Exhibit 10.18H
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THIRD AMENDMENT TO MASTER PARTICIPATION AGREEMENT,
LEASE AGREEMENT AND LOAN AGREEMENT
Dated as of December 20, 2001
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 EGL, Inc.
Corporate Real Estate Program
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THIRD AMENDMENT TO MASTER PARTICIPATION AGREEMENT,
LEASE AGREEMENT AND LOAN AGREEMENT
THIS THIRD AMENDMENT TO MASTER PARTICIPATION AGREEMENT, LEASE AGREEMENT
AND LOAN AGREEMENT (this "Third Amendment"), dated as of December 20, 2001, 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 ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan
Servicing Department, as Lender and assignee of Bank One, Texas, NA, a national
banking association (the "Lender"). 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 Master Participation Agreement, Master Lease
and Development Agreement, and Loan Agreement, dated as of April 3, 1998, among
the Lessor, the Lessee and Bank One, Texas, N.A., as further amended by that
certain Amendment to Participation Agreement, dated as of April 1, 1999, among
the Lessor, the Lessee and Bank One, Texas, N.A., and as further amended by that
certain Second Amendment to Participation Agreement, Lease Agreement and Loan
Agreement dated as of October 20, 2000, among the Lessor, the Lessee and Bank
One, NA (as successor in interest to Bank One, Texas, N.A.) (as so amended and
as otherwise heretofore amended, supplemented and/or modified, the
"Participation Agreement").
W I T N E S S E T H:
WHEREAS, pursuant to the Loan Agreement, the Participation Agreement and
the other Operative Documents, in order to provide funding for the costs
incurred by the Lessor (or by the Lessee on its behalf) for the acquisition of
the Leased Property, the Construction of the Improvements and other Property
Costs, (i) the Lender made Loan Advances in the aggregate principal amount of
$14,812,736.94, of which amount there remains unpaid on the Note the total
principal balance of $14,054,357.19 together with interest thereon from December
2, 2001, and (ii) the Lessor made Contribution Advances from its own equity
resources in the aggregate sum of $709,241.09, which sum is the total amount of
the Contribution now outstanding, together with Contribution Return computed
thereon from December 2, 2001; and
WHEREAS, on and as of September 29, ▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇, 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, contemporaneously with the execution of the Second Amendment, the
Lessee and its wholly owned Subsidiary, EGL Delaware 1, Inc., a Delaware
corporation (the "Merger Sub"), consummated the transactions contemplated by
that certain Agreement and Plan of Merger dated as of July 2, 2000, (the "Merger
Agreement") with Circle International Group,
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Inc., a Delaware corporation ("Circle") pursuant to which, subject to the terms
and conditions thereof, the parties caused the Merger Sub to merge with and into
Circle (the "Circle Merger"), with the result, among other things, that Circle
became a wholly owned Subsidiary of the Lessee; and
WHEREAS, the Lessee has requested that the Lender agree to further modify
certain covenants and provisions in the Participation Agreement and the other
Operative Documents, which the Lender is willing to do on and subject to the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual agreements contained in
this Third Amendment and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION I
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 amended by
deleting subsections (d) and (e) thereof in their entirety and substituting the
following in lieu thereof:
"(d) The Lessee shall be permitted to incur, assume or in any manner
become or be liable in respect of (i) Debt to any one creditor or one
group of creditors pursuant to a single commitment, to lend not to exceed
$100,000,000; provided that such Debt is only to any single creditor or
group of creditors and the amount of such Debt, either individually with
respect to any single creditor in such group of creditors, or in the
aggregate with respect to all such creditors, never exceeds $100,000,000);
and (ii) Debt in the aggregate principal amount of $100,000,000, evidenced
by the 5% convertible subordinated notes, due December 15, 2006, issued by
the Lessee in December, 2001.
(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."
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Section 2.2. 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:
"(ii) Lender Bank One, N. A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: C. ▇▇▇▇▇▇ ▇▇▇▇▇▇, First Vice President
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇"
SECTION 3
AMENDMENT TO LEASE
Section 3.1 Contribution Advances. The parties acknowledge that the unpaid
balance of the Contribution is the principal sum of $709,241.09 together with
Contribution Return computed thereon from and after December 2, 2001. The
parties acknowledge and agree that in addition to the payments of Scheduled Rent
provided for in Exhibit D to the Second Amendment, on the Scheduled Termination
Date (as modified hereby) 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.
SECTION 4
AMENDMENT TO LOAN AGREEMENT
Section 4.1 Loan Balance. The unpaid principal balance of the Loan totals
the sum of $14,054,357.19 as of December 2, 2001. The parties acknowledge and
agree that in addition to the payments of loan payments provided for in Exhibit
E to the Second Amendment, on the Lease Termination Date the entire principal
balance of the Loan, together with any and all accrued and unpaid interest
thereon and any and all other or additional amounts owing to the Lender under,
or in connection with, the Loan Agreement, shall be immediately due and payable
in full by the Lessor.
SECTION 5
MISCELLANEOUS
Section 5.1 Representations and Warranties. Effective as of the date of
this Third Amendment, 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 Third Amendment 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.
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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 Third Amendment shall affect or impair any rights and powers
which 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 Third Amendment.
Section 5.5 Successors and Assigns. This Third Amendment 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 Third Amendment or the Operative
Documents without the prior written consent of the Lender and the Lessor.
Section 5.6 Counterparts. This Third Amendment 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 Third Amendment, (a) the
signature pages taken from the separate individually executed counterparts of
this Third Amendment may be combined to form multiple fully executed
counterparts and (b) a facsimile transmission shall be deemed to be an original
signature for all purposes. All executed counterparts of this Third Amendment
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 Third Amendment 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
be executed by their respective duly authorized officers as of the day and year
first written above.
Witnesses: EGL, INC., a Texas Corporation, as Lessee
_________________________________ By:_________________________________________
Printed Name:____________________ Name:_______________________________________
Title:______________________________________
_________________________________
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:_____________________________________
Printed Name:____________________ Name:___________________________________
Title:__________________________________
_________________________________
Printed Name:____________________
BANK ONE, N.A.,
as Lender
_________________________________ By:_________________________________________
Printed Name:____________________ Name: C. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: First Vice President
_________________________________
Printed Name:____________________
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EXHIBIT A
TO
THIRD AMENDMENT TO MASTER PARTICIPATION AGREEMENT,
LEASE AGREEMENT AND LOAN AGREEMENT
AMENDED DEFINITIONS
"First Amendment to Agreements" or "First Amendment" means that certain
First Amendment to Master Participation Agreement, Master Lease and Development
Agreement, and Loan Agreement, dated as of April 3, 1998, among the Lessor, the
Lessee and Bank One, Texas, N.A..
"Lease" means the Lease Agreement 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, the Second Amendment, and this Third
Amendment, together with all amendments and supplements thereto.
"Operative Documents" means the Participation Agreement, the Lease, the
Note, the Loan Agreement, the Assignments of Lease and Rents, the Notices of
Assignment of Lease and Rents, the Mortgages, the Non-Disturbance and Attornment
Agreements, the First Amendment , the Second Amendment and this Third Amendment,
together with all other or additional amendments and supplements thereto.
"Participation Agreement" means the Participation Agreement as defined in
the heading to this Third Amendment, together with all amendments and
supplements thereto.
"Scheduled Termination Date" means November 15, 2002.
EXHIBIT B
TO
THIRD AMENDMENT TO MASTER PARTICIPATION AGREEMENT,
LEASE AGREEMENT AND LOAN AGREEMENT
NEW DEFINITIONS
"Second Amendment" means that certain Second Amendment to Master
Participation Agreement, Lease Agreement and Loan Agreement among the Lessor,
the Lessee, and the Lender, dated as of October 20, 2000, together with any
amendments or supplements thereto.
"Third Amendment" means that certain Third Amendment to Participation
Agreement, Lease and Development Agreement and Loan Agreement among the Lessor,
the Lessee, and the Lender, dated as of December 20, 2001, together with any
amendments or supplements thereto.