AMENDMENT NO. 1 TO REVOLVING LOAN AGREEMENT
AMENDMENT
NO. 1
TO
AMENDMENT
NO. 1 TO REVOLVING LOAN AGREEMENT (this “Amendment”),
dated
as of August 24, 2007, by and between:
CAPLEASE,
INC. (f/k/a Capital
Lease Funding, Inc.),
a
Maryland corporation and PREFCO
II LIMITED PARTNERSHIP,
a
Connecticut limited partnership (collectively, “Borrower”);
and
WACHOVIA
BANK, NATIONAL ASSOCIATION as
Initial Lender and as Administrative Agent (“Lender”).
PRELIMINARY
STATEMENTS
(A) Borrower
and Lender entered into a certain Revolving Loan Agreement, dated as of July
17,
2007 (“Agreement”);
and
(B) The
Borrower and Lender have agreed to amend certain provisions of the Agreement,
all on the terms and conditions hereinafter set forth.
NOW,
THEREFORE,
in
consideration of the agreements and provisions contained herein, the parties
hereto hereby agree as follows:
ARTICLE
I.
AMENDMENTS
Section
1.1. Definitions.Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed
to
such terms in the Agreement (as amended through the date hereof).
Section
1.2. Certain
Amendments to Revolving Loan Agreement.
The
definition of Revolving Commitment Amount contained in Section 2.01(a) of the
Agreement is hereby amended to mean $30,000,000 instead of $40,000,000, and
all
references to $40,000,000 in the Agreement shall henceforth refer to $30,000,000
in its place and stead.
ARTICLE
II.
REPRESENTATIONS
AND WARRANTIES
In
order
to induce the Lender to enter into this Amendment, the Borrower represents
and
warrants to the Lender that:
Section
2.1. No
Default.
After
giving effect to this Amendment, no Default or Event of Default shall have
occurred or be continuing under the Agreement, or any other agreement between
the parties hereto.
Section
2.2. Existing
Representations and Warranties.
As of
the date hereof and after giving effect to this Amendment, each and every one
of
the representations and warranties set forth in the Agreement (except for such
representations and warranties that were only required to be true and correct
as
of a prior date) are true and correct in all material respects.
Section
2.3. Authority;
Enforceability.
(a) The
execution, delivery and performance by the Borrower of this Amendment are within
its organizational powers and have been duly authorized by all necessary action
on the part of each Borrower, (b) this Amendment is the legal, valid and binding
obligation of the Borrower, enforceable against each Borrower in accordance
with
its respective terms, and (c) this Amendment and the execution, delivery and
performance by the Borrower does not: (i) contravene the terms of any of its
respective organization documents; (ii) conflict with or result in any material
breach or contravention of, or the creation of any Lien under, any document
evidencing any contractual obligation to which it is a party or any order,
injunction, writ or decree to which the Borrower or its respective assets and
properties are subject; or (iii) violate any Requirement of Law.
Section
2.4. Consent.
No
consent, license, permit, approval or authorization of, or registration, filing
or declaration with, any Governmental Authority or other person is required
in
connection with the execution, delivery, performance, validity or enforceability
by or against it of this Amendment.
Section
2.5. Execution.
This
Amendment has been duly executed and delivered by it.
Section
2.6. No
Defenses.
The
Borrower has no defenses, offsets, counterclaims, abatements, rights of
rescission or other claims, legal or equitable, available to the Borrower with
respect to this Amendment, the Agreement, the Loan Documents or any other
instrument, document and/or agreement described herein or therein, as modified
and amended hereby, or with respect to the obligation of the Borrower to repay
all amounts due under the Loan Documents.
ARTICLE
III.
CONDITIONS
PRECEDENT
Section
3.1. Conditions
of Effectiveness.
The
effectiveness of this Amendment shall be subject to the satisfaction of all
of
the following conditions in a manner, form and substance satisfactory to the
Lender:
(a) All
of
the representations and warranties of the Borrower set forth in this Amendment
and in the Agreement, after giving effect to this Amendment shall be true and
correct in all respects, except to the extent such representations and
warranties expressly related to an earlier date, in which case such
representations and warranties shall have been true and correct in all respects
as of such earlier date;
(b) The
execution and delivery of this Amendment by each of the parties
hereto;
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(c) Payment
of all legal fees and expenses of Dechert LLP, as counsel to the Lender, in
the
amount to be set forth on a separate invoice; and
(d) Such
other documents, agreements, certifications or legal opinions as the Lender
may
reasonably require.
ARTICLE
IV.
REFERENCE
TO AND EFFECT UPON THE REVOLVING LOAN AGREEMENT
Section
4.1. Effect.
Except
as specifically set forth herein, the Agreement and the other ancillary
documents entered into in connection therewith (collectively, “Transaction
Documents”)
shall
remain in full force and effect in accordance with their terms and are hereby
ratified and confirmed.
Section
4.2. No
Waiver; References.
The
execution, delivery and effectiveness of this Amendment shall not operate as
a
waiver of any right, power or remedy of the Lender under the Agreement or the
Transaction Documents, nor constitute a waiver of any provision of the Agreement
or the Transaction Documents, except as specifically set forth herein. Upon
the
effectiveness of this Amendment, each reference in:
(i) the
Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of
similar import shall mean and be a reference to the Agreement as amended hereby;
and
(ii) the
other
Transaction Documents to the “Revolving Loan Agreement” shall mean and be a
reference to the Agreement as amended hereby.
Section
4.3. Waiver.
As of
the date hereof, the Borrower hereby waives, releases and discharges Lender
and
its successors, assigns, and past, present and future affiliates, partners,
participants, members, officers, directors, employees, shareholders, attorneys,
and agents from any and all liabilities, duties, responsibilities, obligations,
claims, demands, actions, causes of action, cases, controversies, damages,
costs, losses, and expenses now existing or hereafter arising out of or in
any
way relating to or in connection with, directly or indirectly, the Agreement
or
the Transaction Documents; provided,
that,
neither
Lender nor any of its successors, assigns, and past, present and future
affiliates, partners, participants, members, officers, directors, employees,
shareholders, attorneys, and agents has engaged in any act of gross negligence
or willful misconduct in connection with the Agreement or the Transaction
Documents.
ARTICLE
V.
MISCELLANEOUS.
Section
5.1. Expenses.
The
Borrower agrees to pay the Lender upon demand for all reasonable expenses,
including reasonable attorneys’ fees and expenses of the Lender, incurred by the
Lender in connection with the preparation, negotiation and execution of this
Amendment.
3
Section
5.2. Governing
Law.
THIS
AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section
5.3. Successors.
This
Amendment shall be binding upon the parties hereto and their respective
successors and assigns, and shall inure to the benefit of the parties hereto
and
the successors and assigns of the Lender.
Section
5.4. Assignment.
The
Borrower shall not assign all or any portion of this Amendment, or any rights
or
benefits thereof, to any person or entity without the prior written consent
of
the Lender.
Section
5.5. Execution
in Counterparts.
This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which taken together shall
constitute one and the same Amendment.
Section
5.6. Headings.
The
descriptive headings of the various sections of this Amendment are inserted
for
convenience of reference only any and shall not be deemed to affect the meaning
or construction of any of the provisions hereof.
Section
5.7. No
Modification.
This
Amendment may not be amended or otherwise modified, waived or supplemented
except as provided in the Agreement.
Section
5.8. Final
Agreement.
This
Amendment represents the final agreement among the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral agreements
between the parties. There are no unwritten oral agreements between the
parties.
Remainder
of Page Intentionally Blank.
Signature
Page(s) Follow(s).
4
IN
WITNESS WHEREOF,
the
parties hereto have caused this Amendment to be executed and delivered by their
respective officers thereunto duly authorized as of the date first written
above.
BORROWERS:
CAPLEASE,
INC. (f/k/a
Capital Lease Funding, Inc.)
By:
/s/
Xxxxx X. Seale_______________________
Name:
Xxxxx X. Seale_______________________
Title:
Senior Vice President
PREFCO
II LIMITED PARTNERSHIP
By:PREFCO
II
GP LLC, its sole general partner
By:
/s/
Xxxxx X. Seale_______________________
Name:
Xxxxx X. Seale_______________________
Title:
Senior Vice President
LENDER:
WACHOVIA
BANK, NATIONAL ASSOCIATION
By:
/s/
Xxxx Nelson_______________________
Name:
Xxxx Xxxxxx
Title:
Director
