CONSENT AND THIRD AMENDMENT
CONSENT AND THIRD AMENDMENT (this "AMENDMENT"), dated as of __________ __,
2005, among ATLAS FREIGHTER LEASING III, INC., a Delaware corporation (the
"BORROWER"), the lenders from time to time party to the Credit Agreement
referred to below (each a "LENDER" and, collectively, the "LENDERS"), and
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent for the Lenders
(in such capacity, the "ADMINISTRATIVE AGENT"). Unless otherwise defined herein,
all capitalized terms used herein and defined in the Credit Agreement referred
to below are used herein as therein defined.
W I T N E S S E T H :
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WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties
to that certain Amended and Restated Credit Agreement, dated as of July 27, 2004
(as amended, supplemented and/or otherwise modified from time to time, the
"CREDIT AGREEMENT"); and
WHEREAS, the Borrower has requested that the Lenders amend certain provisions
of the Credit Agreement and enter into certain consents in respect of the Credit
Agreement and each of the Leases (as defined in EXHIBIT A hereto);
NOW, THEREFORE, it is agreed;
A. AMENDMENT TO THE CREDIT AGREEMENT
1. Section 5.1 of the Credit Agreement is hereby amended by (x) deleting
clauses (ii) and (iii) in their entirety and inserting the following new clauses
(ii) and (iii) in lieu thereof:
"(ii) [Intentionally Omitted.];
(iii) [Intentionally Omitted.];"
and (y) deleting the clause "together with each delivery of financial statements
of the Borrower pursuant to subdivisions (ii) and (iii) above" appearing at the
beginning of clause (iv) of said Section and inserting the text "no later than
45 days after the end of each fiscal quarter (other than the last fiscal quarter
in a fiscal year) and 90 days (or 180 days in the case of the fiscal year ending
December 31, 2005) after the end of each fiscal year" in lieu thereof.
B. CONSENT
1. The Lenders hereby consent to amend the Leases as provided in the
amendment to the Leases attached hereto as EXHIBIT A.
C. MISCELLANEOUS PROVISIONS
1. In order to induce the Lenders to enter into this Amendment, the Borrower
hereby represents and warrants to each of the Lenders that (i) all of the
representations and warranties contained in the Credit Agreement and in the
other Loan Documents are true and correct in all material respects on and as of
the Third Amendment Effective Date (as defined below), both before and after
giving effect to this Amendment (unless such representations and warranties
relate to a specific earlier date, in which case such representations and
warranties shall be true and correct as of such earlier date), and (ii) there
exists no Potential Event of Default or Event of Default on the Third Amendment
Effective Date, both before and after giving effect to this Amendment.
2. This Amendment is limited as specified and shall not constitute an
amendment, modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Loan Document.
3. This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument. A complete set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
5. This Amendment, including the consent hereunder, shall become effective on
the date (the "THIRD AMENDMENT EFFECTIVE DATE") when each of the following
conditions shall have been satisfied:
(i) the Borrower and the Requisite Lenders shall have signed a counterpart
hereof (whether the same or different counterparts) and shall have delivered
(including by way of telecopier) the same to each of the Administrative Agent
and the Borrower (telecopier no.: (000) 000-0000, attention: Xxxxxxx
Xxxxxxxx);
(ii) corresponding amendments and/or consents to the Atlas Fifth Amended
and Restated Credit Facility shall have become effective; and
(iii) the Borrower shall have paid to the Administrative Agent and the
Lenders all fees, costs and expenses (including, without limitation,
reasonable legal fees and expenses) payable to the Administrative Agent and
the Lenders in connection with this Amendment.
6. The Borrower hereby covenants and agrees, so long as the Third Amendment
Effective Date occurs, to pay to each Lender which has executed and delivered to
the Borrower (or its nominee) a counterpart hereof, at or before such time as
executed counterparts hereof have been delivered to the Borrower (or its
nominee) by the Requisite Lenders, a non-refundable cash amendment fee equal to
____% of the aggregate outstanding principal amount of such Lender's Loans
(determined immediately prior to the Third Amendment Effective Date), which fee
shall
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not be subject to counterclaim or set-off for, or be otherwise affected by, any
claim or dispute relating to any other matter and shall be paid by the Borrower
to the Administrative Agent for distribution to the Lenders on the Business Day
following such delivery by the Requisite Lenders.
7. From and after the Third Amendment Effective Date, all references in the
Credit Agreement and in the other Loan Documents to the Credit Agreement shall
be deemed to be referenced to the Credit Agreement as modified hereby. * * *
* * *
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed and delivered as of the date first above written.
ATLAS FREIGHTER LEASING III, INC.
By:
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Name:
Title:
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DEUTSCHE BANK TRUST COMPANY
AMERICAS, Individually and as
Administrative Agent
By:
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Name:
Title:
By:
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Name:
Title:
0
XXXXXXX 0000000 x0 (0X)
NAME OF LENDER:
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By:
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Name:
Title:
[Signature Page to the Third Amendment and Consent
to the Amended and Restated Credit Agreement]
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