EXHIBIT 10.49
[November Revolver]
Execution Version
AMENDMENT NO. 1 TO REVOLVING CREDIT AGREEMENT
ThisAMENDMENT NO. 1 TO REVOLVING CREDIT AGREEMENT, dated as of March 28, 2013 (this “Amendment No. 1”), is by and among VORNADO REALTY L.P., a limited partnership organized and existing under the laws of the State of Delaware (“Borrower”), JPMORGAN CHASE BANK, N.A., as agent for the Banks defined below (in such capacity, together with its successors in such capacity, “Administrative Agent”), JPMORGAN CHASE BANK, N.A., in its individual capacity and not as Administrative Agent, and the other lenders signatory hereto (said lenders signatory hereto, each a “Bank” and collectively, the “Banks”). Reference is made to that certain Revolving Credit Agreement, dated as of November 7, 2011, by and among the Borrower, the Banks referenced therein and the Administrative Agent (such agreement, the“Credit Agreement”). Capitalized terms used herein without definition shall have the same meanings as set forth in the Credit Agreement, as amended hereby.
RECITALS
WHEREAS, the Borrower has requested that the Banks make certain amendments to the Credit Agreement, and the Banks are willing to make such changes as set forth herein;
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO CREDIT Agreement. As of the Amendment Effective Date (as defined in Section 3 hereof), the Credit Agreement is hereby amended as follows:
(i) The definition of “Capitalization Value” set forth in Section 1.01 of the Credit Agreement is amended by deleting both references therein to the percentage “6.50%” (in approximately the sixth and fourteenth lines thereof) and substituting the percentage “6.0%” in place thereof.
(ii) The definition of “Capitalization Value of Unencumbered Assets” set forth in Section 1.01 of the Credit Agreement is amended by deleting both references therein to the percentage “6.50%” (in approximately the seventh and thirteenth lines thereof) and substituting the percentage “6.0%” in place thereof.
(iii) The definition of “Cash or Cash Equivalents” set forth in Section 1.01 of the Credit Agreement is amended by deleting the words “having a rating of at least AA or the equivalent” in clause (e) of such definition and substituting the words “having a rating of at least A or the equivalent” in place thereof.
(iv) The definition of “Equity Value” set forth in Section 1.01 of the Credit Agreement is deleted in its entirety.
(v) The definition of “Qualified Institution” set forth in Section 1.01 of the Credit Agreement is amended by inserting the word “reasonably” before the words “acceptable to the Administrative Agent” (in approximately the fourth line thereof).
(vi) Section 8.01 of the Credit Agreement is deleted in its entirety and the following is substituted in place thereof:
“SECTION 8.01 [Reserved].”
(vii) Paragraph (7) of Section 9.01 of the Credit Agreement is amended by inserting the following at the end of such paragraph (7) immediately after the words “Twenty Million Dollars ($20,000,000)”:
“and such event or condition is unremedied, or such tax, penalty or other liability is not reserved against or the payment thereof otherwise secured to the reasonable satisfaction of the Administrative Agent, for a period of forty-five (45) consecutive days after notice from the Administrative Agent;”
(viii) Section 12.21 of the Credit Agreement is amended by restating the first sentence thereof to read as follows:
“From time to time, on not less than five (5) Banking Days’ notice, the Borrower may request proceeds of the Loans be used to refinance or acquire properties secured by certain secured mortgage Debt of the Borrower and/or its Subsidiaries, in which event, a portion of the Loans equal to the amount of the advances made hereunder in connection with such refinancing or acquisition, at the Borrower’s election, may be secured by an amended and restated mortgage on the property securing the mortgage Debt to be so refinanced or acquired (a “Refinancing Mortgage”) and evidenced by a mortgage note executed by Borrower and/or one or more Subsidiaries (provided that if Borrower shall not execute such mortgage note, the Borrower shall execute a guaranty of such mortgage note), as more particularly set forth in Section 2.09.”
(ix) Schedule 2A to the Credit Agreement is amended by inserting the following new investment at the end of such Schedule 2A:
| State of Organization | Percentage of Ownership | Asset owned (other than VRLP units) |
| | | |
Vornado Investments Corporation | Delaware | 100.00% | Shares in Capital Trust Inc. and Saks Inc. |
(x) Schedule 3 to the Credit Agreement is deleted in its entirety and Schedule 3 to this Amendment No. 1 is substituted in place thereof.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE BORROWER
In order to induce the Banks and Administrative Agent to enter into this Amendment No. 1, the Borrower represents and warrants to each Bank and Administrative Agent that the following statements are true, correct and complete:
(i) The execution, delivery and performance by the Borrower of this Amendment No. 1 and the Credit Agreement as amended by this Amendment No. 1 (the “Amended Credit Agreement”, and together with this Amendment No. 1, collectively, the “Amendment Documents”) are within its partnership authority, have been duly authorized by all requisite action, and are not in conflict with the terms of any organizational instruments of such entity, or any instrument or agreement to which Borrower or General Partner is a party or by which Borrower, General Partner or any of their respective assets may be bound or affected;
(ii) The officers of General Partner executing this Amendment No. 1 on behalf of Borrower hereunder have been duly elected or appointed and were fully authorized to execute the same at the time the same was executed;
(iii) The execution and delivery of, and the performance of the obligations required to be performed by Borrower under, this Amendment No. 1 and the other Amendment Document do not and will not (a) violate any provision of, or, except for those which have been made or obtained, require any filing (other than SEC disclosure filings), registration, consent or approval under, any Law (including, without limitation, Regulation U), order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to it, except for such violations, or filings, registrations, consents and approvals which if not done or obtained would not likely cause a Material Adverse Change to occur, (b) result in a breach of or constitute a default under or require any consent under any indenture or loan or credit agreement or any other agreement, lease or instrument to which it may be a party or by which it or its properties may be bound or affected except for consents which have been obtained or which if not obtained are not likely to cause a Material Adverse Change to occur, (c) result in, or require, the creation or imposition of any Lien, upon or with respect to any of its properties now owned or hereafter acquired which would likely cause a Material Adverse Change to occur, or (d) cause it to be in default under any such Law, order, writ, judgment, injunction, decree, determination or award or any such indenture, agreement, lease or instrument which would likely cause a Material Adverse Change to occur; to the best of its knowledge, Borrower is in compliance with all Laws applicable to it and its properties where the failure to be in compliance would cause a Material Adverse Change to occur;
(iv) Each of this Amendment No. 1 and the other Amendment Document is a legal, valid and binding obligation of Borrower, enforceable in accordance with its terms, except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency and other similar laws affecting creditors’ rights generally, as well as general principles of equity;
(v) This Amendment No. 1 has been duly executed and delivered by the Borrower;
(vi) The representations and warranties of the Borrower contained in Article V of the Credit Agreement are and will be true and correct in all material respects on and as of the Amendment Effective Date to the same extent as though made on and as of such dates (except in those cases where such representation or warranty expressly relates to an earlier date, in which case such representations and warranties were true and correct as of such date, and except for changes in factual circumstances permitted hereunder), provided that Section 5.20 of the Credit
Agreement is qualified insofar as the Borrower will be required to file this Amendment No. 1 in connection with its compliance with its periodic reporting obligations; and
(vii) No Default or Event of Default has occurred and is continuing.
SECTION 3. CONDITIONS TO EFFECTIVENESS
Except as set forth below, Section 1 of this Amendment No. 1 shall become effective only upon the satisfaction of the following conditions precedent (the “Amendment Effective Date”):
A. The Borrower, the Administrative Agent, and the Required Banks under the Credit Agreement shall have indicated their consent hereto by the execution and delivery of the signature pages hereof to the Administrative Agent.
B. The Administrative Agent shall have received all reasonable out-of-pocket costs and expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel for which the Borrower agrees it is responsible pursuant to Section 12.04 of the Credit Agreement), incurred in connection with this Amendment No. 1.
C. Upon satisfaction of the foregoing conditions, the Administrative Agent shall deliver written notice to the Borrower and the Banks of the Amendment Effective Date.
SECTION 4. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and the Other Loan Documents.
(i) On and after the effective date of this Amendment No. 1, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Credit Agreement and each reference in the other Loan Documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Amended Credit Agreement. This Amendment No. 1 shall be deemed to be a “Loan Document” under the Credit Agreement.
(ii) Except as specifically amended by this Amendment No. 1, the Credit Agreement and the other Loan Documents shall remain in full force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment No. 1 shall not, except as expressly provided herein, constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of the Administrative Agent or any Bank under the Credit Agreement or any of the other Loan Documents.
B. Headings. Section and subsection headings in this Amendment No. 1 are included herein for convenience of reference only and shall not constitute a part of this Amendment No. 1 for any other purpose or be given any substantive effect.
C. Applicable Law. THIS AMENDMENT NO. 1 AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
D. Counterparts; Effectiveness. This Amendment No. 1 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 an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. This Amendment No. 1 (other than the provisions of Section 1 hereof, the effectiveness of which is governed by Section 3 hereof) shall become effective upon the execution of a counterpart hereof by the Borrower and the Required Banks. Delivery of an executed counterpart of a signature page to this Amendment No. 1 by telecopy or other electronic means shall be effective as delivery of a manually executed counterpart of this Amendment No. 1.
[Signature Pages to Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
VORNADO REALTY L.P.,
a Delaware limited partnership
By: Vornado Realty Trust,
a Maryland real estate investment trust,
general partner
By: /s/ Alan Rice
Name: Alan Rice
Title: Senior Vice President
JPMORGAN CHASE BANK, N.A., as Administrative Agent and as a Bank
By: /s/ Brendan M. Poe
Name: Brendan M. Poe
Title: Executive Director
BANK OF AMERICA, N.A.
By: /s/ Ronald Odlozil
Name: Ronald Odlozil
Title: Senior Vice President
BARCLAYS BANK PLC
By: /s/ Ronnie Glenn
Name: Ronnie Glenn
Title: Vice President
CITIBANK, N.A.
By: /s/ John C. Rowland
Name: John C. Rowland
Title: Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ George R. Reynolds
Name: George R. Reynolds
Title: Director
By: /s/ James Rolison
Name: James Rolison
Title: Managing Director
GOLDMAN SACHS BANK USA
By: /s/ Mark Walton
Name: Mark Walton
Title: Authorized Signatory
MORGAN STANLEY BANK, N.A.
By: /s/ Michael King
Name: Michael King
Title: Authorized Signatory
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ L. Peter Yetman
Name: L. Peter Yetman
Title: Director
UBS AG, STAMFORD BRANCH
By: /s/ Joselin Fernandes
Name: Joselin Fernandes
Title: Associate Director
By: /s/ David Urban
Name: David Urban
Title: Associate Director
WELLS FARGO BANK, NATIONAL ASSOCIATION
By: /s/ D. Bryan Gregory
Name: D. Bryan Gregory
Title: Director
HSBC BANK USA, NATIONAL ASSOCIATION
By: /s/ Barbara Isaacman
Name: Barbara Isaacman
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Denise Smyth
Name: Denise Smyth
Title: Senior Vice President
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ William Karl
Name: William Karl
Title: General Manager
THE BANK OF NEW YORK MELLON
By: /s/ Carol Murray
Name: Carol Murray
Title: Managing Director
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Dave Heller
Name: Dave Heller
Title: Senior Vice President
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
By: /s/ Mikhail Faybusovich
Name: Mikhail Faybusovich
Title: Director
By: /s/ Tyler R. Smith
Name: Tyler R. Smith
Title: Associate
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH
By: /s/ Charles Stewart
Name: Charles Stewart
Title: Director
COMPASS BANK
By: /s/ S. Kent Gorman
Name: S. Kent Gorman
Title: Senior Vice President
BRANCH BANKING AND TRUST COMPANY
By: /s/ Roger E Searls
Name: Roger E Searls
Title: Senior Vice President
CAPITAL ONE, N.A.
By: /s/ Marlene Schwartz
Name: Marlene Schwartz
Title: Senior Vice President
FIFTH THIRD BANK
By: /s/ Casey Gehrig
Name: Casey Gehrig
Title: Vice President
SCHEDULE 3
General Partner - Debt
None
