

















 


Term Loan
Promissory Note


 


	
  $

  	
  June 24, 2010

  



 


FOR VALUE RECEIVED, the
undersigned, Erickson Air-Crane Incorporated, a Delaware corporation
(“Borrower”), hereby promises to pay to the order of
                                   (“Lender”)
the principal sum of                         Dollars ($                 )
in principal installments of
$                            each
on the first Business Day of each March, June, September and December beginning
September 1, 2010 and the outstanding principal balance, together with all
accrued and unpaid interest and related fees, on the Maturity Date.


 


This promissory note is one of the promissory notes
referred to in, and subject to the terms of, that certain Credit Agreement
among Borrower, Wells Fargo Bank, National Association (as Administrative
Agent, Swing Line Lender and L/C Issuer) and the Lenders named therein dated as
of June 24, 2010 (as amended, modified or supplemented from time to time,
the “Credit Agreement”). Capitalized terms used herein shall have the
respective meanings assigned to them in the Credit Agreement.


 


Borrower further promises to pay interest on the
outstanding principal balance hereof at the interest rates, and payable on the
dates, set forth in the Credit Agreement. All payments of principal and
interest hereunder shall be made to Administrative Agent in lawful money of the
United States and in same day or immediately available funds.


 


Lender is authorized but not required to record the
date and amount of each advance made hereunder, the date and amount of each
payment of principal and interest hereunder, and the resulting unpaid principal
balance hereof, in Lender’s internal records, and any such recordation shall be
prima facie evidence of the accuracy of the information so recorded; provided
however, that Lender’s failure to so record such amounts shall not limit or
otherwise affect Borrower’s obligations hereunder and under the Credit
Agreement to repay the principal hereof and interest hereon.


 


Borrower shall pay all costs of collection,
including reasonable attorneys’ fees (whether incurred at the trial or
appellate level, in an arbitration proceeding, in bankruptcy (including, without
limitation, any adversary proceeding, contested matter or motion) or
otherwise). No delay or failure on the part of Lender in exercising any of its
rights hereunder shall be deemed a waiver of such rights or any other right of
Lender, nor shall any delay, omission or waiver on any one occasion be deemed a
bar to or waiver of such rights or any other right on any future occasion.
Borrower and every surety, indorser and guarantor of this Note waive
presentment, demand, protest, notice of intention to accelerate, notice of
acceleration, notice of nonpayment and all other notices of every kind, and
agree that their liability under this Note shall not be affected by any
renewal, postponement or extension in


 


4

















 


the time of payment hereof, by any indulgence granted by any holder
hereof with respect hereto, or by any release or change in any security for the
payment of this Note, and they hereby consent to any and all renewals,
extensions, indulgences, releases or changes, regardless of the number of such
renewals, extensions, indulgences, releases or changes.


 


The Credit Agreement provides, among other things,
for acceleration (which in certain cases shall be automatic) of the maturity
hereof upon the occurrence of certain stated events, in each case without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by Borrower.


 


Borrower’s obligations evidenced by this promissory
note are secured by the Collateral described in the Loan Documents. The Loan
Documents describe the rights of Administrative Agent, Lender and any other
holder hereof with respect to the Collateral.


 


In the event of any conflict between the terms of
this promissory note and the terms of the Credit Agreement, the terms of the
Credit Agreement shall control.


 


THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAWS PROVISIONS THEREOF (OTHER THAN SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).


 


UNDER OREGON LAW, MOST
AGREEMENTS, PROMISES AND COMMITMENTS MADE BY LENDER CONCERNING LOANS AND OTHER
CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR
SECURED SOLELY BY BORROWER’S RESIDENCE MUST BE IN WRITING, EXPRESS
CONSIDERATION AND BE SIGNED BY LENDER TO BE ENFORCEABLE.


 


	
   

  	
  ERICKSON AIR-CRANE INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


5

















 


EXHIBIT B


 


FORM OF
COMMITTED LOAN NOTICE


 


Date:
                     ,              


 


To:          Wells Fargo Bank, National
Association, as Administrative Agent


 


Ladies and Gentlemen:


 


Reference is made to that
certain Credit Agreement, dated as of June 24, 2010 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the “Agreement”;
the terms defined therein being used herein as therein defined), among Erickson
Air-Crane Incorporated, a Delaware corporation (the “Borrower”), the
Lenders from time to time party thereto, and Wells Fargo Bank, National
Association, as Administrative Agent, Swing Line Lender and L/C Issuer.


 


The undersigned hereby
requests (select one):


 


o A Borrowing of
Revolving Loans


 


o A conversion
or continuation of Loans


 


1.             On
                                    
(a Business Day).


 


2.             In the amount of
                             .


 


3.             Comprised of
                                           .

[Type of Committed Loan requested]


 


4.             For LIBOR Rate Loans: with
an Interest Period of                          months.


 


The Borrower hereby
certifies that the following statements are and will be true and correct on the
date of the Borrowings requested above, both before and after giving effect to
the Borrowings requested above:


 


(a)           the representations and
warranties made by the Borrower in the Agreement, or which are contained in any
certificate, document or financial or other statement furnished at any time
under or in connection therewith, are and will be true and correct on and as of
the date of the Borrowings requested above, except to the extent that such
representations and warranties specifically refer to any earlier date and
except that this request shall be deemed instead to refer to the last day of
the most recent year or quarter, as the case may be, for which financial
statements have then been delivered in respect of the representation and
warranty made in Section 5.05(a) or 5.05(b) of the Agreement; and


 


1

















 


(b)           no Default or Event of
Default shall exist, or would result from the Borrowings requested hereby.


 


	
   

  	
  ERICKSON AIR-CRANE INCORPORATED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


2














 


EXHIBIT C


 


FORM OF COMPLIANCE CERTIFICATE


 


Financial
Statement Date
                            ,
      


 


To:                              Wells Fargo Bank, National
Association, as Administrative Agent


 


Ladies and Gentlemen:


 


Reference is made to that
certain Credit Agreement, dated as of June 24, 2010 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the “Agreement”;
the terms defined therein being used herein as therein defined), among Erickson
Air-Crane Incorporated, a Delaware corporation (the “Borrower”), the
Lenders from time to time party thereto, and Wells Fargo Bank, National
Association, as Administrative Agent, Swing Line Lender and L/C Issuer.


 


The undersigned Responsible
Officer hereby certifies as of the date hereof that he/she is the
                         
of the Borrower, and that, as such, he/she is authorized to execute and deliver
this Certificate to the Administrative Agent on the behalf of the Borrower, and
that:


 


[Use
following for fiscal year-end financial statements]


 


1.                                       Accompanying
this Certificate are the year-end audited financial statements required by Section
6.01(a) of the Agreement for the fiscal year of the Borrower ended as of
the above date, together with the report and opinion of an independent certified
public accountant required by such section.


 


[Use
following for fiscal quarter-end financial statements]


 


1.                                       Accompanying
this Certificate are the unaudited financial statements required by Section
6.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of
the above date. Such financial statements fairly present the financial
condition, results of operations and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP as at such date and for such period,
subject only to normal year-end audit adjustments and the absence of footnotes.


 


2.                                       The undersigned
has reviewed and is familiar with the terms of the Agreement and has made, or
has caused to be made under his/her supervision, a detailed review of the
transactions and condition (financial or otherwise) of the Borrower during the
accounting period covered by the attached financial statements.


 


3.                                       A review of the
activities of the Borrower during such fiscal period has been made under the
supervision of the undersigned with a view to determining whether during


 


1

















 


such fiscal period the Borrower performed and
observed all its Obligations under the Loan Documents, and


 


[select
one.]


 


[to the best knowledge of the undersigned after
due inquiry, no Default or Event of Default exists as of the date hereof]


 


—or


 


[the following covenants or conditions have
not been performed or observed and the following is a list of each such Default
or Event of Default, its nature and status and the action that the Borrower
proposes to take with respect thereto:]


 


4.                                       The
representations and warranties of the Borrower contained in the Loan Documents
are true and correct on and as of the date hereof, except to the extent that
such representations and warranties specifically refer to an earlier date
except that this Certificate shall be deemed instead to refer to the last day
of the most recent year or quarter, as the case may be, for which financial
statements have then been delivered in respect of the representation and
warranty made in Section 5.05(a) or 5.05(b) of the Agreement.


 


5.                                       The calculation
attached hereto demonstrating Borrower’s compliance with the covenant set forth
in Sections 7.13 and 7.14 of the Agreement are true and accurate
on and as of the date of this Certificate.


 


IN WITNESS WHEREOF, the undersigned has executed
this Certificate as of the date below.


 


	
   

  	
  ERICKSON AIR-CRANE INCORPORATED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Dated:
                                     ,             



 


2

















 


Financial Covenant
Calculations:


 


I.                                         Section 7.13(a) — Minimum Tangible Net Worth


 


A.                                   Actual Tangible Net Worth (a + b + c +d
— e)


 


a.                                       Borrower’s
shareholders’ equity


 


b.                                      the outstanding
principal and accrued but unpaid interest on Subordinated Debt


 


c.                                       to the extent
not included in Borrower’s shareholders’ equity, the par value, additional
paid-in capital, and accumulated but unpaid dividends with respect to the
Series A Redeemable Preferred Stock


 


d.                                      90% of net
proceeds from Borrower’s issuance of Equity Interests after April 30, 2010
(other than proceeds used substantially contemporaneously with receipt to
retire or redeem Subordinated Debt and/or Series A Redeemable Preferred Stock)


 


e.                                       consolidated
intangible assets


 


B.                                     Compliance with Covenant. Actual
Tangible Net Worth as of the end of the fiscal quarter was $             ,
which o satisfies o does not
satisfy the requirement that such amount be not less than the Target Amount set
forth in the table below as of the end of such fiscal quarter:


 


	
   

  	
  Quarter Ending

  	
   

  	
  Target Amount

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  June
  30, 2010

  	
   

  	
  $

  	
   44,500,000

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  September
  30, 2010

  through March 31, 2011

  	
   

  	
  $

  	
   58,000,000

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  June
  30, 2011

  	
   

  	
  $

  	
   60,000,000

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  September
  30, 2011

  through June 30, 2012

  	
   

  	
  $

  	
   75,000,000

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  September
  30, 2012

  and thereafter

  	
   

  	
  $

  	
   100,000,000

  	
   

  	
   

  



 


II.                                     Section 7.13(b) — Minimum Fixed Charge Coverage Ratio


 


A.                                   Adjusted EBITDA as of the end
of a fiscal quarter (a + b)


 


a.                                       EBITDA as of the end
of a fiscal quarter (i + ii - iii)


 


3

















 


i.                                          Borrower’s
consolidated net income after taxes for the twelve months ending with such
quarter


 


ii.                                       the sum of the
amounts for such twelve month period included in determining such net income of
(A) interest expense, (B) income tax expense, (C) depreciation expense, (D)
amortization expense, (E) unusual non-cash charges, extraordinary non-cash
losses and other non-recurring non-cash charges, (F) any non-cash charges
arising from awards to employees relating to Equity Interests, (G) any non-cash
charges relating to financings and (H) any non-cash currency translation
adjustments that serve to reduce net income


 


iii.                                    the sum of the
amounts for such twelve month period included in determining such net income of
(A) gains on sales of assets (excluding sales of inventory in the ordinary
course of business), (B) unusual non-cash gains, extraordinary non-cash gains
and other non-recurring non-cash gains and (C) any non-cash currency translation
adjustments that serve to increase net income


 


b.                                      Adjustments each of the
following to extent paid during 12 month period for which EBITDA was calculated
(i + ii + iii + iv))


 


i.                                          management fees
paid to Stonehouse Capital Partners in 2009 and the first fiscal quarter of
2010


 


ii.                                       2010 IPO
related non-capitalized expenses up to a maximum of $2,000,000


 


iii.                                    2010 and 2011
legal expenses (including, without limitation, settlement costs) incurred
directly in connection with the Evergreen Aviation litigation, the litigation
with Borrower’s prior owners, the litigation in Italy relating to the 2005
helicopter crash and the appeal of the IRS audit relating to Borrower’s 2005
and 2006 tax years, up to an aggregate maximum of $2,000,000 for any twelve
month period


 


iv.                                   any cash
expense resulting from the prepayment of Existing Indebtedness in connection
with the credit extended hereunder, up to an aggregate maximum of $500,000


 


B.                                     Other Deductions each of the
following to extent paid during 12 month period for which EBITDA was calculated
(a + b + c)


 


a.                                       income taxes
paid in cash


 


b.                                      up to
$5,000,000 of Capital Expenditures


 


c.                                       dividends and
other distributions in respect of Equity Interests paid in cash


 


C.                                     Fixed Charges as of the end
of a fiscal quarter (a + b + c)


 


a.                                       then current
portion of long term debt


 


b.                                      then current
portion of payments in respect of capital leases


 


4

















 


c.                                       cash interest
expense for the twelve months ending with such fiscal quarter


 


D.                                    Fixed Charge Coverage Ratio (A - B) ÷ C


 


E.                                      Compliance with Covenant. Fixed Charge
Coverage Ratio as of the end of the fiscal quarter was       :       ,
which o satisfies o does not
satisfy the requirement that such ratio not be less than 1.75:1.00


 


III.                                 Section 7.13(c) — Maximum Leverage Ratio


 


A.                                   Funded Indebtedness as of the end
of a fiscal quarter (a + b + c + d + e + f +g)


 


a.                                       obligations for
borrowed money, whether current or long-term (including the Obligations) and
all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments


 


b.                                      purchase money
Indebtedness


 


c.                                       direct or
contingent obligations arising under letters of credit (including standby and
commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments


 


d.                                      obligations in
respect of the deferred purchase price of property or services (other than
trade accounts payable arising in the ordinary course of business that have not
been outstanding for more than 120 days)


 


e.                                       obligations
with respect to Attributable Indebtedness


 


f.                                         guarantees with
respect to Indebtedness of the types specified in clauses (a) through (e) above
of another Person


 


g.                                      all
Indebtedness of the types referred to in clauses (a) through (e) above of any
partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which Borrower or a Subsidiary is
a general partner or joint venturer, except to the extent that Indebtedness is
expressly made non-recourse to such Person


 


provided, however,
“Funded Indebtedness” shall not include the Subordinated Debt


 


B.                                     Adjusted EBITDA (II A above)


 


C.                                     Leverage Ratio A ÷ B


 


D.                                    Compliance with Covenant. Leverage
Ratio as of the end of the fiscal quarter was      :      ,
which o satisfies o does not
satisfy the requirement that such ratio not be greater than the Target Ratio
set forth in the table below as of the end of such fiscal quarter:


 


5

















 


	
   

  	
  Quarter Ending

  	
   

  	
  Target Ratio

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  June
  30, 2010

  	
   

  	
  4.25:1.00

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  September
  30, 2010

  	
   

  	
  4.00:1.00

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  December
  31, 2010

  through September 30, 2011

  	
   

  	
  3.75:1.00

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  December
  31, 2011

  and thereafter

  	
   

  	
  3.50:1.00

  	
   

  	
   

  



 


IV.                                Section
7.14 — Maximum Capital Expenditures


 


A.                                   Capital Expenditures fiscal year to
date as of the end of a fiscal quarter


 


B.                                     Carry Over Immediately Prior
Year amount, if any, by which Capital Expenditures for immediately prior
fiscal year were less than Annual Capex Limit


 


C.                                     Tested Amount (A — B)


 


D.                                    Compliance with Covenant. Tested Amount
was $
                 ,
which o satisfies o does not
satisfy the requirement that such amount not be greater than the Annual Capex
Limit set forth in the table below for such fiscal year:


 


	
   

  	
  Year

  	
   

  	
  Annual Capex Limit

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2010

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2011

  	
   

  	
  $

  	
  18,000,000

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2012

  	
   

  	
  $

  	
  14,000,000

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2013

  	
   

  	
  $

  	
  22,000,000

  	
   

  	
   

  



 


6

















 


EXHIBIT D


 


FORM OF GUARANTY AGREEMENT


 


CONTINUING GUARANTY


 


THIS CONTINUING GUARANTY (“Guaranty”)
is entered into as of
                       ,
by
                                                    
(“Guarantor”), in favor of Administrative Agent and the Lenders.


 


RECITALS


 


A.                                   Erickson
Air-Crane Incorporated, a Delaware corporation (“Borrower”), has entered
into that certain Credit Agreement dated as of June 24, 2010 with the
Administrative Agent and the Lenders (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”).


 


B.                                     Borrower,
directly or indirectly, owns all or substantially all of Guarantor’s Equity
Interests.


 


C.                                     Guarantor, as a
subsidiary of Borrower, may desire to receive the benefit of working capital
advances, sales support and other services customarily provided to a subsidiary
by its parent corporation (such advances and services hereinafter referred to
as “Parent Support Funding and Services”). Pursuant to the terms of the
Credit Agreement, Borrower is prohibited from providing Parent Support and
Funding Services to Guarantor until Guarantor first executes and delivers this
Guaranty to Administrative Agent.


 


NOW, THEREFORE, Guarantor
hereby agrees as follows:


 


1.                                      Definitions; Interpretation. All capitalized terms used
in this Guaranty and not otherwise defined herein have the meanings specified
in the Credit Agreement. The rules of construction and interpretation specified
in Sections 1.03 through 1.06 of the Credit Agreement also apply to this
Guaranty and are incorporated herein by this reference.


 


2.                                      Guaranty. Guarantor hereby unconditionally and irrevocably
guarantees the full and prompt payment when due, whether at stated maturity, by
acceleration or otherwise, of all Obligations, whether now existing or
hereafter arising. Notwithstanding any provision to the contrary contained
herein or in any of the other Loan Documents, Guarantor’s obligations under
this Guaranty shall not exceed an aggregate amount equal to the largest amount
that would not render such obligations subject to avoidance under any
applicable Debtor Relief Law.


 


3.                                      Obligations Unconditional. This Guaranty is an absolute
guaranty of payment and not a guaranty of collection. Guarantor’s obligations
are absolute and


 


1

















 


unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of any of the Loan
Documents or other documents relating to the Obligations, or any substitution,
release, impairment or exchange of any other guarantee of or security for any
of the Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 3 that the Guarantor’s obligations shall be
absolute and unconditional under all circumstances. Without limiting the
generality of the foregoing, it is agreed that, to the fullest extent permitted
by Law, the occurrence of any one or more of the following shall not alter or
impair Guarantor’s liability hereunder, which shall remain absolute and
unconditional as described above:


 


(a)                                  at any time or
from time to time, without notice to Guarantor, the time for any performance of
or compliance with any of the Obligations shall be extended, or such performance
or compliance shall be waived;


 


(b)                                 any act
mentioned in any provision of any Loan Document or other document relating to
the Obligations shall be done or omitted;


 


(c)                                  the maturity of
any of the Obligations shall be accelerated, or any of the Obligations shall be
modified, supplemented or amended in any respect, or any right under any of the
Loan Documents or other documents relating to the Obligations shall be waived
or any other guarantee of any of the Obligations or any security therefor shall
be released, impaired or exchanged in whole or in part or otherwise dealt with;


 


(d)                                 any Lien
granted to, or in favor of, the Administrative Agent, Lenders or any other
holder of the Obligations as security for any of the Obligations shall fail to
attach or be perfected; or


 


(e)                                  any of the
Obligations shall be determined to be void or voidable (including, without
limitation, for the benefit of any creditor of Guarantor) or shall be
subordinated to the claims of any Person (including, without limitation, any
creditor of Guarantor).


 


4.                                      Exhaustion
of Other Remedies Not Required. The obligations of
Guarantor hereunder are those of a primary obligor, and not merely as surety,
and are independent of the Obligations. Guarantor waives diligence by
Administrative Agent or any Lender and action on delinquency in respect of the
Obligations or any part thereof, including any provisions of Law requiring
Administrative Agent or any Lender to exhaust any right or remedy or to take
any action against Borrower, any other guarantor or any other Person or
property before enforcing this Guaranty against Guarantor.


 


5.                                      Solvency. Guarantor
represents and warrants that it is Solvent on the date hereof. As used in this
Guaranty, “Solvent” means, with respect to any Person on any date of determination,
that on such date (a) the fair value of the property of such Person is greater
than the total amount of liabilities, including contingent liabilities, of such
Person, (b) the


 


2

















 


present fair salable value of the assets of
such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person’s ability to pay such debts and
liabilities as they mature, (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person’s property would constitute an unreasonably small capital, and (e)
such Person is able to pay its debts and liabilities, contingent obligations
and other commitments as they mature in the ordinary course of business. The
amount of contingent liabilities at any time shall be computed as the amount
that, in the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.


 


6.                                      No Setoff or Deductions. All payments by Guarantor
hereunder shall be paid in full, without setoff or counterclaim or any
deduction or withholding whatsoever, including for all present and future taxes


 


7.                                      Representations and Warranties. Guarantor makes the
following representations and warranties to the Administrative Agent and the
Lenders:


 


(a)                                  It is an entity
duly formed and validly existing in good standing (to the extent such concept
is applicable) under the laws of the jurisdiction of its formation, is duly
qualified to do business and is in good standing as a foreign entity in each
jurisdiction where the nature of its business requires such qualification, and
has full power and authority and holds all Permits and other approvals to enter
into and perform the Obligations and to own and hold under lease its property
and to conduct its business substantially as currently conducted by it, except
where the failure to have so qualified or have such power and authority or to
hold such Permits and other approvals could not reasonably be expected to have
a Material Adverse Effect.


 


(b)                                 Its execution,
delivery and performance of this Guaranty are within its powers, have been duly
authorized by all necessary entity action, and do not (a) contravene its
Organization Documents; (b) contravene any contractual restriction or Law
binding on or affecting it, except where such contravention could not
reasonably be expected to have a Material Adverse Effect; or (c) result in, or
require the creation or imposition of, any Lien on its property, except Liens
for the benefit of the Administrative Agent and the Lenders.


 


(c)                                  No consent,
authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority or other Person is required for the due execution,
delivery or performance by it of this Guaranty;


 


(d)                                 This Guaranty
constitutes the legal, valid and binding obligations of Guarantor enforceable
in accordance with its terms.


 


(e)                                  By virtue of
Guarantor’s relationship with Borrower, the execution, delivery and performance
of this Guaranty is reasonably expected to be for


 


3

















 


Guarantor’s direct and
indirect benefit and Guarantor has received adequate consideration for this
Guaranty.


 


(f)                                    There is no
pending or, to the knowledge of Guarantor, threatened litigation, action,
proceeding, or labor controversy affecting Guarantor, or any of its properties,
businesses, assets or revenues, which could reasonably be expected to have a
Material Adverse Effect.


 


8.                                      Waiver
of Notices. Guarantor waives notice of the acceptance of this
Guaranty and of the extension or continuation of the Obligations or any part
thereof. Guarantor further waives presentment, protest, notice, dishonor or
default, demand for payment and any other notices to which Guarantor might
otherwise be entitled.


 


9.                                      Subrogation. Guarantor
shall not exercise any right of subrogation, contribution or similar rights
with respect to any payments it makes under this Guaranty until all of the
Obligations and any amounts payable under this Guaranty are indefeasibly paid
and performed in full (other than contingent indemnification obligations) and
the Commitments have been terminated. If any amount is paid to Guarantor in
violation of the foregoing limitation, then such amount shall be held in trust
for the benefit of Administrative Agent and the Lenders and shall forthwith be
paid to Administrative Agent for application against the Obligations, whether
matured or unmatured.


 


10.                               Reinstatement.
Notwithstanding anything in this Guaranty to the contrary, this Guaranty shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment of any portion of the Obligations is revoked, terminated, rescinded
or reduced or must otherwise be restored or returned upon the insolvency,
bankruptcy or reorganization of Borrower, any guarantor (including Guarantor)
or any other Person, or otherwise, as if such payment had not been made and
whether or not Administrative Agent or any Lender is in possession of or has
released this Guaranty and regardless of any prior revocation, rescission,
termination or reduction.


 


11.                               Subordination. Guarantor
hereby subordinates the payment of all obligations and indebtedness of Borrower
owing to Guarantor, whether now existing or hereafter arising, including any
obligation of Borrower to Guarantor as subrogee of any Lender or resulting from
Guarantor’s performance under this Guaranty, to the indefeasible payment in
full of the Obligations (other than contingent indemnification obligations). If
Administrative Agent so requests at any time after the occurrence and during
the continuation of an Event of Default, any such obligation or indebtedness of
Borrower to Guarantor shall be enforced and performance received by Guarantor
as trustee for the Lenders and the proceeds thereof shall be paid over to
Administrative Agent on account of the Obligations, but without reducing or
affecting in any manner the liability of Guarantor under this Guaranty.


 


12.                               Information. Guarantor
shall promptly furnish to Administrative Agent all financial or other
information regarding Guarantor or its property as Administrative Agent may
reasonably request in writing.


 


4














 


13.                               Stay of
Acceleration. If acceleration of the time for payment of any of
the Obligations is stayed, upon the insolvency, bankruptcy or reorganization of
Borrower or any other Person, or otherwise, all such amounts shall nonetheless
be payable by Guarantor immediately upon demand by Administrative Agent.


 


14.                               Expenses. Guarantor
shall pay immediately upon demand the full amount of all payments, advances,
charges, costs and expenses, including reasonable attorneys’ fees (whether
incurred at the trial or appellate level, in an arbitration or administrative
proceeding, in bankruptcy (including any adversary proceeding, contested matter
or motion) or otherwise), incurred by Administrative Agent and/or any Lender in
connection with (a) the enforcement, preservation or protection (or attempted
enforcement, preservation or protection) of Administrative Agent’s and/or any
Lender’s rights under this Guaranty and/or the collection of any amounts that
become due hereunder and (b) the prosecution or defense of any action in any
way related to this Guaranty, including any action for declaratory relief, and
including any of the foregoing incurred in connection with any bankruptcy
proceeding relating to Borrower or Guarantor. The obligations of Guarantor
under the preceding sentence shall survive termination of this Guaranty.


 


15.                               Counterparts.
This Guaranty may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.


 


16.                               Integration.
This Guaranty, together with the other Loan Documents to which
Guarantor is a party, comprises the complete and integrated agreement of the
parties on the subject matter hereof and thereof and supersedes all prior
agreements, written or oral, on such subject matter. Guarantor acknowledges
that this Guaranty and the other Loan Documents may contain covenants and other
terms and provisions variously stated regarding the same or similar matters,
and agrees that all such covenants, terms and provisions are cumulative and all
shall be performed and satisfied in accordance with their respective terms.
There are no unwritten oral agreements between Guarantor, on the one hand, and
Administrative Agent or any Lender, on the other.


 


17.                               Amendments.
No provision of this Guaranty may be waived, amended, supplemented or
modified, except by a written instrument executed by party against whom
enforcement is sought. Without limiting the generality of the foregoing, the
making of a Loan or issuance of any other credit under the Credit Agreement
shall not be construed as a waiver of any Default.


 


18.                               Notices. All notices and
other communications provided for hereunder shall be in writing (including by
facsimile transmission). All such written notices shall be mailed, faxed or
delivered, to the following applicable address or facsimile number:


 


	
  Administrative Agent

  	
   

  
	
  or any Lender:

  	
  to Administrative Agent at
  the address set forth in Schedule 1 to the Credit Agreement

  



 


5

















 


	
  Guarantor:

  	
  [NAME OF GUARANTOR]

  
	
   

  	
  [ADDRESS]

  
	
   

  	
  [ADDRESS]

  
	
   

  	
  [CITY, STATE ZIP CODE]

  
	
   

  	
  Attention: Chief Financial
  Officer

  
	
   

  	
  Fax: (    )       -      

  
	
   

  	
  Email:
                             @              

  



 


or, with respect to Guarantor, to such other
address or fax number as Guarantor may designate for itself by notice to the
Administrative Agent. Each such notice or other communication demand shall be
deemed given or made pursuant to the terms of the Credit Agreement.


 


19.                               No Waiver;
Enforceability. No failure by Administrative Agent or any Lender to
exercise, and no delay in exercising, any right, remedy or power hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy or power hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law or in equity. The
unenforceability or invalidity of any provision of this Guaranty shall not
affect the enforceability or validity of any other provision herein.


 


20.                               Assignment.
This Guaranty shall (a) bind Guarantor and its successors and assigns, provided
that Guarantor may not assign its rights or obligations under this Guaranty
without the prior written consent of Administrative Agent (and any attempted
assignment without such consent shall be void) and (b) inure to the benefit of
Administrative Agent and each Lender and their respective successors and
assigns. Administrative Agent and each Lender may, without notice to Guarantor
and without affecting Guarantor’s obligations hereunder, assign or sell
participations in the Obligations and this Guaranty in the manner provided in
the Credit Agreement. Administrative Agent and each Lender may disclose to any
prospective purchaser and any purchaser of all or part of the Obligations any
and all information in Administrative Agent’s or such Lender’s possession
concerning Guarantor, this Guaranty and any security for this Guaranty.


 


21.                               Condition
of Borrower. Guarantor acknowledges and agrees that it has the
sole responsibility for, and has adequate means of, obtaining from Borrower
such information concerning Borrower’s financial condition, business and
operations as Guarantor requires, and that Administrative Agent and Lenders
have no duty, and Guarantor is not relying on Administrative Agent or Lenders
at any time, to disclose to Guarantor any information relating to Borrower’s
business, operations or financial condition.


 


22.                               Governing
Law. This Guaranty shall be governed by and construed in accordance with the
laws of the State of Oregon, without regard to the conflict of laws provisions
thereof, and any applicable laws of the United States.


 


6

















 


23.                               Submission
to Jurisdiction. GUARANTOR (AND BY EXECUTION OF THE ACKNOWLEDGEMENT
HERETO, ADMINISTRATIVE AGENT) HEREBY: (A) SUBMITS TO THE EXCLUSIVE JURISDICTION
OF THE COURTS OF THE STATE OF OREGON AND THE FEDERAL COURTS OF THE UNITED
STATES FOR THE DISTRICT OF OREGON FOR THE PURPOSE OF ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OF THE LOAN DOCUMENTS; (B)
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH COURTS; (C) IRREVOCABLY WAIVES (TO THE FULL EXTENT
PERMITTED BY APPLICABLE LAW) ANY OBJECTION WHICH IT NOW OR HEREAFTER MAY HAVE
TO THE LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY OF THE
FOREGOING COURTS, AND ANY OBJECTION ON THE GROUND THAT ANY SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM; AND (D) AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PERMITTED BY LAW; PROVIDED, HOWEVER, THAT NOTHING IN THIS GUARANTY SHALL
BE DEEMED TO PRECLUDE ADMINISTRATIVE AGENT OR ANY LENDER FROM BRINGING SUIT OR
TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO ENFORCE A JUDGMENT OR
OTHER COURT ORDER IN FAVOR OF ADMINISTRATIVE AGENT OR LENDER.


 


24.                               Waiver of
Jury Trial. GUARANTOR (AND BY EXECUTION OF THE ACKNOWLEDGEMENT
HERETO, ADMINISTRATIVE AGENT), TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING,
COUNTERCLAIM OR OTHER LITIGATION IN ANY WAY ARISING OUT OF OR RELATING TO THIS
GUARANTY, ANY LOAN DOCUMENT OR ANY OF THE TRANSACTIONS OR EVENTS REFERENCED
HEREIN OR THEREIN OR CONTEMPLATED HEREBY OR THEREBY, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY
AND/OR ANY LOAN DOCUMENT. A COPY OF THIS SECTION MAY BE FILED WITH ANY COURT AS
WRITTEN EVIDENCE OF THE WAIVER OF THE RIGHT TO TRIAL BY JURY AND THE CONSENT TO
TRIAL BY COURT.


 


25.                               USA PATRIOT
Act Notice. Administrative Agent hereby notifies Guarantor that
pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the Patriot Act), it is
required to obtain, verify and record information that identifies Guarantor,
which information includes Guarantor’s name and address and other information
that will allow Administrative Agent to identify Guarantor in accordance with
the Patriot Act. Guarantor shall, promptly following a request by
Administrative Agent, provide all documentation and other information that
Administrative


 


7

















 


Agent requests in order to comply with its ongoing
obligations under applicable know your customer and anti-money laundering rules
and regulations, including the Patriot Act.


 


IN WITNESS WHEREOF,
Guarantor has executed this Guaranty by its duly authorized officer as of the
date first above written.


 


	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


ACKNOWLEDGEMENT
BY ADMINISTRATIVE AGENT


 


Administrative Agent hereby
acknowledges receipt of the foregoing Guaranty and agrees to the provisions of
Sections 23 and 24 thereof.


 


	
   

  	
  WELLS FARGO, NATIONAL 

  ASSOCIATION, as Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


8

















 


EXHIBIT E


 


FORM OF SWING LINE
NOTE


 


Swing Line Loans
Promissory Note


 


	
  $10,000,000

  	
   

  	
  June 24, 2010

  



 


FOR VALUE RECEIVED, the undersigned, Erickson
Air-Crane Incorporated, a Delaware corporation (“Borrower”), hereby promises to
pay to the order of Wells Fargo Bank, National Association (“Lender”) on the
Maturity Date, or at such earlier time as is provided in that certain Credit
Agreement among Borrower, Wells Fargo Bank, National Association (as
Administrative Agent, Swing Line Lender and L/C Issuer) and the Lenders named
therein dated as of June 24, 2010 (as amended, modified or supplemented
from time to time, the “Credit Agreement”), the principal sum of Ten Million
Dollars ($10,000,000), or such lesser amount as shall equal the aggregate
outstanding principal balance of all Revolving Loans made by Lender to Borrower
pursuant to the Credit Agreement.


 


This promissory note is one of the promissory notes
referred to in, and subject to the terms of, the Credit Agreement. Capitalized
terms used herein shall have the respective meanings assigned to them in the
Credit Agreement.


 


Borrower further promises to pay interest on the
outstanding principal balance hereof at the interest rates, and payable on the
dates, set forth in the Credit Agreement. All payments of principal and
interest hereunder shall be made to Administrative Agent in lawful money of the
United States and in same day or immediately available funds.


 


Lender is authorized but not required to record the
date and amount of each advance made hereunder, the date and amount of each
payment of principal and interest hereunder, and the resulting unpaid principal
balance hereof, in Lender’s internal records, and any such recordation shall be
prima facie evidence of the accuracy of the information so recorded; provided
however, that Lender’s failure to so record such amounts shall not limit or
otherwise affect Borrower’s obligations hereunder and under the Credit Agreement
to repay the principal hereof and interest hereon.


 


Borrower shall pay all costs of collection,
including reasonable attorneys’ fees (whether incurred at the trial or
appellate level, in an arbitration proceeding, in bankruptcy (including,
without limitation, any adversary proceeding, contested matter or motion) or
otherwise). No delay or failure on the part of Lender in exercising any of its
rights hereunder shall be deemed a waiver of such rights or any other right of
Lender, nor shall any delay,


 


1

















 


omission or waiver on any one occasion be deemed a bar to or waiver of
such rights or any other right on any future occasion. Borrower and every
surety, indorser and guarantor of this Note waive presentment, demand, protest,
notice of intention to accelerate, notice of acceleration, notice of nonpayment
and all other notices of every kind, and agree that their liability under this
Note shall not be affected by any renewal, postponement or extension in the
time of payment hereof, by any indulgence granted by any holder hereof with
respect hereto, or by any release or change in any security for the payment of
this Note, and they hereby consent to any and all renewals, extensions,
indulgences, releases or changes, regardless of the number of such renewals,
extensions, indulgences, releases or changes.


 


The Credit Agreement provides, among other things,
for acceleration (which in certain cases shall be automatic) of the maturity
hereof upon the occurrence of certain stated events, in each case without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by Borrower.


 


Borrower’s obligations evidenced by this promissory
note are secured by the Collateral described in the Loan Documents. The Loan
Documents describe the rights of Administrative Agent, Lender and any other
holder hereof with respect to the Collateral.


 


In the event of any conflict between the terms of
this promissory note and the terms of the Credit Agreement, the terms of the
Credit Agreement shall control.


 


THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAWS PROVISIONS THEREOF (OTHER THAN SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).


 


UNDER OREGON LAW, MOST
AGREEMENTS, PROMISES AND COMMITMENTS MADE BY LENDER CONCERNING LOANS AND OTHER
CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR
SECURED SOLELY BY BORROWER’S RESIDENCE MUST BE IN WRITING, EXPRESS
CONSIDERATION AND BE SIGNED BY LENDER TO BE ENFORCEABLE.


 


 


	
   

  	
  ERICKSON AIR-CRANE INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


2

















 


EXHIBIT F


 


ASSIGNMENT AND ASSUMPTION


 


Assignment and Assumption
Agreement


 


THIS ASSIGNMENT AND
ASSUMPTION AGREEMENT (“Agreement”) is entered into as of
                           ,
between
                                                                                                                     
(“Assignor”) and
                                          
(“Assignee”).


 


WHEREAS, Assignor is a
Lender under that certain Credit Agreement among Erickson Air-Crane
Incorporated, a Delaware corporation (“Borrower”), Wells Fargo Bank, National
Association (as Administrative Agent) and the lenders named therein dated as of
                                                   
, 2010, (as amended, modified or supplemented from time to time, the “Credit
Agreement”). Capitalized terms used but not defined in this Agreement shall
have the meanings set forth in the Credit Agreement.


 


WHEREAS, it is the intention of Assignor and
Assignee that (a) Assignor assign to Assignee [all] [a portion] of
Assignor’s rights and obligations under the Credit Agreement, (b) Assignee
assume all such assignment obligations of Assignor, and (c) Assignor be
released from such assigned obligations.


 


NOW, THEREFORE, in consideration of the mutual
agreements herein contained, the parties hereto agree as follows:


 


1.                                       Assignment. Effective on
the Assignment Effective Date (as defined in Section 3 hereof), Assignor,
without recourse and without representation or warranty (except as expressly
provided in Section 6 hereof), hereby assigns to Assignee the Assigned
Rights and Obligations (as defined below).


 


[The “Assigned Rights and Obligations” means all of
Assignor’s rights and obligations under the Credit Agreement on the Assignment
Effective Date.]


 


[The “Assigned Rights and
Obligations” means: [a $                          
portion] [                            %]
of Assignor’s share of the Loans and Total Commitments on the Assignment
Effective Date; and all of Assignor’s other rights and obligations under the
Credit Agreement that are attributable to such share.]


 


2.                                       Assumption. Effective on
the Assignment Effective Date, Assignee hereby accepts the foregoing assignment
of, and hereby assumes from Assignor all of, the Assigned Rights and
Obligations.


 


3.                                       Effectiveness. This
Agreement shall become effective on such date as shall be selected by Assignor
(the “Assignment Effective Date”), which date shall be on or as soon as


 


1

















 


practicable after the execution and delivery of counterparts of this
Agreement by Assignor, Assignee, Administrative Agent and Borrower. Assignor
shall promptly notify Assignee, Administrative Agent and Borrower in writing of
the Assignment Effective Date.


 


4.                                       Payments on
Assignment Effective Date. In consideration of the assignment by
Assignor to, and the assumption by Assignee of, the Assigned Rights and
Obligations, on the Assignment Effective Date: (a) Assignee shall pay to
Assignor the principal amount of all Loans made by Assignor pursuant to the
Credit Agreement that are attributable to the Assigned Rights and Obligations
and outstanding on the Assignment Effective Date; (b) each of Assignor and
Assignee shall pay to the other such amounts (if any) as are specified in any
written agreement or exchange of letters between them; and (c) Assignee
shall pay to Administrative Agent an assignment processing and recordation fee
of $                 .


 


5.                                       Allocation and
Payment of Interest and Fees.


 


(a)                                  Administrative
Agent shall pay to Assignee all interest, commitment fees and other amounts not
constituting principal that are paid by or on behalf of Borrower pursuant to
the Loan Documents and are attributable to the Assigned Rights and Obligations
(“Borrower Amounts”) which accrue on and after the Assignment Effective Date.
If Assignor receives or collects any such Borrower Amounts, Assignor shall
promptly pay them to Assignee.


 


(b)                                 Administrative
Agent shall pay to Assignor all Borrower Amounts that accrue before the
Assignment Effective Date. If Assignee receives or collects any such Borrower
Amounts, Assignee shall promptly pay them to Assignor.


 


6.                                       Representations
and Warranties.


 


(a)                                  Each of
Assignor and Assignee represents and warrants to the other party as follows:


 


(i)                       it has full
power and authority, and has taken all action necessary, to execute and deliver
this Agreement and to fulfill its obligations under, and to consummate the
transactions contemplated by, this Agreement;


 


(ii)                    the making and performance
of this Agreement and all documents required to be executed and delivered by it
pursuant hereto do not and will not violate any law or regulation applicable to
it;


 


(iii)                 this Agreement has been duly
executed and delivered by, and constitutes a legal, valid and binding
obligation of, it, enforceable in accordance with its terms, and


 


(iv)                all approvals, authorizations
or other actions by, or filings with, any governmental authority necessary for
the validity or enforceability of its obligations under this Agreement have
been made or obtained.


 


2

















 


(b)                                 Assignor represents
and warrants to Assignee that Assignor owns the Assigned Rights and
Obligations, free and clear of all liens or other encumbrances.


 


(c)                                  Assignee
represents and warrants to Assignor as follows:


 


(i)                       Assignee has
made and shall continue to make its own independent investigation of the
financial condition, affairs and creditworthiness of Borrower in connection
with Assignee’s assumption of the Assigned Rights and Obligations; and


 


(ii)                    Assignee has received a copy
of the Loan Documents and such other documents, financial statements and
information as Assignee deems appropriate to make its own credit analysis and
decision to enter into this Agreement.


 


7.                                       No Assignor
Responsibility. Assignor makes no representation or warranty and
assumes no responsibility to Assignee for:


 


(a)                                  the execution
by any party other than Assignor, or the effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of the Loan Documents;


 


(b)                                 any
representations, warranties, recitals or statements made in the Loan Documents
or in any financial statement or other statement, instrument, report,
certificate or any other document made or furnished or made available by or on
behalf of Borrower to Assignor or Assignee in connection with the Loan
Documents and the transactions contemplated thereby;


 


(c)                                  the performance
or observance of any of the terms, conditions, provisions, covenants or
agreements contained in any of the Loan Documents or the existence or possible
existence of any default or event of default under the Loan Documents; or


 


(d)                                 the accuracy or
completeness of any information provided to Assignee, whether by Assignor or by
or on behalf of Borrower.


 


Assignor shall have no initial or continuing duty or
responsibility to make any investigation of the financial condition, affairs or
creditworthiness of Borrower in connection with the assignment of the Assigned
Rights and Obligations hereunder, or to provide Assignee with any credit or
other information with respect thereto, whether coming into Assignor’s
possession before the date hereof or at any time or times thereafter.


 


8.                                       Assignee Bound
By Credit Agreement. Effective on the Assignment Effective Date,
Assignee: (a) shall be deemed to be a party to and “Lender” under the
Credit Agreement; (b) agrees to be bound by the Credit Agreement to the
same extent as it would have been if it had been an original Lender party
thereto; and (c) agrees to perform in accordance with their respective
terms all obligations which are required under the Loan Documents to be
performed by it as a Lender. Assignee appoints and authorizes Administrative
Agent to take such actions as Administrative Agent on Assignee’s behalf and


 


3

















 


to exercise such powers under the Loan Documents as are delegated to
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto.


 


9.                                       Assignor
Released From Credit Agreement. Effective on the
Assignment Effective Date, Assignor shall be released from the Assigned Rights
and Obligations; provided, however, that Assignor shall retain all of its
rights to indemnification under the Loan Documents for any events, acts or
omissions occurring before the Assignment Effective Date.


 


[10.                             Foreign
Withholding.


 


(a)                                  Assignee
represents and warrants to Administrative Agent, Borrower and Assignor that,
under applicable law and treaties, Assignee is entitled to receive all payments
under the Loan Documents and this Agreement payable to it, without deduction or
withholding of any taxes imposed by the United States or any political
subdivision thereof.


 


(b)                                 On or before
the Assignment Effective Date, Assignee shall deliver to each of Borrower and
Administrative Agent two executed copies of valid and properly completed:
(i) United States Internal Revenue Service Form 1001 or 4224
certifying that Assignee is entitled to receive payments under the Credit
Agreement and the Loan Documents payable to it, without deduction or
withholding of any United States federal income taxes; or (ii) Internal
Revenue Service Form W-8 or W-9 establishing an exemption from United
States backup withholding tax. If any such form is found to be incomplete or
incorrect, or must be replaced (on the same or a successor form) in order to
maintain its effectiveness, Assignee shall execute and deliver to each of
Borrower and Administrative Agent two executed copies of a valid, complete and
correct replacement form.]


 


[11.]                         General.


 


(a)                                  This Agreement
constitutes the entire understanding of the parties with respect to the subject
matter hereof and supersedes all prior and current understandings and
agreements, whether written or oral (other than with respect to any fees
payable as provided in Section 4 hereof).


 


(b)                                 No term or
provision of this Agreement may be amended, waived or terminated orally, but
only by an, instrument signed by the parties hereto.


 


(c)                                  This Agreement
may be executed in one or more counterparts. Each set of executed counterparts
shall be an original. Executed counterparts may be delivered by facsimile
transmission.


 


(d)                                 Assignor may at
any time and from time to time grant to others pursuant to the Loan Documents
assignments of or participations in all or part of Assignor’s share of the
Loans and Total Commitments, but not with respect to the Assigned Rights and
Obligations.


 


4














 


(e)                                  This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Neither Assignor nor Assignee may assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of the other. The preceding sentence shall not limit the right
of Assignee to grant to others assignments of or participations in all or part
of the Assigned Rights and Obligations to the extent permitted by the terms of
the Loan Documents.


 


(f)                                    All payments to
Assignor or Assignee hereunder shall, unless otherwise specified by the party
entitled thereto, be made in U.S. Dollars, in immediately available funds, and
to the address or account specified on the signature pages of this Agreement.
The address of Assignee for notice purposes under the Credit Agreement shall be
as specified on the signature pages of this Agreement.


 


(g)                                 If any
provision of this Agreement is held invalid, illegal or unenforceable, the
remaining provisions hereof will not be affected or impaired in any way.


 


(h)                                 Each party
shall bear its own expenses in connection with the preparation and execution of
this Agreement.


 


(i)                                     THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF (OTHER THAN
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).


 


IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.


 


	
   

  	
  ASSIGNOR:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


5

















 


	
   

  	
  Assignor’s Notice Instructions:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attn:

  	
   

  
	
   

  	
  Ref:

  	
   

  
	
   

  	
  Telephone: (      )

  	
   

  
	
   

  	
  Facsimile: (       )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Assignor’s Payment Instructions:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ABA No.

  	
   

  
	
   

  	
  Account No.

  	
   

  
	
   

  	
  Attn:

  	
   

  
	
   

  	
  Ref:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ASSIGNEE:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Assignee’s Notice Instructions:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attn:

  	
   

  
	
   

  	
  Ref:

  	
   

  
	
   

  	
  Telephone: (      )

  	
   

  
	
   

  	
  Facsimile: (       )

  	
   

  
								



 


6

















 


	
   

  	
  Assignee’s Payment Instructions:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ABA No.

  	
   

  
	
   

  	
  Account No.

  	
   

  
	
   

  	
  Attn:

  	
   

  
	
   

  	
  Ref:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACKNOWLEDGED AND AGREED: 

  
	
   

  	
   

  
	
   

  	
  ADMINISTRATIVE AGENT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ERICKSON AIR-CRANE INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


7

















 


EXHIBIT G


 


FORM OF MONTHLY ASSET
COVERAGE AND AVAILABLE

CREDIT CERTIFICATE


 


Month End Date:
                                         ,
201    [insert date of most recent month end]


 


To:                              Wells Fargo Bank, National
Association, as Administrative Agent


 


Ladies and Gentlemen:


 


Reference is made to that certain Credit Agreement,
dated as of June 24, 2010 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the “Agreement”; the
terms defined therein being used herein as therein defined), among Erickson
Air-Crane Incorporated, a Delaware corporation (the “Borrower”), the
Lenders from time to time party thereto, and Wells Fargo Bank, National
Association, as Administrative Agent, Swing Line Lender and L/C Issuer.


 


The undersigned Responsible
Officer hereby certifies that:


 


(a)                                  as of the date
hereof that he/she is the
                                           
of the Borrower, and that, as such, he/she is authorized to execute and deliver
this Certificate to the Administrative Agent on the behalf of the Borrower,


 


(b)                                 as of the month
end date set forth above the Asset Coverage Amount, computed in accordance with
the Agreement, as set forth in detail on the attached exhibit, was $                       ,


 


(c)                                  each Aircraft
included in the calculation of such Asset Coverage Amount was located as of the
end of the month, and is currently located, in the United States, Canada,
Australia, Malaysia or Greece or, in compliance with Sections 6.19 and 7.16 of
the Credit Agreement, in                           ,


 


(d)                                 as of the close
of business on
                                           
[insert
Business Day immediately preceding the date of this certificate] the
Available Credit was $
                              
determined as follows:


 


1

















 


	
  1.

  	
  Aggregate Revolving Commitments

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2. 

  	
  Outstanding Amount of:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (a)  Revolving Loans

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  (b)  Swing Loans

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  (c)  L/C Obligations

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  (d)  TOTAL

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3. 

  	
  Line 1 less Line 2(d)

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4. 

  	
  Asset Coverage Amount (from
  above)

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5. 

  	
  Outstanding Amount of:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (a)  All Loans

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  (b)  L/C Obligations

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  (c)  TOTAL

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6. 

  	
  Line 4 less Line 5(c)

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7. 

  	
  Available Credit (lesser of
  Line 3 or Line 6)

  	
   

  	
   

  	
   

  	
  $

  	
   

  



 


(e)                                  each
calculation referenced above and set forth on the attached computation is true
and accurate on and as of the relevant, specified date thereof.


 


IN WITNESS WHEREOF,  the undersigned
has executed this Certificate as of the date below.


 


	
   

  	
  ERICKSON AIR-CRANE INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Dated:
                                         ,
201   


 


2