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Exhibit 10.19G
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SECOND AMENDMENT TO PARTICIPATION AGREEMENT,
LEASE AGREEMENT AND LOAN AGREEMENT
Dated as of October 20, 2000
among
ASSET XVI HOLDINGS COMPANY, L.L.C., as Lessor
EGL, INC., as Lessee
and
BANK ONE, NA, as Lender
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Lease Financing
for Eagle USA Airfreight, Inc.
Corporate Real Estate Program
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SECOND AMENDMENT TO PARTICIPATION AGREEMENT,
LEASE AGREEMENT AND LOAN AGREEMENT
THIS Second AMENDMENT TO PARTICIPATION AGREEMENT, LEASE AGREEMENT AND
LOAN AGREEMENT (this "Second Amendment to Agreements" or this "Second
Amendment"), dated as of October 20, 2000, is made and entered into by and among
ASSET XVI HOLDINGS COMPANY, L.L.C., a Massachusetts limited liability company,
as Lessor, EGL, INC., a Texas corporation formerly named "Eagle USA Airfreight,
Inc.", as Lessee, and BANK ONE, NA, a national banking association, with an
address at 1 Bank One Plaza, Suite IL1-0634, 10th Floor, Chicago, Illinois
60670, Attn: Loan Servicing Department, as Lender and assignee of Bank One,
Texas, NA, a national banking association. Unless the context shall otherwise
require, capitalized terms used and not defined herein shall have the meanings
assigned thereto in Appendix I to that certain Master Participation Agreement,
dated as of April 3, 1998 among the Lessor, the Lessee and Bank One, Texas, NA,
as amended by that certain First Amendment to Participation Agreement, Lease
Agreement and Loan Agreement dated as of April 3, 1998, among the Lessor, the
Lessee and Bank One, Texas, NA, and as further amended by that certain Amendment
to Participation Agreement dated as of April 1, 1999 (as so amended, the
"Participation Agreement").
W I T N E S E T H:
WHEREAS, pursuant to the Loan Agreement, the Participation Agreement
and the other Operative Documents, the Lessor and the Lender have made Advances
to the Lessee in order to provide funding for the costs incurred by the Lessee
as agent of Lessor for the acquisition of the Leased Property, the Construction
of the Improvements and other Property Costs, and (i) the aggregate unpaid
principal balance of Loan Advances, and the principal balance of the
indebtedness evidenced by the Note, as of September 30, 2000, was the sum of
$14,812,736.94, and (ii) the aggregate unpaid principal balance of Contribution
Advances, and the principal balance of the Contribution, as of September 30,
2000, was the sum of $709,241.09; and
WHEREAS, on and as of September 29, 2000, Bank One, Texas, NA sold,
transferred and assigned to its affiliate, Bank One, NA (referred to herein as
the "Lender" for all time periods on and following such date of transfer), all
of its right, title and interest as the Lender in, to and under the Loan, the
Note, the Loan Agreement, the Participation Agreement, the Lease (as
supplemented by all of the Lease Supplements), and the other Operative
Documents; and
WHEREAS the Lessee and its wholly owned Subsidiary, EGL Delaware I,
Inc., a Delaware corporation (the "Merger Sub"), have entered into an Agreement
and Plan of Merger dated as of July 2, 2000 (the "Merger Agreement"), with
Circle International Group, Inc., a Delaware corporation ("Circle"), pursuant to
which, subject to the terms and conditions thereof, the parties thereto have
agreed to cause the Merger Sub to merge with and into Circle (the "Circle
Merger"), with the result, among other things, that Circle will become the
wholly owned Subsidiary of the Lessee; and
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WHEREAS the Lessee requested that the Lender agree to amend, prior to
the consummation of the Circle Merger, certain covenants in the Participation
Agreement, which the Lender is willing to do on and subject to the terms and
conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the mutual agreements contained in
this Second Amendment to Agreements and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1
DEFINITIONS; INTERPRETATION
Appendix I of the Participation Agreement, the Lease and the Loan
Agreement is hereby amended by deleting therefrom the definitions of the terms
listed in Exhibit A attached hereto, and inserting in lieu thereof the
definitions for such terms contained in said Exhibit A. Furthermore, said
Appendix I is hereby amended by adding those defined terms set forth in Exhibit
B attached hereto. Unless the context shall otherwise require, capitalized terms
used and not defined herein shall have the meanings assigned thereto in Appendix
I to the Participation Agreement, the Lease and the Loan Agreement after taking
into account the amendments effected herein.
SECTION 2
AMENDMENT OF PARTICIPATION AGREEMENT
Section 2.1. Financial Covenants of Lessee. Section 5.4 (Financial
Covenants of Lessee) of the Participation Agreement is hereby completely amended
and restated as follows:
"SECTION 5.4 Financial Covenants of Lessee.
(a) The Lessee shall not permit Consolidated Tangible Net
Worth, as determined as of the last day of any fiscal quarter, to be
less than the sum of (i) 275,000,000 plus (ii) an amount equal to 30%
of the sum of Consolidated Net Income for each fiscal quarter from and
including the fiscal quarter beginning January 1, 2001 (provided that
any net loss for any fiscal quarter shall be excluded from such
calculation) plus (iii) 100% of all cash proceeds received by the
Lessee and any of its Subsidiaries in respect of Lessee's or such
Subsidiary's issuance of capital stock from and after the date hereof
plus (iv) 100% of the fair market value of any capital stock and other
ownership interests of the Lessee or any of its Subsidiaries issued as
part of the consideration for (A) any merger, consolidation or business
combination to which the Lessee or any such Subsidiary is a party,
except the Circle Merger, or (B) the acquisition of any asset or group
of assets by the Lessee or any of its Subsidiaries.
(b) The Lessee shall not permit Consolidated Net Worth, as
determined as of the last day of any fiscal quarter, to be less than
(i) $300,000,000 plus (ii) an amount equal to 30% of the sum of
Consolidated Net Income for each fiscal quarter from and including the
fiscal quarter beginning January 1, 2001 (provided that any
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net loss for any fiscal quarter shall be excluded from such
calculation) plus (iii) 100% of all cash proceeds received by the
Lessee and any of its Subsidiaries in respect of Lessee's or such
Subsidiary's issuance of capital stock from and after the date hereof
plus (iv) 100% of the fair market value of any capital stock and other
ownership interests of the Lessee or any of its Subsidiaries issued as
part of the consideration for (A) any merger, consolidation or business
combination to which the Lessee or any such Subsidiary is a party,
except the Circle Merger, or (B) the acquisition of any asset or group
of assets by the Lessee or any of its Subsidiaries.
(c) The Lessee shall not permit the Fixed Charge Coverage
Ratio as determined as of the last day of any fiscal quarter for the
period of four consecutive fiscal quarters then ended, to be less than
1.50 to 1.00.
(d) The Lessee shall be permitted to incur, assume or in any
manner become or be liable in respect of Debt to any one creditor or
one group of creditors pursuant to a single commitment, to lend not to
exceed $150,000,000, provided that such Debt is only to any single
creditor or group of creditors (it being understood that the Debt
permitted by this subsection (d) shall never, individually or in the
aggregate, exceed $150,000,000).
(e) The Lessee and its Subsidiaries shall not incur, assume or
in any manner become or be liable at any time in respect of Debt (other
than that permitted by subsection (d) above or as evidenced by the
transactions contemplated hereby) which, in the aggregate, exceeds
$30,000,000."
Section 2.2. Fundamental Changes. SECTION 5.6 (Fundamental Changes) is
added to the Participation Agreement as follows:
"SECTION 5.6. Fundamental Changes. The Lessee shall not, and shall not
permit any of its Subsidiaries to, without Lender's written consent,
(i) enter into any transaction of merger or consolidation or
amalgamation, or (ii) liquidate, wind up or dissolve itself (or suffer
any liquidation or dissolution), or (iii) convey, sell, lease, transfer
or otherwise dispose of, in one transaction or a series of
transactions, all or any substantial part of its business or assets,
whether now owned or hereafter acquired, or (iv) acquire by purchase or
otherwise all or substantially all the business or assets of, or stock
or other evidence of beneficial ownership of, any Person, or (v) make
any material change in the nature of its business or in the methods by
which it conducts business, provided, however, that, so long as no
Event of Default, or event which with the passage of time or giving of
notice, or both, would become an Event of Default, exists immediately
before, or would exist immediately after, such transaction:
(a) Any Subsidiary of the Lessee may be consolidated with,
amalgamated with, or merged into the Lessee or any wholly owned
Subsidiary of the Lessee;
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(b) Any Subsidiary of the Lessee may make dispositions of any
of its property or assets to the Lessee or any wholly owned Subsidiary
of the Lessee, whether by dissolution, liquidation or otherwise;
(c) Any corporation may be acquired by, merged into, or
consolidated with the Lessee or with any Subsidiary of the Lessee; and
(d) Any Subsidiary of the Lessee may be merged into or
consolidated with, any corporation if the Lessee and any one or more if
its wholly owned Subsidiaries, or any one or more of them, is the
survivor of such merger or the successor formed by such consolidation.
Section 2.3 Consent to Transfer. Lender hereby gives notice to Lessor
and Lessee of the assignment and transfer (the "Transfer") by Bank One, Texas,
NA to Bank One, NA of all right, title and interest of the Lender in and to the
Loan, the Loan Agreement and the other Operative Documents. The Lessor and
Lessee, respectively, consent to the Transfer.
Section 2.4. Notices. SECTION 8.2 (Notices) of the Participation
Agreement is hereby amended by replacing the address of the Lender set forth in
item (ii) thereof with the following:
"(i) Lessee EGL, Inc.
15330 Vickery Drive
Houston, Texas 77032
Attention: Douglas A. Seckel, Treasurer
Facsimile No.: (281) 618-3423
Telephone No.: (281) 618-3420
(ii) Lender Bank One NA
Mail Code IL1-0634
1 Bank One Plaza, 10th Floor
Chicago, Illinois 60670
Attn.: Martin Catton, Loan Servicing Department
Facsimile No.: (312) 732-4840
Telephone No.: (312) 732-2990"
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SECTION 3
Amendment OF Lease
Section 3.1. Scheduled Rent. Subsection (d) (Scheduled Rent) of SECTION
4.1 (Basic Rent) of the Lease is hereby terminated and deleted: Effective as of
the date of this Second Amendment, the Lessee shall pay Scheduled Rent as
provided in this Section 3.1. On each Rent Payment Date Lessee shall pay as
Scheduled Rent the installment of Scheduled Rent then due and payable in
accordance with the schedule of Scheduled Rent attached hereto as Exhibit D. The
respective installments of Scheduled Rent set forth on Exhibit D shall be
applied by the Lender on the first Loan Payment Date which falls on or after
such Rent Payment Date to pay required payments of principal on the Loan and the
Note, and shall also be applied by the Lender on such date in reduction of the
Parcel Tranche for each Property by the product of the Pro Rata Fraction of such
Property multiplied by the amount of such installment of Scheduled Rent.
Notwithstanding the foregoing, in order to avoid Breakage Costs, the Lessee
hereby directs the Lender to deposit payments of Scheduled Rent in the
Reinvestment Account maintained pursuant to SECTION 3.7 of the Loan Agreement
for payment of principal on the next succeeding Loan Payment Date; provided,
that until amounts in the Reinvestment Account shall be so applied to pay the
Loan, interest will continue to accrue with respect to 100% of the principal
balance of the Loan without any setoff or deduction relating to the amounts so
deposited. The parties hereto agree to adjust the schedule of Scheduled Rent set
forth on Exhibit D in the event of a partial prepayment of the Loan occurring as
the result of the exercise of the Purchase Option, or the occurrence of an Event
of Loss or an Event of Taking with respect to less than all of the Properties.
Any such adjustment shall be made by reducing the remaining unpaid installments
of Scheduled Rent in the same proportion that the amount so prepaid has reduced
the then principal balance of the Loan. Notwithstanding the foregoing, on the
Scheduled Termination Date, the Lessee shall pay an amount equal to the Recourse
Deficiency Amount or the Lease Balance, as the case may be, in accordance with
the provisions of Article XV hereof, in addition to the installment of Scheduled
Rent due hereunder.
Section 3.2. Parcel 1998-I Lease Supplement.
(a) The Parcel 1998-I Lease Supplement is hereby amended and
supplemented as follows:
(i) In SECTION 1 (Definitions), the definition of "Parcel
1998-I Completion Date" is corrected to mean the Parcel Closing Date
for Parcel 1998-I, to wit: May 11, 1998.
(ii) SECTION 5.1 (Basic Rent) is hereby amended and restated
in its entirety as follows:
"5.1 Basic Rent. Lessee shall pay Basic Rent in
accordance with the Lease. Lessee shall pay Index Rent and
Facility Rent with respect to Property 1998-I (subject to
SECTION 4.1 of the Lease) on each Rent Payment Date following
the Parcel 1998-I Completion Date."
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(iii) SECTION 14 (Recourse Deficiency Amount) is hereby
deleted in its entirety.
(b) Parcel Tranche and the Parcel Contribution Tranche: The current
principal amount of the Parcel Tranche and the Parcel Contribution Tranche for
Property 1998-I is set forth on Schedule 1998-1 of Exhibit C attached hereto,
which amounts, subject to adjustments from time to time as required by the terms
of the Operative Documents, shall be binding on the Lessee and the Lessor with
respect to the Operative Documents, including, without limitation, calculation
of Basic Rent, Lease Balance and Purchase Option Price with respect to Property
1998-I.
Section 3.3. Parcel 1998-II Lease Supplement.
(a) The Parcel 1998-II Lease Supplement is hereby amended as follows:
(i) SECTION 4 (Construction of Parcel 1998-II Improvements) is
supplemented to acknowledge the occurrence of the Parcel Completion
Date for Property 1998-II prior to the Effective Date.
(ii) SECTION 5.1 (Basic Rent) is hereby amended and restated
in its entirety as follows:
"5.1 Basic Rent. Lessee shall pay Basic Rent in
accordance with the Lease. Lessee shall pay Index Rent and
Facility Rent with respect to Property 1998-II (subject to
SECTION 4.1 of the Lease) on each Rent Payment Date following
the Parcel 1998-II Completion Date."
(iii) SECTION 14 (Recourse Deficiency Amount) is hereby
deleted in its entirety.
(b) Parcel Tranche and the Parcel Contribution Tranche: The current
principal amount of the Parcel Tranche and the Parcel Contribution Tranche for
Property 1998-II is set forth on Schedule 1998-II of Exhibit C attached hereto,
which amounts, subject to adjustments from time to time as required by the terms
of the Operative Documents, shall be binding on the Lessee and the Lessor with
respect to the Operative Documents, including, without limitation, calculation
of Basic Rent, Lease Balance and Purchase Option Price with respect to Property
1998-II.
Section 3.4 Parcel 1999-I Lease Supplement.
(a) The Parcel 1999-I Lease Supplement is hereby amended as follows:
(i) SECTION 4 (Construction of Parcel 1999-I Improvements) is
supplemented to acknowledge the occurrence of the Parcel Completion
Date for Property 1999-I prior to the effective date.
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(ii) SECTION 5.1 (Basic Rent) is hereby amended and restated
in its entirety as follows:
"5.1 Basic Rent. Lessee shall pay Basic Rent in
accordance with the Lease. Lessee shall pay Index Rent and
Facility Rent with respect to Property 1999-I (subject to
SECTION 4.1 of the Lease) on each Rent Payment Date following
the Parcel 1999-I Completion Date."
(iii) SECTION 14 (Recourse Deficiency Amount) is hereby
deleted in its entirety.
(b) Parcel Tranche and the Parcel Contribution Tranche: The current
principal amount of the Parcel Tranche and the Parcel Contribution Tranche for
Property 1999-I is set forth on Schedule 1999-I of Exhibit C attached hereto,
which amounts, subject to adjustments from time to time as required by the terms
of the Operative Documents, shall be binding on the Lessee and the Lessor with
respect to the Operative Documents, including, without limitation, calculation
of Basic Rent, Lease Balance and Purchase Option Price with respect to Property
1999-I
Section 3.5 Parcel 1999-II Lease Supplement.
(a) The Parcel 1999-II Lease Supplement is hereby amended as follows:
(i) SECTION 4 (Construction of Parcel 1999-II Improvements) is
supplemented to acknowledge the occurrence of the Parcel Completion
Date for Property 1999-II prior to the effective date.
(ii) SECTION 5.1 (Basic Rent) is hereby amended and restated
in its entirety as follows:
"5.1 Basic Rent. Lessee shall pay Basic Rent in
accordance with the Lease. Lessee shall pay Index Rent and
Facility Rent with respect to Property 1999-II (subject to
SECTION 4.1 of the Lease) on each Rent Payment Date following
the Parcel 1999-II Completion Date."
(iii) SECTION 14 (Recourse Deficiency Amount) is hereby
deleted in its entirety.
(b) Parcel Tranche and the Parcel Contribution Tranche: The current
principal amount of the Parcel Tranche and the Parcel Contribution Tranche for
Property 1999-II is set forth on Schedule 1999-II of Exhibit C attached hereto,
which amounts, subject to adjustments from time to time as required by the terms
of the Operative Documents, shall be binding on the Lessee and the Lessor with
respect to the Operative Documents, including, without limitation, calculation
of Basic Rent, Lease Balance and Purchase Option Price with respect to Property
1999-II.
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Section 3.6 Parcel 1999-III Lease Supplement.
(a) The Parcel 1999-III Lease Supplement is hereby amended as follows:
(i) SECTION 4 (Construction of Parcel 1999-III Improvements)
is supplemented to acknowledge the occurrence of the Parcel Completion
Date for Property 1999-III prior to the effective date.
(ii) SECTION 5.1 (Basic Rent) is hereby amended and restated
in its entirety as follows:
"5.1 Basic Rent. Lessee shall pay Basic Rent in
accordance with the Lease. Lessee shall pay Index Rent and
Facility Rent with respect to Property 1999-III (subject to
SECTION 4.1 of the Lease) on each Rent Payment Date following
the Parcel 1999-III Completion Date."
(iii) SECTION 14 (Recourse Deficiency Amount) is hereby
deleted in its entirety.
(b) Parcel Tranche and the Parcel Contribution Tranche: The current
principal amount of the Parcel Tranche and the Parcel Contribution Tranche for
Property 1999-III is set forth on Schedule 1999-III of Exhibit C attached
hereto, which amounts, subject to adjustments from time to time as required by
the terms of the Operative Documents, shall be binding on the Lessee and the
Lessor with respect to the Operative Documents, including, without limitation,
calculation of Basic Rent, Lease Balance and Purchase Option Price with respect
to Property 1999-III.
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SECTION 4
AMENDMENT TO LOAN AGREEMENT
Section 4.1 Loan Balance. The aggregate unpaid principal balance of
Loan Advances made pursuant to the Loan Agreement and the Participation
Agreement, and the unpaid principal balance of the Loan, totals the sum of
$14,812,736.94 as of September 30, 2000. Attached hereto as Exhibit E is a
schedule of Loan Payments to be made by the Lessor on account of the principal
balance of the Loan on each Loan Payment Date up to and including the Scheduled
Termination Date, and the Lessor does hereby agree to pay such amounts to the
Lender on the dates indicated in addition to interest and all other amounts due
and to become due under the Operative Documents.
Section 4.2 Scheduled Principal Repayment. SECTION 2.3 (Scheduled Principal
Repayment) of the Loan Agreement is hereby terminated and deleted. On the first
Loan Payment Date which coincides with or immediately follows the date of this
Second Amendment and on each Loan Payment Date thereafter, the Lessor shall make
a payment on account of the principal balance of the Loan equal to the amount of
the installment of Scheduled Rent due on or immediately preceding such Loan
Payment Date, as set forth in Exhibit E to this Second Amendment (as the same
may be adjusted from time to time in the event of any prepayment of the Loan, as
set forth in Section 3.1 above). The principal balance of the Loan has been
subdivided into a separate Parcel Tranche for each of the Properties, each
Parcel Tranche having the respective current balance set forth on Exhibit C to
this Second Amendment. Each payment of Scheduled Rent received by the Lender
shall be applied in reduction of the Parcel Tranche for each Property in the
amount which equals the product of the Pro Rata Fraction of such Property
multiplied by the amount of such installment of Scheduled Rent. Notwithstanding
the foregoing, in order to avoid Breakage Costs, the Lessee and the Lessor
hereby direct the Lender, so long as no Default shall be outstanding, to deposit
payments of Scheduled Rent received by the Lender on a day other than a Loan
Payment Date in the Reinvestment Account to be maintained pursuant to SECTION
3.7 of the Loan Agreement, and to disburse such amounts from the Reinvestment
Account for application to the payment of principal, as provided above, on the
next succeeding Loan Payment Date; provided, that until amounts in the
Reinvestment Account shall be so applied to pay the Loan, interest will continue
to accrue with respect to 100% of the principal balance of the Loan without any
setoff or deduction relating to the amounts so deposited. Except in connection
with an early payment or acceleration of Basic Rent or the Lease Termination
Date under the Lease due to (i) an Event of Default, (ii) an Acceleration, (iii)
the Lessee's exercise of the Purchase Option, (iv) the Lessee's exercise of the
Remarketing Option, or (v) the receipt of amounts under the Lease upon the
occurrence of an Event of Loss or an Event of Taking, the Lessor shall have no
option or right, without the prior consent of the Lender, to prepay the Loan
whether in whole or in part.
Section 4.3 Coordination of Loan Advances. Effective as of September 30,
2000, all of the Loan Advances and Parcel Tranches shall be and hereby are
coordinated for the purpose of setting interest rates as if all of them
constituted a single Loan, which (except in the event that the Base Rent applies
as a result of any of the circumstances set forth in SECTION 2.4(f) of the Loan
Agreement) shall be a LIBOR Rate Loan having an Interest Period commencing as of
October 1, 2000, and having a duration of one month. The provisions of SECTION
2.4(c) of the Loan Agreement are hereby amended by deleting the third from the
last sentence thereof and substituting the foregoing sentence in its place.
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SECTION 5
MISCELLANEOUS
Section 5.1 Representations and Warranties. Effective as of the date of
this Second Amendment to Agreements, each of the Lessee and Lessor represents
and warrants to each of the parties hereto that each of the representations and
warranties made by it in the Participation Agreement and the other Operative
Documents, as amended hereby, remain true and correct in all material respects
as of the date of this Second Amendment to Agreements to the same extent and
subject to the same qualifications as set forth in the Participation Agreement
and the other Operative Documents, as amended hereby.
Section 5.2 Compliance with Operative Documents. The Lessee hereby
represents and warrants that it is in full compliance with all terms,
conditions, covenants, agreements, stipulations, representations and warranties
under the Operative Documents, as amended hereby, to which it is a party or by
which it is bound, and the Lessee hereby reaffirms the same as of the date
hereof. The Lessee covenants and agrees to perform and observe all covenants,
agreements, stipulations and conditions on its part to be performed under the
Operative Documents, as amended hereby. To the best of the knowledge of the
Lessee, neither the Lender nor the Lessor is in default under any of the
Operative Documents and no event has occurred and no condition exists which,
with the giving of notice or the lapse of time or both, would constitute a
default under any of the Operative Documents by any of the parties hereto.
Section 5.3 Amendment of Operative Documents. Except as specifically
modified herein, the Operative Documents shall remain in full force and effect
in all respects according to their original terms, covenants and conditions, and
nothing in this Second Amendment to Agreements shall affect or impair any rights
and powers that the Lender and/or the Lessor may have thereunder.
Section 5.4 Expenses. The Lessee shall pay or cause to be paid and save
the Lender and the Lessor harmless against liability for the payment of all
reasonable out-of-pocket expenses, including counsel fees and disbursements,
incurred or paid by the Lender or the Lessor in connection with the negotiation,
development, preparation, execution and performance of this Second Amendment to
Agreements.
Section 5.5 Successors and Assigns. This Second Amendment to Agreements
is binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors and assigns; provided, however, that the Lessee shall not
assign or transfer its rights or duties under this Second Amendment to
Agreements or the Operative Documents without the prior written consent of the
Lender and the Lessor.
Section 5.6 Counterparts. This Second Amendment to Agreements may be
executed in any number of counterparts as may be convenient or necessary, and it
shall not be necessary that the signatures of all parties hereto or thereto be
contained on any one counterpart hereof or thereof. Additionally, the parties
hereto agree that for purposes of facilitating the execution of this Second
Amendment to Agreements, (a) the signature pages taken from the separate
individually executed counterparts of this Second Amendment to Agreements may be
combined to form multiple fully
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executed counterparts and (b) a facsimile transmission shall be deemed to be an
original signature for all purposes. All executed counterparts of this Second
Amendment to Agreements shall be deemed to be originals, but all such
counterparts taken together or collectively, as the case may be, shall
constitute one and the same agreement.
Section 5.7 No Recourse. No recourse shall be had for the payment of
any amount owing in respect to any obligation of, or claim against the Lessor
arising out of or based upon this Second Amendment to Agreements or any other
related agreement against JH Management Corporation or against any stockholder,
employee, officer, director or incorporator of the Lessor or JH Management
Corporation; provided, however, that the foregoing shall not relieve any such
person or entity from any liability they might otherwise have as a result of
fraudulent actions or fraudulent omissions taken by them.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to Agreements to be executed by their respective duly authorized
officers as of the day and year first above written.
Witnesses: EGL, INC., a Texas Corporation, as Lessee
By:
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Printed Name: Name:
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Title:
------------------------------------------
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Printed Name:
------------------------------
ASSET XVI HOLDINGS COMPANY, L.L.C.,
a Massachusetts limited liability company,
as Lessor
By Asset Holdings Corporation I, a Delaware corporation,
its managing member
By:
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Printed Name: Name:
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Title:
------------------------------------
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Printed Name:
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BANK ONE, NA, a national banking association, as Lender
By:
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Printed Name: Name:
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Title:
------------------------------------------
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Printed Name:
------------------------------
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EXHIBIT A
TO
SECOND AMENDMENT TO PARTICIPATION AGREEMENT,
LEASE AGREEMENT AND LOAN AGREEMENT
AMENDED DEFINITIONS
"Lease" means the Lease dated as of April 3, 1998 between the Lessor
and the Lessee, as supplemented by the Parcel 1998-I Lease Supplement, the
Parcel 1998-II Lease Supplement, the Parcel 1999-I Lease Supplement, the Parcel
1999-II Lease Supplement and the Parcel 1999-III Lease Supplement, and as
amended by the First Amendment to Agreements, and this Second Amendment to
Agreements, together with all amendments and supplements thereto.
"Land" means, collectively, Parcel 1998-I, Parcel 1998-II, Parcel
1999-1, Parcel 1999-II, and Parcel 1998-III.
"Lender" means Bank One, NA and its successors and assigns.
"Lessee" means EGL, Inc., a Texas corporation formerly named "Eagle USA
Airfreight, Inc.", and its permitted successors and assigns.
"Loan Agreement" means the Loan Agreement dated as of April 3, 1998,
between the Lender and the Lessor, as amended by the First Amendment to
Agreements and this Second Amendment to Agreements, together with all amendments
and supplements thereto.
"Note" means the Lessor's Promissory Note dated April 8,1998, in the
original principal sum of up to $19,000,000, delivered to the Lender pursuant to
the Loan Agreement, as modified by the First Allonge to Promissory Note dated as
of April 8, 1998 and delivered in connection with the execution and delivery of
the First Amendment to Agreements.
"Operative Documents" means the Participation Agreement, the Lease, the
Note, the Loan Agreement, the Assignment of Lease and Rents, the Notices of
Assignment of Lease and Rents, the Mortgages, the Non-Disturbance and Attornment
Agreements, and this Second Amendment to Agreements, together with all
amendments and supplements thereto.
"Parcel Completion Date" means (i) with respect to a Parcel on which
the Construction of Improvements is to be financed from the proceeds of Advances
pursuant to the Operative Documents, the first Loan Payment Date on which the
conditions specified in SECTION 3.4 of the Participation Agreement shall have
been satisfied or (ii) with respect to a Parcel on which no Improvements are to
be so Constructed, the related Parcel Closing Date.
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"Participation Agreement" means the Participation Agreement as defined
in the heading to this Second Amendment to Agreements, together with all
amendments and supplements thereto.
"Recourse Deficiency Amount" means 85% of the Total Lease Balance on
the Scheduled Termination Date.
A-2
16
EXHIBIT B
TO
SECOND AMENDMENT TO PARTICIPATION AGREEMENT,
LEASE AGREEMENT AND LOAN AGREEMENT
NEW DEFINITIONS
"First Amendment to Agreements" means that certain First Amendment to
Participation Agreement, Lease Agreement and Loan Agreement among the Lender,
the Lessee, the Substitute Guarantor, the Original Guarantor and the Lessor
dated as of July 31, 2000, together with any amendments or supplements thereto.
"Parcel Closing Date" means for each Parcel, the date of the related
Parcel Lease Supplement.
"Parcel 1998-I" means the Parcel of Land located in East Granby,
Connecticut as described in and leased and demised pursuant to the Parcel 1998-I
Lease Supplement.
"Parcel 1998-I Lease Supplement" means that certain Parcel 1998-I Lease
Supplement dated as of May 11, 1998, between the Lessor and the Lessee.
"Parcel 1998-II" means the Parcel of Land located in Grapevine, Tarrant
County, Texas, as described in and leased and demised pursuant to the Parcel
1998-II Lease Supplement.
"Parcel 1998-II Lease Supplement" means that certain Parcel 1998-I
Lease Supplement dated as of September 1, 1998, between the Lessor and the
Lessee.
"Parcel 1999-I" means the Parcel of Land located in Austin, Travis
County, Texas as described in and leased and demised pursuant to the Parcel
1999-I Lease Supplement.
"Parcel 1999-I Lease Supplement" means that certain Parcel 1999-I Lease
Supplement dated as of March 1, 1999, between the Lessor and the Lessee.
"Parcel 1999-II" means the Parcel of Land located in Romulus, Wayne
County, Michigan as described in and leased and demised pursuant to the Parcel
1999-II Lease Supplement.
"Parcel 1999-II Lease Supplement" means that certain Parcel 1999-II
Lease Supplement dated as of March 25, 1999, between the Lessor and the Lessee.
"Parcel 1999-III" means the Parcel of Land located in South Bend, St
Joseph County, Indiana, as described in and leased and demised pursuant to the
Parcel 1999-III Lease Supplement.
B-1
17
"Parcel 1999-III Lease Supplement" means that certain Parcel 1999-I
Lease Supplement dated as of June 1, 1999, between the Lessor and the Lessee.
"Pro Rata Fraction" means, with respect to each Property, a fraction
the numerator of which is principal amount of the Parcel Tranche for such
Property at the time of calculation and the denominator of which is the total
principal balance of the Loan at such time.
B-2
18
EXHIBIT C
TO
SECOND AMENDMENT TO PARTICIPATION AGREEMENT,
LEASE AGREEMENT AND LOAN AGREEMENT
SCHEDULE 1998-I
PROPERTY: Property 1998-I, Granby, Connecticut.
LEASE SUPPLEMENT: Parcel 1998-I Lease Supplement dated May 11, 1998.
PARCEL TRANCHE: Balance of Parcel Tranche 1998-I as of 9/30/00: $661,527.47
PARCEL CONTRIBUTION TRANCHE:
Balance of Parcel Contribution Tranche 1998-I as of 9/30/00: $33,963.35
SCHEDULE 1998-II
PROPERTY: Property 1998-II, Grapevine, Tarrant County, Texas.
LEASE SUPPLEMENT: Parcel 1998-II Lease Supplement dated September 1, 1998.
PARCEL TRANCHE: Balance of Parcel Tranche 1998-II as of 9/30/00: $5,102,735.51
PARCEL CONTRIBUTION TRANCHE:
Balance of Parcel Contribution Tranche 1998-II as of 9/30/00: $270,000.08
SCHEDULE 1999-I
PROPERTY: Property 1999-I, Austin, Travis County, Texas.
LEASE SUPPLEMENT: Parcel 1999-I Lease Supplement dated March 1, 1999.
PARCEL TRANCHE: Balance of Parcel Tranche 1999-I as of 9/30/00: $4,417,499.88
PARCEL CONTRIBUTION TRANCHE:
Balance of Parcel Contribution Tranche 1999-I as of 9/30/00: $232,499.76
C-1
19
SCHEDULE 1999-II
PROPERTY: Property 1999-II, Romulus, Wayne County, Michigan.
LEASE SUPPLEMENT: Parcel 1999-II Lease Supplement dated March 25, 1999.
PARCEL TRANCHE: Balance of Parcel Tranche 1999-II as of 9/30/00: $3,515,000.07
PARCEL CONTRIBUTION TRANCHE:
Balance of Parcel Contribution Tranche 1999-II as of 9/30/00: $115,272.55
SCHEDULE 1999-III
PROPERTY: Property 1999-III, South Bend, St. Joseph County, Indiana.
LEASE SUPPLEMENT: Parcel 1999-III Lease Supplement dated June 1, 1999.
PARCEL TRANCHE: Balance of Parcel Tranche 1999-III as of 9/30/00: $1,115,974.01
PARCEL CONTRIBUTION TRANCHE:
Balance of Parcel Contribution Tranche 1999-III as of 9/30/00: $57,505.35
C-2
20
EXHIBIT D
SCHEDULE
OF
SCHEDULED RENT
RENT PAYMENT DATE INSTALLMENT OF
SCHEDULED RENT
---------------------------------------- ----------------------------------
March 1, 2001 $57,069.85
---------------------------------------- ----------------------------------
April 1, 2001 $57,069.85
---------------------------------------- ----------------------------------
May 1, 2001 $57,069.85
---------------------------------------- ----------------------------------
June 1, 2001 $61,719.74
---------------------------------------- ----------------------------------
July 1, 2001 $61,719.74
---------------------------------------- ----------------------------------
August 1, 2001 $61,719.74
---------------------------------------- ----------------------------------
September 1, 2001 $61,719.74
---------------------------------------- ----------------------------------
October 1, 2001 $61,719.74
---------------------------------------- ----------------------------------
November 1, 2001 $61,719.74
---------------------------------------- ----------------------------------
December 1, 2001 $61,719.74
---------------------------------------- ----------------------------------
January 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
February 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
March 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
April 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
May 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
June 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
July 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
August 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
September 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
October 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
November 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
December 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
January 1, 2003 $61,719.74
---------------------------------------- ----------------------------------
February 1, 2003 $61,719.74
---------------------------------------- ----------------------------------
March 1, 2003 $61,719.74
---------------------------------------- ----------------------------------
April 1, 2003 $61,719.74
---------------------------------------- ----------------------------------
May 1, 2003 $61,719.74
---------------------------------------- ----------------------------------
June 1, 2003 (Scheduled
Termination Date)*
---------------------------------------- ----------------------------------
* On the Scheduled Termination Date, the Lessee shall pay in accordance with the
provisions of the Lease either (a) the aggregate Recourse Deficiency Amount to
the extent permitted by, and in accordance with, the provisions of, SECTION 15.6
and/or SECTION 15.7 of the Lease, or (b) in any other instance, the Lease
Balance.
D-1
21
EXHIBIT E
SCHEDULE
OF
LOAN PAYMENTS*
RENT PAYMENT DATE INSTALLMENT OF
SCHEDULED RENT
---------------------------------------- ----------------------------------
March 1, 2001 $57,069.85
---------------------------------------- ----------------------------------
April 1, 2001 $57,069.85
---------------------------------------- ----------------------------------
May 1, 2001 $57,069.85
---------------------------------------- ----------------------------------
June 1, 2001 $61,719.74
---------------------------------------- ----------------------------------
July 1, 2001 $61,719.74
---------------------------------------- ----------------------------------
August 1, 2001 $61,719.74
---------------------------------------- ----------------------------------
September 1, 2001 $61,719.74
---------------------------------------- ----------------------------------
October 1, 2001 $61,719.74
---------------------------------------- ----------------------------------
November 1, 2001 $61,719.74
---------------------------------------- ----------------------------------
December 1, 2001 $61,719.74
---------------------------------------- ----------------------------------
January 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
February 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
March 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
April 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
May 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
June 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
July 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
August 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
September 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
October 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
November 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
December 1, 2002 $61,719.74
---------------------------------------- ----------------------------------
January 1, 2003 $61,719.74
---------------------------------------- ----------------------------------
February 1, 2003 $61,719.74
---------------------------------------- ----------------------------------
March 1, 2003 $61,719.74
---------------------------------------- ----------------------------------
April 1, 2003 $61,719.74
---------------------------------------- ----------------------------------
May 1, 2003 $61,719.74
---------------------------------------- ----------------------------------
June 1, 2003 (Scheduled
Termination Date)*
---------------------------------------- ----------------------------------
*The Schedule of Loan Payments is broken down by the parcel properties as shown
on Rider 1 attached to this Exhibit E and incorporated herein.
E-1