Exhibit 10.11B
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT ("Amendment"), dated effective as
of March 7, 2002 (the "Amendment Effective Date"), is executed and entered into
by and among Bank of America, National Association, in its capacity as
collateral and administrative agent (the "Agent"), EGL, Inc. and each of its
undersigned Subsidiaries party to the Agreement (defined below) (collectively,
the "Loan Parties") and each financial institution party to the Agreement
(defined below) as a "Lender" as of the Amendment Effective Date (the
"Lenders"), as follows:
RECITALS:
A. The Agent, the Loan Parties and the Lenders are parties to the certain
Credit Agreement dated as of December 20, 2001 (the "Agreement"). Terms defined
by the Agreement, where used in this Amendment, shall have the same meanings in
this Amendment as are prescribed by the Agreement.
B. The Agent, the Loan Parties and the Lenders have agreed to amend the
Agreement as provided below.
NOW THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
ARTICLE 1
Amendments to Credit Agreement
Section 1.1 Amendment to Preamble. Effective as of the Amendment Effective
Date, the preamble to the Agreement is amended and restated to read as follows:
This Credit Agreement, dated as of December 20, 2001
("Agreement"), among the financial institutions from time to time
parties hereto (such financial institutions, together with their
respective successors and assigns, are referred to hereinafter each
individually as a "Lender" and collectively as the "Lenders"), Bank
of America, N.A., with an office at 901 Main Street, Sixth Floor,
Dallas, Texas 75202, as collateral and administrative agent for the
Lenders (in such capacity, the "Agent"), Transamerica Business
Capital Corporation, as documentation agent, and EGL, Inc., a Texas
corporation and each of its Subsidiaries party hereto.
Section 1.2. Amendment to Annex A. Annex A to the Agreement hereby is
amended to add the following definitions, which shall be inserted in its
appropriate alphabetical position:
"Documentation Agent" means Transamerica Business Capital
Corporation, and its successors, in its capacity as documentation
agent under this Agreement.
FIRST AMENDMENT TO CREDIT AGREEMENT, Page 1
"Original Credit Documents" means the "Credit Documents" as defined
by the Original Credit Agreement.
Section 1.3 Amendment to Section 1.2(j) of the Agreement. Effective as of
the Amendment Effective Date, Section 1.2(j) of the Agreement is amended to add
the following immediately after the existing last sentence thereof, as follows:
The Agent shall notify each Lender in writing of each Agent Advance,
provided, that any delay or failure of the Agent in providing any
such notice to any Lender shall not result in any liability to the
Agent, or impair any rights of the Agent or constitute the breach of
any duty or obligation of the Agent under this Agreement.
Section 1.4 Amendment to Schedule 6.5. Effective as of the Closing Date,
in the "Other Foreign Subsidiaries" portion of Schedule 6.5, the percentage
"49%" reflected under the "Ownership" column with respect to each of EGL Eagle
Global Logistics (Espana) SL and Circle Freight (Portugal) Logistics, Ltd., in
each case, is amended to read 51%.
Section 1.4 Amendment to Section 7.12. Effective as of the Closing Date,
Section 7.12 of the Agreement hereby is amended and restated to read in its
entirety as follows:
Section 7.12 Guaranties. No Consolidated Member, excluding the
Unrestricted Subsidiaries, shall make, issue, or become liable on
any Guaranty, except (i) Guaranties of the Debt of a Consolidated
Member, excluding an Unrestricted Subsidiary, allowed under clauses
(a) and (c) of Section 7.13, or clauses (b) or (d) of Section 7.13
to the extent any such Guaranty allowed by such clauses (b) or (d)
exists on the Closing Date, and (ii) the Guaranty consisting of the
certain Letter of Credit No. 302728 dated July 6, 2000 issued by the
Bank on behalf of the Parent, as applicant, for the account of Miami
Air International, Inc. for the benefit of First Union National
Bank.
Section 1.5 Amendment to Section 7.35 of the Agreement. Effective as of
the Amendment Effective Date, Section 7.35 of the Agreement is amended to amend
and restate the phrase "On or before sixty (60) days after the Closing Date" to
read, "On or before April 15, 2002".
Section 1.6 Amendments to Section 11.1 (a) of the Agreement. Effective as
of the Amendment Effective Date, Section 11.1(a) is amended as follows:
(a) Clause (viii) thereof is amended to delete the word "or" following
the semi-colon;
(b) Clause (ix) thereof is amended to add the word "or" following the
semi-colon;
(c) A new clause (x) is added, immediately following clause (ix)
thereof, which shall read in its entirety as follows:
FIRST AMENDMENT TO CREDIT AGREEMENT, Page 2
"(x) release any Loan Party from its obligations under a
Guaranty Agreement." ; and
(d) The following is added to the end of the proviso paragraph that
follows such newly added clause (x), which shall be deemed inserted
immediately following the words "in accordance herewith":
"and, provided, further, that the Agent alone in its
discretion may release the Guaranty of, and the Agent's Liens
in property of, each of (i) EGL (UK) Holding Company Limited,
(ii) EGL (UK) Holdings Limited, (iii) EGL Eagle Global
Logistics (UK) Limited, (iv) F.J. Tytherleigh & Co. Limited,
(v) Eagle Global Logistics (UK) Limited and (vi) EGL Eagle
Global Logistics (Belgium) NV, in each case existing under the
Original Agreement, without necessity of consent or joinder by
any other Person."
Section 1.7 Amendment to Add Section 12.21. Effective as of the Amendment
Effective Date, a new Section 12.21 is added to the Agreement, which shall be
inserted following Section 12.20 of the Agreement and read in its entirety as
follows:
Section 12.21 Documentation Agent. Neither the Agent, the Lenders
nor the Borrowers shall have any duty or obligation to the
Documentation Agent in such capacity.
Section 1.8 Amendment to Section 13.3. Effective as of the Amendment
Effective Date, the word "AGREEMENT" in Section 13.3(a) of the Agreement is
amended to read "THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS OTHER THAN THE
FOREIGN SECURITY DOCUMENTS".
Section 1.9 Amendment to Section 13.7. Effective as of the Amendment
Effective Date, the second sentence of Section 13.7 of the Agreement is amended
to include the following parenthetical phrase which shall be inserted
immediately after the phrase "one law firm" in such sentence:
(or, alternatively and without duplication, internal legal counsel
of a Lender who is retained by the Lenders, in which case such fees
and expenses shall be the reasonable internally allocated fees and
expenses of such counsel)
FIRST AMENDMENT TO CREDIT AGREEMENT, Page 3
ARTICLE 2
Miscellaneous
Section 2.1 Miscellaneous. In the event of any conflict between the
provisions of Section 13.3 of the Agreement with any provision of any other Loan
Document, the provisions of Section 13.3 of the Agreement shall control.
Section 2.2 Limited Waiver. The Agent and the Lenders waive any Default or
Event of Default which exists by reason of (i) existence, on the Closing Date
and continuing to the Effective Date, of the Guaranty referenced in clause (ii)
of Section 7.12 of the Credit Agreement, as amended by this Amendment or (ii)
incorrect disclosures on the Closing Date and continuing to the Effective Date,
in Schedule 6.5 of the Credit Agreement with respect to each of EGL Eagle Global
Logistics (Espana) SL and Circle Freight (Portugal) Logistics, Ltd.,
respectively, provided, that such waiver is expressly limited as provided
herein.
Section 2.3 Representations and Warranties. The Loan Parties hereby
represent and warrant to, and agree with, the Agent, for the benefit of the
Lenders, that, as of the date of and after giving effect to this Amendment, (a)
the execution, delivery, and performance of this Amendment has been authorized
by all requisite corporate action on the part of each of the Loan Parties and
will not violate any of such Loan Party's certificate of incorporation or
bylaws, (b) all representations and warranties set forth in the Agreement and in
any other Loan Document are true and correct as if made again on and as of such
date (except those, if any, which by their terms specifically relate only to a
different date) in the Agreement), (d) no Default or Event of Default has
occurred and is continuing, (e) the Agreement (as amended by this Amendment),
and all other Loan Documents are and remain legal, valid, binding, and
enforceable obligations in accordance with the terms thereof, and (f) the
certifications delivered to the Agent under clauses (i), (ii), (iii) and (iv) of
Section 8.1(a) of the Agreement remain true, correct, and complete as of the
Amendment Effective Date.
Section 2.4 Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other Loan Document
shall survive the execution and delivery of this Amendment and the other Loan
Documents, and no investigation by the Agent or any Lender, or any closing,
shall affect the representations and warranties or the right of the Agent and
the Lenders to rely upon them.
Section 2.5 Reference to Agreement. Each of the Loan Documents, including
the Agreement and any and all other agreements, documents, or instruments now or
hereafter executed and/or delivered pursuant to the terms hereof or pursuant to
the terms of the Agreement as amended hereby, are hereby amended so that any
reference in such Loan Documents to the Agreement, whether direct or indirect,
shall mean a reference to the Agreement as amended hereby.
Section 2.6 Severability. Any provision of this Amendment held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
FIRST AMENDMENT TO CREDIT AGREEMENT, Page 4
Section 2.7 Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of the Agent, the Lenders, the Loan Parties and their
respective successors and assigns, except no Loan Party may assign or transfer
any of its rights or obligations hereunder without the prior written consent of
the Agent and the Lenders.
Section 2.8 General. This Amendment, when signed by each signatory as
required by the Agreement (a) shall be deemed effective prospectively as of the
Amendment Effective Date, whereupon it shall be a Loan Document and (b) may be
executed in any number of counterparts, each of which shall be valid as an
original, and a telecopy or other electronic transmission of any such executed
counterpart shall be deemed valid as an original.
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL AGREEMENTS
BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers in several counterparts effective
as of the date specified in the introductory paragraph hereof.
REMAINDER OF PAGE BLANK
SIGNATURES FOLLOW
FIRST AMENDMENT TO CREDIT AGREEMENT, Page 5
SIGNED effective as of the Amendment Effective Date:
BANK OF AMERICA, N.A.
In its capacity as Agent
By: /s/
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Name:
---------------------------------------
Title:
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BANK OF AMERICA, N.A.
By: /s/
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Name:
---------------------------------------
Title:
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PNC BANK, NATIONAL ASSOCIATION
By: /s/
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Name:
---------------------------------------
Title:
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TRANSAMERICA BUSINESS CAPITAL
CORPORATION
By: /s/
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Name:
---------------------------------------
Title:
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FIRST AMENDMENT TO CREDIT AGREEMENT, Page 6
BORROWERS:
EGL, INC.
By: /s/ ELIJIO V. SERRANO
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Elijio V. Serrano, Chief Financial Officer
By: /s/ J. BRADLEY GREEN
-----------------------------------------
J. Bradley Green, Corporate Secretary
ALROD INTERNATIONAL, INC.
By: /s/ ELIJIO V. SERRANO
-----------------------------------------
Elijio V. Serrano, Chief Financial Officer
CIRCLE AIRFREIGHT JAPAN, LTD.
By: /s/ ELIJIO V. SERRANO
-----------------------------------------
Elijio V. Serrano, Chief Financial Officer
CIRCLE OVERSEAS CORP.
By: /s/ ELIJIO V. SERRANO
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Elijio V. Serrano, Chief Financial Officer
CIRCLE INTERNATIONAL GROUP, INC.
By: /s/ ELIJIO V. SERRANO
-----------------------------------------
Elijio V. Serrano, Chief Financial Officer
FIRST AMENDMENT TO CREDIT AGREEMENT, Page 7
CIRCLE INTERNATIONAL HOLDINGS, INC.
By: /s/ ELIJIO V. SERRANO
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Elijio V. Serrano, Chief Financial Officer
CIRCLE INTERNATIONAL, INC.
By: /s/ ELIJIO V. SERRANO
-----------------------------------------
Elijio V. Serrano, Chief Financial Officer
DARRELL J. SEKIN & CO.
By: /s/ ELIJIO V. SERRANO
-----------------------------------------
Elijio V. Serrano, Chief Financial Officer
By: /s/ J. BRADLEY GREEN
-----------------------------------------
J. Bradley Green, Secretary
EAGLE MARITIME SERVICES, INC.
By: /s/ DOUGLAS A. SECKEL
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Douglas A. Seckel, Treasurer
By: /s/ TERRY DERR
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Terry Derr, Secretary
EAGLE PARTNERS L.P.
By: EUSA HOLDINGS, INC.,
its General Partner
By: /s/ J. BRADLEY GREEN
--------------------------------
J. Bradley Green, President
FIRST AMENDMENT TO CREDIT AGREEMENT, Page 8
EAGLE USA IMPORT BROKERS, INC.
By: /s/ J. BRADLEY GREEN
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J. Bradley Green, President
EGL (CANADA) HOLDING COMPANY, INC.
By: /s/ DOUGLAS A. SECKEL
-----------------------------------------
Douglas A. Seckel, Treasurer
EGL DELAWARE LIMITED LIABILITY COMPANY
By: /s/ DOUGLAS A. SECKEL
-----------------------------------------
Douglas A. Seckel, Treasurer
By: /s/ E. JOSEPH BENTO
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E. Joseph Bento, Manager
EGL EAGLE GLOBAL LOGISTICS, LP
By: EGL MANAGEMENT, LLC,
its Sole General Partner
By: /s/ DOUGLAS A. SECKEL
--------------------------------
Douglas A. Seckel, Treasurer
By: /s/ J. BRADLEY GREEN
--------------------------------
J. Bradley Green, Secretary
FIRST AMENDMENT TO CREDIT AGREEMENT, Page 9
EGL MANAGEMENT, LLC
By: /s/ DOUGLAS A. SECKEL
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Douglas A. Seckel, Treasurer
By: /s/ J. BRADLEY GREEN
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J. Bradley Green, Secretary
EUSA HOLDINGS, INC.
By: /s/ J. BRADLEY GREEN
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J. Bradley Green, President
EUSA PARTNERS, INC.
By: /s/ J. BRADLEY GREEN
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J. Bradley Green, President
FIRST AMENDMENT TO CREDIT AGREEMENT, Page 10
HARPER, ROBINSON & CO., INC.
By: /s/ ELIJIO V. SERRANO
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Elijio V. Serrano, Chief Financial Officer
J.R. MICHELS, INCORPORATED
By: /s/ ELIJIO V. SERRANO
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Elijio V. Serrano, Chief Financial Officer
MAX GRUENHUT INTERNATIONAL, INC.
By: /s/ ELIJIO V. SERRANO
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Elijio V. Serrano, Chief Financial Officer
LOAN PARTIES - GUARANTORS:
EGL EAGLE GLOBAL LOGISTICS (CANADA)
CORP.
By: /s/ CHRISTOPHER RALPHS
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Christopher Ralphs, President
FIRST AMENDMENT TO CREDIT AGREEMENT, Page 11